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If the contracting officer denies a CDA claim, or a part of a claim, the contractor can appeal to the cognizant Board of Contract Appeals or the U.S. Court of Federal Claims (“COFC”). The Armed Services Board of Contract Appeals (“ASBCA”) hears appeals from defense agencies and the Civilian Board of Contract Appeals (“CBCA”) appeals from civilian agencies. In order to be timely a contractor must appeal to the cognizant Board of Contract Appeals within 90 days of receipt of a contracting officer’s final decision or to the U.S. Court of Federal Claims within one year of receipt of the final decision.
A contractor may appeal a Board of Contract Appeals or U.S. Court of Federal Claims decision to the U.S. Court of Appeals for the Federal Circuit (“CAFC”).
Subcontractor disputes are generally governed by State law. The terms of the subcontract will often state which State’s law applies and whether arbitration or some other method of Alternative Dispute Resolution (“ADR”) is required. Timeliness is procedural and is therefore generally determined based on the statute of limitations applicable to the Court where a subcontract dispute is filed.
Where a subcontractor’s claim results from Government action or inaction, the prime contractor may sponsor the subcontractor’s claim before the Government. This requires the subcontractor claim be brought in the name of the prime contractor.
Alternative Dispute Resolution (“ADR”)
Alternative Dispute Resolution (“ADR”) is intended to resolve disputes without the time and expense incident to litigation. ADR methods include mediation where a negotiated resolution is facilitated by a third party neutral referred to as a mediator and binding arbitration or mini-trial where a decision is made by a third party neutral based on relevant evidence. Sometimes these techniques are combined – binding arbitration is sometimes used to resolve a dispute if mediation is unsuccessful.
The use of ADR is encouraged by the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-584 as implemented by FAR Subpart 33.2.
The aforementioned statement of general principles applicable to claims litigation, subcontract disputes and alternative dispute resolution is not intended as legal advice. In order to obtain legal advice applicable to specific facts a consultation is required.