Don’t File an Appeal with CBCA Before Filing a Claim with the Contracting Officer

Let’s suppose that, under your contract, an agency hasn’t properly paid for your work. Or the agency took actions that caused you damages. Can you run off to the Civilian Board of Contract Appeals to register your complaint and recovery your money?

Yes . . . if you’ve taken an important preliminary step: filing a claim with the contracting officer.

Recovering money from the government is different than recovering money from, say, a commercial entity with which you contract. In the commercial context, if your contractual partner owes you money, you can run off directly to state court (or federal court, if you meet certain subject matter jurisdiction requirements) and ask the judge for your money. To invoke the court’s jurisdiction, you generally don’t have to make a formal request to the other party before filing a lawsuit.

But in federal government context, the process is different. Before getting to a judicial tribunal, you must first submit a formal request for payment to the contracting officer–a.k.a., a “claim.” If the contracting officer denies your request entirely, or in part, you can then elevate your request to the Civilian Board of Contract Appeals (or to the Armed Services Board of Contract Appeals if your contract is with DoD, NASA, and the CIA or to the Postal Service Board of Contract Appeals if your contract is with the Postal Service) .

But what is a claim? The FAR 2.101(b) provides a definition:

‘Claim’ means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. . . . A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim. The submission may be converted to a claim, by written notice to the contracting officer . . . if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

In general, while it’s a required step, submitting a claim isn’t a complex process. The claim simply must be in writing and submitted to the contracting officer. And for claims over $100,000, the claim must be accompanied by a certification. In fact, without a certification, a written demand for over $100,000 isn’t technically a claim that invokes the CBCA’s jurisdiction under the Contract Disputes Act.

But what if you get too excited and file an appeal before you file an appropriate claim? What happens? CBCA will dismiss the appeal for lack of jurisdiction.

Take U.S. Army Tactical Supply, CBCA 5989 et al. (Dec. 12, 2018) as an example. There, U.S. Army Tactical filed multiple appeals with CBCA alleging that the Department of State had not paid it for deliveries made to various embassies. But, U.S. Army Tactical did not, as required by CBCA’s rules, attach a copy of the claim it was supposed to make to the contracting officer before it filed its appeals. So, CBCA raised, on its own initiative, whether it had jurisdiction to hear the appeals (without a prior claim, CBCA does not have jurisdiction to hear an appeal).

Ultimately, CBCA held that U.S. Army Tactical that it did not have jurisdiction because U.S. Tactical did not file the prerequisite claim with the contracting officer. Here’s what it said:

[U.S. Army Tactical] has failed to establish that it filed any claims as required under the [Contract Disputes Act] as defined under FAR 2.101(b) before filing its appeals at the Board. In the case of each of the appeals, the record before the Board lacks either a CO’s decision from which [U.S. Army Tactical] could bring an appeal or claim from which [U.S. Army Tactical] could appeal a deemed denial of its claim. At most, [U.S. Army Tactical] has shown that it was waiting for payment when it filed its appeals, but the record does not show that payment was unreasonably delayed. Consequently, the Board lacks jurisdiction to hear these appeals.

So remember, before proceeding to the CBCA or another contract appeals board with your dispute, you must–though it may seem like a pointless exercise–file a claim with the contracting officer. If you don’t, the CBCA will dismiss your appeal. And where will that leave you? Right back at the point where you need to file a claim with the contracting officer.

Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.

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