Monday, October 23, 2017

ASBCA Reduced Its Backlog During Fiscal Year 2017

The Armed Services Board of Contract Appeals (ASBCA) recently published its annual report for fiscal year 2017. It shows that the backlog of pending cases has decreased by about 10 percent from the prior year, from 1,077 to 970 cases. During the year, 524 new cases were docketed, 47 cases were reinstated and 678 cases were dispositioned.

Of the 524 new cases, 57 percent originated from the Army and the Army Corps of Engineers. The second highest agency in terms of new cases was DCMA (Defense Contract Management Agency) coming in at 18 percent (92 new cases). This was the lowest number of new cases in the past five years for DCMA and less than half the number of cases from fiscal years 2014 and 2015.

Of the 678 dispositioned cases, 80 appeals were sustained (in whole or in part), 59 appeals were denied, while 539 cases were dismissed. Dismissed cases include those that were resolved by the parties prior to hearing, withdrawn by one of the two parties, or failure to meet the rules of the ASBCA.

The ASBCA is not necessarily the final authority in contract appeals but it has an excellent track record. Of the 139 cases sustained or denied, only eight were appealed to the U.S. Court of Appeals for the Federal Circuit (CAFC). Seven of those are still pending. The CAFC disposed of 10 appeals of ASBCA decisions during fiscal year 2017. Only one of the ASBCA decisions was reversed.

The Board's annual report did not provide statistics on how long a case takes to resolve. The quickest way to resolve contract disputes is to negotiate a fair and reasonable settlement with the contracting officer. Second quickest is to consider whether ASBCA Rule 12 proceedings (Optional Small Claims (Expedited) and Accelerated Procedures) might work. Rule 12 usually means that both parties will have to give up something in order to reach settlement. If the dispute goes to formal hearing, expect a the process to take a year or more.

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