Generally, government contractors proceeding towards a Board of Contract Appeals (BCA) decision are wise to take the safe, traditional route. While it can be a long and winding road—engaging in pleadings, discovery, a hearing, and a decision—this process presents the least risk of getting lost. For risk-averse contractors whose priority is having their legal issues fully investigated, considered, and addressed by the BCAs, this is often the best strategy. However, in certain situations—e.g., when the parties urgently need the BCA’s contract interpretation to proceed with performance, when a contractor needs immediate access to claimed damages to meet its business obligations, or when the parties have a purely legal dispute, etc.—contractors may find shortcuts and backroads suit their travel plans much better. In this third installation of PilieroMazza’s BCA blog series, we discuss the typical timeframe for a decision before the BCAs, as well as considerations contractors will need to make to ensure their shortcut doesn’t become a dead end. Visit Part 1 and Part 2 of our series to catch up on our other tips for navigating the BCAs and the Contract Disputes Act (CDA), and visit this link to register for our webinar on this blog series.
- Entering Your Destination
Like any road trip, mapping your route to a BCA decision begins with a crucial question: where are we going? Luckily, there are only two basic choices. The rules of both the Armed Services Board of Contract Appeals (ASBCA) and the Civilian Board of Contract Appeals (CBCA) permit the parties to either (1) proceed to a hearing (ASBCA Rule 10; CBCA Rule 18) or (2) have the judge decide the appeal based upon the written record (ASBCA Rule 11; CBCA Rule 19). A Board hearing is like a bench trial in a traditional court setting, meaning the parties will prepare opening and closing statements, prepare exhibits, examine witnesses, and perform all other preparatory work associated with putting on a hearing. The exact procedures of a Board decision on the written record vary, but it typically entails the parties providing the judge with all supporting documentation for their legal position and filing a brief persuading the judge of their argument.
A hearing is the default at the ASBCA, but Rule 11 states that “either party may elect to waive a hearing and to submit its case upon the record.” The ASBCA has discretion to handle the parties’ elections in the way it sees fit, where the parties cannot agree on their destination; however, in most cases, the ASBCA will order both parties to proceed with a hearing under Rule 10 unless both parties expressly agree to proceed on the written record under Rule 11.
The CBCA also defaults to a hearing, but it will proceed with judgment on the written record once elected. In contrast to the ASBCA, the CBCA will permit one party to move forward with judgment on the written record under Rule 19 even if the other party elects a hearing. Per Rule 18(b), “[a] party may elect to submit its case on the written record under Rule 19 and also elect to appear at a hearing, solely to cross-examine the other party’s witnesses and to object to evidence offered at the hearing.”
Your destination—whether you are proceeding to judgment on the written record or a hearing—can greatly impact how long it takes to get a decision.
- Calculating Estimated Time of Arrival
Parties will spend a significant amount of time on the pleadings, discovery, and briefing/hearing stages of their BCA appeals. A judgment on the written record under ASBCA Rule 11 or CBCA Rule 19 often represents time savings and significant cost savings, provided both parties agree to it, as those proceedings eliminate the need for a hearing. This avoids not only the time and expense of travel, calling of witnesses and experts, and several days before the judge, but also several months, if not years, of preparation depending on the complexity of the appeal. Despite the potential time savings, any lawyer worth their salt will advise that not all cases are suited for Rules 11 or 19.
One major consideration is that BCA judges are highly competent government contracts lawyers. While this means they are some of the most well-equipped professionals on the planet to resolve government contracting disputes, it also means all their time spent becoming government contract law experts understandably left them with little time to become technical experts in engineering, construction, or other complex subject areas that may be critical to your argument. If your argument hinges on the judge, for example, understanding thousands of pages of specifications for an aircraft training system, it behooves you to present witness (and expert) testimony in a hearing that will walk the BCA judge through your case, rather than asking them to read thousands of pages to figure it out in a vacuum.
No matter your destination—hearing or judgment on the written record—every traveler on the BCA highway has a few more miles to go after the judge receives their arguments, including the wait for a decision. Guided by their respective sets of rules, the ASBCA and CBCA differ in their timelines for generating written decisions. In general, both BCAs strive to issue written decisions within one year from when the decision is “ready to write,” meaning the hearing and all post-hearing obligations have been completed pursuant to ASBCA Rule 10 or CBCA Rule 18, or the record is complete and ready for review pursuant to ASBCA Rule 11 or CBCA Rule 19. Due to the popularity of the BCAs and record number of filings they are currently handling, parties have anecdotally reported recent wait times ranging from 1-3 years, depending on the size of the record and complexity of the issues. Understandably, the BCAs are reporting that some of the following shortcuts are becoming more popular than ever before.
- Navigating Shortcuts, Detours, and Dead Ends
The following is a list of common BCA shortcuts. Depending on your small business status, your case, and your tolerance for risk, some of these methods may be worth considering. Just be careful to weigh all risks with your legal counsel, lest an enticing shortcut turn out to be a dead end.
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- Motion for Summary Judgment: It is relatively risk-free for a contractor to file this shortcut motion when it believes there are no issues of material fact, the dispute is purely legal in nature, and its legal position is correct. By the time this motion is filed, the parties have typically engaged in some level of discovery, meaning there was an opportunity to investigate the government’s position and perform due diligence before putting your arguments before the Board for a decision. At best, you may win all or part of the appeal. At worst, you may have committed resources toward a detour. Where the Board decides that summary judgment is not appropriate, it merely steers the parties back onto the highway toward their original destination of a hearing or judgment on the written record. The only risk here is the unmitigable risk all contractors face in litigation, no matter the route they choose. The government also has the option to file a motion for summary judgment and, if their motion is successful, the appeal will be dismissed and the journey ends abruptly.
- ASBCA Rule 12: While the time savings are massive and may be worth the risk in certain circumstances, an expedited or accelerated procedure under ASBCA Rule 12 (detailed further below) is a significant undertaking for a contractor and their legal counsel. There is much less time to develop a strategy and little to no opportunity to investigate the case via discovery.
- Small Claims (Expedited) Procedures: ASBCA Rule 12.2 permits the contractor to elect expedited procedures where the dispute is regarding $50,000 or less, or where a small business contractor is disputing $150,000 or less. This procedure generally takes 120 days from beginning to end. While the contractor is guaranteed a fast decision, it is important to keep in mind that decisions under Rule 12.2 have no precedential value, and, in the absence of fraud, shall be final and conclusive and may not be appealed or set aside.
- Accelerated Procedures: ASBCA Rule 12.3 permits a contractor disputing $100,000 or less to elect accelerated procedures where parties are encouraged to waive pleadings, discovery, and briefs. The Board will adjust all deadlines as necessary to decide the appeal within the 180-day period. While accelerated decisions do have precedential value and are appealable, unlike expedited procedures, the ASBCA warns that its written decisions will generally be short and contain only summary findings of fact and conclusions, compared to the full legal analysis customary in normal ASBCA decisions.
- CBCA Rules 52 and 53: These rules are nearly identical to the ASBCA Rule 12. Accordingly, while these procedures result in significant time savings for a contractor looking to move as fast as possible, they come with the same set of risks.
- Small Claims Procedure: CBCA Rule 52 permits the contractor to elect small claims procedures where the dispute is regarding $50,000 or less, or where a small business contractor is disputing $150,000 or less. The Board schedule may restrict or eliminate pleadings, discovery, and other pre-hearing activities, allowing it to resolve the appeal within 120 days. A small claims procedure decision is final and conclusive, meaning it cannot be appealed unless there is fraud, and is not precedential.
- Accelerated Procedure: CBCA Rule 53 permits a contractor disputing $100,000 or less to elect accelerated procedures where the Board schedule may restrict or eliminate pleadings, discovery, and other pre-hearing activities such that it can resolve the appeal within 180 days.
Provided the government agrees, there is one more common shortcut available to contractors before the BCAs, no matter their business size, legal issue, or amount in dispute. The subject of our fourth and final blog in this series is all about everyone’s three favorite words: Alternative Dispute Resolution (ADR). Join us next time because we can’t wait to clue you in on the ultimate and relatively risk-free shortcut of Board-led ADR.
