A Fork in the Road: Choosing Where to Litigate Your Federal Contract Claim

For this week’s Guest Post Friday here at Construction Law Musings, we welcome Greg Shelton.  Greg is an attorney with Horack, Talley, Pharr & Lowndes, P.A., a law firm with offices in Charlotte, North Carolina, and Rock Hill, South Carolina. Greg is licensed to practice in North Carolina, South Carolina, and Florida, and he is Florida Board Certified as an expert in construction law.  Greg serves on the council that governs the Construction Law Section of the North Carolina Bar Association, and he is managing editor of the North Carolina Construction Law Deskbook, the definitive treatise on construction law in North Carolina. Greg authors the Construction Law Carolinas blog where he regularly posts on topics concerning the construction industry in North Carolina and South Carolina. Greg is active with the Associated Builders and Contractors of the Carolinas, the USGBC, and the HCAC, where he serves on its board of directors and as its treasurer.

Last week, Chris served as guest blogger on Construction Law Carolinas, posting “Get Ready for a ‘Green’ World of Construction“.  Chris has graciously returned the favor, inviting me to present the latest installment in my series Federal Contracting, Construction Law Carolinas Style, here at Construction Law Musings.

In my previous post, I discussed the importance of asserting a claim in clear unequivocal terms.  Assuming the contractor has made a timely and valid claim, the contracting officer must render a decision on the claim, usually (but not always) within 60 days of receipt of the contractor’s written request. If the contracting officer denies the claim, the contractor can either accept the decision or appeal.

If the contractor decides to appeal the contracting officer’s decision, the contractor has a decision to make. Under the Contract Disputes Act (“CDA”), the contractor may elect to submit the appeal to either the United States Court of Federal Claims (“CFC”) or to the agency board of contract appeals (“BCA”). There are several BCA’s in existence, but ten formerly distinct BCA’s were consolidated in 2007 into the “Civilian Board of Contract Appeals.”  Sometimes things do get simpler.

Continuing my analogy of federal contracting to Wonderland, there is the point in the story where Alice looks up and sees the Cheshire Cat sitting on a bough of a tree. Alice asks the Cat:

 ‘Would you tell me, please, which way I ought to go from here?’

‘That depends a good deal on where you want to get to,’ said the Cat.

‘I don’t much care where —’ said Alice.

‘Then it doesn’t matter which way you go,’ said the Cat.

Cats. I’ll try to be more helpful than this fictional flabbergasting feline by giving you an idea of where each road leads.

Boards of Contract Appeals

BCAs are designed to provide “practicable, informal, expeditious, and inexpensive resolution of disputes.” BCAs hear and decide contract disputes between federal agencies and contractors or vendors who contract directly with the government. BCA judges are appointed in the same manner as administrative law judges, but BCA judges must have at least five years of experience in public contract law.

To appeal a contracting officer’s decision to a BCA, the contractor must submit the appeal within 90 days of receipt of the decision. The contactor may appear before a BCA without legal counsel, and BCA proceedings are intended to be less formal than court proceedings. Whether the proceedings actually are less formal varies from judge to judge.

The Court of Federal Claims

The contractor may forgo appealing to a BCA in favor of having its day in court. The United States Court of Federal Claims (“CFC”) has jurisdiction to hear monetary claims against the federal government, including just compensation for the taking of private property, refund of federal taxes, and damages for breaches of contract with the government.

To get its foot in the CFC’s door, the contractor must file its appeal within 12 months of the date of receipt of the contracting officer’s decision. Notably, in CFC cases, the government agency will be represented by the Civil Division of the Justice Department. Thus, settlement agreements may be reached over the objection of the agency. Unlike BCA proceedings, a contractor must retain legal counsel to proceed in the CFC, and the procedures are usually more involved compared to BCAs.

As a guest blogger, I must be mindful of consuming more than my share of Construction Law Musings’ space. I will therefore close by saying that I am providing a 30,000 mile high view of this particular fork in the road. If you believe you may have a claim, please seek legal counsel without delay.

Greg and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.