Government Contracts Monitor
See-Saw: The Number Of Appeals May Be Down, But Contractor Success Is On The Rise
November 14, 2018
By: Lindsay Simmons
The Armed Services Board of Contract Appeals (ASBCA) released its annual report last month, describing its case activity for FY 2018. Interestingly, of the 139 cases decided on the merits, the Board agreed with the contractor/appellant 69 percent of the time. And that’s not all. In most of the 420 cases dismissed by the Board the case was disposed of because the parties had reached a settlement, not because the appeal was not meritorious. In short, the report shows that contractors are enjoying more success before the Board.
Another point made in the report is that the ASBCA has been making real inroads in reducing its backlog of appeals. This means that contractors can expect their appeals to move along a bit faster. The Board started the last fiscal year with 970 pending appeals, but ended with 901 pending appeals – the lowest level in five years. However, the decline in the number of pending appeals was not entirely due to the Board’s efforts – it was also the result of a decrease in the number of appeals filed with the ASBCA: 708 appeals were filed in FY14 and this number steadily decreased to only 490 appeals filed in FY18.
The prize for the highest number of appeals comes from contracts with the Army Corps of Engineers (USACE). A full breakdown of cases, by agency, is set forth below:
|
Agency |
FY17 |
FY18 |
|
Corps of Eng. |
161 |
127 |
|
Army |
138 |
75 |
|
DLA & DCMA |
92 |
89 |
|
Navy |
77 |
93 |
|
Air Force |
48 |
61 |
|
Other Agencies |
8 |
20 |
|
Total |
571 |
490 |
One final point: the ASBCA's report demonstrates that very few of the Board's decisions are appealed. Of the 559 cases disposed of in FY18, including 129 merits decisions, only nine were appealed to the Federal Circuit. And, contractors that did appeal to the Federal Circuit were not successful. All of the ASBCA appeals decided by the Federal Circuit over the past year were denied or dismissed.
Why is this report important? It is important because claims are costly and time-consuming. As a result, contractors need to understand the “statistics”, and what they may mean, before launching into the appeal process.
Lindsay Simmons is responsible for the content of this Article.
© 2018 Jackson Kelly PLLC