United States: Boards Of Contract Appeals Will Prod Contracting Officers To Issue Final Decisions

David S. Black is a partner in the Tysons office and William M. Pannier is senior counsel in Los Angeles office.

The Armed Services Board of Contract Appeals (ASBCA) recently demonstrated that it is willing to help government contractors who are waiting many months for a contracting officer to issue a final decision on a pending certified claim.

As background, the government contract claims process is supposed to be efficient, providing for the "informal, expeditious, and inexpensive resolution of disputes," as the Contract Disputes Act (CDA) states.  See 41 U.S.C. §§ 7101-7109.  But that's easier said than done.  All too often, when a contractor submits a written request for equitable adjustment (REA) or certified claim, the Contracting Officer (CO), for whatever reason, doesn't "expeditiously" issue a final decision.  Sometimes, it may seem that the government is just sitting on the claim, without giving it due consideration at all.  What's a contractor to do to spur the CO to act?  This may be a touchy subject for some, but there are a few alternatives. 

Some contractors elect to do nothing and wait out the CO, although this isn't necessarily a good option.  After having raised a dispute by asserting a claim, some contractors are reluctant to press for a final decision, feeling, rightly or wrongly, that demanding issuance of a decision may impact the CO's view of the merits.    

Less timid contractors realize that contract administration is a two-way street and that even Uncle Sam has a legal obligation to respond and act.  Such contractors invoke the procedural requirements of the CDA.  By law, upon receipt of a certified claim, the CO must issue a final decision within 60 days, or if the amount sought exceeds $100,000 the CO must at least inform the contractor of the date by which a final decision will be issued, with the statute requiring issuance within a "reasonable time" based on the size and complexity of the claim. 41 U.S.C. § 7103(f)(2)-(3). 

The CDA affords contractors some protections against unresponsive or slow COs.  In the event a CO fails to issue any response within the initial 60-day time period or another time period he or she establishes, the contractor may appeal the claim to the board of contract appeals having jurisdiction on the basis of the claim being "deemed denied."  41 U.S.C. § 7103(f)(5).  In the event the CO responds within the initial 60-day time period by asserting an unreasonably long period of to issue a decision of a claim of more than $100,000, the contractor may formally request the Board direct the CO to issue a final decision within shorter time period.  41 U.S.C. § 7103(f)(4). 

In a decision issued on October 7, 2016, the ASBCA showed that it will enforce § 7103(f)(4) and direct a CO to issue a decision sooner when the agency cannot justify the additional delay.  See Volmar Constr., Inc., ASBCA No. 60710-910 (Oct. 7, 2016).  On May 19, 2016, Volmar submitted eight claims to the CO for the Army Corps of Engineers, seeking $2.75 million and schedule extensions.  On July 18, 2016, one of the claims was granted, and the CO notified Volmar that final decisions on the other seven claims would be issued by March 31, 2017 – more than ten months after the claims were originally submitted.  Unwilling to wait that long to prosecute its claims, Volmar petitioned the ASBCA, seeking an order directing the CO to issue decisions earlier. 

Whether the time period for issuing a decision is reasonable is determined on a case by case basis.  Here, the ASBCA found that March 31, 2017 was not reasonable and directed the CO to issue final decisions by January 13, 2017. 

The Board's reasoning shows that agencies bear the burden of justifying the need for additional time to issue a final decision and cannot rely on government staffing shortages to excuse a delay in issuing a final decision.  Although the contractor in Volmar Construction sought the relief from the Board, the Board looked squarely to the Government to offer "persuasive" reasons why such a lengthy time period was required.  When the Government failed to do so, the Board granted relief to the contractor.  The Board also rejected the Government's argument that additional time was required because of a change in contracting officers and logistics surrounding the engagement of scheduling and damage experts.  The Board reasoned: "[w]hile bringing on a CO who has had no exposure to the issues can be time-consuming, internal staffing matters are not one of the factors used to determine a reasonable time under the CDA."  (Emphasis added.)  The Board noted that in a prior case, the Board held that a scarcity of attorneys to assist with the review of a CO's final decision could likewise not justify a delay because internal staffing "is a matter wholly and exclusively within the control of the government."  The Board also scrutinized and picked apart the Government's argument that it needed until late March to engage and receive input from scheduling and damages consultants. 

In light of Volmar Construction,, contractors who are stuck waiting unreasonably amounts of time for final decisions on important disputes should take heart.  If the amount of time asserted by a CO to issue a final decision seems unreasonably long, they can petition the pertinent board of contract appeals and turn the table on the CO by requiring him or her to persuade the board that the delay is required.  If the CO is unable to make a persuasive justification, the boards are not shy about imposing a shorter time for decision. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions