1. Contract Disputes Can We All Get Along? Wendy E. Bryant Wendy E. Bryant

2. Todays Lesson The Contract Disputes Act The Contract Disputes Act Some History Claims ClaimsREAsProcess Choosing an Appeal Forum Choosing an Appeal ForumADRCost Questions from You / Answers from Me Questions from You / Answers from Me

3. The Contract Disputes Act (CDA) 41 U.S.C. §§ 601 et seq 41 U.S.C. §§ 601 et seq According to the Federal Circuit the major purpose of the CDA is to induce resolution of contract disputes with the government by negotiation rather than litigation. Before CDA Before CDA After CDA After CDA

4. Pre-CDA Before CDA there was the contract clause Before CDA there was the contract clause and the Wunderlich Act and the Tucker Act to provide jurisdiction For pre-CDA contracts (Mar 1, 1979) For pre-CDA contracts (Mar 1, 1979) Agency Board, then an appeal to the COFC, then to CAFC (various names) Few pre-CDA contracts and litigation are pending Non-CDA jurisdiction by regulation for some Boards was not disturbed Non-CDA jurisdiction by regulation for some Boards was not disturbed

5. CDA Jurisdiction CDA was enacted in 1978 CDA was enacted in 1978 Some changes over the years -- usually in response to court decisions The CDA provides jurisdiction The CDA provides jurisdiction Without jurisdiction, you cant sue the sovereign, i.e. the Government Without jurisdiction, your claim is dismissed

6. C.O. Decision U.S. Supreme Court Court of Appeals for the Federal Circuit (CAFC) Court of Federal Claims (COFC) Civilian Board of Contract Appeals (CBCA) Claim 12 Months 90 Days 60 Days 120 Days 60 Days

7. Where Does a Claim Come From? Starts with a disagreement over something – usually money – the key is the contract Starts with a disagreement over something – usually money – the key is the contract First step First stepRTFCRTFC

8. Claim or REA? Before it is called a claim or dispute it may be called a Request for Equitable Adjustment (REA) - but do not get hung up on the terminology Before it is called a claim or dispute it may be called a Request for Equitable Adjustment (REA) - but do not get hung up on the terminology The contract may define it, describe when it occurs, how the parties will submit it, what the parties will do to resolve it, all manner of methods to handle it The contract may define it, describe when it occurs, how the parties will submit it, what the parties will do to resolve it, all manner of methods to handle it BUT it cannot go to court without a Contracting Officer (CO) decision BUT it cannot go to court without a Contracting Officer (CO) decision AND the government contract cannot remove a statutory right to appeal a CO decision AND the government contract cannot remove a statutory right to appeal a CO decision

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

10. C.O. Decision U.S. Supreme Court Court of Appeals for the Federal Circuit (CAFC) Court of Federal Claims (COFC) Civilian Board of Contract Appeals (CBCA) Claim 12 Months 90 Days 60 Days 120 Days 60 Days

11. Process Contractor requests CO decision in writing Contractor requests CO decision in writing The CO must issue a decision within 60 days on claims less than $100,000 The CO must issue a decision within 60 days on claims less than $100,000 For claims greater than $100,000 For claims greater than $100,000 CO notifies within 60 days of when decision will issue Contractor must certify Good faith Data is accurate and complete Best of its knowledge and belief Amount requested accurately reflects government liability Contractor must meet 41 USC § 605 certification requirements Contractor must meet 41 USC § 605 certification requirements

12. After CO Decision Contractors choice Contractors choice Appeal to Civilian Board of Contract Appeals within 90 days Appeal to Civilian Board of Contract Appeals within 90 days Appeal to Court of Federal Claims within 12 months Appeal to Court of Federal Claims within 12 months At this point, legal processes will consume your life! At this point, legal processes will consume your life! Consider ADR Consider ADR

13. ADR Alternative Dispute Resolution Alternative Dispute Resolution Any type of procedure or combination of procedures voluntarily used to 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 parties to engage in ADR The CBCA and the COFC will expect the parties to engage in ADR

14. CBCA v COFC CBCA is more cost effective CBCA is more cost effective Will consider televideo hearings and depositions Will usually travel to your location COFC COFC Located in Washington DC – hearings are there Representation of the Government is handled by Department of Justice (DOJ) Both are governed by precedent and follow similar rules of evidence, discovery, and procedure Both are governed by precedent and follow similar rules of evidence, discovery, and procedure

15. Thats All, Folks Questions Questions War Stories War Stories