Once a contractor submits a claim to the government under the Contract Disputes Act (CDA), the government is required to provide it a copy of the contracting officer’s final decision (COFD). The receipt of the COFD by the contractor is a key event in the lifecycle of a CDA claim because it triggers the beginning of the statute of limitation period to appeal the COFD at a Board of Contract Appeals (BCA) or the Court of Federal Claims (COFC). Upon receipt of the COFD, the contractor has ninety (90) days to file an appeal at a BCA or twelve (12) months to file an appeal at the COFC. Since the statute of limitations is a condition on the waiver of the government’s sovereign immunity, adjudicative forums enforce it strictly as long as the government can establish, by evidence, the date on which the contractor received the COFD. The Federal Acquisition Regulation (FAR) § 33.211(b) obligates the contracting officer (CO) to furnish to the contractor a written copy of the COFD by certified mail, return receipt requested, or by any other method that generates evidence of receipt. Notably, the CO’s obligation to furnish a copy of the COFD to the contractor applies equally to all final decisions on claims, regardless of whether the contractor or the government initiates the claim.

Res judicata provides that when a final judgment has been entered on the merits of a case, it is a finality as to the claim or demand in controversy. Therefore, in federal contract claims litigation, contractors are typically required to bring all their claims arising out of the same contract in the same litigation. The doctrine of res judicata, which encompasses the related doctrines of issue and claim preclusion, may apply when a contractor litigates a matter at a Board of Contract Appeals and later brings a suit with the same or similar set of operative facts at the Court of Federal Claims (COFC). Issue preclusion prohibits a losing party from relitigating already litigated issues. Meanwhile, claim preclusion prevents litigation of matters that have not been litigated but should have been raised in an earlier litigation. Therefore, the doctrine of claim preclusion operates as an affirmative defense, warranting the dismissal of matters that should have been raised in earlier litigation with the same or similar set of operative facts.

In Avant Assessment, LLC v. U.S., 159 Fed. Cl. 632 (2022), the COFC dismissed parts of the complaint based on the doctrine of claim preclusion, finding that the plaintiff should have raised certain arguments during its prior litigation at the Armed Services Board of Contract Appeals (ASBCA). The Army issued the contracts underlying the claims for the acquisition of foreign language testing materials to gauge the proficiency of military linguists. Under the contract, the government retained intellectual property rights in both accepted and rejected items as the contracts provided the government sole ownership and exclusive rights to the testing materials. Army had initially terminated the contracts for default, but the default terminations were later converted into convenience terminations as a result of the contractor’s successful appeals at the ASBCA. Following the successful convenience conversions, the contractor submitted termination settlement proposals to the contracting officer (CO), which were denied. After the CO’s denial, the contractor again appealed the CO’s adverse decision to the ASBCA.

A claim under the Contract Disputes Act (CDA) must first be presented to and denied by the contracting officer (CO) before it can be appealed to a Board of Contract Appeals (BCA) or the Court of Federal Claims (COFC). Adjudicative forums have consistently held the CDA’s presentment requirement to be jurisdictional. That is, for a BCA or the COFC to exercise jurisdiction over a CDA appeal, the underlying claim must first have been presented to the CO for a final decision. Contractors may satisfy the presentment requirement by submitting the claim to the CO in accordance with the requirements of the CDA. While the CDA does not require the claim to be submitted in a particular form, it must typically provide a clear and unequivocal statement that gives the CO adequate notice of the basis and amount of the claim. The CO must then issue a final decision on the claim. The contractor may appeal the CO’s final decision at a BCA or the COFC within 90 days or 12 months, respectively.

In Avant Assessment v. U.S., No. 20-1185C, a decision issued on May 7, 2024, the COFC dismissed an appeal from a CDA claim for a lack of subject matter jurisdiction because the contractor failed to first present its claim to the CO. The appeal was part of a long-running litigation relating to contracts first issued by the U.S. Army in 2011 for foreign language testing materials to assess the proficiency of military linguists. The Army terminated the contracts for default in 2013, but following a successful appeal at the Armed Services Board of Contract Appeals (ASBCA), the default termination was converted into a termination for the government’s convenience. Following the successful convenience conversions, the contractor submitted termination settlement proposals to the CO, which were denied. After the CO’s denial, the contractor again appealed the CO’s final decision to the ASBCA. Notably, during the discovery phase in the second round of ASBCA litigation, the contractor learned that the government had not only retained the rejected testing materials but also “used” them by transferring them to a third party. Therefore, the contractor demanded payment for the rejected test materials. The contractor alleged that the Army had constructively accepted the rejected testing materials by retaining and using them after rejection. Alternatively, the contractor argued that the Army improperly rejected the testing materials. The ASBCA dismissed a large portion of the contractor’s claim for lack of jurisdiction since the contractor’s constructive acceptance claims had not first been first presented to the CO.

The Contract Disputes Act (CDA) requires that a contractor present its claim to the contracting officer (CO) before an appeal or suit may be properly filed on that claim. This presentment requirement can be characterized as the linchpin of the contract appeals process under the CDA and is also the last clear chance for the government and the contractor to avoid appeals litigation. Once the contractor submits its claim to the CO, the CDA requires the CO to issue his final decision within 60 days of receiving the claim if the claimed amount is less than $100,000. For certified claims over $100,000, the CO must either issue his final decision within 60 days or notify the contractor within 60 days of the time within which a final decision will be issued. The CDA also requires that the CO issue the final decision within a reasonable time, accounting for factors such as the size and complexity of the claim and the adequacy of information provided by the contractor in support of its claim. In the event of an undue delay by the CO in issuing a final decision, the contractor may request the appeals adjudicative forum to exercise its discretion and direct the CO to issue a decision within a specified period. If the CO fails to issue a decision within that period, the contractor’s claim may be “deemed denied” and considered appealable under the CDA.