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Civilian Board of Contract Appeal (CBCA) Orders Government to File Complaint in Contractor’s Appeal of Government Claim

The Civilian Board of Contract Appeal’s recent decision in Muhammad v. Department of Justice provides another example of an Agency Board of Contract Appeals requiring the Government to file the complaint instead of the contractor—a growing trend which promotes more efficient appeals by helping to ensure that contractors are provided adequate notice of the basis of a Government claim when appealing a Contracting Officer’s final decision. 

Pursuant to the Contract Disputes Act, contractors may appeal a Contracting Officer’s final decision—denying a contractor claim or asserting a Government claim—to either the U.S. Court of Federal Claims or the appropriate Agency Board.  When proceeding before any of these tribunals, the procedural rules place the burden on the contractor (as the plaintiff or the appellant) to file the initial complaint. While a contractor generally is well-equipped to file a complaint when appealing the denial of its own claims against the Government, a contractor often is not in the same position when filing a complaint that appeals a Government claim. Under the latter scenario, a contractor essentially must recite the Government’s claim and assert its defenses—which often results in an awkward pleading, especially when the Government has the burden of proof.  This process becomes more difficult when the factual and legal basis of the Government’s claim is not well-stated in the Contracting Officer’s final decision (and in related correspondence between the parties).

Over the last few years, we have noticed an uptick in decisions from the Armed Services Board of Contract Appeals requiring the Government to file a complaint when such an action would facilitate the proceedings.  See, e.g., Highland A1 Hujaz Co., Ltd., ASCBA 59746 et al., 15-1 BCA ¶ 36,041 (2015) (granting “appellant’s motion to direct the government to file the complaint”); Dynport Vaccine Co. LLC, ASBCA 59298, 15-1 BCA ¶ 35,860 (2015) (“[W]e determine that requiring the government to file a pleading in the nature of a complaint would facilitate the proceedings.”); BAE Systems Land & Armaments Inc., ASBCA 59374, 15-1 BCA ¶ 35,817 (2014) (“[P]roceedings would be more efficient if the Board could start with a government articulation of the basis for its determination of defective pricing, rather than appellant’s speculation about the basis for the government’s assertions.”); see also Jr Servs. v. Department of Veterans Affairs, LLC, CBCA 4826, slip op. (Feb. 3, 2016) (ordering “the VA to file a supplemental pleading (containing a new answer) that both appropriately responds to the allegations contained in JRS’s complaint and identifies, in the form of a supplemental complaint or an addendum to its answer, any additional grounds not identified in JRS’s complaint upon which the VA intends to rely to support the default termination”).  The CBCA’s Muhammad decision is the most recent decision requiring the Government to file the complaint, and provides an excellent example of the predicament a contractor may face when appealing a Government claim.

In Muhammad, the contracting officer terminated Muhammad’s contract to provide chaplaincy services at the United States Penitentiary in Marion, Illinois.  The notice of termination stated that the “reason for the termination . . . is due to a violation of security,” without any additional explanation.  Appearing pro so, Muhammad appealed the determination to the CBCA.  Citing the termination notice’s vagueness and noting that default termination decisions are Government claims where the “Government [ ] will generally be in the best position to identify the factual basis upon which the contracting officer terminated the contract,” the CBCA ordered the Government to file the complaint.

Specifically, the CBCA noted that the Contracting Officer’s notice of termination provided only that “[t]he reason for the termination . . . is due to a violation of security.”  The CBCA recognized that, without any additional information, it would be difficult to conceive how Muhammad could file “a complaint with enough information about the government claim to form a sufficient predicate for the government’s answer and allow for adequate framing of the issues.”

More generally, the CBCA explained that under “appropriates cases” like this one, the CBCA may “direct the government to file the complaint, if so doing will facilitate efficient resolution of the appeal.”  “Appropriate cases” are those where “relevant information concerning the basis for the claim resides with the government,” such that it is “more efficient from a procedural standpoint, as well as more useful to the Board, to have the Government rather than the contractor file the initial complaint.”

This line of cases helps to ensure that contractors will be provided adequate notice of a Government claim, and that contractors will not be required to speculate about the true factual and legal basis of a Government claim when appealing a Contracting Officer’s final decision to an Agency Board of Contract Appeals.  Likewise, this procedural mechanism facilitates the efficient resolution of disputes.

© 2019 Covington & Burling LLP

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About this Author

Frederick Benson, Covington Burling, Litigation attorney
Associate

Fred Benson is an associate in the Washington, DC office. He is a member of the Government Contracts and White Collar Defense & Investigations practice groups.

Prior to joining the firm, Mr. Benson clerked for the Honorable Diarmuid F. O’Scannlain of the United States Court of Appeals for the Ninth Circuit.

1 202 662 5516
Justin Ganderson, government contracts lawyer, Covington
Special Counsel

Justin Ganderson is Special Counsel in the firm’s Washington, DC office and a member of the Government Contracts Practice Group. Mr. Ganderson focuses his practice in the areas of claims and disputes resolution, internal investigations, public and private partnerships, utility privatizations, and general federal government contract counseling.

Mr. Ganderson has extensive experience in preparing and crafting requests for equitable adjustments and Contract Disputes Act (CDA) claims, and resolving disputes with government agencies prior to the commencement of litigation.

202.662.5422