Sometimes the disputes that go to the Armed Services Board of Contract Appeals (ABSCA) make you scratch your head. This is one of them.
In the dispute covered in Sterling Design, Inc., ASBCA No. 61099 (2017) there was a Performance Work Statement (PWS) that was part of a contract between the Air Force and Sterling Design, Inc. (SDI). SDI was required to repair a power supply unit for a fixed price of $7,395. The contract gave SDI 30 days from receipt of the power unit to complete the repairs. However, SDI did not complete the repairs until several months after the 30-day period had elapsed.
SDI then filed a claim for $5,925, alleging that the government had delayed SDI’s work. The contracting officer denied the claim, and SDI appealed to the ASBCA.
SDI provide 893 pages of emails sent to governmental officials. SDI’s argument was that the emails represented their attempts at getting necessary contractual information and the government delayed the contract either by (1) failing to respond to these emails or (2) by responding late.
So what’s the problem, you say? If SDI needed the info and the government didn’t provided it or provided it late, then the government caused the late delivery.
There’s only one tiny problem with that. All the information SDI asked for in their emails was in the PWS. SDI stated at different time that they (1) didn’t have the PWS or (2) didn’t have a complete copy. However, the Air Force provided ASBCA with evidence that it had transmitted the entire PWS to SDI before the 30-day performance period began.
ASBCA wrote “[w]hile it appears that Air Force contracting officials could have responded to [SDI’s owners’] inquiries more quickly, most or all of his questions would have been answered if he had simply read the PWS.” The ASBCA denied the appeal, holding “SDI has failed to prove that the government delayed the contract.”
I’m not even sure how to come up with a bottom line for this one. Clearly, the PWS (or SOW or SOO) are integral to the performance of the contract. Contractors need to read the requirement. While it probably would have behooved the CO to just send them another copy of the PWS (that’s what I would have done) and not kept ignoring them, it’s still the responsibility of the contractor to understand the requirements and not keep asking about them AFTER award.