The Contract Disputes Act (CDA) requires contracting officers (COs) to issue a final decision on claims of $100,000 or less within 60 days. For claims greater than $100,000, COs must render a final decision within a reasonable period and notify the contractor within 60 days of the claim, a specific time within which the decision will be issued. If the CO fails to notify the contractor within 60 days of a specified time within which he would issue the decision, the contractor may file an appeal based on a deemed denial of its claim. Adjudicative forums have consistently held that the CDA requires COs to pinpoint a particular date for the issuance of the decision, with a general timeframe found insufficient to meet statutory requirements. Additionally, the time specified by the CO to render his final decision may not be contingent upon the occurrence of a future event. In situations where the CO specifies a time for the issuance of the final decision, but the calculation of the particular date is dependent upon some future event, the contractor is within its rights to file its appeal on a deemed denial basis.

In Armed Services Board of Contract Appeals (ASBCA) No. 56097, the Space and Naval Warfare Systems Command (SPAWAR) awarded a contract for the manufacturing and supply of communications data links to enable U.S. Navy ships to exchange intelligence information with military aircraft. During performance, the contractor identified six entitlement issues and submitted a request for equitable adjustment (REA). The contractor later converted the REA into a CDA claim and submitted it for the CO’s final decision on May 8, 2007. Before the expiration of the 60 days following the receipt of the certified claim, the CO sent a letter notifying the contractor that SPAWAR intended to respond to the claim by approximately December 14, 2007. On July 3, 2007, the contractor filed its notice of appeal with the Board based on a deemed denial. In response, the Navy filed a motion to dismiss the contractor’s appeal as premature. In its decision on the motion, the Board noted that the CO’s notification had failed to comply with CDA requirements because it did not establish a fixed date by which the CO would issue his final decision. Specifically, the CO informed the contractor of SPAWAR’s intent to respond by approximately December 14, 2007. The Board found such an “intent” to respond by an “approximate” date insufficient under the CDA. Consequently, the Board denied the government’s motion to dismiss, directed the CO to issue a final decision by December 14, 2007, and exercised its discretion to stay proceedings until the CO issued his final decision.

Some projects require the contractor to begin performance immediately, with the urgency of the government requirement providing no time to establish terms, specifications, or prices. The government may enter into undefinitized contract actions (UCAs) or letter contracts for such projects. The contract clause at Federal Acquisition Regulation (FAR) 52.216.25 provides the process for the definitization of UCAs. Since UCAs permit performance without firmly established terms such as pricing, procuring agencies are expected to agree on the undefinitized contract terms in a timely manner after the commencement of performance. When the agency and the contractor cannot agree on a firm price, the FAR definitization clause allows the contracting officer (CO) to conclude negotiations and unilaterally determine a reasonable price. Notably, because the definitization clause expressly permits it, the CO’s unilateral establishment of pricing is considered an act of contract administration and not a government claim. Consequently, if the contractor does not agree with the CO’s unilaterally established price, it must file a claim with the CO before appealing that decision at a relevant Board of Contract Appeals (BCA) or the Court of Federal Claims (COFC).

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.