ASBCA Orders Agency To Speed Up Claim Decisions

The Armed Services Board of Contract Appeals can order an agency to “speed up” its decision on a certified claim if the contracting officer’s anticipated time frame is unreasonably slow.

In a recent case, the ASBCA ordered a contracting officer to issue a decision approximately eight weeks earlier than the contracting officer planned to do so. The ASBCA’s decision highlights a little-known provision of the Contract Disputes Act, which entitles a contractor to request that an appropriate tribunal order an agency to hasten its decision on a claim.

In Volmar Construction, Inc., ASBCA No. 60710 (2016), the U.S. Army Corps of Engineers awarded Volmar a contract to renovate and repair buildings on Joint Base McGuire-Dix-Lakehurst in New Jersey. Volmar submitted eight certified claims to the  contracting officer via letter dated May 19, 2016, seeking money and extensions of time. The substance of the claims had all been previously submitted to the contracting officer in earlier written demands, the earliest of which dated back to January 29, 2016.

In July 2016, the contracting officer sent Volmar granting the relief sought in one of the certified claims. In a separate letter, the agency stated that final decisions on the remaining claims would be issued on or before March 31, 2017 – roughly 13 months after Volmar’s original claim submission.

Shortly after receiving the government’s notice, Volmar filed a petition with the ASBCA. Volmar sought an order compelling the contracting officer to issue a quicker decision on Volmar’s remaining certified claims.

The ASBCA noted that, under the Contract Disputes Act, when the agency receives a claim, the contracting officer must either issue a decision on the claim within 60 days or “notify the contractor of the time within which a decision will be issued.” Although there is no hard rule as to how far beyond 60 days the decision may be issued, the contracting officer’s decision “shall be issued within a reasonable time . . . taking into account the size and complexity of the claim and the adequacy of the information in support of the claim provided by the contractor.” Whether a contracting officer’s time frame is reasonable is determined on a case-by-case basis.

The Board stated that a contractor isn’t without recourse if the agency intends to unreasonably delay its decision. Instead, the CDA provides that “a contractor may request the tribunal concerned to direct a contracting officer to issue a decision in a specified period of time, as determined by the tribunal concerned . . ..”

In this case, Volmar argued that the March 31, 2017 date was unreasonable. The ASBCA agreed. It wrote that “[t]he government has had Volmar’s original submissions for well over seven months and has had Volmar’s claims for well over four months.” Although becoming familiar with Volmar’s claims could be time consuming for the assigned contracting officer, the ASBCA noted that “internal staffing matters are not one of the factors used to determine a reasonable time under the CDA.” The ASBCA ordered the contracting officer to issue a decision no later than January 13, 2017–approximately eight weeks earlier than the contracting officer had anticipated.

As Volmar Construction demonstrates, a contractor is not completely without recourse when an agency intends an unreasonable delay in its decision on a claim. Instead, as Volmar did here, the contractor can petition the appropriate tribunal for an order requiring the contracting officer to speed up his or her decision.

Justine Koehle, a law clerk with Koprince Law LLC, was the primary author of this post.