AVOID COSTLY MISTAKES WHEN FILING AN APPEAL RELATED TO FEDERAL GOVERNMENT CONTRACTS.
When a lower court or government agency makes a mistake, procurement laws give you certain rights to appeal the decision is certain situations. However, the appeals court must have appellate jurisdiction to even hear the case. Many government contractors, including both large and small businesses, file the appeal without having a detailed understanding of the appeals process and the conditions under which the court will hear the case.
As a result, the companies spend hundreds of thousands of dollars in unnecessary litigation on the issue of appellate jurisdiction.
At Watson & Associates, LLC, our appellate lawyers provide litigation support on the various disputes during procurement litigation.
- Save time and money by getting an assessment of whether the appellate court has jurisdiction to hear your appeal.
- Some cases are of ‘first impression’ and it may not be obvious as to what the outcome may be.
- Know whether the court has jurisdiction to hear you case is paramount. Without it, the court will dismiss your case.
The following covers the general jurisdiction of many of the commonly used courts for government contract disputes. Contact an appellate attorney for legal advice and representation.
Government Contracts & ASBCA and CBCA Appellate Jurisdiction
Armed Services Board of Contract Appeals Jurisdiction
The Armed Services Board of Contract Appeals (“ASBCA”) can entertain appellate cases regarding legal claims arising from contract disputes between government contractors and either the Department of Defense or the National Aeronautics and Space Administration (“NASA”).
ASBCA’s appellate jurisdiction is known overlap as concurrent legal jurisdiction with the Court of Federal Claims (COFC). under the Contract Disputes Act of 1978.
As a general rule, after the contracting officer at the Department of Defense or NASA denies a government contractor claim, request for equitable adjustment (REA), change order, or claim under a federal construction project, the ASBCA retains jurisdiction to hear your appeals case.
The ASBCA appellate jurisdiction also extends to cases involving contract terminations for default and delay claims.
At Watson & Associates, LLC our government contract law and appellate jurisdiction lawyers frequently litigate disputes about whether the court does or does not have jurisdiction. That includes invoking the ABCSA’s jurisdiction engaging in mediation and other alternative dispute resolution that the ASBCA offers with the contracting officers involved with the claims, and taking the matters to trial before ASBCA officers and tribunals, and even appeals.
CBCA Appellate Jurisdiction
The Civilian Board of Contract Appeals (CBCA) is an independent appellate court within the General Services Administration (GSA). It hears disputes and appeal cases from various Federal executive branch agencies. This court also has appellate jurisdiction in litigation of cases mentioned under ASBCA jurisdiction.
CBCA hears appeals on contract disputes between federal government contractors and government agencies under the Contract Disputes Act. Generally, CBCA hears appellate cases from the Departments of Agriculture (DOA), Department of Energy (DOE), Housing and Urban Development (HUD), Interior, Labor, Department of Transportation (DOT), and Department of Veterans Affairs (VA), and the General Services Administration (GSA).
Court of Federal Claims Appellate Jurisdiction
The United States Court of Federal Claims (COFC) has national jurisdiction. The court has sixteen judges nominated by the President of the United States and confirmed by the Senate for a term of fifteen years.
The Court of Federal Claims is authorized to hear primarily money claims founded upon the Constitution, federal statutes, executive regulations, or contracts, express or implied in fact, with the United States.
With regards to federal government contracting and procurement, the court has jurisdiction to hear bid protest cases, Contract Disputes Act cases, termination for default and issues related to small business government contracts.
Tucker Act Jurisdiction before COFC Appeal Cases
Government contractors must be acutely aware that for the Court to retain appellate jurisdiction and to be able to sue the federal government pursuant to the Tucker Act, there must be privity of contract between the plaintiff and the United States.” See Chancellor Manor v. United States, 331 F.3d 891, 899 (Fed. Cir. 2003); see also Anderson v. United States, 344 F.3d 1343, 1351 (Fed. Cir. 2003).
The legal doctrine of sovereign immunity precludes a suit against the United States without its consent and because, under the Tucker Act, the United States has ‘“consent[ed] to be sued only by those with whom it has privity of contract.”’ Normandy Apartments, 100 Fed. Cl. at 254 (quoting Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1263 (Fed. Cir. 2005) (quoting Erickson Air Crane Co. of Wash., Inc. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984))); see also First Annapolis Bancorp., Inc. v. United States, 644 F.3d 1367, 1373 (Fed. Cir. 2011), cert. denied, 132 S. Ct. 2102 (2012).
Subcontractors must be aware of filing a government contract appeals before the Court of Federal Claims without a sponsorship contract with the prime contractor. Otherwise, the appellant would have to show through additional facts that there was privity with the agency.
Contract Disputes Act Appellate Jurisdiction – 41 USC 7103(a)
A common dispute in government contract appeals cases is that the appellant failed to meet the requirements of the Contract Disputes Act. The basic rule for litigating CDA claims is that for a government contractor to litigate a case regarding a dispute with the government relating to the contract, the contractor must first submit a written claim to the contracting officer within six years of the accrual of the claim. See 41 USC 7103(a).
For claims over $100,000, the contracting officer must provide a written decision within 60 days of receipt of the claim or notify the contractor when such a decision will be rendered. See 41 USC 7103(f).
Therefore, the Court of Federal Claims will dismiss the case for lack of appellate jurisdiction if there is no contracting officer’s final decision (whether actual or deemed denial). See England v. Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004); Sharman, 2 F.3d at 1569 n.6.
Bid Protest Jurisdiction at the Court of Federal Claims 28 USC 1491(b)
First, bid protests filed at the Court of Federal Claims is considered an initial bid protest and not an appeal if filing after GAO has also ruled on a previous bid protest.
The Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870, § 12 (codified at 28 USC 1491(b)) (the “ADRA”), amended the Tucker Act, 28 U.S.C. § 1491(b)(1), granting the Court of Federal Claims jurisdiction over bid protests. See Res. Conservation Grp., L.L.C. v. United States, 597 F.3d 1238, 1243 (Fed. Cir. 2010).
The ADRA’s standard of review for agency procurement decisions adopted the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706 (2006) (the “APA”). See 28 U.S.C. § 1491(b)(4) (2006).
A bid protest filed at the COFC must show that the agency’s action (s) were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2006); see also PGBA, L.L.C. v. United States, 389 F.3d 1219, 1224-27 (Fed. Cir. 2004).
- The protestor must show that the Court has jurisdiction to hear the specific bid protest case at issue.
Appellate Cases Before the Court of Appeals for the Federal Circuit – 28 USC 1295(a)
Appellate jurisdiction at the United States Court of Appeals for the Federal Circuit generally arises under 28 USC 1295(a)(10) to hear “an appeal from a final decision of an agency board of contract appeals pursuant to” 41 USC 7107(a)(1), a provision of the Contract Disputes Act.
The Federal Circuit Court of Appeals has nationwide appellate jurisdiction in various types of cases, including international trade, federal government contracts and Contract Disputes Act cases, patents, trademarks, certain money claims against the United States government, federal personnel, veterans’ benefits, and public safety officers’ benefits claims.
Appeals to the court come from all federal district courts, the United States Court of Federal Claims appellate cases, the United States Court of International Trade, and the United States Court of Appeals for Veterans Claims.
The court also has appellate jurisdiction to hear certain administrative agency final decisions, including those from the U.S. Trademark Trial and Appeal Board, the U.S. Patent Trial and Appeal Board, the Boards of Contract Appeals, the U.S. Merit Systems Protection Board, the Congressional Office of Compliance, the Government Accountability Office Personnel Appeals Board, and the U.S. International Trade Commission.
The United States Court of Appeals for the Federal Circuit is also the appellate court with jurisdiction over decisions of the ASBCA involving Government contract disputes.
What Cases May Likely Be Dismissed for Lack of Jurisdiction?
- Court may lack appellate jurisdiction over claims related to Government’s termination for default in a BPA because BPA is not a contract where under the BPA Appellant made no binding commitments to Government. See Crewzers Fire Crew Transport, Inc. v. United States, No. 11-607 C (May 31, 2013).
- A court may deny appellate appeals jurisdiction and dismisses complaint because the government contractor failed to establish it had submitted a claim to the Contracting Officer for a final decision. See Diversified Maintenance Systems, Inc. v. United States, No. 12-539 C (Apr. 26, 2013).
- Court of Federal Claims cases where the contractor did not meet the requirements of the Contract Disputes Act
Contact a Government Contract Appellate Jurisdiction Lawyer
If you are a federal government contractor seeking to appeal your rights related to a government contract. Call Watson & Associates’ federal appellate jurisdiction lawyers for immediate help.
Call us at 1.866.601.5518 or contact us online.