Contract Disputes Act – Construction Series Part 2

In the first part of this series, we discussed the regulations involved in contracting with the government and the need to have someone with a good working knowledge of those issues assist you with the process.  The second part of this series focuses specifically on the Contract Disputes Act.

 

Photo by Matthias Zomer: https://www.pexels.com/photo/person-signing-document-paper-618158/

Contract Disputes Act

Individuals and entities have entered into contracts with the federal government for many years.  However, prior to 1855, a contractor had no forum in which to sue the government.  In 1863 Congress enacted laws permitting the federal Court of Claims to enter judgments against the federal government.  Later, Congress enacted the Tucker Act in 1887 permitting the Court of Claims to rule on certain monetary claims against the federal government.

Following an extensive history of federal government executive agencies attempting to rewrite the rules to permit them to evaluate and rule upon claims, Congress enacted the Contract Disputes Act in 1978 (41 U.S.C. §§ 7101 – 7109) (“CDA”).   The CDA applies to resolve most disputes by a contractor arising out of appropriated funds contracts, and some non-appropriated funds contracts, with the federal government.  Sorry subcontractors and sureties; the CDA generally applies to claims by the party directly contracting with the federal government.  To note, there are a few creative ways to pursue such claims.

It is important to be mindful of those agencies and courts that have authority to hear these disputes.  Both the Armed Services Board of Contract Appeals (“ASBCA”) and the Court of Federal Claims (“COFC”) potentially have jurisdiction for CDA claims.  There are practical and legal reasons supporting an election to file in one versus the other so professional guidance is important.

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