Failure to Follow CDA Claims Filing Requirements Will Get Appeal Dismissed
If the Contracting Officer issues a final decision denying your contract claim against the government, you have rights to appeal the decision to the US Civilian Board of Contract Appeals (CBCA). However, there are specific rules of procedure and activity that a prime contractor must follow to preserve its rights to appeal to the Board. The key to filing an appeal is to spend the time and resources to first figure out whether there is legal merit to the appeal and whether the Board has jurisdiction to hear the case. The government will often move to dismiss the case even though there has been a long history.
Filing a Contract Disputes Act Appeal to the Civilian Board of Contract Appeals
The CBCA hear and decide contract disputes only when it has jurisdiction. There are a substantial amount of cases that litigate this issue without even getting to the merits of the case. You want to avoid this mistake at all cost. When a prime contractor decides that it wants to file an appeal, its appellate attorney must file a written notice of appeal.
If the lawsuit is an appeal from the Contracting Officer’s final decision, the notice of appeal should include enough detail to allow the Court to distinguish the CO decision from any other claim. See information about getting awards of claims based upon CDA certification.
- These are critical guidelines under the Contract Disputes Act.
- Failure to follow them may get the appeal dismissed.
- Government contractor should attach the Contracting Officer final decision and the contract claim submitted to the agency.
The Civilian Board of Contract Appeals gets its jurisdiction to hear contract disputes between government agencies and cases from the Contract Disputes Act (CDA), 41 USC 7101-7109 (2012). For the Board to have jurisdiction over a dispute not involving a government claim, the CDA requires a contractor to submit a written claim to the contracting officer for a final decision. A claim does not have to be for money only.
The FAR defines a “claim” as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or
CBCA Court Deadlines
In the event of filing a Contract Disputes Act claim appeal to the United States Civilian Board of Contract Appeals, you have to file the appeal from the decision no later than 90 calendar days after you receive the contracting officer’s decision.
- There are specific rules that address the CO’s failure to issue a final decision.
CBCA cannot hear an untimely appeal. In the case of SOTO CONSTRUCTION COMPANY, INC., the contractor did not file the notice of appeal to the Civilian Board of Contract Appeals. Instead, it filed the notice to the agency. This was a huge mistake and a waste of attorney fees.
- Understanding the Civilian Board of Contract Appeals rules of procedure is just as important as establishing the merits of the case.
- Agency providing incorrect information will not be a defense.
- Individuals and contractors are responsible for knowing the CBCA appeal rules.
In the Soto case, the general contractor argued to the Court that the Contracting Officer’s final decision failed to give it the proper direction to preserve its appeal rights.
The CBCA appeals court rejected the argument. Instead, the Court referred to Federal Acquisition Regulation (FAR) 33.211(a); See 48 CFR 33.211(a) (2011). It stated that nothing in the regulations required the contracting officer to be responsible for giving government contractors precise appeal rights direction.
Civilian Board of Contract Appeals said that it is up to the prime contractor to make sure that the Appeal is timely and properly filed with the Clerk of the Board.
Basics for Filing an Appeal at the Civilian Board of Contract Appeals
The following information from the CBCA Page directs the appellant (you) what are the basic requirements for filing an appeal at the US Civilian Board of Contract Appeals.
Rule 2: Filing Appeals, Petitions, And Applications; Consolidation
- Filing an appeal. A notice of appeal shall be in writing; signed by the appellant, the appellant’s attorney, or an authorized representative (see Rule 5); and filed with the Board, with a copy to the contracting officer who received or issued the claim, or the successor contracting officer. A notice of appeal should include:
- The name, telephone number, and mailing and email addresses of the appellant and/or its attorney or authorized representative;
- The contract number;
- The name of the contracting officer who received or issued the claim, with that person’s telephone number, mailing address, and email address;
- A copy of the claim with any certification; and
- A copy of the contracting officer’s decision on the claim or a statement that the appeal is from a failure to issue a decision (“a deemed denial”).
Admissibility of Evidence on Appeal at the Civilian Board of Contract Appeals
When filing an appellate case at the Civilian Board of Contract Appeals, you have to very careful about introducing new evidence of appeal. This is especial true for Contract Disputes Act appellate cases. When you are appealing a contracting officer’s final decision, you have to provide evidence or introduce arguments that were first brought at the agency level.
Only in its own discretion may the CBCA admit new evidence to which the other party may object. You should first confer with opposing counsel and then file a motion to admit new evidence to the Board.
In ruling on objections to evidence on appeal, the Board is guided but not bound by the Federal Rules of Evidence. It may, however admit hearsay unless the it finds it unreliable.
If you are a prime contractor that fails to properly file a Contract Disputes Act Claim to the Civilian Board of Contract Appeals, and your case is dismissed, then you may have the option to file at the U.S. Court of Federal Claims. See. Olsberg Excavating Co. v. United States, 3 Cl. Ct. 249 (1983). Read more information about Contract Disputes Act of 1978 — General Contractor and Subcontractor Pass Through Rights & Contract Claims.
For help appealing the contracting officer’s denial of your contract claim to the Civilian Board of Contract Appeals or Board for General Services Administration, call our experienced government claims appellate attorneys at 1-866-601-5518. FREE INITIAL CONSULTATION.
We also litigate cases at the United States Court of Appeals for the Federal Circuit.