Reid Prouty is a Vice Chairman at the Armed Services Board of Contract Appeals. He speaks only for himself in this article, of course, and the opinions expressed herein are not necessarily those of the Board or the Department of Defense (DoD), nor does he intend to indicate how he might adjudicate any future appeal before him.
From the perspective of this member of the Armed Services Board of Contract Appeals (ASBCA), the practice before the Boards of Contract Appeals is thriving as the Contract Disputes Act (CDA)1 hits middle age. To push a metaphor that I hope is not too tired: at forty, the practice has grown more solid and is of more substance. Though it is, perhaps, a little less flexible than it was in its youth, it has found ways to work around those limitations. For the Boards, forty is the new [insert optimum age here], and our most interesting days are ahead of us.
In a nutshell, my view is this: the Boards, for many reasons, have never been more important in the development of federal contract law, and there has been inevitable “process creep,” as would be expected of any tribunal subject to review. The greater emphasis on alternative dispute resolution (ADR) and the availability of expedited proceedings, however, provide means to meet the Boards’ mission of providing for expeditious and inexpensive conflict resolution2 for those parties that wish to utilize them.
When attending the Government Contracts Year in Review Conference, one may be struck (if you are into this sort of thing) by the proportion of contract cases3 coming from the Boards, compared to the Court of Federal Claims (CoFC) and the Federal Circuit. This should not be surprising upon reflection. The only thing the ASBCA handles is government contract disputes, and it is the primary duty of our colleagues at the Civilian Board of Contract Appeals (CBCA)4 and the Postal Service Board of Contract Appeals (PSBCA).5 CoFC (with fewer judges than the ASBCA),6 by contrast, has a much broader jurisdictional grant under the Tucker Act,7 including Fifth Amendment takings cases, military and civilian pay disputes, copyright and patent matters, bid protests, and Vaccine Court appeals, to name a few.8 According to CoFC’s statistics, in Fiscal Year (FY) 2017, 147 “contract” cases were filed before CoFC, out of 652 filings altogether.9 This number, which includes non-CDA “contract” cases (but not bid protests), is less than twenty-three percent of all CoFC cases.10 FY 2012 figures were similar, though with a slightly larger proportion of government contract cases.11 I have been told, anecdotally, that the government contract dispute numbers are slightly down proportionally in recent years, but not dramatically so. According to research done by two ASBCA staff attorneys, the number of CoFC published opinions on dispositive motions or after hearings regarding CDA disputes has hovered around or slightly lower than thirty per year in recent years. By contrast, in FY 2017, the ASBCA issued decisions on the merits disposing of 139 appeals.12
With respect to law coming from the Federal Circuit, the number of appeals touching upon CDA matters has been quite low in recent years. In 2017, for example, there were only two opinions from our reviewing court that touched upon the CDA,13 although, of course, the Federal Circuit’s opinions, binding upon all Boards and CoFC, are proportionally the most important.14
That said, in addition to the raw numbers, the Boards’ decisions have greater influence than they might otherwise because they are binding precedent. Decisions issued by CoFC, “while persuasive, do not set binding precedent for separate and distinct cases in that court.”15 ASBCA decisions are binding precedent for future ASBCA appeals,16 just as CBCA decisions are binding precedent for future CBCA appeals.17 Thus, when a decision is issued by one of the Boards, except in the extremely rare case of it being overturned by the Federal Circuit, or the even rarer case of it being reversed by the Board’s en banc equivalent, it firmly sets the law for disputes before that body in a way that CoFC decisions do not.18 The consolidation of the ASBCA and CBCA from separate agency boards,19 completed in January 2007, only has enhanced the reach of the precedent from each.
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