Government Reliance on Waiver Argument to Keep Price Adjustment Windfall Fails
This article discusses a recent opinion by the U.S. Court of Appeals for the Federal Circuit that articulated limits to the government’s ability to rely on the waiver doctrine to enforce Federal Acquisition Regulation provisions of questionable legality.
The U.S. Court of Appeals for the Federal Circuit recently articulated limits to the government’s ability to rely on the waiver doctrine to enforce Federal Acquisition Regulation (“FAR”) provisions of questionable legality, and, in so doing, cast doubt on the government’s “heads we win, tails you lose” approach to measuring the cost impact of simultaneous changes to a contractor’s cost accounting practices.
In The Boeing Company v. United States, the Federal Circuit rejected the government’s argument that Boeing’s claim—which was based on an apparent conflict between (1) a statutory provision limiting the costs the government may recover for cost accounting practice changes to the aggregate increased cost to the government, and (2) a FAR provision under which the government’s recovery considers only the changes that increase costs to the government, and disregards changes that decrease costs to the government—was waived because Boeing did not raise the issue prior to contract award.
To read the full article, please click here.
“Government Reliance on Waiver Argument to Keep Price Adjustment Windfall Fails,” by Scott Arnold was published in the November 2020 edition of Pratt’s Government Contracting Law Report (Vol. 6, No. 11), an A.S. Pratt Publication, LexisNexis. Reprinted with permission.
This article was first published in Blank Rome’s Government Contracts Navigator blog in August 2020.