CO Identifies Wrong Appeals Board, Appeal Dismissed Anyway

An Air Force Contracting Officer, asked by a contractor where to send an appeal, provided the contractor with information about the Civilian Board of Contract Appeals, not the Armed Services Board of Contract Appeals.

Despite the Contracting Officer’s erroneous advice, the CBCA dismissed the appeal for lack of jurisdiction.

The CBCA’s decision in Engineering & Environment, Inc., CBCA 6228 (2018) is one of the briefest appellate decisions you’ll ever read–just three sentences of substantive discussion.  Those sentences, however, make an important point about the jurisdiction of the Government’s two main contract appeals boards.

After the Air Force terminated Engineering & Environment, Inc.’s contract for default, E&E asked the Contracting Officer about where an appeal could be filed.  The Contracting Officer provided contact information for the CBCA, and that’s where E&E filed its appeal.

Unfortunately, the Contracting Officer’s information was erroneous–the CBCA doesn’t have jurisdiction over Air Force contracts.  Citing its jurisdictional statute at 41 U.S.C. 7105(e), the CBCA dismissed E&E’s appeal.  The CBCA wrote, “[t]he Board lacks jurisdiction over this matter because the [ASBCA] is the board responsible for hearing appeals involving Department of the Air Force contracts.”

The Engineering & Environment, Inc. case highlights the fact that the Government has two major contract appeals Boards.  Under the statute, the ASBCA has jurisdiction to decide “any appeal from a decision of a contracting officer of the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, or the National Aeronautics and Space Administration relative to a contract made by that department of agency.”  In contrast, the CBCA has jurisdiction to decide an appeal from a decision of a contracting officer of “any executive agency” except the agencies named above, and a handful of others such as the Postal Service.

Because appeals are subject to strict timeliness deadlines, filing at the wrong Board could be fatal.  By the time the incorrect Board dismisses the appeal for lack of jurisdiction, it could be too late to file at the right Board.  (It’s not clear whether E&E itself still had time on the clock).  As Engineering & Environment demonstrates, contractors must file appeals at the right place–even if the Contracting Officer provides erroneous information.