Search

The Contract Appeals Process in the United States


I. What is a “Contract Appeal”?


A “contract appeal” is essentially an appeal of a contracting officer’s final decision on a claim submitted by a contractor to the contracting agency. The Contract Disputes Act (CDA) establishes the right of a contractor to appeal a contracting officer’s final decision to the appropriate agency board of contract appeals or the United States Court of Federal Claims.[1]


A. Appeal Prerequisites


1. Certified Claim


Before filing an appeal, a contractor must first submit a certified claim to the contracting officer for decision. A “claim” is “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to a contract.”[2] Any claim that exceeds $100,000 must be certified by the contractor before it is submitted to the contracting officer.[3] The purpose of requiring contractors to certify their claims is to discourage the submission of frivolous or fraudulent claims.[4]


2. Final Decision or Deemed Denial


The contracting officer must issue a written final decision on all claims[5]. The final decision has to be in proper Format[6]. In addition, the final decision must:

i. Describe the claim or dispute;

ii. Refer to the pertinent or disputed contract terms;

iii. State the disputed and undisputed facts;

iv. State the decision and explain the contracting officer’s rationale;

v. Advise the contractor of its appeal rights; and

vi. Demand the repayment of any indebtedness to the government.


Time Limits. A contracting officer must issue a final decision on a contractor’s claim within the following statutory time limits[7]:

i. Claims of $100,000 or less. The contracting officer must issue a final decision within 60 days.

ii. Certified Claims Exceeding $100,000. The contracting officer must take one of the following actions within 60 days:

a. Issue a final decision; or

b. Notify the contractor of a firm date by which the contracting officer will issue a final decision.[8].


Failure to issue Final Decision by the Contracting Officer within the statutory time limits shall be “Deemed Denial”, which is appealable.[9]


B. Immediate Appealable Actions


1. Terminations for Default (burden is on government).

A contracting officer’s decision to terminate a contract for default is an immediately appealable government claim.[10] It is the government’s burden to prove, by a preponderance of the evidence, that the termination for default was proper.[11]


2. Withholding of funds.

A contracting officer’s decision to withhold monies otherwise due the contractor through a set off is an immediately appealable government claim.[12] It is the government’s burden to prove, by a preponderance of the evidence, that the withholding of funds was proper.



3. Recommended disallowance of costs on DCAA Form 1.

A contracting officer’s decision regarding the allowability of costs under the CAS is often an immediately appealable government claim.[13]



II. Choosing the Forum


The CDA provides two basic options for appealing an adverse contracting officer’s final decision on a contract claim. One option is to file a suit appealing the contracting officer’s final decision in the U.S. Court of Federal Claims. Another option is to file an appeal with the appropriate agency board of contract appeals. The contractor has the exclusive right to choose the forum. However, once an appeal has been filed in one of the forums, this decision is normally binding and a contractor may not pursue and appeal in another forum.[14] It is therefore important to carefully consider which forum will be most advantageous before filing an appeal.


A. Description of COFC and Boards


1. U.S. Court of Federal Claims

The United States Court of Federal Claims is a court of record with national jurisdiction. The United States Court of Federal Claims was recreated in October 1982 by the Federal Courts Improvement Act pursuant to Article 1 of the United States Constitution. The court consists of sixteen judges nominated by the President and confirmed by the Senate for a term of fifteen years[15].

a. Over a third of the court’s workload concerns contract claims.

b. The President appoints COFC judges for a 15-year term with the advice and consent of the Senate.

c. The President can reappoint a judge after the initial 15-year term expires.

d. The Federal Circuit can remove a judge for incompetency, misconduct, neglect of duty, engaging in the practice of law, or physical or mental disability.

e. The Rules of the United States Court of Federal Claims (RCFC) appear in an appendix to Title 28 of the United States Code.


2. Armed Services Board of Contract Appeals

The primary function of Armed Services Board of Contract Appeals is to hear and decide post-award contract disputes between government contractors and the Department of Defense; the National Aeronautics and Space Administration; the Central Intelligence Agency, as appropriate; and other entities with whom the ASBCA has entered into agreements to provide services. The ASBCA functions under the Contract Disputes Act (41 U.S.C. §§ 7101-7109), its Charter, or other remedy-granting provisions. The majority of matters on the ASBCA's docket involve appeals by contractors from government contracting officers' final decisions or failures to issue decisions.

A contractor may appeal a contracting officer’s final decision to an agency BCA.[16]

a. The ASBCA consists of 25-30 administrative judges who dispose of approximately 800-900 appeals per year.

b. ASBCA judges specialize in contract disputes and come from both the government and private sectors. Each judge has at least five years of experience working in the field of government contract law.

c. The Rules of the Armed Services Board of Contract Appeals appear in Appendix A of the DFARS.


3. Civilian Board of Contract Appeals

The Civilian Board of Contract Appeals (CBCA) is an independent tribunal housed within the General Services Administration. The CBCA presides over various disputes involving Federal executive branch agencies. Its primary responsibility is to resolve contract disputes between government contractors and agencies under the Contract Disputes Act. The CBCA encourages the use of alternative dispute resolution (ADR) in all appropriate cases.


4. Other Federal Forums (PSBCA, GAO CAB, TVABCA) (This chapter focuses on COFC, ASBCA and CBCA, but practice is similar to CBCA)

i. PSBCA: The Postal Service Board of Contract Appeals (PSBCA) is a neutral, independent tribunal with the authority to hear and decide any appeal from a decision of a contracting officer of the United States Postal Service (USPS) or the Postal Regulatory Commission related to a contract with either agency.[17] The PSBCA is within the USPS Judicial Officer Department, with the Judicial Officer also serving as the PSBCA Chairman.[18] The PSBCA’s jurisdiction over contract disputes parallels that of the United States Court of Federal Claims with the contractor generally having the option of filing an appeal with either the PSBCA or the court.

The PSBCA, including its predecessor, the Post Office Department Board of Contract Appeals (PODBCA), has been in existence since at least 1959.[19] However, amendments to the Contract Disputes Act of 1978,[20] effective in January 2007, expressly established a Postal Service Board of Contract Appeals and specified its jurisdiction.[21]

ii. GAOCAB: Government Accountability Office Contract Appeals Board considers appeals of decisions by contracting officers in legislative branch agencies only, including the Architect of the Capitol, the Congressional Budget Office, and the Government Publishing Office, among others.

And there are various other Federal Contract Appeal Boards such as TVABCA, however, there constitution and functioning are similar to Civilian Board of Contract Appeals.




B. Election Doctrine

Under the “Election Doctrine,” the CDA precludes a contractor from pursuing its claim before both the Civilian Board and the Court of Federal Claims. Consequently, once you file an action before the Civilian Board, that selection is ordinarily binding, and you may not have that action dismissed and then proceed in the Court of Federal Claims.[22]


C. Practical Considerations for Boards and Courts


1. Boards of Contract Appeals



a. Advantages

1. Informality and Expense (Pleading, Discovery, Motions Practice, Hearing etc.).:

The basic mission of the board of Contract Appeals is to provide “to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes” arising from Government Contracts.[23] There is not much rules to be adhered in terms of Pleading, Discovery, Motions Practice etc.


2. No formal rules of evidence: The Board of Contract Appeals uses the Federal Rules of Evidence only as guidelines, and are not bound by it.[24]


3. Fraud counterclaim and Special Plea in Fraud cannot be asserted by the Government at a board, as they are outside the jurisdiction of the boards.: The Board’s jurisdiction over Government fraud Counterclaims is limited. The Boards do not have the authority to grant the government monetary relief or statutory remedies based upon a government claim of fraud. The boards also do not have jusrisdiction to render final determinations as to the commission of fraud by a contractor.[25]


4. ADR


a). Arbitration with the Army and the Air Force is only available at the ASBCA. The Navy has a formal policy authorizing arbitration in court as well. The Board’s use of ADR results in part from the Administrative Disputes Resolution Act of 1990 (ADR Act),[26] which requires Federal Agencies to develop policies addressing the use of ADR in rule making, enforcement actions, contract administrations, and litigation, the ADR Act’s authority for agencies to engage in ADR expires on October 1, 1995[27]. The ADR Act amends the CDA by allowing Cos and Contractors to use any ADR procedure set forth in the Act or other mutually agreeable procedures to resolve a Claim that has been certified by the contractor.[28]


b). ADR using a board judge is free. In certain circumstances, board judges can offer pre-litigation ADR services even before a claim is asserted or an appeal is filed.


b. Disadvantages

1. Speed/efficiency (ASBCA): Although the Board’s rules are not nearly as detailed as those of the court of Federal Claims as in the Court the efficiency with which a case is handled by a board is more a function of the presiding judge than of the rules. The ASBCA has stated its intentions to schedule Pretrial proceedings so as to achieve more efficient processing of cases. While it intends to “continue to seek the cooperation of the parties in establishing reasonable schedules, the board also intends to unilaterally establish schedules where the parties failed to respond to requests for proposed scheduled dates”[29]


2. More limited jurisdiction.: The Board’s jurisdiction over Government fraud, Counterclaim, is more limited. The CDA does “not authorize any agency head to settle, compromise, pay, or otherwise adjust any [government Contracts] Claim involving Fraud”[30]. The Boards do not have the authority to grant the government monetary relief or statutory remedies based upon a government claim of fraud. The boards also do not have jurisdiction to render final determinations as to the commission of fraud by a contractor.[31]


3. Short time period to file notice of appeal.: Your choice between the Court of Federal Claims or a board as the forum for contesting an adverse CO's final decision may be dictated from the outset by the substantially different time limits for bringing an action in the two forums. A contractor has either (a) 90 days from the “date of receipt” of the CO's final decision to file a simple notice of appeal to the appropriate board (and, then, ordinarily 30 days from its receipt of the notice of docketing of the appeal to file its complaint at the board),[32] or (b) 12 months from the “date of receipt” of the final decision to file suit (i.e., a formal complaint) in the Court of Federal Claims.[33] In cases where the contractor will need a substantial amount of time to factually develop its complaint, or where it would like to delay the incurrence of the costs associated with generating a complaint, the Court of Federal Claims may be the better choice.


2. Court of Federal Claims


a. Advantages

1. Longer time period to file complaint.: Your choice between the Court of Federal Claims or a board as the forum for contesting an adverse CO's final decision may be dictated from the outset by the substantially different time limits for bringing an action in the two forums. A contractor has either (a) 90 days from the “date of receipt” of the CO's final decision to file a simple notice of appeal to the appropriate board (and, then, ordinarily 30 days from its receipt of the notice of docketing of the appeal to file its complaint at the board),[34] or (b) 12 months from the “date of receipt” of the final decision to file suit (i.e., a formal complaint) in the Court of Federal Claims.[35] In cases where the contractor will need a substantial amount of time to factually develop its complaint, or where it would like to delay the incurrence of the costs associated with generating a complaint, the Court of Federal Claims may be the better choice.


2. Formal rules of procedure and evidence may be of benefit to contractors in certain types of cases, especially when the suppression of government evidence is necessary. The strict adherence of federal rules of procedures ensure a certain level of fairness to the litigants.


b. Disadvantages vs. BCAs


1. The Special Plea in Fraud statute and fraud counterclaims.


3. Discussion of impact if contractor has a claim at ASBCA and the files at the COFC.

The Court of Federal Claims and each board have their own rules of procedure. In comparison with the rules of the boards, those of the court are more detailed and formalized. The Rules of the Court of Federal Claims (RCFC) are modeled after the Federal Rules of Civil Procedure, which govern proceedings before the U.S. district courts.[36] Both the court and the boards encourage and support the use of alternative dispute resolution methods. 202 The use of ADR at both forums is voluntary, and there is relatively little difference between them in this area. However, you should be aware that some boards, unlike the court, may actively aid in ADR efforts even before the issuance of a final decision by the CO. (For example, the GSBCA offers to provide, on a cost reimbursable basis, ADR services on any federal agency contract-related matter, whether arising before contract award or during contract performance.[37]

If your claim is for $100,000 or less, you may wish to initiate your action before a board under the special accelerated or expedited procedures. The boards have more experience and more specialized procedures for deciding these cases on an accelerated or expedited basis and will most likely be a less expensive *23 forum for bringing accelerated or expedited actions.


III. Boards of Contract Appeals


A. Jurisdiction

1. CDA Jurisdiction: The Right to Appeal ensues from the 41 U.S.C. § 7104(a) under which a contractor may appeal a contracting officer’s final decision to an agency BCA.

2. Non-CDA/Consent Jurisdiction (NO APPEALS TO CAFC!): Where the Jurisdiction on the BCA is the result of an agreement between the parties then no appeal shall lie to the CAFC.


B. Initiating the Action – Notice of Appeal


1. Contents.

a. The NOA must be in writing[38];

b. Express dissatisfaction with the contracting officer’s decision;

c. Manifest an intent to appeal the decision to a higher authority.[39]

d. Identify the contract, the department or agency involved in the dispute, the decision from which the contractor is appealing, and the amount in dispute; and

e. Be signed by the contractor taking the appeal or the contractor’s duly authorized representative or attorney


2. Timing. Time limit is jurisdictional in nature. (Verify based on Sikorsky case. See Chapter 2, Page 9, ¶ 2) A contractor must file an appeal with a BCA within 90 days of the date it received the contracting officer’s final decision.[40]


3. Pro se representation of business entities permitted.


**Advocacy Tip: Consider filing complaint with notice of appeal to speed process **



C. Small Claims and Accelerated Procedures.


1. Small Claims:

a. If the amount in dispute is $50,000 or less or where the business (as defined in the Small Business Act and regulations under that Act), $150,000 or less, the contractor may choose to proceed under the board’s expedited procedures.

b. The board renders its decision, whenever possible, within 120 days from the date it receives the contractor’s election; therefore, the board uses very streamlined procedures (e.g., accelerated pleadings, extremely limited discovery, etc.).

c. The presiding judge decides the appeal. a. Written decisions contain only summary finds of fact and conclusions. b. The presiding judge may issue an oral decision from the bench and follow-up with a memorandum to formalize the decision.

d. Neither party may appeal the decision, and the decision has no precedential value.[41]


2. Accelerated Procedures:

a. If the amount in dispute is $100,000 or less, the contractor may choose to proceed under the board’s accelerated procedures.

b. The board renders its decision, whenever possible, within 180 days from the date it receives the contractor’s election; therefore, the board encourages the parties to limit (or waive) pleadings, discovery, and briefs.

c. The presiding judge normally issues the decision with the concurrence of a vice chairman. If these two individuals disagree, the chairman will cast the deciding vote.

i. Written decisions normally contain only summary findings of fact and conclusions.

ii. If the parties agree, the presiding judge may issue an oral decision at the hearing and follow-up with a memorandum to formalize the decision.

d. Either party may appeal to the CAFC within 120 days of the date it receives the decision.


3. No Appeal Available – judgment is final: In case of Small Claims there is no provision of appeal available to either of the parties and the decision shall be final.


D. ADR.


1. Discuss pre-dispute ADR.: If the claim by the Contractor is submitted to the Contracting Officer or a claim by the Government is presented to the Contractor, the parties, by mutual consent, may agree to use alternative dispute resolution (ADR). If the Contractor refuses an offer for ADR, the Contractor shall inform the Contracting Officer, in writing, of the Contractor’s specific reasons for rejecting the offer.


2. General – judges highly encourage ADR at every step of the process.: The boards' use of ADR results in part from the Administrative Dispute Resolution Act of 1990 (ADR Act),[42] which requires federal agencies to develop policies addressing the use of ADR in rulemaking, enforcement actions, contract administration, and litigation. The ADR Act's authority for agencies to engage in ADR expires on October 1, 1995.[43] The ADR Act amends the CDA by allowing COs and contractors to use any ADR procedure set forth in the Act or other mutually agreeable procedures to resolve a claim that has been certified by the contractor.[44] Under the ADR Act's arbitration procedures, an arbitration becomes binding 30 days after the award unless vacated by the agency head. A contractor may recover the cost of the vacated arbitration unless special circumstances would make that payment unjust.[45] The ADR Act also provides for the use of “neutrals” to aid in settlement negotiations, conciliation, facilitation, mediation, fact-finding, minitrials, or any combination of these ADR methods.[46]


3. Mediation.: The judges are available to participate in any mediation between the parties.


4. Summary trial with binding decision. The Air Force and the Army can only arbitrate before the ASBCA using this method. The Navy (and by extension the Marine Corps) has implemented regulations allowing binding arbitration either before the ASBCA or using private neutrals.


E. Appeal Period.: Either party may appeal to the Court of Appeals for the Federal Circuit (CAFC) within 120 days of the date it receives the board’s decision; however, the government needs the consent of the U.S. Attorney General. 41 U.S.C. § 7107(a)(1)(B)[47]



IV. U.S. Court of Federal Claims.


A. Jurisdiction

1. Tucker Act (CDA qualifies as a money mandating statute.)- For non-CDA claim appeals, COFC may be only forum. Under The Tucker Act[48] the COFC has jurisdiction to decide claims against the United States based on:

a. The Constitution;

b. An act of Congress;

c. An executive regulation;

d. An express or implied-in-fact contract.


2. The Contract Disputes Act: The Court has jurisdiction to decide appeals from contracting officers’ final decisions.[49]


3. Little Tucker Act: Contract actions not governed by the CDA that are for $10,000 or less generally may be filed in either the Court of Federal Claims or the appropriate U.S. district court.[50] Under “little Tucker Act” it must be noted that (a) such cases are filed on a relatively infrequent basis in the district courts, (b) to maintain uniformity in Government contracts law, the Court of Appeals for the Federal Circuit has jurisdiction over appeals from such district court decisions, and (c) a district court, when exercising jurisdiction in this situation, “in effect sits as the Court of Federal Claims.”


4. Non-contract dispute jurisdiction: bid protests; vaccine injury; hearing jurisdiction for private bills before Congress: Pursuant to the Federal Courts Administration Act of 1992, Congress expanded the Claims Court's CDA contract jurisdiction to include nonmonetary disputes[51] and renamed it the Court of Federal Claims.[52] The Administrative Dispute Resolution Act of 1996 added post award bid protests to the court's jurisdiction[53] and, as of January 1, 2001, made the court the exclusive judicial forum for the resolution of bid protests.[54]


B. Bar of the U.S. Court of Federal Claims (mandatory; no pro se contract appeals for non-individuals): Any person who is not an individual shall be authorized to prefer appeals Pro se in the US Court of Federal Claims.[55]


C. Remedies.

1. No injunctive relief for CDA claims: The Court of Federal Claims nor the boards may grant specific performance,[56] injunctive relief,[57] or mandamus relief[58] with respect to contract administration problems.

2. Monetary damages.: The U S Court of Federal Claims is duly empowered to pass monetary damages against the party found to be defaulting.[59]


3. Declaratory relief (Todd’s Construction).: In Todd’s Construction Case,[60] the Court reinforced the finding that the Court of Federal Claims is duly empowered under the Contract Disputes Act to issue declaratory reliefs to the litigant.


D. Appeal Period: The party may prefer an appeal to the Court of Federal Claims within 12 months from the date on which the final order was issued by the contracting officer. Unless timely appealed, a final judgment bars any further claim, suit, or demand against the United States arising out of the matters involved in the case or controversy[61]. A party must appeal a final judgment to the CAFC within 60 days of the date the party receives the adverse decision[62].


V. Appeals Before the U.S. Court of Appeals for the Federal Circuit.


A. Jurisdiction.


1. Single forum for BCA and COFC appeals: The Federal Circuit has national jurisdiction.[63] The Federal Circuit also has exclusive jurisdiction over appeals from an agency BCA and the COFC pursuant to section 8(g)(1) of the CDA[64].


2. Final judicial decision; no interlocutory appeals for CDA claims. : The US Court of Appeals for the Federal Circuit is the Final arbiter of Findings of fact in a Contract Dispute are final and conclusive unless they are fraudulent, arbitrary, capricious, made in bad faith, or not supported by substantial evidence.[65].


3. Time for appeal (jurisdictional?): The Party aggrieved by the decision of the Court of Federal Claims may prefer an appeal before the US Court of Appeals for the Federal Circuits, within 60 days from the date on which the impugned decision is issued.[66]


4. No jurisdiction for consent-only appeals from BCAs: The Courts of Appeal for the federal Circuit shall not have jurisdiction to entertain appeals against the judgments which are passed by the BCAs with the consent of the parties to vest the jurisdiction to the respective BCA.


5. Death of the NAFI Doctrine (Slattery v. United States): The U.S. Court of Appeals for the Federal Circuit’s decision in Slattery v. U.S. generally has eliminated the non-appropriated funds instrumentality (NAFI) doctrine as a bar to jurisdiction under the Tucker Act, 28 USCA § 1491 (and presumably also under the Contract Disputes Act, 41 USCA § 7101 et seq.). See 53 GC ¶ 48. The NAFI doctrine has plagued private parties entering into agreements with various U.S. Government entities for several reasons:


a. NAFIs have enjoyed all the immunity of the Government while generally avoiding all liability exposure resulting from their actions or inactions (with the exception of the military and NASA exchanges); and

b. it often has been unclear whether a particular U.S. federal entity is a NAFI—and not subject to suit—until the Federal Circuit declares it so. Thus, Slattery should make contracting with entities related to or affiliated with the Government more stable and predictable, placing the onus on Congress to demarcate when a U.S. Government entity will be exempted from suit under the Tucker Act.[67]



AUTHOR PROFILE:

Ramakant Singh was enrolled with the Bar in 2008 and possesses almost a decade of rigorous experience of working with businesses and individuals, including fortune 500 companies.

The wide spectrum and diversity of work undertaken by Ramakant has enabled him to attain versatility in the legal profession. Ramakant has a keen interest in writing and research, and has many research papers in his name on issues of different legal jurisdictions.


You can reach the Author in any of the following ways:

Phone: +91-7903037566, Email: ramakantsingh@lawyer.com

Fiverr Profile: www.fiverr.com/ramakantsingha

Linkedin: https://www.linkedin.com/in/ramakantsingha

Facebook: https://www.facebook.com/ramakantsingha


[1]41 U.S.C. § 7104(a)-(b). [2]FAR 2.101; FAR 52.233-1.Because the CDA does not define the term “claim,” courts and boards rely on thedefinition found in the FAR. See Essex Electro Eng’rs, Inc. v. United States, 960 F.2d 1576 (Fed. Cir. 1992) (holding that the FAR’s definition of the term “claim” is consistent with the CDA). [3]41 U.S.C. § 7103(b); FAR 33.207. If the claim amount continues to increase after the claim has been submitted, there is no need to certify it if (1) the increase relates to information that was not reasonably available at the time the claim was submitted, or (2) the increase is due to regularly accruing charges. [4]See Fischbach & Moore Int’l Corp. v. Christopher, 987 F.2d 759 (Fed. Cir. 1993). [5] 41 U.S.C. § 7103(d); FAR 33.206; FAR 33.211(a). See Tyger Constr. Co., ASBCA No. 36100, 88-3 BCA ¶ 21,149. But cf. McDonnell Douglas Corp., ASBCA No. 44637, 93-2 BCA ¶ 25,700 (dismissing the contractor’s appeal from a government claim for noncompliance with CAS because the procuring contracting officer issued the final decision instead of the cognizant administrative contracting officer as required by the FAR and DFARS). [6] 41 U.S.C. § 7103(e); FAR 33.211(a)(4). [7] 41 U.S.C. § 7103(f); FAR 33.211 [8] See Boeing Co. v. United States, 26 Cl. Ct. 257 (1992); Aerojet Gen. Corp., ASBCA No. 48136, 95-1 BCA ¶ 27,470 (concluding that the contracting officer failed to provide a firm date where the contracting officer made the timely issuance of a final decision contingent on the contractor’s cooperation in providing additional information); Inter-Con Security Sys., Inc., ASBCA No. 45749, 93-3 BCA ¶ 26,062 (concluding that the contracting officer failed to provide a firm date where the contracting officer merely promised to render a final decision within 60 days of receiving the audit). [9] 41 U.S.C. § 7103(f)(5); FAR 33.211(g). See Aerojet Gen. Corp., ASBCA No. 48136, 95-1 BCA ¶ 27,470. [10] Independent Mfg. & Serv. Cos. of Am., Inc., ASBCA No. 47636, 94-3 BCA ¶ 27,223. See Malone v. United States, 849 F.2d 1441, 1443 (Fed. Cir. 1988); cf. Educators Assoc., Inc. v. United States, 41 Fed. Cl. 811 (1998) (dismissing the contractor’s suit as untimely because the contractor failed to appeal within 12 months of the date it received the final termination decision). [11] Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987); Walsky Constr. Co., ASBCA No. 41541, 94-1 BCA ¶ 26,264. [12] Placeway Constr. Corp. United States, 920 F.2d 903, 906 (Fed. Cir. 1990); Sprint Communications Co., L.P. v. General Servs. Admin., GSBCA No. 14263, 97-2 BCA ¶ 29,249; cf. Thomas & Sons Bldg. Contractors, Inc., ASBCA No. 51590, Apr. 9, 2002, 02-1 BCA ¶ 31,837 (Board lacked jurisdiction to hear appeal of a withholding because a claim was never submitted to the contracting officer). [13] See Newport News Shipbuilding and Dry Dock Co. v. United States, 44 Fed. Cl. 613 (1999) (government’s demand that the contractor change its accounting for all of its CAS-covered contracts was an appealable final decision); Litton Sys., Inc., ASBCA No. 45400, 94-2 BCA ¶ 26,895 (holding that the government’s determination 22-19 was an appealable government claim because the government was “seeking, as a matter of right, the adjustment or interpretation of contract terms”); cf. Aydin Corp., ASBCA No. 50301, 97-2 BCA ¶ 29,259 (holding that the contracting officer’s failure to present a claim arising under CAS was a non-jurisdictional error). [14] The sole exception to this general rule (referred to as the “election doctrine”) is when the original forum lacks subject matter jurisdiction over the appeal. See Information Sys. & Networks Corp. v. United States, 17 Cl. Ct. 527 (1989) (holding that the contractor’s untimely appeal to the Agriculture Board of Contract Appeals did not preclude it from pursing a timely suit in the Claims Court). [15] See https://www.uscfc.uscourts.gov/about-court# [16] 41 U.S.C. § 7104(a) [17] 41 U.S.C. § 7105 [18] 41 U.S.C. § 7104 [19] See, The Appeal of Charwill Contracting Corp., PODBCA No. 1, 1959 WL 663 [20] 41 U.S.C. §§ 7101–7109 [21] 41 U.S.C. § 7105 [22] Bonneville Assocs. v. United States, 43 F.3d 649 (Fed. Cir. 1994); National Neighbors, Inc. v. United States, 839 F.2d 1539 (Fed. Cir. 1988), 30 GC ¶ 86; Glenn v. United States, 858 F.2d 1577 (Fed. Cir. 1988); Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644 (Ct. Cl. 1981), 23 GC ¶ 408. [23] 41 USC s. 607(e). [24] GSBCA R. @@(b); ASBCA R. 20(a). [25] TDC Mgmt. Corp., Note 87, Supra; time contractors, joint venture, DOTCAB, 1669, Et Al, 86-2 BCA. [26] P.L. 101-552, 104 Stat. 2736 (1990). [27] 41USC S. 605(e). [28] 41USC S. 605(d). [29] Report of Transactions and proceedings of the ASBCA for the fiscal year ending Sept. 31, 1991. [30] 41 USCA S. 605(a) [31] 41 U.S.C.A. § 605(a); S. Rep. No. 95-1118, at 20 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 525354; TDC Mgmt. Corp.,DOTCAB 1802, 90-1 BCA ¶ 22,627; Time Contractors, Joint Venture, DOTCAB 1669 et. al, 86-2 BCA ¶ 19,003, 29 GC ¶ 55(Note); Fidelity Constr. Co., DOTCAB 1113 et al., 80-2 BCA ¶ 14,819, 25 GC ¶ 82; Quality Env't Sys., Inc., ASBCA 22178, 87-3 BCA ¶ 20,060; Warren Beaves, DOTCAB 1324, 83-1 BCA ¶ 16,232, 25 GC ¶ 82. [32] 41 U.S.C.A. § 606; ASBCA R.6. [33] 41 U.S.C.A. § 609(a)(3); see White Buffalo Constr., Inc. v. United States, 28 Fed. Cl. 145 (1992) (filing one day after the expiration of the 12-month statutory period rendered the complaint untimely). [34] 41 U.S.C.A. § 606; ASBCA R.6. [35] 41 U.S.C.A. § 609(a)(3); see White Buffalo Constr., Inc. v. United States, 28 Fed. Cl. 145 (1992) (filing one day after the expiration of the 12-month statutory period rendered the complaint untimely). [36] Foreword to the RCFC; Cutright v. United States, 15 Cl. Ct. 576 (1988); White Mountain Apache Tribe v. United States, 5 Cl. Ct. 288 (1984). [37] See 48 C.F.R. 6102.4(a) (GSBCA Rules); GSBCA Mission at http:// www.gsbca.gsa. gov/mission.htm. [38] See Lows Enter., ASBCA No. 51585, 00-1 BCA ¶ 30,622 (holding that verbal notice is insufficient). [39] see e.g., McNamara-Lunz Vans & Warehouse, Inc., ASBCA No. 38057, 89-2 BCA ¶ 21,636 (concluding that a letter stating that “we will appeal the decision through the various avenues open to us” adequately expressed the contractor’s intent to appeal); cf. Stewart-Thomas Indus., Inc., ASBCA No. 38773, 90-1 BCA ¶ 22,481 (stating that the intent to appeal to the board must be unequivocal); Birken Mfg. Co., ASBCA No. 37064, 89-1 BCA ¶ 21,248 (concluding that an electronic message to the termination contracting officer did not express a clear intent to appeal); [40] 41 U.S.C. § 7104 [41] See Palmer v. Barram, 184 F.3d 1373 (Fed. Cir. 1999) (holding that a small claims decision is only appealable for fraud in the proceedings). [42] P.L. 101-552, 104 Stat. 2736 (1990). [43] 41 USC § 605(e). [44] 41 USC § 605(d). [45] 5 USC § 590(b), (c), (g). [46] 5 USC § 581(3). [47] 41 U.S.C. § 7107 [48] 28 U.S.C. § 1491(a)(1) [49] The Contract Disputes Act (CDA) of 1978. 41 U.S.C. § 7104(b). [50] E.g., Galloway Farms, Inc. v. United States, 834 F.2d 998 (Fed. Cir. 1987); Mesaros v. United States, 845 F.2d 1576 (Fed. Cir. 1988); Lopez v. A.C.&S., Inc., 858 F.2d 712 (Fed. Cir. 1988); Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988). Ransom v. United States, 900 F.2d 242 (Fed. Cir. 1990). [51] Pub. L. No. 102-572, § 907(b)(1) (amending 28 U.S.C.A. § 1491(a)(2)). [52] Id. § 902. [53] Pub. L. No. 104-320, § 12(a)(3) (amending 28 U.S.C.A. § 1491(b)). [54] Id. § 12(d). [55] RCFC 83.1(c)(8). [56] National Center for Mfg. Sciences v. United States, 114 F.3d 196, 198 (Fed. Cir. 1997), 39 GC ¶ 339; Rig Masters, Inc. v. United States, 42 Fed. Cl. 369 (1998), 41 GC ¶ 11; Sabbia Corp., VABCA 5557, 99-2 BCA ¶ 30,394; Western Aviation Maint., Inc. v. General Servs. Admin., GSBCA 14165, 98-2 BCA ¶ 29,816, 41 GC ¶ 36; Wood v. United States, 961 F.2d 195 (Fed. Cir. 1992); Massie v. United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000); Blackwell v. United States, 23 Cl. Ct. 74 (1991); Edwards v. United States, 19 Cl. Ct. 663 (1990); United States v. Black Hawk Masonic Temple Ass'n, 798 F.Supp. 646 (D. Colo. 1992); John Barrar, ENGBCA 5918, 92-3 BCA ¶ 25,074; Statistica, Inc., ASBCA 44116, 92-3 BCA ¶ 25,095; Hub Testing Labs., Inc., GSBCA 11693, 92-3 BCA ¶ 25,081; General Elec. Automated Sys. Div., ASBCA 36214, 89-1 BCA ¶ 21,195. [57] Statistica, Inc., ASBCA 44116, 92-3 BCA ¶ 25,095; Sabbia Corp., VABCA 5557, 99-2 BCA ¶ 30,394; Rohr, Inc., ASBCA 44193, 93-2 BCA ¶ 25,871; Dixon Pest Control, ASBCA 41042, 91-1 BCA ¶ 23,640; Lee Ann Wyskiver, PSBCA 3621, 95-2 BCA ¶ 27,755; United States v. Black Hawk Masonic Temple Ass'n, 798 F.Supp. 646 (D.Colo. 1992). [58] Statistica, Inc., ASBCA 44116, 92-3 BCA ¶ 25,095; Raymond Kaiser Engrs., ASBCA 34133, 87-3 BCA ¶ 20,140; Maria Manges, ASBCA 25350, 81-2 BCA ¶ 15,398; Smith v. United States, 654 F.2d 50 (Ct. Cl. 1981); Doko Farms v. United States, 13 Cl. Ct. 48 (1987); Alford v. United States, 3 Cl. Ct. 229 (1983); United States v. Black Hawk Masonic Temple Ass'n, 798 F. Supp. 646 (D. Colo. 1992). [59] See RCFC 26(g)(3) (“If without substantial justification a certification is made in violation of [these discovery rules], the court,upon motion or of its own initiative, shall impose . . . an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.”); M.A. Mortenson Co. v. United States, 15 Cl. Ct. 362 (1988), aff'd, 996 F.2d 1177 (Fed. Cir. 1993) (requiring Government to pay plaintiff's attorney's fees as sanction for discovery violations). [60]Todd Construction L.P., f/k/a, Todd Construction Co. v. United States, No. 07-324C (Dec. 9, 2008) [61] 28 U.S.C. § 2519 [62] 28 U.S.C. § 2522. See RCFC 72 [63] Dewey Elec. Corp. v. United States, 803 F.2d 650 (Fed. Cir. 1986); Teller Envtl. Sys., Inc. v. United States, 802 F.2d 1385 (Fed. Cir. 1986). [64] 28 U.S.C. § 1295(a)(3) and (10) [65] 49 U.S.C. § 609(b). See United States v. General Elec. Corp., 727 F.2d 1567, 1572 (Fed. Cir. 1984) (holding that the court will affirm a board’s decision if there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”); 22-37 Tecom, Inc. v. United States, 732 F.2d 935, 938 n.4 (Fed. Cir. 1995) (finding that the trier of fact’s credibility determinations are virtually unreviewable) [66] 28 U.S.C. § 2522. See RCFC 72 [67] 635 F.3d 1298 (Fed. Cir. 2011)

2 views0 comments