Wednesday, February 27, 2019

What is the ASBCA's Jurisdiction?

Appendix A to the DFARS (DoD FAR Supplement) contains the charter and rules for the Armed Services Board of Contract Appeals (ASBCA). Contractors considering an appeal of a contracting officers' decision should become familiar with these rules, even where an attorney has been retained. Familiarization with the rules will assist in understanding the process and the purposes for which attorney's do what they do.

The Appendix leads off with the ASBCA's charter - the things that it can do. Often times, when reading through cases, you will see comments related to 'jurisdiction'. Sometimes the Board will need to establish that they are the correct entity to hear the appeal. Sometimes they refuse appeals because they are outside of their jurisdiction.

The first part of the Charter reads as follows:
There is created the Armed Services Board of Contract Appeals which is hereby designated as the authorized representative of the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy and the Secretary of the Air Force, in
  • hearing
  • considering and
  • determining appeals
by contractors from decisions of contracting officers or their authorized representatives or other authorities on disputed questions.
These appeals may be taken
  1. pursuant to the Contract Disputes Act of 1978 (41 USC Sections 7101-7109
  2. pursuant to the provisions of contracts requiring the decision by the Secretary of Defense or by a Secretary of a Military Department or their duly authorized representative, or
  3. pursuant to the provisions any any directive whereby the Secretary of Defense or the Secretary of a Military Department or their authorized representative has granted a right of appeal not contained in the contract or any matter consistent with the contract appeals procedure.
The Board may determine contract disputes for other departments and agencies by agreement as permitted by law. The Board shall operate under general policies established or approved by the Under Secretary of Defense responsible for acquisition and may perform other duties as directed not inconsistent with the Contract Disputes Act of 1978.
The Board shall decide the matters before it independently.
That last sentence is comforting and informative. The Board will act independently meaning they will not be coerced, manipulated, or commanded to take certain positions by powerful people within the Government or contractors.

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