The Whay Law Firm assists clients with appealing the denial of their claims. Once a contracting officer denies a claim, or it is deemed denied due to the inaction of the contracting officer, a government contractor has 90 days to file an appeal of the denial to the appropriate Board of Contract Appeals, or 1 year to file the appeal with the U.S. Court of Federal Claims. A claim may only be appealed to a Board of Contract Appeals or the Court of Federal Claims, but not both. Most appeals are filed with a Board of Contract Appeals.
The Armed Services Board of Contract Appeals (ASBCA) has jurisdiction for appeals of claims denied by a contracting officer working for the Department of Defense (DOD), the Department of the Army, the Department of the Navy, the Department of the Air Force, or the National Aeronautics and Space Administration (NASA). The Civilian Board of Contact Appeals (CBCA) has jurisdiction for appeals of claims denied by most civilian agencies. The jurisdiction of each Board can be found at 41 U.S. Code § 7105.
The following is a brief overview of the appeals process at the ASBCA:
An appeal to the ASBCA is initiated by the government contractor filing a Notice of Appeal within 90 days of the contracting officer’s decision denying its claim. The government contractor will then file a Complaint within 30 days of the appeal being docketed by the ASBCA. While the Notice of Appeal is typically a very brief document, the Complaint is a more detailed description of the grounds for appeal. Within 30 days of receipt of the Complaint, the agency will file an Answer responding to the Complaint, including any affirmative defenses.
Within 30 days of the appeal being filed, the agency is required to submit the “Rule 4″ file to the ASBCA and the government contactor. Based upon Rule 4 of the ASBCA, the agency is required to submit all documents it considers relevant to the appeal. The government contractor then has 30 days to supplement the Rule 4 file with anything it considers pertinent to the appeal that was not included by the agency. Either party may object to the admission of documents in the Rule 4 file.
The parties may engage in discovery, including interrogatories, requests for admissions, and depositions. The amount of discovery required by an appeal will vary greatly. Like most litigation, much of the time and cost involved in the appeal will be driven by the amount of discovery conducted by the parties.
The parties may choose to have the ASBCA decide the appeal on the written record, or any party may request a hearing. If the appeal is decided on the written record, the parties will file briefs in support of their positions, and may include affidavits, declarations, depositions, admissions, answers to interrogatories, and stipulations in support of their briefs.
If a party chooses to have a hearing, it will be held before a judge and will include testimony from witnesses. A transcript of the hearing will be available to the parties. Multiple post-hearing briefs are often filed by the parties.
The ASBCA will close the record, so that no additional information can be submitted by either party. A panel of judges will then consult and decided the appeal. If you are successful, you may be entitled to recover some or all of your legal fees.
The website for the ASBCA can be found at http://www.asbca.mil/.