Making sure that your government contract claim appeal is, and can be, heard by the proper body is critical under Board of Contract Appeals ASBCA Rules. If you file an appeal that cannot be heard, you are simply wasting time and money.
When the contracting officer issues a final decision, you then have to act quickly and make a critical business decision. Should you appeal or not? Many federal contractors try to represent themselves. However, upon finding out how complex the litigation and appeal rules are, it could be too late for an ASBCA appeal attorney to take over.
Why is this? Because the record has already been created. The contracting officer issues a final decision based on your claim, your response to a cure notice or show cause. It is no secret that the government will take advantage of technical deficiencies or mistakes that you make. This might be so regardless of the merits of your case.
- It is essential to make sure that ASBCA rules about jurisdiction and other statutory requirements are met before filing an appeal.
- The Armed Services Board has issued some grueling decisions in public government contracts where companies did not first analyze the court rules.
Below is a list of prerequisites that must be met for appeal cases and before you submit an appeal for contractual claims to the Armed Services Board of Contract Appeals.
Contractor Claims Must First be Submitted to a Contracting Officer
ASBCA rules for the court’s jurisdiction allow the Board only to hear appeals involving a government contractor’s claim if the claim was previously submitted to a contracting officer (“CO”) for a final decision and a decision was either granted, denied, or a reasonable period has passed without a final determination. If you fail to submit your claim or any part of the claim to the contracting officer, then the court will more than likely lack jurisdiction to hear your case on appeal. See 41 USC 7103; Ensign-Bickford Aerospace. The ‘jurisdictional prerequisite’ for the court’s jurisdiction applies even when the claim is asserted as a defense to government action. Raytheon Co. v. United States.
While a “claim” is not defined by the Contract Disputes Act (“CDA”), FAR 2.101 defines a claim as a written demand or assertion by a contracting party seeking, as a matter of right, the payment of money in a specified sum, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. Find out how to Avoid Costly Quantum Meruit Claims in Government Contracts.
- Under the rules, a contractual claim does not have to be in dispute; an undisputed, non-routine written demand seeking payment as a matter of right can be a claim.
- The “sum certain” aspect of the CDA requirement is often disputed. Make sure that the claim has a final figure on known claims. Without meeting the sum certain requirement, ABSA may not have jurisdiction to hear the case.
Tip: Submit your claim to the agency via fax or send through certified mail.
Tip: Under ASBCA rules, for the court to possess jurisdiction to entertain an appeal, there must be a relevant express or implied contract between the plaintiff and the government. Read about Overcoming Government Contract FAR Release of Claims Hurdles.
To determine if something is a contractual claim, there are a variety of factors under ASBCA rules that should be considered: reference to the submission of a claim, request for a CO’s final decision, and issuance of a final determination by a contracting officer. Complying with these ground rules can create legal jurisdiction on appeal while avoiding motions to dismiss. This is especially true for small business cases where you might not be familiar with the rules. See information about Excusable Delays, Liquidated and Eichleay Damages in Government Claims.
Appeals must be Timely
If a CO issues a final decision, the decision shall be considered final unless the contractor timely appeals to a board of contract appeals within 90 days from the receipt of the decision or to the U.S. Court of Federal Claims within 12 months. The burden of proving your case rest with you or your lawyer.
In ASBCA decision Pros Cleaners, the company cited its inexperience with government contracts and problems it allegedly had interacting with the CO as reasons for not filing the appeal with the court for 90 days from the CO’s final decision.
ASBCA Rules – No New Claims in Appeal Cases
It is well established that new claims cannot be brought on appeal under the ASBCA rules. For a Board to determine if there is a new claim, it often turns on whether the ‘new claim’ relies on the same “operative facts” cited in the initial claim. Lee’s Ford Dock, Inc. Any new claim must first be heard by a CO within the requisite period and can then be brought to the court on appeal. See REA vs Contract Disputes Act Claims Request – Appealing Contracting Officer’s Final Decision.
Need Help Preparing and Submitting an Appeal to ASBCA?.
If you do not meet the ASBCA rules for jurisdiction requirements for your government claim appeal, your case will be dismissed via agency motions, and you could lose out on thousands of dollars. See Contract Disputes Act of 1978 — General Contractor Subcontractor Disputes With Pass Through Rights & Contract Claims.
Call to speak with any of our Federal Government Contract Attorneys at 1-866-601-5518 for a free consultation.