Difference between revisions of "Contract Disputes Act"

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41 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title41/subtitle3/chapter71&edition=prelim 7101–7109] (2012); 28 U.S.C. §§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1346&num=0&edition=prelim 1346(a)(2)], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1491&num=0&edition=prelim 1491(a)(2)], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2401&num=0&edition=prelim 2401(a)], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2414&num=0&edition=prelim 2414], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2510&num=0&edition=prelim 2510], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2517&num=0&edition=prelim 2517] (2012); 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1304&num=0&edition=prelim 1304(a)(3)(C)] (2012); enacted Nov. 1, 1978, by [https://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg2383.pdf Pub. L. No. 95-563], 92 Stat. 2383; significantly amended April 2, 1982, by [https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg25.pdf Pub. L. No. 97-164], title I, §§ 156–157, 161, 96 Stat. 25, 47–49, Nov. 5, 1990, by [https://history.nih.gov/research/downloads/PL101-509.pdf Pub. L. No. 101-509], § 104, 104 Stat. 1447, and Nov. 15, 1990, by [https://www.gpo.gov/fdsys/pkg/STATUTE-104/pdf/STATUTE-104-Pg2736.pdf Pub. L. No. 101-552], 104 Stat. 273; Oct. 29, 1992, by [https://www.gpo.gov/fdsys/pkg/STATUTE-106/pdf/STATUTE-106-Pg4506.pdf Pub. L. No. 102-572], title IX, Sec. 907(a)(1),106 Stat. 4518; Oct. 13, 1994, by [https://www.congress.gov/103/bills/s1587/BILLS-103s1587enr.pdf Pub. L. No. 103-355], title II, Sec. 2351(a)((1)), (b), (e), 2352, 108 Stat. 3322; Feb. 10, 1996, by [https://www.congress.gov/104/plaws/publ106/PLAW-104publ106.pdf Pub. L. No. 104-106], div. D, title XLIII, Sec. 4321(a)(6), (7), 4322(b)(6), 110 Stat. 671, 677; Oct. 19, 1996, by [https://www.congress.gov/104/plaws/publ320/PLAW-104publ320.pdf Pub. L. No. 104-320], Sec. 6, 110 Stat. 3871; Nov. 18, 1997, by [https://www.congress.gov/105/plaws/publ85/PLAW-105publ85.pdf Pub. L. No. 105-85], div. A, title X, Sec. 1073(g)(3), 111 Stat. 1906; Jan. 6, 2006, by [https://www.congress.gov/109/plaws/publ163/PLAW-109publ163.pdf Pub. L. No. 109-163], div A, title VIII, subtitle E, § 847(d)(1) –(4), 119 Stat. 3393; Oct. 17, 2006, by [https://www.congress.gov/109/plaws/publ364/PLAW-109publ364.pdf Pub. L. No. 109-364], div. A, title VIII, subtitle E, § 857, 120 Stat. 2394; [https://www.congress.gov/111/plaws/publ350/PLAW-111publ350.pdf Pub. L. No. 111-350], § 3, Jan. 4, 2011, 124 Stat. 3816.
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41 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title41/subtitle3/chapter71&edition=prelim 7101–7109] (2012); 28 U.S.C. §§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1346&num=0&edition=prelim 1346(a)(2)], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1491&num=0&edition=prelim 1491(a)(2)], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2401&num=0&edition=prelim 2401(a)], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2414&num=0&edition=prelim 2414], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2510&num=0&edition=prelim 2510], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2517&num=0&edition=prelim 2517] (2012); 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1304&num=0&edition=prelim 1304(a)(3)(C)] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg2383.pdf Pub. L. No. 95-563], 92 Stat. 2383, Nov. 1, 1978; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg25.pdf Pub. L. No. 97-164], title I, §§ 156–157, 161, 96 Stat. 25, 47–49, Apr. 2, 1982, by [https://history.nih.gov/research/downloads/PL101-509.pdf Pub. L. No. 101-509], § 104, 104 Stat. 1447, Nov. 5, 1990, and by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg2736.pdf Pub. L. No. 101-552], 104 Stat. 273, Nov. 15, 1990; by [https://www.govinfo.gov/content/pkg/STATUTE-106/pdf/STATUTE-106-Pg4506.pdf Pub. L. No. 102-572], title IX, Sec. 907(a)(1),106 Stat. 4518, Oct. 29, 1992; by [https://www.govinfo.gov/content/pkg/STATUTE-108/pdf/STATUTE-108-Pg3243.pdf Pub. L. No. 103-355], title II, Sec. 2351(a)((1)), (b), (e), 2352, 108 Stat. 3322, Oct. 13, 1994; by [https://www.congress.gov/104/plaws/publ106/PLAW-104publ106.pdf Pub. L. No. 104-106], div. D, title XLIII, Sec. 4321(a)(6), (7), 4322(b)(6), 110 Stat. 671, 677, Feb. 10, 1996; by [https://www.congress.gov/104/plaws/publ320/PLAW-104publ320.pdf Pub. L. No. 104-320], Sec. 6, 110 Stat. 3871, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ85/PLAW-105publ85.pdf Pub. L. No. 105-85], div. A, title X, Sec. 1073(g)(3), 111 Stat. 1906, Nov. 18, 1997; by [https://www.congress.gov/109/plaws/publ163/PLAW-109publ163.pdf Pub. L. No. 109-163], div A, title VIII, subtitle E, § 847(d)(1) –(4), 119 Stat. 3393, Jan. 6, 2006; by [https://www.congress.gov/109/plaws/publ364/PLAW-109publ364.pdf Pub. L. No. 109-364], div. A, title VIII, subtitle E, § 857, 120 Stat. 2394, Oct. 17, 2006; by [https://www.congress.gov/111/plaws/publ350/PLAW-111publ350.pdf Pub. L. No. 111-350], § 3, 124 Stat. 3816, Jan. 4, 2011.
  
 
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===Coverage===
 
===Coverage===
The CDA and its procedures apply to claims arising under or relating to express or implied contracts made by executive branch agencies for the procurement of property other than real property; services, construction, alteration, repair, or maintenance of real property; or for the disposal of personal property. The Act does not reach bid protests or proceedings for the debarment or suspension of government contractors.
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The CDA and its procedures apply to claims arising under or relating to express or implied contracts made by executive branch agencies for the procurement of property other than real property; services, construction, alteration, repair, or maintenance of real property; or for the disposal of personal property. The CDA does not reach bid protests or proceedings for the debarment or suspension of government contractors.
  
The term “claim” is not defined by the Act; however, the [https://www.ecfr.gov/cgi-bin/text-idx?SID=84d22b440a519b32a8ffec9b15e1ce5a&mc=true&node=se48.1.2_1101&rgn=div8 Federal Acquisition Regulation] (FAR), a detailed regulation establishing uniform procedures and policies for procurement by federal executive agencies, defines it as:<blockquote>''Claim'' means 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 this contract. . . . A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under [the Act].</blockquote>Cognizable claims include disputes arising under specific contract clauses (for example, when the parties cannot agree on an amount of compensation owed under clauses authorizing equitable adjustment for contract changes or for site conditions different from those anticipated when the contract was formed) as well as claims for breach of contract. Terminations for default are considered claims by the government under the Act.
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The term “claim” is not defined by the CDA; however, the [https://www.ecfr.gov/cgi-bin/text-idx?SID=84d22b440a519b32a8ffec9b15e1ce5a&mc=true&node=se48.1.2_1101&rgn=div8 Federal Acquisition Regulation] (FAR), a detailed regulation establishing uniform procedures and policies for procurement by federal executive agencies, defines it as:<blockquote>''Claim'' means 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 this contract. . . . A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under [the CDA].</blockquote>Cognizable claims include disputes arising under specific contract clauses (for example, when the parties cannot agree on an amount of compensation owed under clauses authorizing equitable adjustment for contract changes or for site conditions different from those anticipated when the contract was formed) as well as claims for breach of contract. Terminations for default are considered claims by the government under the CDA.
  
Notwithstanding these examples, the elements of a claim, particularly the relationship between the “dispute” and “routine” clauses, continue to generate frequent litigation. The Federal Circuit resolved some of the uncertainty in 1995, when it articulated, en banc, what has come to be known as the Reflectone test: a non-routine request for payment can constitute a claim under the CDA—even if it is not in dispute—if it is a written demand seeking a sum certain (or other contract relief) as a matter of right. On the other hand, a “routine request for payment” must be in dispute. In 2012, however, a single panel of the Court of Appeals for the Federal Circuit (CAFC) complicated this calculus by holding that a jurisdictional predicate to a non-routine contractor claim is its derivation from “additional or unforeseen work at the government’s behest.” [http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/11-1201.pdf Parsons Global Services, Inc. v. McHugh], 677 F.3d 1166, 1171 (Fed. Cir. 2012). Absent this “unforeseen” element, the claim is routine and must be in dispute.
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Notwithstanding these examples, the elements of a claim, particularly the relationship between the “dispute” and “routine” clauses, continue to generate frequent litigation. The Federal Circuit resolved some of the uncertainty in 1995, when it articulated, en banc, what has come to be known as the ''Reflectone'' test: a non-routine request for payment can constitute a claim under the CDA—even if it is not in dispute—if it is a written demand seeking a sum certain (or other contract relief) as a matter of right. On the other hand, a “routine request for payment” must be in dispute. In 2012, however, a single panel of the Federal Circuit complicated this calculus by holding that a jurisdictional predicate to a non-routine contractor claim is its derivation from “additional or unforeseen work at the government’s behest.” [http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/11-1201.pdf Parsons Global Servs., Inc. v. McHugh], 677 F.3d 1166, 1171 (Fed. Cir. 2012). Absent this “unforeseen” element, the claim is routine and must be in dispute.
  
 
===Agency Procedures===
 
===Agency Procedures===
The CDA established a system that begins with the contracting officer, an agency official authorized to enter into, administer, and terminate contracts on behalf of the government. The contracting officer plays a dual role in the disputes process, both representing the government as a party to the contract and rendering decisions on claims arising out of disputes between the parties. If a dispute arises during contract performance that cannot be amicably resolved (e.g., through exchange of correspondence or negotiation), the contractor can invoke the procedures of the Contract Disputes Act by presenting a claim to the contracting officer. The claim must be in writing, provide adequate notice to the government of the basis for the demand and the relief sought, and clearly indicate the contractor’s intent to seek a decision from the contracting officer.
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The CDA established a system that begins with the contracting officer, an agency official authorized to enter into, administer, and terminate contracts on behalf of the government. The contracting officer plays a dual role in the disputes process, both representing the government as a party to the contract and rendering decisions on claims arising out of disputes between the parties. If a dispute arises during contract performance that cannot be amicably resolved (e.g., through exchange of correspondence or negotiation), the contractor can invoke the procedures of the CDA by presenting a claim to the contracting officer. The claim must be in writing, provide adequate notice to the government of the basis for the demand and the relief sought, and clearly indicate the contractor’s intent to seek a decision from the contracting officer.
  
 
If the essence of the dispute is money (for example, a claim for increased costs or for payment of the contract balance), the contractor must quantify the claim. In addition, for any claim over $100,000, the contractor must certify that “the claim is made in good faith, that the supporting data are accurate and complete to the best of the contractor’s knowledge and belief, [and] that the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable.”  The certification also must state that the person who is certifying is “authorized to certify the claim on behalf of the contractor.”
 
If the essence of the dispute is money (for example, a claim for increased costs or for payment of the contract balance), the contractor must quantify the claim. In addition, for any claim over $100,000, the contractor must certify that “the claim is made in good faith, that the supporting data are accurate and complete to the best of the contractor’s knowledge and belief, [and] that the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable.”  The certification also must state that the person who is certifying is “authorized to certify the claim on behalf of the contractor.”
  
The certification provision, incorporated into the CDA to discourage inflated contractor claims, has proven to be one of the more controversial aspects of the law.  Much of this controversy was reduced by a recent change in the Act stating that a defective certification does not deprive a court or an agency board of contract appeals of jurisdiction over the claim. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7103&num=0&edition=prelim 7103(b)(3)]. Prior to entry of a final judgment by a court or decision by a board of contract appeals, though, the court or board must obtain correction of a defective certification. A contracting officer has no duty to render a final decision on any claim over $100,000 that is not certified in accordance with § 7103(b)(1) if, within 60 days after receipt of the claim, the contracting officer notifies the contractor in writing of the reasons why an attempted certification was found to be defective.
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The certification provision, incorporated into the CDA to discourage inflated contractor claims, has proven to be one of the more controversial aspects of the law.  Much of this controversy was reduced by a recent change in the CDA stating that a defective certification does not deprive a court or an agency board of contract appeals of jurisdiction over the claim (§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7103&num=0&edition=prelim 7103(b)(3)]). Prior to entry of a final judgment by a court or decision by a board of contract appeals, though, the court or board must obtain correction of a defective certification. A contracting officer has no duty to render a final decision on any claim over $100,000 that is not certified in accordance with § 7103(b)(1) if, within 60 days after receipt of the claim, the contracting officer notifies the contractor in writing of the reasons why an attempted certification was found to be defective.
  
If a claim cannot be settled by mutual agreement, the contracting officer must issue a written decision on the claim, stating the reasons for the decision and informing the contractor of available appeal rights. The Act requires the contracting officer to issue this decision within 60 days of receipt of a claim for $100,000 or less, and within a reasonable time after receipt of a larger claim (in which case the contracting officer must notify the contractor within 60 days as to when the decision will issue). If these deadlines are not met, the contractor may petition the relevant tribunal to direct the contracting officer to issue a decision. In any event, if the contracting officer fails to issue a timely decision, the claim will be deemed denied under the statute, permitting the contractor to pursue an appeal.
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If a claim cannot be settled by mutual agreement, the contracting officer must issue a written decision on the claim, stating the reasons for the decision and informing the contractor of available appeal rights. The CDA requires the contracting officer to issue this decision within 60 days of receipt of a claim for $100,000 or less, and within a reasonable time after receipt of a larger claim (in which case the contracting officer must notify the contractor within 60 days as to when the decision will issue). If these deadlines are not met, the contractor may petition the relevant tribunal to direct the contracting officer to issue a decision. In any event, if the contracting officer fails to issue a timely decision, the claim will be deemed denied under the statute, permitting the contractor to pursue an appeal.
  
 
If the contracting officer issues an adverse decision on a contractor’s claim or issues a decision asserting a government claim against the contractor (e.g., terminating the contract for default, asserting a right to excess reprocurement costs, demanding payment to recover the costs, or repairing or replacing defective work), the contractor has two avenues of appeal to choose from. The contractor may file an appeal at the appropriate agency board of contract appeals within 90 days after receiving the contracting officer’s decision. Alternatively, the contractor may file suit directly in the U.S. Court of Federal Claims within 12 months of the date it received the contracting officer’s decision. In either forum, proceedings on the claim will be de novo; any findings of fact made by the contracting officer in his or her final decision will not be binding. Only the contractor has the right to initiate litigation and to select the forum; if the contractor neither appeals nor files suit in the Court of Federal Claims, the contracting officer’s decision becomes final.
 
If the contracting officer issues an adverse decision on a contractor’s claim or issues a decision asserting a government claim against the contractor (e.g., terminating the contract for default, asserting a right to excess reprocurement costs, demanding payment to recover the costs, or repairing or replacing defective work), the contractor has two avenues of appeal to choose from. The contractor may file an appeal at the appropriate agency board of contract appeals within 90 days after receiving the contracting officer’s decision. Alternatively, the contractor may file suit directly in the U.S. Court of Federal Claims within 12 months of the date it received the contracting officer’s decision. In either forum, proceedings on the claim will be de novo; any findings of fact made by the contracting officer in his or her final decision will not be binding. Only the contractor has the right to initiate litigation and to select the forum; if the contractor neither appeals nor files suit in the Court of Federal Claims, the contracting officer’s decision becomes final.
  
The boards of contract appeals are quasi-judicial tribunals within the executive branch, composed of administrative judges with at least five years of public contract law experience who are authorized to adjudicate contract disputes on behalf of the heads of their respective agencies.  Congress intended the boards to be informal, expeditious, and inexpensive. In spirit, if not always in practice, the procedures of the boards reflect this intention. For example, under uniform rules of procedure developed by the Office of Federal Procurement Policy (see below), hearings are to be “as informal as may be reasonable and appropriate under the circumstances.” Contractors may appear pro se—without the aid of counsel. Boards offer accelerated disposition of appeals involving claims of $100,000 or less (providing resolution within 180 days of the contractor’s election) and expedited disposition for disputes of $50,000 or less (with a 120-day resolution period). The boards have taken some steps to encourage parties to consider alternatives to fullscale litigation (alternative dispute resolution, or ADR). For instance, the Armed Services Board of Contract Appeals distributes a notice regarding ADR to its litigants, which describes various alternatives to litigation.
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The boards of contract appeals are quasi-judicial tribunals within the executive branch, composed of administrative judges with at least five years of public contract law experience who are authorized to adjudicate contract disputes on behalf of the heads of their respective agencies.  Congress intended the boards to be informal, expeditious, and inexpensive. In spirit, if not always in practice, the procedures of the boards reflect this intention. For example, under uniform rules of procedure developed by the Office of Federal Procurement Policy (OFPP), hearings are to be “as informal as may be reasonable and appropriate under the circumstances.” Contractors may appear pro se—without the aid of counsel. Boards offer accelerated disposition of appeals involving claims of $100,000 or less (providing resolution within 180 days of the contractor’s election) and expedited disposition for disputes of $50,000 or less (with a 120-day resolution period). The boards have taken some steps to encourage parties to consider alternatives to fullscale litigation (alternative dispute resolution, or ADR). For instance, the Armed Services Board of Contract Appeals distributes a notice regarding ADR to its litigants, which describes various alternatives to litigation.
  
 
In contrast to the boards, which deal exclusively with government contracting, the Court of Federal Claims’ docket includes a broad range of litigation involving the federal government in addition to government procurement. Its proceedings are somewhat more formalized than those of the boards. For instance, use of the Federal Rules of Evidence is mandatory, and corporations must be represented by attorneys. Despite its formalities, the court has implemented an ADR program featuring settlement judges and minitrials. Although the Court of Federal Claims does not offer accelerated or expedited procedures, it can (unlike the boards) adjudicate disputes alleging fraud and grant injunctive relief.
 
In contrast to the boards, which deal exclusively with government contracting, the Court of Federal Claims’ docket includes a broad range of litigation involving the federal government in addition to government procurement. Its proceedings are somewhat more formalized than those of the boards. For instance, use of the Federal Rules of Evidence is mandatory, and corporations must be represented by attorneys. Despite its formalities, the court has implemented an ADR program featuring settlement judges and minitrials. Although the Court of Federal Claims does not offer accelerated or expedited procedures, it can (unlike the boards) adjudicate disputes alleging fraud and grant injunctive relief.
  
In contrast to board decisions, which are collegial, Claims Court decisions are issued by a single judge. The contractor may appeal the decision of either tribunal to the U.S. Court of Appeals for the Federal Circuit. In addition, the Act permits the government (with the Attorney General’s approval) to appeal adverse decisions; previously, the government could not appeal contract appeals board decisions. The standard of review for findings of fact by contract appeals boards is one of substantial evidence (this standard was retained from preexisting law); for Court of Federal Claims decisions, the Federal Circuit will apply a “clearly erroneous” standard to rulings on questions of fact. Practically speaking, the decision of the Federal Circuit ends the litigation. A party may not seek review by the Supreme Court as a matter of right, and the Supreme Court rarely agrees to consider government contract cases.
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In contrast to board decisions, which are collegial, Claims Court decisions are issued by a single judge. The contractor may appeal the decision of either tribunal to the U.S. Court of Appeals for the Federal Circuit. In addition, the CDA permits the government (with the Attorney General’s approval) to appeal adverse decisions; previously, the government could not appeal contract appeals board decisions. The standard of review for findings of fact by contract appeals boards is one of substantial evidence (this standard was retained from preexisting law); for Court of Federal Claims decisions, the Federal Circuit will apply a “clearly erroneous” standard to rulings on questions of fact. Practically speaking, the decision of the Federal Circuit ends the litigation. A party may not seek review by the Supreme Court as a matter of right, and the Supreme Court rarely agrees to consider government contract cases.
  
 
===Consolidation of Boards of Contract Appeals===
 
===Consolidation of Boards of Contract Appeals===
Section 847 of the National Defense Authorization Act for Fiscal Year 2006, [https://www.congress.gov/109/plaws/publ163/PLAW-109publ163.pdf Pub. L. No. 109-163], established the [https://cbca.gov/ Civilian Board of Contract Appeals] (CBCA) within the General Services Administration to hear contract disputes under the Contract Disputes Act. Effective January 6, 2007, contract disputes involving most non-defense executive agencies will be heard and decided by the CBCA. Most of the previously existing boards of contract appeals (e.g., those at the General Services Administration and the departments of Agriculture, Energy, Housing and Urban Development, Interior, Labor, Transportation, and Veterans Affairs) no longer exist, and board judges and other personnel at those entities were transferred to the new Civilian Board.
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Section 847 of the National Defense Authorization Act for Fiscal Year 2006 ([https://www.congress.gov/109/plaws/publ163/PLAW-109publ163.pdf Pub. L. No. 109-163]) established the [https://cbca.gov/ Civilian Board of Contract Appeals] (CBCA) within the General Services Administration to hear contract disputes under the CDA. The CBCA hears and decides contract disputes involving most non-defense executive agencies. Most of the previously existing boards of contract appeals (e.g., those at the General Services Administration and the departments of Agriculture, Energy, Housing and Urban Development, Interior, Labor, Transportation, and Veterans Affairs) no longer exist, and board judges and other personnel at those entities were transferred to the new CBCA.
  
Appeals on contract decisions involving the Departments of Defense, Army, Navy, and Air Force as well as NASA will continue to be heard at the Armed Services Board of Contract Appeals. Contract disputes from other non-defense federal agencies will be heard by the new CBCA, except that the Postal Service and Tennessee Valley Authority will continue to operate their own boards.
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Appeals on contract decisions involving the Departments of Defense, Army, Navy, and Air Force as well as NASA will continue to be heard at the [http://www.asbca.mil/ Armed Services Board of Contract Appeals]. Contract disputes from other non-defense federal agencies will be heard by the new CBCA, except that the [http://about.usps.com/who-we-are/judicial/board-contract-appeals-decisions/welcome.htm Postal Service] and Tennessee Valley Authority will continue to operate their own boards.
  
 
===Alternative Dispute Resolution===
 
===Alternative Dispute Resolution===
A contracting officer is specifically authorized to use ADR under the provisions of the [[Administrative Dispute Resolution Act]] for a contract claim at any time that he or she has authority to resolve the issue in controversy. Also, if a contracting officer rejects a small business contractor’s request to use ADR, he or she must provide a written explanation that cites one or more conditions in 5 U.S.C. § 572(b) or other specific reasons why ADR is not appropriate for that dispute. Conversely, a contractor that rejects an agency offer to use ADR must inform the agency in writing of its specific reasons.
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A contracting officer is specifically authorized to use ADR under the provisions of the [[Administrative Dispute Resolution Act]] for a contract claim at any time that he or she has authority to resolve the issue in controversy. Also, if a contracting officer rejects a small business contractor’s request to use ADR, he or she must provide a written explanation that cites one or more conditions in 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section572&num=0&edition=prelim 572(b)] or other specific reasons why ADR is not appropriate for that dispute. Conversely, a contractor that rejects an agency offer to use ADR must inform the agency in writing of its specific reasons.
  
 
===OFPP Guidance===
 
===OFPP Guidance===
The Act directed the Office of Federal Procurement Policy to issue guidelines for the establishment and procedures of contract appeals boards. The model rules developed pursuant to this mandate appear in the Appendix to this chapter. In addition, the Office of Federal Procurement Policy issued, and subsequently rescinded, a policy directive (OFPP Policy Letter 80-3) setting forth procedures for handling claims by agency contracting officers and the text of a disputes clause to be included in government contracts.
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The CDA directed the OFPP to issue guidelines for the establishment and procedures of contract appeals boards. In addition, the OFPP issued, and subsequently rescinded, a policy directive (''OFPP Policy Letter'' 80-3) setting forth procedures for handling claims by agency contracting officers and the text of a disputes clause to be included in government contracts.
  
 
===Other Provisions===
 
===Other Provisions===
In addition to establishing a single comprehensive law covering the contract disputes process for almost all government contracts (some, such as procurements by the Tennessee Valley Authority, remain outside the scope of the law), the Contract Disputes Act made several other important changes to existing law. The Act strengthened contract appeals boards, giving them subpoena power and authorizing them to grant any relief within the authority of the Court of Federal Claims.  Moreover, appeals boards can now hear breach of contract claims as well as those “arising under” a contract. The law also added new requirements for selecting appeals board members that are intended to enhance quality and independence.
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In addition to establishing a single comprehensive law covering the contract disputes process for almost all government contracts (some, such as procurements by the Tennessee Valley Authority, remain outside the scope of the law), the CDA made several other important changes to existing law. The CDA strengthened contract appeals boards, giving them subpoena power and authorizing them to grant any relief within the authority of the Court of Federal Claims.  Moreover, appeals boards can now hear breach of contract claims as well as those “arising under” a contract. The law also added new requirements for selecting appeals board members that are intended to enhance quality and independence.
  
 
==Legislative History==
 
==Legislative History==
Efforts to pass contract disputes legislation began after the Commission on Government Procurement issued its final report and recommendations in 1973 and reached fruition in October 1978. H.R. 11002 was introduced by Representatives Harris (D-VA) and Kindness (R-OH) on February 20, 1978, and reported favorably by the House Judiciary Committee without hearings. (The Commission had held hearings on similar legislation the previous year.) The House passed the bill on September 26, 1978. A similar bill, S. 3178, was introduced by Senators Chiles (D-FL), Packwood (R-OR), Heinz (RPA), and DeConcini (D-AZ) on June 7, 1978, and favorably reported, with amendments, by the committees on Government Affairs and the Judiciary. The Senate took up floor consideration of the bill on October 12, 1978, agreeing to amendments that exempted the Tennessee Valley Authority from certain of the Act’s requirements, added the certification requirement, deleted a requirement that an informal settlement conference be afforded contractors, and changed the standard of judicial review of contract appeals board decisions from “clearly erroneous” to “substantial evidence,” among other things. The Senate then passed H.R. 11002, amended to contain the amended provisions of S. 3178, and the House agreed to the Senate-passed version the next day.
+
Efforts to pass contract disputes legislation began after the Commission on Government Procurement issued its final report and recommendations in 1973 and reached fruition in October 1978. H.R. 11002 was introduced by Representatives Herbert Harris and Tom Kindness on February 20, 1978, and reported favorably by the House Judiciary Committee without hearings. (The Commission had held hearings on similar legislation the previous year.) The House passed the bill on September 26, 1978. A similar bill, S. 3178, was introduced by Senators Lawton Chiles, Bob Packwood, John Heinz, and Dennis DeConcini on June 7, 1978, and favorably reported, with amendments, by the committees on Government Affairs and the Judiciary. The Senate took up floor consideration of the bill on October 12, 1978, agreeing to amendments that exempted the Tennessee Valley Authority from certain of the CDA’s requirements, added the certification requirement, deleted a requirement that an informal settlement conference be afforded contractors, and changed the standard of judicial review of contract appeals board decisions from “clearly erroneous” to “substantial evidence,” among other things. The Senate then passed H.R. 11002, amended to contain the amended provisions of S. 3178, and the House agreed to the Senate-passed version the next day.
  
Perhaps because it was passed quickly, at the end of the legislative session, the Contract Disputes Act (including the Senate amendments to it) was not the subject of extensive debate. However, the Congressional Record for October 12 does include a brief explanation of the amendments agreed to on the floor (95 Cong. Rec. 36,261-68).
+
Perhaps because it was passed quickly, at the end of the legislative session, the CDA (including the Senate amendments to it) was not the subject of extensive debate. However, the Congressional Record for October 12 does include a brief explanation of the amendments agreed to on the floor. 95 Cong. Rec. 36,261-68.
  
 
In January of 2011, Congress passed bill [https://www.congress.gov/111/bills/hr1107/BILLS-111hr1107eh.pdf H.R. 1107], which became [https://www.congress.gov/111/plaws/publ350/PLAW-111publ350.pdf Public Law No. 111-350], to simply “restate the existing law” without having any substantive effect. In so doing, Congress “remove[d] contradictions, ambiguities, and other imperfections” by “reorganizing various provisions of the existing law, harmonizing style and terminology, modernizing obsolete language, and correcting drafting errors.”  
 
In January of 2011, Congress passed bill [https://www.congress.gov/111/bills/hr1107/BILLS-111hr1107eh.pdf H.R. 1107], which became [https://www.congress.gov/111/plaws/publ350/PLAW-111publ350.pdf Public Law No. 111-350], to simply “restate the existing law” without having any substantive effect. In so doing, Congress “remove[d] contradictions, ambiguities, and other imperfections” by “reorganizing various provisions of the existing law, harmonizing style and terminology, modernizing obsolete language, and correcting drafting errors.”  
  
 
===Source Note===
 
===Source Note===
There are considerable materials available on federal contract law generally and on contract claims and the Contract Disputes Act specifically. Most of these materials are aimed at practicing attorneys specializing in government contract law. The items listed here are representative of the types of materials available; the list is by no means complete. Of these materials, the services published by CCH (''Government Contracts Reporter and Contract Appeals Board Decisions'') are the most comprehensive and, because they are frequently updated, the most current. ''The Government Contractor'' (Thomson Rueters) also provides up-to-date information and analysis.
+
There are considerable materials available on federal contract law generally and on contract claims and the CDA specifically. Most of these materials are aimed at practicing attorneys specializing in government contract law. The items listed here are representative of the types of materials available; the list is by no means complete. Of these materials, the services published by CCH (''Government Contracts Reporter'' and ''Contract Appeals Board Decisions'') are comprehensive and frequently updated. ''The Government Contractor'' (Thomson Rueters) also provides up-to-date information and analysis.
  
''Government Contract Disputes and Government Contract Claims'' include extensive historical material and information on other aspects of government contract law as well as the Contract Disputes Act. Crowell and Pou’s ''Appealing Government Contract Decisions'' (1990) examines agency experience with, and gives advice on, using ADR in contract claims.
+
''Government Contract Disputes and Government Contract Claims'' include extensive historical material and information on other aspects of government contract law and the CDA. Crowell and Pou’s ''Appealing Government Contract Decisions'' (1990) examines agency experience with, and gives advice on, using ADR in contract claims.
  
Note that pre-1983 publications do not reflect amendments to the Act made by the Federal Courts Improvement Act of 1982, which (among other things) created the Court of Appeals for the Federal Circuit and gave it jurisdiction over appeals from decisions of contract appeals boards and decisions of the Court of Federal Claims.
+
Note that pre-1983 publications do not reflect amendments to the CDA made by the Federal Courts Improvement Act of 1982, which (among other things) created the Court of Appeals for the Federal Circuit and gave it jurisdiction over appeals from decisions of contract appeals boards and decisions of the Court of Federal Claims.
  
 
==Bibliography==
 
==Bibliography==
 
===Legislative History and Congressional Documents===
 
===Legislative History and Congressional Documents===
*''Hearings on H.R. 664 and Related Bills'' Before the Subcomm. on Admin. Law and Government Relations of the H. Comm. on the Judiciary, 95th Cong. (1977).
+
*''Hearings on H.R. 664 and Related Bills'', Before the Subcomm. on Admin. Law and Gov’t Relations of the H. Comm. on the Judiciary, 95th Cong. (1977).
*Report to Accompany H.R. 11002, H.R. Rep. 95-1556, 95th Cong. (1978).
+
*H.R. Rep. 95-1556 (1978).
*''J. Hearings on S. 3178 and S. 2787'' Before the Subcomm. on Federal Spending Practices and Open Government, S. Comm. on Governmental Affairs and Subcomm. on Citizens and Shareholders Rights and Remedies of S. Comm. on Judiciary, 95th Cong. (1978).
+
*''J. Hearings on S. 3178 and S. 2787,'' Before the Subcomm. on Fed. Spending Practices and Open Gov’t of the S. Comm. on Gov'tal Affairs & Subcomm. on Citizens and Shareholders Rights and Remedies of the S. Comm. on Judiciary, 95th Cong. (1978).
*Report to Accompany S. 3178, S. Rep. No. 95-1118, 95th Cong. (1978).
+
*S. Rep. No. 95-1118 (1978).
*Report to Accompany H.R. 1107, [https://www.congress.gov/111/crpt/hrpt42/CRPT-111hrpt42.pdf H.R. Rep. No. 111-42], 111th Cong. (2009).
+
*[https://www.congress.gov/111/crpt/hrpt42/CRPT-111hrpt42.pdf H.R. Rep. No. 111-42] (2009).
  
===ACUS Documents===
+
===Government Documents===
 
====ACUS Recommendations====
 
====ACUS Recommendations====
 
*83-1 [https://www.acus.gov/sites/default/files/documents/83-1.pdf The Certification Requirement in the Contract Disputes Act]
 
*83-1 [https://www.acus.gov/sites/default/files/documents/83-1.pdf The Certification Requirement in the Contract Disputes Act]
 
*87-11 [https://www.acus.gov/sites/default/files/documents/87-11.pdf Alternatives for Resolving Government Contract Disputes]
 
*87-11 [https://www.acus.gov/sites/default/files/documents/87-11.pdf Alternatives for Resolving Government Contract Disputes]
 
*89-2 [https://www.acus.gov/sites/default/files/documents/89-2.pdf Contracting Officers’ Management of Disputes]
 
*89-2 [https://www.acus.gov/sites/default/files/documents/89-2.pdf Contracting Officers’ Management of Disputes]
====Other ACUS Documents====
 
*Richard J. Bednar, [https://www.acus.gov/sites/default/files/documents/1989-02%20Contracting%20Officers%27%20Management%20of%20Disputes.pdf Government Contracting Officers Should Make Greater Use of ADR Techniques in Resolving Contract Disputes, Report to the Administrative Conference of the U.S.], 1989 ACUS 149.
 
*Thomas Madden, [https://www.acus.gov/sites/default/files/documents/1983-01%20The%20Certification%20Requirement%20in%20the%20Contract%20Disputes%20Act.pdf Certification Requirements under the Contract Disputes Act], Report to the Administrative Conference of the U.S., 1983 ACUS 23.
 
 
 
===Office of Federal Procurement Policy Documents===
 
===Office of Federal Procurement Policy Documents===
 
*[https://www.govinfo.gov/content/pkg/FR-1979-01-25/pdf/FR-1979-01-25.pdf Proposed Uniform Rules of Procedure for Boards of Contract Appeals], 44 Fed. Reg. 5210 (Jan. 25, 1979).
 
*[https://www.govinfo.gov/content/pkg/FR-1979-01-25/pdf/FR-1979-01-25.pdf Proposed Uniform Rules of Procedure for Boards of Contract Appeals], 44 Fed. Reg. 5210 (Jan. 25, 1979).
Line 85: Line 81:
 
===Other Government Documents===
 
===Other Government Documents===
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
*Commission on Government Procurement, Report of the Commission on Government Procurement, Vol. 4 (1972).
+
*Comm’n on Gov’t Procurement, ''Report of the Commission on Government Procurement'', Vol. 4 (1972).
*Eldon H. Crowell & Charles Pou, [https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2766&context=mlr Appealing Government Contract Decisions: Reducing the Cost and Delay of Procurement Litigation with Alternative Dispute Resolution Techniques] (report to the Admin. Conf. of the U.S.). 1987 ACUS 1139, portions reprinted in 49 Md. L. Rev. 183 (1990).
+
*Gen. Accounting Office, GAO/NSIAD-85-102, [https://www.gao.gov/assets/150/143611.pdf The Armed Services Board of Contract Appeals Has Operated Independently] (1985).
*General Accounting Office, [https://www.gao.gov/assets/150/143611.pdf The Armed Services Board of Contract Appeals Has Operated Independently], GAO/NSIAD-85-102, B-198620 (1985).
+
*Gen. Servs. Admin., Board of Contract Appeals, [https://www.cbca.gov/howto/rules/procedure.html Rules of Procedure of the Civilian Board of Contract Appeals]
*General Services Administration, Board of Contract Appeals, Rules of Procedure of the Civilian Board of Contract Appeals  
+
**[https://www.govinfo.gov/content/pkg/FR-2008-05-12/pdf/E8-10484.pdf Final Rule], 73 Fed. Reg. 26,947 (May 12, 2008).
[https://www.gpo.gov/fdsys/pkg/FR-2008-05-12/pdf/E8-10484.pdf BCACase 2006–61-1;] ,
+
**[https://www.govinfo.gov/content/pkg/FR-2009-12-16/pdf/E9-29838.pdf#page=1 December 2009 Amendments], 74 Fed. Reg. 66,584 (Dec. 16, 2009).
**Final rule, 73 Fed. Reg. 26,947 (May 12, 2008), amended by
+
**[https://www.govinfo.gov/content/pkg/FR-2011-08-17/pdf/2011-20874.pdf#page=2 Electronic Filing of Documents], 76 Fed. Reg. 50,927 (Aug. 17, 2011).
**74 Fed. Reg. 66,585, Dec. 16, 2009;
+
**[https://www.govinfo.gov/content/pkg/FR-2018-08-17/pdf/2018-17213.pdf#page=1 August 2018 Amendments], 83 Fed. Reg. 41,009 (Aug. 17, 2018).
**76 Fed. Reg. 50,927, Aug. 17, 2011.
 
 
*Gov’t Accountability Office, GAO-08-978SP, [https://www.gao.gov/assets/210/203470.pdf Principles of Federal Appropriations Law] (3d ed. 2008).
 
*Gov’t Accountability Office, GAO-08-978SP, [https://www.gao.gov/assets/210/203470.pdf Principles of Federal Appropriations Law] (3d ed. 2008).
*Kate M. Manuel et al., Cong. Research Serv., R42826, ''The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions'' (2015).
+
*Kate M. Manuel et al., Cong. Research Serv., R42826, [https://digital.library.unt.edu/ark:/67531/metadc503280/m1/1/high_res_d/R42826_2015Feb03.pdf The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions] (2015).
 
</div>
 
</div>
  
 
===Reports and Periodicals===
 
===Reports and Periodicals===
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
*Bloomberg BNA, Federal Contracts Report (published weekly; reports major developments in government contracting, including legislation, regulations, administrative policies, court and board decisions).
+
*Bloomberg BNA, ''Federal Contracts Report'' (published weekly; reports major developments in government contracting, including legislation, regulations, administrative policies, court and board decisions).
 
*George Washington University Law School, [http://law.gwu.libguides.com/govk Government Contracts Research Guide]  
 
*George Washington University Law School, [http://law.gwu.libguides.com/govk Government Contracts Research Guide]  
 
*National Contract Management Association, Journal of Contract Management (published annually; contains articles on issues of government contract administration and highlights legislative and regulatory developments).
 
*National Contract Management Association, Journal of Contract Management (published annually; contains articles on issues of government contract administration and highlights legislative and regulatory developments).
 
*PrAcademics Press, Journal of Public Procurement (published quarterly).
 
*PrAcademics Press, Journal of Public Procurement (published quarterly).
*Section of Public Contract Law, American Bar Association
+
*[https://www.americanbar.org/groups/public_contract_law/ ABA Section of Public Contract Law]
 
**Public Contract Law Journal (published quarterly; a law review with a public contract focus).
 
**Public Contract Law Journal (published quarterly; a law review with a public contract focus).
**The Procurement Lawyer, (quarterly newsletter).
+
**The Procurement Lawyer (quarterly newsletter).
 
**An Ounce of Prevention: Best Practices in Dispute Avoidance for Government Contracting (ABA, 2002).
 
**An Ounce of Prevention: Best Practices in Dispute Avoidance for Government Contracting (ABA, 2002).
 
*Thomson Reuters  
 
*Thomson Reuters  
**Westlaw, Briefing Papers (published periodically; practical, topical papers on government contracting issues—includes an annual “Procurement Review,surveying significant developments of the preceding year, and an annual “Procurement Bibliography,citing most procurement articles published during the previous year).
+
**Westlaw, Briefing Papers (published periodically; practical, topical papers on government contracting issues—includes an annual ''Procurement Review'', surveying significant developments of the preceding year, and an annual ''Procurement Bibliography'', citing most procurement articles published during the previous year).
 
**The Government Contractor (published periodically; reports on and analyzes legal rulings and other significant developments, such as new and proposed laws and regulations).
 
**The Government Contractor (published periodically; reports on and analyzes legal rulings and other significant developments, such as new and proposed laws and regulations).
 
**The Nash & Cibinic Report (published monthly; provides opinion and advice on current government contract issues).
 
**The Nash & Cibinic Report (published monthly; provides opinion and advice on current government contract issues).
Line 116: Line 111:
 
===Books and Articles===
 
===Books and Articles===
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
*Adam Angelo Bartolanzo, Note, ''Pleading Requirements for Claims by Contractors Against the Government: Applying Twombly and Iqbal after the Federal Circuit’s Decision in Todd Construction'', L.P., 42 Pub. Cont. L.J. 203 (2012).
+
*Adam Angelo Bartolanzo, Note, ''Pleading Requirements for Claims by Contractors Against the Government: Applying Twombly and Iqbal after the Federal Circuit’s Decision in Todd Construction'', L.P., 42 Pub. Cont. L. J. 203 (2012).
 
*Arnavas & Ferrell, ''Motions Before Contract Appeals Boards'', Briefing Papers No. 86-9 (Fed. Pubs., 1986).
 
*Arnavas & Ferrell, ''Motions Before Contract Appeals Boards'', Briefing Papers No. 86-9 (Fed. Pubs., 1986).
 
*D. Arnavas & W. Ruberry, ''Government Contract Guidebook'' (Fed. Pubs., 1992 with supplements).
 
*D. Arnavas & W. Ruberry, ''Government Contract Guidebook'' (Fed. Pubs., 1992 with supplements).
 +
*Richard J. Bednar, [https://www.acus.gov/sites/default/files/documents/1989-02%20Contracting%20Officers%27%20Management%20of%20Disputes.pdf Government Contracting Officers Should Make Greater Use of ADR Techniques in Resolving Contract Disputes] (1989) (report to ACUS).
 
*Matthew C. Blum, ''Government Contract Guidebook Workbook'' (Fed. Pubs., 4th ed. 1991).
 
*Matthew C. Blum, ''Government Contract Guidebook Workbook'' (Fed. Pubs., 4th ed. 1991).
 
*Aaron Broaddus et al., ''CCH Federal Acquisition Regulation'' (2013) (reproduces the FAR and all amendments to the regulations issued prior to this January 1, 2013 edition, along with an easy-to-use topical index).
 
*Aaron Broaddus et al., ''CCH Federal Acquisition Regulation'' (2013) (reproduces the FAR and all amendments to the regulations issued prior to this January 1, 2013 edition, along with an easy-to-use topical index).
 
*Nathaniel E. Castellano, ''After Arbaugh: Neither Claim Submission, Certification, Nor Timely Appeal Are Jurisdictional Prerequisites to Contract Disputes Act Litigation'', 47 Pub. Cont. L.J. 35 (2017).
 
*Nathaniel E. Castellano, ''After Arbaugh: Neither Claim Submission, Certification, Nor Timely Appeal Are Jurisdictional Prerequisites to Contract Disputes Act Litigation'', 47 Pub. Cont. L.J. 35 (2017).
*John Cibinic & Ralph C. Nash, ''Administration of Government Contracts'' (Government Contracts Program, Geo. Wash. U., 4th ed. 2006).
+
*John Cibinic & Ralph C. Nash, ''Administration of Government Contracts'' (Gov’t Contracts Program, Geo. Wash. U., 4th ed. 2006).
*John Cibinic & Ralph C. Nash, ''Government Contract Claims'' (Government Contracts Program, Geo. Wash. U., 1981).
+
*John Cibinic & Ralph C. Nash, ''Government Contract Claims'' (Gov’t Contracts Program, Geo. Wash. U., 1981).
 +
*Eldon H. Crowell & Charles Pou, [https://www.acus.gov/sites/default/files/documents/R8%201987-11%20CROWELL-POU%20Appealing%20Contract%20Decisions%20-%20Cost%20%2B%20Delay%201987-2%20ACUS%201139%20xr%20F1.pdf Appealing Government Contract Decisions: Reducing the Cost and Delay of Procurement Litigation with Alternative Dispute Resolution Techniques] (Jan. 1988(report to ACUS).
 
*Dover & Polack, ''Invoking the Contract Disputes Act—Potential Pitfalls'', Briefing Papers No. 90-8 (Fed. Pubs., 1990).
 
*Dover & Polack, ''Invoking the Contract Disputes Act—Potential Pitfalls'', Briefing Papers No. 90-8 (Fed. Pubs., 1990).
 
*Vernon J. Edwards, ''Not Subject to the “Disputes” Clause? (Has Anyone Heard of Burnside-Ott?)'', 27 No. 1 N&CR ¶ 2 (2013).
 
*Vernon J. Edwards, ''Not Subject to the “Disputes” Clause? (Has Anyone Heard of Burnside-Ott?)'', 27 No. 1 N&CR ¶ 2 (2013).
*John L. Fugh & James F. Nagle, [http://www.loc.gov/rr/frd/Military_Law/pdf/10-1989.pdf The Disputes Process—A Management Tool: Advice for Contracting Personnel], The Army Lawyer, Oct. 1989, at 4.
+
*John L. Fugh & James F. Nagle, [http://www.loc.gov/rr/frd/Military_Law/pdf/10-1989.pdf The Disputes Process—A Management Tool: Advice for Contracting Personnel], The Army Law., Oct. 1989, at 4.
*James S. Ganther, ''Representing the Federal Government Contractor'', 70 Fla. B. J. 58 (Apr. 1996).
+
*James S. Ganther, ''Representing the Federal Government Contractor'', 70 Fla. B. J. 58 (1996).
*Daniel P. Graham et al., ''Federal Circuit Year-In-Review 2012: Guarding the Gates of Government Contracts Litigation'', 42 Pub. Cont. L.J. 695 (2013).
+
*Daniel P. Graham et al., ''Federal Circuit Year-In-Review 2012: Guarding the Gates of Government Contracts Litigation'', 42 Pub. Cont. L. J. 695 (2013).
*Stan Hinton, ''Post-Contract Disputes Act Jurisdiction over Nonmonetary Contract Disputes: A Critique of Malone v. United States'', 19 Pub. Cont. L.J. 174 (1989).
+
*Stan Hinton, ''Post-Contract Disputes Act Jurisdiction over Nonmonetary Contract Disputes: A Critique of Malone v. United States'', 19 Pub. Cont. L. J. 174 (1989).
*John A. Howell, ''The Role of the Office of Federal Procurement Policy in the Management of the Boards of Contract Appeals: From Great Expectations to Paradise Lost?'', 28 Pub. Cont. L.J. 559 (1999).
+
*John A. Howell, ''The Role of the Office of Federal Procurement Policy in the Management of the Boards of Contract Appeals: From Great Expectations to Paradise Lost?'', 28 Pub. Cont. L. J. 559 (1999).
 
*Michael T. Janik & Margaret C. Rhodes, ''Contractor Claims for Relief under Illegal Contracts with the Government'', 45 Am. U. L. Rev. 1949 (1996).
 
*Michael T. Janik & Margaret C. Rhodes, ''Contractor Claims for Relief under Illegal Contracts with the Government'', 45 Am. U. L. Rev. 1949 (1996).
*Richard C. Johnson, ''Beyond Judicial Activism: Federal Circuit Decisions Legislating New Contract Requirements'', 42 Pub. Cont. L.J. 69 (2012).
+
*Richard C. Johnson, ''Beyond Judicial Activism: Federal Circuit Decisions Legislating New Contract Requirements'', 42 Pub. Cont. L. J. 69 (2012).
*W. Keyes & Steven Feldman, ''Government Contracts in a Nutshell'' (5th ed. Thomson West, 2011).
+
*W. Keyes & Steven Feldman, ''Government Contracts in a Nutshell'' (Thomson West, 5th ed. 2011).
 +
*
 +
*Thomas Madden, [https://www.acus.gov/sites/default/files/documents/1983-01%20The%20Certification%20Requirement%20in%20the%20Contract%20Disputes%20Act.pdf Certification Requirements under the Contract Disputes Act] (1983) (report to ACUS).
 
*John McBride & Thomas Touhey, ''Government Contracts: Cyclopedic Guide to Law Administration and Procedure'' (Matthew Bender, 1996, with periodic updates).
 
*John McBride & Thomas Touhey, ''Government Contracts: Cyclopedic Guide to Law Administration and Procedure'' (Matthew Bender, 1996, with periodic updates).
 
*James F. Nagle, ''A History of Government Contracting'' (Geo. Wash. Univ., 1999).
 
*James F. Nagle, ''A History of Government Contracting'' (Geo. Wash. Univ., 1999).
 
*Ralph C. Nash, ''Litigating Contract Disputes: Expediting Appeals Board Cases'', 4 N&CR ¶ 39 (Keiser Pubs., 1990).
 
*Ralph C. Nash, ''Litigating Contract Disputes: Expediting Appeals Board Cases'', 4 N&CR ¶ 39 (Keiser Pubs., 1990).
 
*Ralph C. Nash, ''The Contract Disputes Act: A Prescription for Wheelspinning'', 4 N&CR ¶ 29 (Keiser Pubs., 1990).
 
*Ralph C. Nash, ''The Contract Disputes Act: A Prescription for Wheelspinning'', 4 N&CR ¶ 29 (Keiser Pubs., 1990).
*Ralph C. Nash, Steven L. Schooner & Karen R. O’Brien, ''The Government Contracts Reference Book: A Comprehensive Guide to the Language of Procurement'' (Government Contracts Program, Geo. Wash. U., 4th ed. 2013).
+
*Ralph C. Nash, Steven L. Schooner & Karen R. O’Brien, ''The Government Contracts Reference Book: A Comprehensive Guide to the Language of Procurement'' (Gov’t Contracts Program, Geo. Wash. U., 4th ed. 2013).
 
*Stuart B. Nibley & Jade Totman, ''Let the Government Contract: The Sovereign has the Right, and Good Reason, to Shed Its Sovereignty when It Contracts'', 42 Pub. Cont. L.J. 1 (2012).
 
*Stuart B. Nibley & Jade Totman, ''Let the Government Contract: The Sovereign has the Right, and Good Reason, to Shed Its Sovereignty when It Contracts'', 42 Pub. Cont. L.J. 1 (2012).
 
*Robert T. Peacock, ''Discovery Before Boards of Contracts Appeals'', 13 Pub. Cont. L.J. 1 (1982).
 
*Robert T. Peacock, ''Discovery Before Boards of Contracts Appeals'', 13 Pub. Cont. L.J. 1 (1982).
Line 147: Line 146:
 
*Michael J. Schaengold & Robert S. Brams, ''Choice of Forum for Government Contract Claims: Court of Federal Claims vs. Board of Contract Appeals'', 17 Fed. Circuit B.J. 279 (2008).
 
*Michael J. Schaengold & Robert S. Brams, ''Choice of Forum for Government Contract Claims: Court of Federal Claims vs. Board of Contract Appeals'', 17 Fed. Circuit B.J. 279 (2008).
 
*Steven L. Schooner, ''A Random Walk: The Federal Circuit’s 2010 Contract Decisions'', 60 Am. U. L. Rev. 1067 (2011).
 
*Steven L. Schooner, ''A Random Walk: The Federal Circuit’s 2010 Contract Decisions'', 60 Am. U. L. Rev. 1067 (2011).
*Steven L. Schooner & Pamela J. Kovacs, ''Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity'', 21 Fed. Circuit B.J. 685 (2012).
+
*Steven L. Schooner & Pamela J. Kovacs, ''Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity'', 21 Fed. Cir. B.J. 685 (2012).
*Section of Public Contract Law, American Bar Association, ''An Ounce of Prevention: Best Practices in Dispute Avoidance for Government Contracting'' (2002).
+
*ABA Section of Pub. Contract Law, ''An Ounce of Prevention: Best Practices in Dispute Avoidance for Government Contracting'' (2002).
*Section of Public Contract Law, American Bar Association, ''Alternative Dispute Resolution: A Practical Guide for Resolving Government Contract Controversies'' (2d ed. 2006).
+
*ABA Section of Pub. Contract Law, ''Alternative Dispute Resolution: A Practical Guide for Resolving Government Contract Controversies'' (2d ed. 2006).
 
*Michael J. Shea & Michael J. Shaengold, ''A Guide to the Court of Appeals for the Federal Circuit'', Briefing Papers No. 90-13 (Fed. Pubs., 1990).
 
*Michael J. Shea & Michael J. Shaengold, ''A Guide to the Court of Appeals for the Federal Circuit'', Briefing Papers No. 90-13 (Fed. Pubs., 1990).
 
*Matthew H. Solomsom et al., ''2012 Government Contract Law Decisions of the Federal Circuit'', 62 Am. U. L. Rev. 907 (2013).
 
*Matthew H. Solomsom et al., ''2012 Government Contract Law Decisions of the Federal Circuit'', 62 Am. U. L. Rev. 907 (2013).
Line 155: Line 154:
 
</div>
 
</div>
  
===Board of Contract Appeals Regulations===
+
===Agency Regulations===
*Armed Services ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=ap48.3.254_6299.a&rgn=div9 48 C.F.R. Ch. 2, Subch. 1, Appendix A])
+
*'''Armed Services''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=ap48.3.254_6299.a&rgn=div9 48 C.F.R. Ch. 2, Subch. 1, Appendix A])
*Civilian (General Services Administration)
+
*'''Civilian (General Services Administration)''':
 
**Contract Dispute Cases ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6101&rgn=div5 48 C.F.R. Part 6101])
 
**Contract Dispute Cases ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6101&rgn=div5 48 C.F.R. Part 6101])
 
**Crop Insurance Cases ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6102&rgn=div5 48 C.F.R. Part 6102])
 
**Crop Insurance Cases ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6102&rgn=div5 48 C.F.R. Part 6102])
Line 163: Line 162:
 
**Travel and Relocation Expenses Cases ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6104&rgn=div5 48 C.F.R. Part 6104])
 
**Travel and Relocation Expenses Cases ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6104&rgn=div5 48 C.F.R. Part 6104])
 
**Decisions Authorized under 31 U.S.C. 3529 ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6105&rgn=div5 48 C.F.R. Part 6105])
 
**Decisions Authorized under 31 U.S.C. 3529 ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt48.7.6105&rgn=div5 48 C.F.R. Part 6105])
*Postal Service ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt39.1.955&rgn=div5 39 C.F.R. Part 955])
+
*'''Postal Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt39.1.955&rgn=div5 39 C.F.R. Part 955])
*Tennessee Valley Authority ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt18.2.1308&rgn=div5 18 C.F.R. Part 1308])
+
*'''Tennessee Valley Authority''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=031619c9e620e7b6cabbc99637cb4972&mc=true&node=pt18.2.1308&rgn=div5 18 C.F.R. Part 1308])
  
 
==Statutory Provisions==
 
==Statutory Provisions==
 
Contract Disputes Act of 1978  
 
Contract Disputes Act of 1978  
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
 
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2">
*Title 41 U.S. Code, Chapter 71—Contract Disputes
+
*Title 41 U.S. Code, [http://uscode.house.gov/view.xhtml?path=/prelim@title41/subtitle3&edition=prelim Chapter 71—Contract Disputes]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7101&num=0&edition=prelim 7101. Definitions]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7101&num=0&edition=prelim § 7101. Definitions]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7102&num=0&edition=prelim 7102. Applicability of chapter]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7102&num=0&edition=prelim § 7102. Applicability of chapter]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7103&num=0&edition=prelim 7103. Decision by contracting officer]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7103&num=0&edition=prelim § 7103. Decision by contracting officer]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7104&num=0&edition=prelim 7104. Contractor's right of appeal from decision by contracting officer]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7104&num=0&edition=prelim § 7104. Contractor’s right of appeal from decision by contracting officer]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7105&num=0&edition=prelim 7105. Agency boards]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7105&num=0&edition=prelim § 7105. Agency boards]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7106&num=0&edition=prelim 7106. Agency board procedures for accelerated and small claims]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7106&num=0&edition=prelim § 7106. Agency board procedures for accelerated and small claims]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7107&num=0&edition=prelim 7107. Judicial review of agency board decisions]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7107&num=0&edition=prelim § 7107. Judicial review of agency board decisions]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7108&num=0&edition=prelim 7108. Payment of claims]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7108&num=0&edition=prelim § 7108. Payment of claims]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7109&num=0&edition=prelim 7109. Interest]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7109&num=0&edition=prelim § 7109. Interest]
 
*Title 28 U.S. Code
 
*Title 28 U.S. Code
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1346&num=0&edition=prelim 1346. United States as defendant]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1346&num=0&edition=prelim § 1346. United States as defendant]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1491&num=0&edition=prelim 1491. Claims against the United States generally; actions involving the Tennessee Valley Authority]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1491&num=0&edition=prelim § 1491. Claims against the United States generally; actions involving the Tennessee Valley Authority]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2401&num=0&edition=prelim 2401. Time for commencing action against United States]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2401&num=0&edition=prelim § 2401. Time for commencing action against United States]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2414&num=0&edition=prelim 2414. Payment of judgments and compromise settlements]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2414&num=0&edition=prelim § 2414. Payment of judgments and compromise settlements]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2510&num=0&edition=prelim 2510. Referral of cases by Comptroller General]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2510&num=0&edition=prelim § 2510. Referral of cases by Comptroller General]
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2517&num=0&edition=prelim 2517. Payment of judgments]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2517&num=0&edition=prelim § 2517. Payment of judgments]
 
*Title 31 U.S. Code  
 
*Title 31 U.S. Code  
**§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1304&num=0&edition=prelim 1304. Judgments, awards, and compromise settlements]
+
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1304&num=0&edition=prelim § 1304. Judgments, awards, and compromise settlements]
 
</div>
 
</div>

Latest revision as of 12:33, 12 December 2018

41 U.S.C. §§ 7101–7109 (2012); 28 U.S.C. §§ 1346(a)(2), 1491(a)(2), 2401(a), 2414, 2510, 2517 (2012); 31 U.S.C. § 1304(a)(3)(C) (2012); enacted by Pub. L. No. 95-563, 92 Stat. 2383, Nov. 1, 1978; significantly amended by Pub. L. No. 97-164, title I, §§ 156–157, 161, 96 Stat. 25, 47–49, Apr. 2, 1982, by Pub. L. No. 101-509, § 104, 104 Stat. 1447, Nov. 5, 1990, and by Pub. L. No. 101-552, 104 Stat. 273, Nov. 15, 1990; by Pub. L. No. 102-572, title IX, Sec. 907(a)(1),106 Stat. 4518, Oct. 29, 1992; by Pub. L. No. 103-355, title II, Sec. 2351(a)((1)), (b), (e), 2352, 108 Stat. 3322, Oct. 13, 1994; by Pub. L. No. 104-106, div. D, title XLIII, Sec. 4321(a)(6), (7), 4322(b)(6), 110 Stat. 671, 677, Feb. 10, 1996; by Pub. L. No. 104-320, Sec. 6, 110 Stat. 3871, Oct. 19, 1996; by Pub. L. No. 105-85, div. A, title X, Sec. 1073(g)(3), 111 Stat. 1906, Nov. 18, 1997; by Pub. L. No. 109-163, div A, title VIII, subtitle E, § 847(d)(1) –(4), 119 Stat. 3393, Jan. 6, 2006; by Pub. L. No. 109-364, div. A, title VIII, subtitle E, § 857, 120 Stat. 2394, Oct. 17, 2006; by Pub. L. No. 111-350, § 3, 124 Stat. 3816, Jan. 4, 2011.

Lead Agency:

Office of Management and Budget, Office of Federal Procurement Policy

Overview

Background

The Contract Disputes Act (CDA) of 1978 was intended to bring greater consistency, fairness, and efficiency to the resolution of disputes arising out of government contracts. Before the CDA’s passage, this process was governed by various contract clauses, agency regulations, judicial decisions, and statutory provisions; procedures varied depending on the nature of the dispute and the agency involved. The legislation reflected in large part the recommendations of the Commission on Government Procurement, created by Congress in 1969 to recommend improvements in the procurement process.

Coverage

The CDA and its procedures apply to claims arising under or relating to express or implied contracts made by executive branch agencies for the procurement of property other than real property; services, construction, alteration, repair, or maintenance of real property; or for the disposal of personal property. The CDA does not reach bid protests or proceedings for the debarment or suspension of government contractors.

The term “claim” is not defined by the CDA; however, the Federal Acquisition Regulation (FAR), a detailed regulation establishing uniform procedures and policies for procurement by federal executive agencies, defines it as:

Claim means 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 this contract. . . . A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under [the CDA].

Cognizable claims include disputes arising under specific contract clauses (for example, when the parties cannot agree on an amount of compensation owed under clauses authorizing equitable adjustment for contract changes or for site conditions different from those anticipated when the contract was formed) as well as claims for breach of contract. Terminations for default are considered claims by the government under the CDA.

Notwithstanding these examples, the elements of a claim, particularly the relationship between the “dispute” and “routine” clauses, continue to generate frequent litigation. The Federal Circuit resolved some of the uncertainty in 1995, when it articulated, en banc, what has come to be known as the Reflectone test: a non-routine request for payment can constitute a claim under the CDA—even if it is not in dispute—if it is a written demand seeking a sum certain (or other contract relief) as a matter of right. On the other hand, a “routine request for payment” must be in dispute. In 2012, however, a single panel of the Federal Circuit complicated this calculus by holding that a jurisdictional predicate to a non-routine contractor claim is its derivation from “additional or unforeseen work at the government’s behest.” Parsons Global Servs., Inc. v. McHugh, 677 F.3d 1166, 1171 (Fed. Cir. 2012). Absent this “unforeseen” element, the claim is routine and must be in dispute.

Agency Procedures

The CDA established a system that begins with the contracting officer, an agency official authorized to enter into, administer, and terminate contracts on behalf of the government. The contracting officer plays a dual role in the disputes process, both representing the government as a party to the contract and rendering decisions on claims arising out of disputes between the parties. If a dispute arises during contract performance that cannot be amicably resolved (e.g., through exchange of correspondence or negotiation), the contractor can invoke the procedures of the CDA by presenting a claim to the contracting officer. The claim must be in writing, provide adequate notice to the government of the basis for the demand and the relief sought, and clearly indicate the contractor’s intent to seek a decision from the contracting officer.

If the essence of the dispute is money (for example, a claim for increased costs or for payment of the contract balance), the contractor must quantify the claim. In addition, for any claim over $100,000, the contractor must certify that “the claim is made in good faith, that the supporting data are accurate and complete to the best of the contractor’s knowledge and belief, [and] that the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable.” The certification also must state that the person who is certifying is “authorized to certify the claim on behalf of the contractor.”

The certification provision, incorporated into the CDA to discourage inflated contractor claims, has proven to be one of the more controversial aspects of the law. Much of this controversy was reduced by a recent change in the CDA stating that a defective certification does not deprive a court or an agency board of contract appeals of jurisdiction over the claim (§ 7103(b)(3)). Prior to entry of a final judgment by a court or decision by a board of contract appeals, though, the court or board must obtain correction of a defective certification. A contracting officer has no duty to render a final decision on any claim over $100,000 that is not certified in accordance with § 7103(b)(1) if, within 60 days after receipt of the claim, the contracting officer notifies the contractor in writing of the reasons why an attempted certification was found to be defective.

If a claim cannot be settled by mutual agreement, the contracting officer must issue a written decision on the claim, stating the reasons for the decision and informing the contractor of available appeal rights. The CDA requires the contracting officer to issue this decision within 60 days of receipt of a claim for $100,000 or less, and within a reasonable time after receipt of a larger claim (in which case the contracting officer must notify the contractor within 60 days as to when the decision will issue). If these deadlines are not met, the contractor may petition the relevant tribunal to direct the contracting officer to issue a decision. In any event, if the contracting officer fails to issue a timely decision, the claim will be deemed denied under the statute, permitting the contractor to pursue an appeal.

If the contracting officer issues an adverse decision on a contractor’s claim or issues a decision asserting a government claim against the contractor (e.g., terminating the contract for default, asserting a right to excess reprocurement costs, demanding payment to recover the costs, or repairing or replacing defective work), the contractor has two avenues of appeal to choose from. The contractor may file an appeal at the appropriate agency board of contract appeals within 90 days after receiving the contracting officer’s decision. Alternatively, the contractor may file suit directly in the U.S. Court of Federal Claims within 12 months of the date it received the contracting officer’s decision. In either forum, proceedings on the claim will be de novo; any findings of fact made by the contracting officer in his or her final decision will not be binding. Only the contractor has the right to initiate litigation and to select the forum; if the contractor neither appeals nor files suit in the Court of Federal Claims, the contracting officer’s decision becomes final.

The boards of contract appeals are quasi-judicial tribunals within the executive branch, composed of administrative judges with at least five years of public contract law experience who are authorized to adjudicate contract disputes on behalf of the heads of their respective agencies. Congress intended the boards to be informal, expeditious, and inexpensive. In spirit, if not always in practice, the procedures of the boards reflect this intention. For example, under uniform rules of procedure developed by the Office of Federal Procurement Policy (OFPP), hearings are to be “as informal as may be reasonable and appropriate under the circumstances.” Contractors may appear pro se—without the aid of counsel. Boards offer accelerated disposition of appeals involving claims of $100,000 or less (providing resolution within 180 days of the contractor’s election) and expedited disposition for disputes of $50,000 or less (with a 120-day resolution period). The boards have taken some steps to encourage parties to consider alternatives to fullscale litigation (alternative dispute resolution, or ADR). For instance, the Armed Services Board of Contract Appeals distributes a notice regarding ADR to its litigants, which describes various alternatives to litigation.

In contrast to the boards, which deal exclusively with government contracting, the Court of Federal Claims’ docket includes a broad range of litigation involving the federal government in addition to government procurement. Its proceedings are somewhat more formalized than those of the boards. For instance, use of the Federal Rules of Evidence is mandatory, and corporations must be represented by attorneys. Despite its formalities, the court has implemented an ADR program featuring settlement judges and minitrials. Although the Court of Federal Claims does not offer accelerated or expedited procedures, it can (unlike the boards) adjudicate disputes alleging fraud and grant injunctive relief.

In contrast to board decisions, which are collegial, Claims Court decisions are issued by a single judge. The contractor may appeal the decision of either tribunal to the U.S. Court of Appeals for the Federal Circuit. In addition, the CDA permits the government (with the Attorney General’s approval) to appeal adverse decisions; previously, the government could not appeal contract appeals board decisions. The standard of review for findings of fact by contract appeals boards is one of substantial evidence (this standard was retained from preexisting law); for Court of Federal Claims decisions, the Federal Circuit will apply a “clearly erroneous” standard to rulings on questions of fact. Practically speaking, the decision of the Federal Circuit ends the litigation. A party may not seek review by the Supreme Court as a matter of right, and the Supreme Court rarely agrees to consider government contract cases.

Consolidation of Boards of Contract Appeals

Section 847 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. No. 109-163) established the Civilian Board of Contract Appeals (CBCA) within the General Services Administration to hear contract disputes under the CDA. The CBCA hears and decides contract disputes involving most non-defense executive agencies. Most of the previously existing boards of contract appeals (e.g., those at the General Services Administration and the departments of Agriculture, Energy, Housing and Urban Development, Interior, Labor, Transportation, and Veterans Affairs) no longer exist, and board judges and other personnel at those entities were transferred to the new CBCA.

Appeals on contract decisions involving the Departments of Defense, Army, Navy, and Air Force as well as NASA will continue to be heard at the Armed Services Board of Contract Appeals. Contract disputes from other non-defense federal agencies will be heard by the new CBCA, except that the Postal Service and Tennessee Valley Authority will continue to operate their own boards.

Alternative Dispute Resolution

A contracting officer is specifically authorized to use ADR under the provisions of the Administrative Dispute Resolution Act for a contract claim at any time that he or she has authority to resolve the issue in controversy. Also, if a contracting officer rejects a small business contractor’s request to use ADR, he or she must provide a written explanation that cites one or more conditions in 5 U.S.C. § 572(b) or other specific reasons why ADR is not appropriate for that dispute. Conversely, a contractor that rejects an agency offer to use ADR must inform the agency in writing of its specific reasons.

OFPP Guidance

The CDA directed the OFPP to issue guidelines for the establishment and procedures of contract appeals boards. In addition, the OFPP issued, and subsequently rescinded, a policy directive (OFPP Policy Letter 80-3) setting forth procedures for handling claims by agency contracting officers and the text of a disputes clause to be included in government contracts.

Other Provisions

In addition to establishing a single comprehensive law covering the contract disputes process for almost all government contracts (some, such as procurements by the Tennessee Valley Authority, remain outside the scope of the law), the CDA made several other important changes to existing law. The CDA strengthened contract appeals boards, giving them subpoena power and authorizing them to grant any relief within the authority of the Court of Federal Claims. Moreover, appeals boards can now hear breach of contract claims as well as those “arising under” a contract. The law also added new requirements for selecting appeals board members that are intended to enhance quality and independence.

Legislative History

Efforts to pass contract disputes legislation began after the Commission on Government Procurement issued its final report and recommendations in 1973 and reached fruition in October 1978. H.R. 11002 was introduced by Representatives Herbert Harris and Tom Kindness on February 20, 1978, and reported favorably by the House Judiciary Committee without hearings. (The Commission had held hearings on similar legislation the previous year.) The House passed the bill on September 26, 1978. A similar bill, S. 3178, was introduced by Senators Lawton Chiles, Bob Packwood, John Heinz, and Dennis DeConcini on June 7, 1978, and favorably reported, with amendments, by the committees on Government Affairs and the Judiciary. The Senate took up floor consideration of the bill on October 12, 1978, agreeing to amendments that exempted the Tennessee Valley Authority from certain of the CDA’s requirements, added the certification requirement, deleted a requirement that an informal settlement conference be afforded contractors, and changed the standard of judicial review of contract appeals board decisions from “clearly erroneous” to “substantial evidence,” among other things. The Senate then passed H.R. 11002, amended to contain the amended provisions of S. 3178, and the House agreed to the Senate-passed version the next day.

Perhaps because it was passed quickly, at the end of the legislative session, the CDA (including the Senate amendments to it) was not the subject of extensive debate. However, the Congressional Record for October 12 does include a brief explanation of the amendments agreed to on the floor. 95 Cong. Rec. 36,261-68.

In January of 2011, Congress passed bill H.R. 1107, which became Public Law No. 111-350, to simply “restate the existing law” without having any substantive effect. In so doing, Congress “remove[d] contradictions, ambiguities, and other imperfections” by “reorganizing various provisions of the existing law, harmonizing style and terminology, modernizing obsolete language, and correcting drafting errors.”

Source Note

There are considerable materials available on federal contract law generally and on contract claims and the CDA specifically. Most of these materials are aimed at practicing attorneys specializing in government contract law. The items listed here are representative of the types of materials available; the list is by no means complete. Of these materials, the services published by CCH (Government Contracts Reporter and Contract Appeals Board Decisions) are comprehensive and frequently updated. The Government Contractor (Thomson Rueters) also provides up-to-date information and analysis.

Government Contract Disputes and Government Contract Claims include extensive historical material and information on other aspects of government contract law and the CDA. Crowell and Pou’s Appealing Government Contract Decisions (1990) examines agency experience with, and gives advice on, using ADR in contract claims.

Note that pre-1983 publications do not reflect amendments to the CDA made by the Federal Courts Improvement Act of 1982, which (among other things) created the Court of Appeals for the Federal Circuit and gave it jurisdiction over appeals from decisions of contract appeals boards and decisions of the Court of Federal Claims.

Bibliography

Legislative History and Congressional Documents

  • Hearings on H.R. 664 and Related Bills, Before the Subcomm. on Admin. Law and Gov’t Relations of the H. Comm. on the Judiciary, 95th Cong. (1977).
  • H.R. Rep. 95-1556 (1978).
  • J. Hearings on S. 3178 and S. 2787, Before the Subcomm. on Fed. Spending Practices and Open Gov’t of the S. Comm. on Gov'tal Affairs & Subcomm. on Citizens and Shareholders Rights and Remedies of the S. Comm. on Judiciary, 95th Cong. (1978).
  • S. Rep. No. 95-1118 (1978).
  • H.R. Rep. No. 111-42 (2009).

Government Documents

ACUS Recommendations

Office of Federal Procurement Policy Documents

Other Government Documents

Reports and Periodicals

  • Bloomberg BNA, Federal Contracts Report (published weekly; reports major developments in government contracting, including legislation, regulations, administrative policies, court and board decisions).
  • George Washington University Law School, Government Contracts Research Guide
  • National Contract Management Association, Journal of Contract Management (published annually; contains articles on issues of government contract administration and highlights legislative and regulatory developments).
  • PrAcademics Press, Journal of Public Procurement (published quarterly).
  • ABA Section of Public Contract Law
    • Public Contract Law Journal (published quarterly; a law review with a public contract focus).
    • The Procurement Lawyer (quarterly newsletter).
    • An Ounce of Prevention: Best Practices in Dispute Avoidance for Government Contracting (ABA, 2002).
  • Thomson Reuters
    • Westlaw, Briefing Papers (published periodically; practical, topical papers on government contracting issues—includes an annual Procurement Review, surveying significant developments of the preceding year, and an annual Procurement Bibliography, citing most procurement articles published during the previous year).
    • The Government Contractor (published periodically; reports on and analyzes legal rulings and other significant developments, such as new and proposed laws and regulations).
    • The Nash & Cibinic Report (published monthly; provides opinion and advice on current government contract issues).
  • Wolters Kluwer CCH Government Contracts Reporter (published periodically; includes current information and new developments related to statutes, regulations, cases, and legislation, as well as the Federal Acquisition Regulation and agency supplements; current edition available only in electronic format). (Also available through Thomson Reuters Westlaw)

Books and Articles

  • Adam Angelo Bartolanzo, Note, Pleading Requirements for Claims by Contractors Against the Government: Applying Twombly and Iqbal after the Federal Circuit’s Decision in Todd Construction, L.P., 42 Pub. Cont. L. J. 203 (2012).
  • Arnavas & Ferrell, Motions Before Contract Appeals Boards, Briefing Papers No. 86-9 (Fed. Pubs., 1986).
  • D. Arnavas & W. Ruberry, Government Contract Guidebook (Fed. Pubs., 1992 with supplements).
  • Richard J. Bednar, Government Contracting Officers Should Make Greater Use of ADR Techniques in Resolving Contract Disputes (1989) (report to ACUS).
  • Matthew C. Blum, Government Contract Guidebook Workbook (Fed. Pubs., 4th ed. 1991).
  • Aaron Broaddus et al., CCH Federal Acquisition Regulation (2013) (reproduces the FAR and all amendments to the regulations issued prior to this January 1, 2013 edition, along with an easy-to-use topical index).
  • Nathaniel E. Castellano, After Arbaugh: Neither Claim Submission, Certification, Nor Timely Appeal Are Jurisdictional Prerequisites to Contract Disputes Act Litigation, 47 Pub. Cont. L.J. 35 (2017).
  • John Cibinic & Ralph C. Nash, Administration of Government Contracts (Gov’t Contracts Program, Geo. Wash. U., 4th ed. 2006).
  • John Cibinic & Ralph C. Nash, Government Contract Claims (Gov’t Contracts Program, Geo. Wash. U., 1981).
  • Eldon H. Crowell & Charles Pou, Appealing Government Contract Decisions: Reducing the Cost and Delay of Procurement Litigation with Alternative Dispute Resolution Techniques (Jan. 1988(report to ACUS).
  • Dover & Polack, Invoking the Contract Disputes Act—Potential Pitfalls, Briefing Papers No. 90-8 (Fed. Pubs., 1990).
  • Vernon J. Edwards, Not Subject to the “Disputes” Clause? (Has Anyone Heard of Burnside-Ott?), 27 No. 1 N&CR ¶ 2 (2013).
  • John L. Fugh & James F. Nagle, The Disputes Process—A Management Tool: Advice for Contracting Personnel, The Army Law., Oct. 1989, at 4.
  • James S. Ganther, Representing the Federal Government Contractor, 70 Fla. B. J. 58 (1996).
  • Daniel P. Graham et al., Federal Circuit Year-In-Review 2012: Guarding the Gates of Government Contracts Litigation, 42 Pub. Cont. L. J. 695 (2013).
  • Stan Hinton, Post-Contract Disputes Act Jurisdiction over Nonmonetary Contract Disputes: A Critique of Malone v. United States, 19 Pub. Cont. L. J. 174 (1989).
  • John A. Howell, The Role of the Office of Federal Procurement Policy in the Management of the Boards of Contract Appeals: From Great Expectations to Paradise Lost?, 28 Pub. Cont. L. J. 559 (1999).
  • Michael T. Janik & Margaret C. Rhodes, Contractor Claims for Relief under Illegal Contracts with the Government, 45 Am. U. L. Rev. 1949 (1996).
  • Richard C. Johnson, Beyond Judicial Activism: Federal Circuit Decisions Legislating New Contract Requirements, 42 Pub. Cont. L. J. 69 (2012).
  • W. Keyes & Steven Feldman, Government Contracts in a Nutshell (Thomson West, 5th ed. 2011).
  • Thomas Madden, Certification Requirements under the Contract Disputes Act (1983) (report to ACUS).
  • John McBride & Thomas Touhey, Government Contracts: Cyclopedic Guide to Law Administration and Procedure (Matthew Bender, 1996, with periodic updates).
  • James F. Nagle, A History of Government Contracting (Geo. Wash. Univ., 1999).
  • Ralph C. Nash, Litigating Contract Disputes: Expediting Appeals Board Cases, 4 N&CR ¶ 39 (Keiser Pubs., 1990).
  • Ralph C. Nash, The Contract Disputes Act: A Prescription for Wheelspinning, 4 N&CR ¶ 29 (Keiser Pubs., 1990).
  • Ralph C. Nash, Steven L. Schooner & Karen R. O’Brien, The Government Contracts Reference Book: A Comprehensive Guide to the Language of Procurement (Gov’t Contracts Program, Geo. Wash. U., 4th ed. 2013).
  • Stuart B. Nibley & Jade Totman, Let the Government Contract: The Sovereign has the Right, and Good Reason, to Shed Its Sovereignty when It Contracts, 42 Pub. Cont. L.J. 1 (2012).
  • Robert T. Peacock, Discovery Before Boards of Contracts Appeals, 13 Pub. Cont. L.J. 1 (1982).
  • Walter Pettit et al., Contract Disputes Act of 1978: Explanation and Analysis, Briefing Papers No. 79-2 (Fed. Pubs., 1979).
  • Walter Pettit, Carl Vacketta & David Anthony, Government Contract Default Termination (Fed. Pubs. 1993).
  • Charles M. Reifel & Adrian L. Bastianelli, Contracting Officer Authority, Briefing Papers No. 86-4 (Fed. Pubs., 1986).
  • Dennis J. Riley, Federal Contracts Grants & Assistance (McGrawHill, 1983 & supplements).
  • Michael J. Schaengold & Robert S. Brams, Choice of Forum for Government Contract Claims: Court of Federal Claims vs. Board of Contract Appeals, 17 Fed. Circuit B.J. 279 (2008).
  • Steven L. Schooner, A Random Walk: The Federal Circuit’s 2010 Contract Decisions, 60 Am. U. L. Rev. 1067 (2011).
  • Steven L. Schooner & Pamela J. Kovacs, Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity, 21 Fed. Cir. B.J. 685 (2012).
  • ABA Section of Pub. Contract Law, An Ounce of Prevention: Best Practices in Dispute Avoidance for Government Contracting (2002).
  • ABA Section of Pub. Contract Law, Alternative Dispute Resolution: A Practical Guide for Resolving Government Contract Controversies (2d ed. 2006).
  • Michael J. Shea & Michael J. Shaengold, A Guide to the Court of Appeals for the Federal Circuit, Briefing Papers No. 90-13 (Fed. Pubs., 1990).
  • Matthew H. Solomsom et al., 2012 Government Contract Law Decisions of the Federal Circuit, 62 Am. U. L. Rev. 907 (2013).
  • Richard J. Webber, Litigating Claims and Protests Against the Federal Government: Strategies to Follow—and Pitfalls to Avoid—to Increase the Client’s Chances for Success, 2013 WL 5758846 (Aspatore ed., 2013).

Agency Regulations

Statutory Provisions

Contract Disputes Act of 1978