top of page

Proving (and not proving) Your Claim with Certainty

Writer's picture: R.D. Lieberman,ConsultantR.D. Lieberman,Consultant

Updated: Aug 18, 2021

It is well-recognized that a party (either government or contractor) that seeks recovery of its incurred costs has “the burden of proving the amount…with sufficient certainty so that the determination of the amount…will be more than mere speculation.” Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987). What happens when you engage experts to price your claim and they submit 5 different amounts and conflicting methodologies? You guessed it—the Board denies your claim. See SRM Group, Inc. v. Dept of Homeland Security, CBCA 5194, 5938, March 11, 2021.


SRM filed a claim when the Department of Homeland Security first deleted two buildings from a housing management contract it was performing, and later added the two buildings back into the scope of work. SRM, of course, was entitled to an equitable adjustment for the reinstatement of the buildings.


SRM initially requested $2,644,968 first in an equitable adjustment request, and then in a claim. Only $1,128,687 was allowed by the contracting officer. SRM then appealed to the Board. Ultimately, the contracting officer adjusted this to $1,509,836. However, SRM pursued its claim at the Board for higher amounts.


Then followed negotiations, and the presentation by SRM of five reports by two different experts, as follows, identifying the “correct amount” of the claim:


Report 1: $5,682,501

Report 2: $4,007,650

Report 3: $3,915,825

Report 4: $2,261,676

Report 5: $3,359,075


The government’s expert examined the five reports, and testified to inconsistencies, lack of adequate support, and failure to comply with the FAR requirements.


The Board identified the sole issue as whether SRM had sufficiently established the costs claimed and their connection with the changes ordered. The Board noted that the burden of proof was on SRM. The Board held that “the fact that SRM provided five different expert reports, each containing different methods and figures, and provided no explanation for the differences, does not meet the burden of proof.” The Board found that the methodologies in the reports were contradictory and imprecise. The Board concurred in the government expert’s evaluation, and concluded that SRM had not met its burden to prove quantum. The Board refused to provide anything beyond what the agency had already paid ($1,509,836).


Takeaway. The contractor has the burden to prove quantum for its claim. Similarly, when the government makes a claim (such as defective pricing or excess cost of reprocurement), the government has the burden to prove its quantum. While using experts is commendable, if multiple experts are used it is essential to explain why the reports reach different conclusions or use different methodologies.




For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.


5 views0 comments

Recent Posts

See All

Comentarios


The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

Copyright © 2024 Richard D. Lieberman

bottom of page