Upon the issuance of a contracting officer's final decision (COFD), contractors have 90 days to file their notice of appeal before an appropriate Board of Contract Appeals (BCA). BCAs have consistently held the requirement to file an appeal within the 90-day appeal period as a non-waivable jurisdictional requirement. Thus, if the contractor fails to file their appeal within this 90-day appeal period, the BCA may not entertain the appeal as it lacks jurisdiction over it under the Contract Disputes Act (CDA). Contractors must strictly follow the 90-day appeal deadline, which is not tolled even when the contractor inadvertently files their appeal at the wrong BCA. In certain situations, contractors may file their appeal after 90 days have passed since the original COFD issuance, provided they can demonstrate that the contracting officer (CO) reconsidered the final decision as a result of the parties' discussions during the appeal period. If government actions during the appeal period indicate that the contractor reasonably believed that the CO reconsidered her decision, the finality of the CO's decision may be vitiated or invalidated. Under such circumstances, the CO's vitiated final decision may not be reinstated, and the CO is required to issue a new final decision, restarting the 90-day appeal period under the CDA. However, because the parties often continue settlement discussions after the issuance of the COFD, it may not always be clear whether the CO reconsidered her final decision or if the COFD remained final.

The Contract Disputes Act (CDA) provides contractors with alternate forums to resolve claims relating to their federal contracts. After submitting their claim to the contracting officer (CO) and either receiving a denial or a deemed denial on their claim, contractors may appeal the CO’s final decision to either an appropriate Board of Contract Appeals (BCA) or the Court of Federal Claims (COFC). However, once the contractor elects one of the two dispute adjudicative forums and appeals the CO’s adverse decision after receiving notice of the available options, it may not then change forums. Also known as the election doctrine, this rule ensures that once the contractor chooses the forum in which to lodge its appeal under the CDA, it is bound by the election decision and may no longer pursue its appeal in the alternate forum. For the doctrine to apply, the contractor must make an informed, knowing, and voluntary decision to pursue the appeal in one of the two forums with jurisdiction. Once the action is filed in one forum, the other forum must dismiss any subsequently filed appeals concerning the same claim for lack of jurisdiction.

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.