Report of the Commission on Government ... - Bayhdolecentral

2
ment contracts, <strong>the</strong> contracting <strong>of</strong>ficer is required
to consider each dispute concerning a
question <strong>of</strong> fact presented by <strong>the</strong> contractor
and render a decision as to what contract adjustment
(time or money), if any, should be
made.
The disputes clause is not required by statute,
but is a creation <strong>of</strong> <strong>the</strong> executive branch.
Its purpose is to provide and initially require
<strong>the</strong> use <strong>of</strong> administrative disputes-resolving
procedures and institutions in an effort to
avoid <strong>the</strong> delays and expense <strong>of</strong> judicial litigation.
Contractors are usually required by its
terms to continue work pending resolution <strong>of</strong>
a dispute.
If a mutually agreeable resolution <strong>of</strong> <strong>the</strong> dispute
cannot be achieved through negotiations,
<strong>the</strong> contracting <strong>of</strong>ficer is required to make a
unilateral decision. Then, under <strong>the</strong> disputes
clause, <strong>the</strong> contractor is usually required to
proceed with contract performance in accordance
with that decision.
The contracting <strong>of</strong>ficer's unilateral decision
on a contract dispute for which <strong>the</strong> contract
provides an administrative remedy may be appealed
by <strong>the</strong> contractor to <strong>the</strong> head <strong>of</strong> <strong>the</strong>
agency or to a designated agency board <strong>of</strong> contract
appeals. An appeal must be made within
a stated time (usually 30 days), or <strong>the</strong> contracting
<strong>of</strong>ficer's decision generally becomes
final on <strong>the</strong> contractor.
If <strong>the</strong> dispute involves an alleged Government
breach <strong>of</strong> contract for which <strong>the</strong> contract
provides no administrative remedy, <strong>the</strong> Court
<strong>of</strong> Claims or a U.S. district court (for claims
<strong>of</strong> $10,000 or less), not a board <strong>of</strong> contract appeals
or o<strong>the</strong>r agency representative, has jurisdiction
over <strong>the</strong> appeal.
BOARDS OF CONTRACT APPEALS
If <strong>the</strong> contractor's claim is one for which
an administrative remedy is available, <strong>the</strong> first
level <strong>of</strong> appeal from a contracting <strong>of</strong>ficer's decision
is <strong>the</strong> agency head, or, more <strong>of</strong>ten, his
designated board <strong>of</strong> contract appeals. The contracting
agencies originally established such
boards to review disputes, as representatives
<strong>of</strong> agency heads, at a level above <strong>the</strong> contracting
<strong>of</strong>ficer. The present agency boards <strong>of</strong> contract
appeals have <strong>the</strong>ir legal basis in <strong>the</strong>
Part G
contract disputes clause and in agency regulations
ra<strong>the</strong>r than in congressional enabling
acts. Most <strong>of</strong> <strong>the</strong>se boards now function, under
delegated authority to act for <strong>the</strong> head <strong>of</strong> <strong>the</strong>
agency, as independent, quasi-judicial tribunals.
At present, <strong>the</strong>re are 11 boards <strong>of</strong> contract
appeals in <strong>the</strong> executive branch, a drop from 19
boards in July 1966. The reduction to <strong>the</strong> present
number is attributable to consolidation
<strong>of</strong> boards within some agencies, abolition <strong>of</strong>
boards by some agencies with assignment <strong>of</strong>
appeals to boards in o<strong>the</strong>r agencies, and reorganization
<strong>of</strong> some agencies. The boards <strong>of</strong>
contract appeals in <strong>the</strong> executive branch had
nearly 2,000 appeals on <strong>the</strong>ir dockets as <strong>of</strong>
July 1972.
When a contractor appeals an adverse contracting
<strong>of</strong>ficer's decision to a board <strong>of</strong> contract
appeals, <strong>the</strong> board rules generally require that
<strong>the</strong> contracting <strong>of</strong>ficer transmit to <strong>the</strong> board
and to <strong>the</strong> assigned Government attorney
all information that relates to <strong>the</strong> dispute. This
information constitutes <strong>the</strong> appeal file. The
board usually assigns one or more members to
hold hearings and examine witnesses if determined
by <strong>the</strong> board to be necessary or if requested
by at least one party. In addition to
<strong>the</strong> material submitted by <strong>the</strong> contracting
<strong>of</strong>ficer, <strong>the</strong> board considers <strong>the</strong> pleadings, records
<strong>of</strong> prehearing conferences, evidence presented
in open hearings by both parties,
pre- and post-hearing briefs, and such depositions
and interrogatories that are permitted.
THE COURTS
If a contractor's claim is denied by a board
<strong>of</strong> contract appeals, <strong>the</strong> contractor may file a
suit in <strong>the</strong> Court <strong>of</strong> Claims or, if <strong>the</strong> claim is
less than $10,000, in a U.S. district court. The
scope <strong>of</strong> judicial review is set forth in <strong>the</strong>
Wunderlich Act. Approximately five percent <strong>of</strong>
<strong>the</strong> board cases decided in recent years have
been sent to <strong>the</strong> Court <strong>of</strong> Claims by contractors
for judicial review.
If <strong>the</strong> board sustains <strong>the</strong> contractor's appeal,
ei<strong>the</strong>r in whole or in part, <strong>the</strong> procuring
agencies have, as a rule, complied with <strong>the</strong> decision,
although it is not entirely clear whe<strong>the</strong>r
<strong>the</strong> Government, under <strong>the</strong> present statutes,
-:7,*