When faced with the prospect of appealing an adverse decision from a contracting officer, government contractors may wonder whether it’s possible to prioritize costs, performance ratings, and future prospective contracts while engaging in litigation. The Boards of Contract Appeals (BCAs) may suit those purposes, as they aim to provide federal contractors the opportunity to have their appeal heard before an independent board of administrative judges without the expense, timeline, and formality associated with traditional litigation at the Court of Federal Claims (COFC). In this first blog of a four-part series, PilieroMazza’s GovCon attorneys help federal contractors understand how the BCAs work—and why they might be the right venue for protecting your bottom line.
There are two major BCAs: (1) the Armed Services Board of Contract Appeals (ASBCA) and (2) the Civilian Board of Contract Appeals (CBCA). These BCAs have concurrent jurisdiction with the COFC, meaning it is up to the contractor to choose where to appeal its claim. Once a forum is chosen— the COFC or the appropriate BCA—the contractor may not change forums. The BCAs were officially established to streamline contract dispute resolution and were granted authority via the Contract Disputes Act to decide appeals from the decision of contracting officers within each BCA’s respective federal agency jurisdiction.
The ASBCA has been around in one form or another since World War I. It has jurisdiction over contract disputes related to the Department of Defense, National Aeronautics and Space Administration, and Central Intelligence Agency. Pursuant to the National Defense Authorization Act (NDAA) of 2006, the CBCA maintains jurisdiction over disputes related to any executive agency not covered by the ASBCA, excluding the Postal Service, the Federal Aviation Administration, and the Tennessee Valley Authority.1 Before the NDAA established the CBCA, there were eight agency-specific BCAs, all of which were consolidated within the CBCA:
- General Services Administration Board of Contract Appeals (GSBCA)
- Department of Transportation Board of Contract Appeals (DOTBCA)
- Department of Agriculture Board of Contract Appeals (AGBCA)
- Department of Veterans Affairs Board of Contract Appeals (VABCA)
- Department of the Interior Board of Contract Appeals (IBCA)
- Department of Energy Board of Contract Appeals (EBCA)
- Department of Housing and Urban Development Board of Contract Appeals (HUDBCA)
- Department of Labor Board of Contract Appeals (LBCA).
The BCAs are authorized to grant any form of relief available to a litigant before the COFC, making the BCAs a desirable option for contractors concerned about recouping money damages, converting a termination for default to one for convenience, or even receiving a favorable CPARS outcome.
While it is important to carefully consider whether a BCA or the COFC is right for your specific dispute, contractors, particularly small and/or cost-conscious businesses, may find it beneficial to pursue an appeal at a BCA over the COFC. The BCAs aim to move faster than traditional federal courts, with applicable statutes requiring that they “provide informal, expeditious, and inexpensive resolution of disputes[.]” 41 U.S.C. § 7105(g). Indeed, the BCAs have emphasized that their goal is to mitigate the great costs and timeline associated with the litigation process in federal court. From the 90-day deadline to appeal (compared to one year at the COFC) to Rule 4 file procedures designed to cut down on burdensome discovery, efficiency is built into the BCAs’ rules. Contractors seeking a lower cost, but also less adversarial option may benefit from a BCA, as the BCAs have options for alternative dispute resolution (ADR) or alternative/expedited/accelerated procedures, which are not available at COFC.
In sum, we understand that federal contractors face a big decision when deciding between the BCAs and the COFC – but depending on your company’s goals, it is important to understand what the BCAs have to offer, as they may present the best option for your firm. Should you have any questions regarding the BCAs, COFC, REAs, claims, appeals, or any other government contract dispute, please contact Lauren Brier, Josie Farinelli, Kelly Kirchgasser, or another member of PilieroMazza’s Government Contracts Group.
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1 While the Postal Service Board of Contract Appeals (PSBCA) was established alongside CBCA and ASBCA, it is important to note that contractors seeking adjudication at the PSBCA will be subject to PSBCA-specific procedures different from those at the CBCA and ASCBA. The Tennessee Valley Authority similarly has its own TVA BCA-specific rules. Further, contractors filing contract disputes arising under Federal Aviation Administration (FAA) contracts must do so with the FAA’s Office of Dispute Resolution for Acquisition (ODRA), which also subscribes to a different set of ODRA-specific rules.
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