Appealing a Contracting Officer’s Adverse Claim Decision

We previously discussed how contractors initiate a contract dispute by filing a claim with the contracting officer. It hardly requires any imagination, however, to predict that the Government and the contractor, in many cases, won’t see eye to eye. So, what can a contractor do if a contracting officer refuses (either entirely or partially) the requested relief?

Let’s talk about the general framework for filing and pursuing a contract claim appeal at the boards of contract appeals.

Appellate Forum

First off, let’s set the stage by addressing the relevant forums. The Government operates two independent tribunals that review final contract decisions from contracting officers. If your contract is with DoD, NASA, or the CIA, then file your appeal with the Armed Services Board of Contract Appeals (ASBCA). If your contract is with any other agency, then file your appeal with the Civilian Board of Contract Appeals (CBCA).

Note that you can also file an appeal with the Court of Federal Claims. That could be an appropriate choice in some circumstances, and may change some of the issues relating to timing of the appeal.

Here, though, we’ll focus our discussion on appealing to a board of appeal.

Timing of Appeal

The first key move in an appeal is timely filing. It is crucial that you file a notice of appeal with either the ASBCA or CBCA within 90 days after the contracting officer’s final decision. If you miss that deadline, the party is over: the board will dismiss your appeal.

What if the contracting officer doesn’t issue a decision within the appropriate time? That won’t necessarily be an obstacle to an appeal because the ASBCA and CBCA’s rules address this situation and still allow for an appeal.

Notice of Appeal

The notice of appeal typically consists of a brief statement alerting the board of the appeal and the amount sought. You should attach the contracting officer’s decision (that you are appealing) to the notice of appeal. The board will then acknowledge and docket your appeal.

Complaint and Answer

Within 30 days of the appeal’s docketing, you must file a complaint. This document –which initiates a process resembling traditional litigation in state and federal courts–articulates the factual and legal grounds for the appeal.

Within 30 days after the complaint, the Government should file an answer.

Appeal File

Also within 30 days after the complaint, the Government must compile and submit an appeal file–the compilation of documents that the Government believes are necessary for the appeal’s resolution. As the appellant, you can supplement the appeal file with additional documents. Ultimately, the board will use this corpus of documents when deciding the case.

Discovery

Likely after the board judge enters a scheduling order (normally with the parties’ input), the parties conduct discovery–such as issuing interrogatories (written questions), document requests, and depositions–to collect facts necessary to prosecute and defend the appeal. Depending on the appeal’s complexity, this stage could last several months.

Hearing (or Not)

After discovery is finalized, the parties can present the appeal to the boards in one of two ways. As one option, the parties can hold a formal in-person hearing where they can present witnesses and other evidence (like a traditional trial). Or if they prefer, the parties can submit the case for decision in writing.

Alternative Dispute Resolution

The ASBCA and CBCA encourage litigants to settle their differences without treading through the entire appeals process. To that end, the boards offer very flexible ADR procedures to move the parties to settlement. For instance, parties can request that a neutral board judge (one not assigned to the case) act as a mediator. Or the parties can engage in a summary proceeding with a binding decision. Put simply, the parties can usually customize ADR procedures to fit their needs.

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That’s a quick rundown of the contract appeals process. If you have any questions about contract appeals, give us call at 913-354-2630.