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The Contract Appeals Process in the United States

Updated: Oct 18, 2022


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.).: