The Best Defense Is A CDA-Compliant Offense
Over a dissent that evoked the words of President Lincoln out of fear that the basic right of litigants to defend themselves has been infringed, the Federal Circuit majority ruled in M. Maropakis Carpentry, Inc. v. U.S. (June 17, 2010) that it had no jurisdiction over the contractor's defense of excusable delays to the agency's liquidated damages claim because the contractor had not filed a fully compliant CDA "claim" and proceeded to grant summary judgment for the agency without even giving the contractor the chance to fix this jurisdictional "defect." Contractors will now be required, therefore, to consider carefully all anticipated (and currently asserted?) defenses to government claims (e.g., breach or other government actions that might excuse a default termination) to determine whether they must be recast, formalized, and properly submitted under CDA procedures -- with attendant cost and, likely, delay in dispute resolution.
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