The ASBCA is a neutral, independent forum which has been in existence for over fifty years. Its primary function is to hear and decide post-award contract disputes between Government contractors and DoD, NASA, and other agencies. The ASBCA functions under (i) the Contract Disputes Act (41 USC 7101 - 7109, (ii) its own charter, or (iii) other remedy granting provisions. Currently, the Board is comprised of 24 judges.
The majority of matters on the ASBCA's docket involve appeals by contractors from Government contracting officers' final decisions or their failure to issue decisions. Most of the cases are heard in the ASBCA offices in the DC area, but sometimes the judges will travel to a location that is more convenient to the parties. Most hearings are held by a single Administrative Judge but most decisions are made by a panel of three Judges, as the ASBCA functions in a collegial manner. As a matter of judicial philosophy, the ASBCA encourages parties to attempt to negotiate a resolution of their dispute. The Board has developed a ADR (Alternative Dispute Resolution) program for that purpose.
The quarterly reports of proceedings published by the ASBCA gives the appearance that the Board is falling behind in settling cases. Since June 2009, the number of docketed cases has grown each quarter from 532 to 1,066 for the quarter ended September 2014. During that quarter, 226 cases were docketed and 178 cases were disposed for a net increase for the quarter of 48 cases.
Most of the 178 cases disposed were not actually decisions. Only 21 of them resulted in decisions handed down by the board; five appeals were sustained and sixteen were denied. The remaining 157 dispositions were labeled as "dismissed". Most often, dismissals result from either the contractor withdrawing its appeal or the disagreement was settled.
The sources of the 226 cases docketed during the quarter are interesting. DCMA (Defense Contract Management Agency) led the way with 62 cases. The Corps of Engineers came in second at 49 cases. The Army finished a close third at 45 cases. DCMA is probably highest because that Agency is tasked for settling contractor incurred costs, executive compensation, and CAS (Cost Accounting Standards).
Besides the ASBCA, there is also the CBCA (the Civilian Board of Contract Appeals). It operates much like the ASBCA and was recently formed to consolidate the functions of eight other Boards including Agriculture, Energy, HUD, Interior, Labor, Transportation, Veterans Affairs, and GSA. The CBCA has sixteen judges and its charter is a little broader than just contract disputes. It also hears:
- Cases arising under the Indian Self-Determination Act
- Disputes between insurance companies and Agriculture's Risk Management Agency involving actions of the Federal Crop Insurance Corporation
- Claims by federal employees for reimbursement of expenses incurred while on official temporary duty travel or in connection with relocation to a new duty station.
- Claims by carriers or freight forwarders involving actions of the GSA regarding payment for transportation services
- Applications by prevailing private parties for recovery of litigation and other costs under the Equal Access to Justice Act
- And others
Contractors have a choice when challenging a contracting officer's final decision (or a contracting officer's refusal to render a final decision). Under the Contract Disputes Act of 1978, contractors have the exclusive right to choose to litigate their claims in the United States Court of Federal Claims (CFC) or appeal to the ASBCA or CBCA. There are undoubted advantages and disadvantages to each, depending upon the issue. However, for that determination, you need to consult with legal counsel.
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