Contract DisputesContract Disputes

Can We All Get Along?Can We All Get Along?

Wendy E. BryantWendy E. Bryant

Today’s LessonToday’s Lesson The Contract Disputes ActThe Contract Disputes Act

Some HistorySome History ClaimsClaims

REAsREAsProcessProcess

Choosing an Appeal ForumChoosing an Appeal ForumADR ADR CostCost

Questions from You / Answers from MeQuestions from You / Answers from Me

The Contract Disputes Act (CDA)The Contract Disputes Act (CDA)

41 U.S.C. §§ 601 et seq41 U.S.C. §§ 601 et seq

According to the Federal Circuit the According to the Federal Circuit the “major purpose” of the CDA is to “major purpose” of the CDA is to “induce resolution of contract “induce resolution of contract disputes with the government by disputes with the government by negotiation rather than litigation”. negotiation rather than litigation”.

Before CDABefore CDA After CDAAfter CDA

Pre-CDAPre-CDA

Before CDA there was the contract clauseBefore CDA there was the contract clauseand the Wunderlich Act and the and the Wunderlich Act and the

Tucker Act Tucker Act to provide jurisdictionto provide jurisdiction For pre-CDA contracts (Mar 1, 1979)For pre-CDA contracts (Mar 1, 1979)

Agency Board, then an appeal to the Agency Board, then an appeal to the COFC, COFC, then to CAFC (various names)then to CAFC (various names)

Few pre-CDA contracts and litigation Few pre-CDA contracts and litigation are are pendingpending

Non-CDA jurisdiction by regulation for Non-CDA jurisdiction by regulation for some some Boards was not disturbedBoards was not disturbed

CDA JurisdictionCDA Jurisdiction

CDA was enacted in 1978CDA was enacted in 1978

Some changes over the years -- Some changes over the years -- usually usually in response to court decisionsin response to court decisions

The CDA provides jurisdictionThe CDA provides jurisdiction

Without jurisdiction, you can’t sue Without jurisdiction, you can’t sue the the sovereign, sovereign, i.e.i.e. the Government the Government

Without jurisdiction, your claim is Without jurisdiction, your claim is dismisseddismissed

C.O. DecisionC.O. Decision

U.S. Supreme CourtU.S. Supreme Court

Court of Appeals for Court of Appeals for the Federal Circuitthe Federal Circuit

(CAFC)(CAFC)

Court of Federal Court of Federal ClaimsClaims

(COFC)(COFC)

Civilian Board of Civilian Board of Contract AppealsContract Appeals

(CBCA)(CBCA)

ClaimClaim

12

Months

90 Days

60 Days

120

Days

60 Days

Where Does a Claim Come From?Where Does a Claim Come From?

Starts with a disagreement over Starts with a disagreement over something – usually money – the something – usually money – the key is the contractkey is the contract

First step First step

RTFCRTFC

RTFCRTFC

Claim or REA?Claim or REA? Before it is called a “claim” or dispute it Before it is called a “claim” or dispute it

may be called a Request for Equitable may be called a Request for Equitable Adjustment (REA) - but do not get hung up Adjustment (REA) - but do not get hung up on the terminologyon the terminology

The contract may define it, describe when it The contract may define it, describe when it occurs, how the parties will submit it, what occurs, how the parties will submit it, what the parties will do to resolve it, all manner the parties will do to resolve it, all manner of methods to handle it of methods to handle it

BUTBUT it cannot go to court without a it cannot go to court without a Contracting Officer (CO) decisionContracting Officer (CO) decision

ANDAND the government contract cannot the government contract cannot remove a statutory right to appeal a CO remove a statutory right to appeal a CO decision decision

ClaimClaim

““All claims by a contractor against the government All claims by a contractor against the government relating to a contract shall be in writing and shall be relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision. submitted to the contracting officer for a decision. All claims by the government against a contractor All claims by the government against a contractor relating to a contract shall be the subject of a relating to a contract shall be the subject of a decision by the contracting officer. Each claim by a decision by the contracting officer. Each claim by a contractor against the government relating to a contractor against the government relating to a contract and each claim by the government [except contract and each claim by the government [except for fraud] against a contractor relating to a contract for fraud] against a contractor relating to a contract shall be submitted within 6 years after the accrual shall be submitted within 6 years after the accrual of the claim . . . . This section shall not authorize of the claim . . . . This section shall not authorize any agency head to settle, compromise, pay, or any agency head to settle, compromise, pay, or otherwise adjust any claim involving fraud.” 41 otherwise adjust any claim involving fraud.” 41 U.S.C. § 605(a)U.S.C. § 605(a)

C.O. DecisionC.O. Decision

U.S. Supreme CourtU.S. Supreme Court

Court of Appeals for Court of Appeals for the Federal Circuitthe Federal Circuit

(CAFC)(CAFC)

Court of Federal Court of Federal ClaimsClaims

(COFC)(COFC)

Civilian Board of Civilian Board of Contract AppealsContract Appeals

(CBCA)(CBCA)

ClaimClaim

12

Months

90 Days

60 Days

120

Days

60 Days

ProcessProcess Contractor requests CO decision in writingContractor requests CO decision in writing The CO must issue a decision within 60 days on claims less than The CO must issue a decision within 60 days on claims less than

$100,000$100,000 For claims greater than $100,000For claims greater than $100,000

CO notifies within 60 days of when decision will CO notifies within 60 days of when decision will issueissueContractor must certify Contractor must certify Good faithGood faithData is accurate and completeData is accurate and completeBest of its knowledge and beliefBest of its knowledge and beliefAmount requested accurately reflects Amount requested accurately reflects government government liabilityliability

Contractor must meet 41 USC § 605 certification requirementsContractor must meet 41 USC § 605 certification requirements

After CO DecisionAfter CO Decision

Contractor’s choiceContractor’s choice Appeal to Civilian Board of Contract Appeal to Civilian Board of Contract

Appeals within 90 daysAppeals within 90 days Appeal to Court of Federal Claims Appeal to Court of Federal Claims

within 12 monthswithin 12 months At this point, legal processes will At this point, legal processes will

consume your life!consume your life! Consider ADRConsider ADR

ADRADR

Alternative Dispute ResolutionAlternative Dispute Resolution

Any type of procedure or combination Any type of procedure or combination of procedures voluntarily used to of procedures voluntarily used to resolve issues in controversy resolve issues in controversy

ADR is encouraged ADR is encouraged Can be done at any stage of a dispute Can be done at any stage of a dispute The CBCA and the COFC will expect The CBCA and the COFC will expect

the parties to engage in ADR the parties to engage in ADR

CBCA v COFCCBCA v COFC

CBCA is more cost effectiveCBCA is more cost effectiveWill consider televideo hearings and Will consider televideo hearings and depositionsdepositionsWill usually travel to your locationWill usually travel to your location

COFCCOFCLocated in Washington DC – hearings are thereLocated in Washington DC – hearings are thereRepresentation of the Government is handled Representation of the Government is handled by Department of Justice (DOJ)by Department of Justice (DOJ)

Both are governed by precedent and follow Both are governed by precedent and follow similar rules of evidence, discovery, and similar rules of evidence, discovery, and procedureprocedure

That’s All, FolksThat’s All, Folks

Questions Questions

War StoriesWar Stories