Report of the Commission on Government ... - Bayhdolecentral

18 Part G
because <strong>the</strong> accelerated procedures for small
claims now available in <strong>the</strong> agency boards are
not being utilized. In mid-1970 <strong>the</strong>re were
1,123 disputes pending before <strong>the</strong> ASBCA <strong>of</strong>
which only 38 were being processed under <strong>the</strong>
accelerated procedures. Yet fully 48 percent <strong>of</strong>
<strong>the</strong> board's appeals were eligible for <strong>the</strong> accelerated
procedures. Overall, accelerated procedures
were used in only seven percent (149)
<strong>of</strong> <strong>the</strong> appeals that we examined, although 51
percent <strong>of</strong> those appeals involved $10,000 or
less. Half <strong>the</strong> boards stated that no appeals on
<strong>the</strong>ir dockets used accelerated procedures."
We believe <strong>the</strong>re are two primary reasons
for <strong>the</strong> failure to use accelerated procedures.
One is <strong>the</strong> inclination <strong>of</strong> <strong>the</strong> board members,
familiar with <strong>the</strong> panoply <strong>of</strong> procedural safeguards
provided in board rules, to give <strong>the</strong> full
procedural treatment. The o<strong>the</strong>r is <strong>the</strong> preference
<strong>of</strong> appellants and <strong>the</strong>ir lawyers to choose
<strong>the</strong> "higher class" remedy, even though it may
be more expensive.
Moreover, as a result <strong>of</strong> inflationary pressures,
an increasing number <strong>of</strong> claims that are
too large to qualify for <strong>the</strong> accelerated procedure
under present agency board procedures
are, never<strong>the</strong>less, too small to justify economically
<strong>the</strong> full agency board hearing procedure.
This does not mean necessarily that <strong>the</strong> contractor
must spend more on claims preparation
and presentation than <strong>the</strong> claim is worth,
although this may sometimes be <strong>the</strong> case.
Ra<strong>the</strong>r, it means that too many resources, in
relation to <strong>the</strong> size <strong>of</strong> <strong>the</strong> claim, are expended
by both contractor and Government in resolving
<strong>the</strong> dispute, even though <strong>the</strong> contractor
may make a "pr<strong>of</strong>it" if it wins. The proceeding
is not cost-effective,
The contractor can, if it decides to appeal,
<strong>of</strong>ten expect to wait a year or longer after
docketing for a board decision. Data assembled
and analyzed by Study Group 4 (Legal Remedies)
indicate that 30 percent <strong>of</strong> <strong>the</strong> cases appealed
to <strong>the</strong> boards were resolved within six
months, 27 percent within six to 12 months, 19
percent within 12 to 18 months, nine percent
within 18 to 24 months; and a full 15 percent
took longer than 24 months.· However, <strong>the</strong>
board members and attorneys who handle
cases before <strong>the</strong> boards have correctly pointed
out that <strong>the</strong> time a case is on <strong>the</strong> docket is not
32 See Appendix A, p. 7".
necessarily indicative <strong>of</strong> <strong>the</strong> speed available to
a claimant within <strong>the</strong> present procedure. Often
<strong>the</strong> claimant or both <strong>the</strong> claimant and <strong>the</strong> Government
may desire to continue <strong>the</strong> case for
fur<strong>the</strong>r negotiations, marshalling <strong>of</strong> evidence,
or o<strong>the</strong>r tactical reasons. Hence we must conclude
that <strong>the</strong> docket times as reported are
longer than <strong>the</strong>y might have been had <strong>the</strong>
claimant moved expeditiously in every instance.
Table 3 summarizes <strong>the</strong> time for administrative
resolution <strong>of</strong> disputes within <strong>the</strong> present
system.
TABLE 3. TIME REQUIRED FOR DISPUTES
RESOLUTION
Percentage
reeotoea
within:
0-6 months
6-12 months
12-18 months
18-24 months
24 or more months
Contracting
<strong>of</strong>ficer
level
67%
14%
9%
4%
6%
1000/0
Source: Study Group 4, Pinal <strong>Report</strong>, Feb. 1072, vol. II, DP. A-51,
A-64.
While a fur<strong>the</strong>r analysis <strong>of</strong> <strong>the</strong> figures in table
3 would probably show that smaller cases took
less average time for resolution than larger
cases, <strong>the</strong> time required to process a small
claim through <strong>the</strong> contracting <strong>of</strong>ficer and
board level today is <strong>of</strong>ten substantial.
PRESENT BOARD STANDARDS
Board
level
30%
27%
19%
9%
15%
100%
The failure <strong>of</strong> some boards to make <strong>the</strong>ir
decisions widely available; <strong>the</strong> conflicting interpretation
<strong>of</strong> <strong>the</strong> same contractual language;
and <strong>the</strong> qualifications, rank, pay, and method
<strong>of</strong> selection <strong>of</strong> board members all have been
suggested as candidates for reform within <strong>the</strong>
agency board system. Ano<strong>the</strong>r source <strong>of</strong> widespread
dissatisfaction among contractors is
<strong>the</strong> belief that members <strong>of</strong> some boards are
not sufficiently separated from agency contracting
and legal functions to possess <strong>the</strong> objectivity
and independence expected. It is also
claimed that <strong>the</strong> members <strong>of</strong> part-time boards
and <strong>of</strong> some ad hoc boards have such heavy
demands imposed on <strong>the</strong>ir time by o<strong>the</strong>r
agency responsibilities that <strong>the</strong> quality <strong>of</strong> <strong>the</strong>ir