What is the "Election Doctrine"?

Under the Contract Disputes Act (CDA), in lieu of appealing a decision of a contracting officer to one of the Boards of Contract Appeals (e.g. ASBCA), a contractor may bring an action directly on the claim in the United States Court of Federal Claims.

Courts have consistently interpreted the CDA as providing the contractor with an either-or choice of forum. Once a contractor makes a binding election to appeal the contracting officer's final decision to a board of contract appeals or to the Court of Federal Claims however, the contractor can no longer pursue its claim in the other forum.

A contractor is deemed to have made a binding election when i) it has sought to avail itself of one forum over another and ii) that forum has the ability to exercise jurisdiction at the time the election is attempted.

A recent decision by the ASBCA (Armed Services Board of Contract Appeals) illustrates the application of the 'Election Doctrine'.

In 1987, the Army Corps of Engineers awarded a contract to Melville Energy Systems (MES) to replace boilers in buildings at McGuire Air Force Base. Two years later, in 1989, the Army terminated the contract for default for failure to complete contractually required work. In 1995, appealed the default termination to the United States Court of Federal Claims and lost its appeal. In April of this year (24 years later!) MES appealed the default termination to the ASBCA asking that it be converted to a termination for convenience. MES also asked for recovery of an alleged unpaid contract balance and other contract price adjustments.

The ASBCA didn't have to decide on the merits of the case. It dismissed the appeal based on the Election Doctrine. MES already had its day in court when it filed its initial appeal with the U.S. Court of Claims.