Appeals to the Courts and Boards
Despite the efforts of our consulting group and our clients to avoid litigation at times it is inevitable. When our clients need to appeal a contracting officer’s final decision they have found that hiring Malyszek & Malyszek are the best in the business. Many of our clients have stated that “Your lawyers understand that cost of litigation on government contractors and make every effort to limit its impact without risk to the litigation.”
Once the litigation process is started we make every attempt to use Alternative Dispute Resolution (ADR) methods as is recommended by the Office of Federal Procurement Policy.
ADR methods include, arbitration both binding and non-binding, mediation and outcome prediction.
During the Litigation process Malyszek & Malyszek takes every opportunity when appropriate to attempt settlement discussions with opposing counsel. We create these opportunities by establishing to opposing counsel that settlement is in their best interest.
Malyszek & Malyszek Takes Appeals to:
- United States Court of Federal Claims
- Civil Board of Contract Appeals
- Armed Service Board of Contract Appeals
- United States Postal Service Board of Contract Appeals
- General Accountability Office
- General Accountability Office Contract Appeals Board
- FAA Office of Dispute Resolution for Acquisition Case
- Small Business Administration
APPEALS:
An Appeal is taken when there is a negative decision from a contracting officer on a claim or Request for Equitable Adjustment for changed work, added work, defective specifications, delays to contract performance, or a plethora of other reasons.
An appeal may also be pursued when there is an improper termination for default or an issue with a termination for convenience cost claim.
If a Contractor decides that it wishes to appeal a Contracting Officer’s Final Decision, it is then necessary to appeal within the time constraints, and to make a decision as to what forum is more beneficial to the Contractor, be it an to the appropriate Board of Contract Appeals, the proper federal district court, or the U.S. Court of Federal Claims. There is a broad spectrum of issues that can be appealed. The appeal process must be managed in an efficient manner to make the Contractor whole, and to maintain a good working relationship with the Government in order to continue contracting with the Government in the future.
An appeal is made pursuant to FAR regulations, which states that a Claim by or against a contractor that cannot be satisfied or settled by mutual agreement requires that the Contracting Officer render a final decision on the claim. If this final decision is not acceptable to the Contractor, then the Contractor may appeal this decision to the appropriate agency Board of Contract Appeals. In order to be timely, a Contractor must appeal within 90 days to the agency board of contract appeals. Depending on the amount of the claim, a contractor may elect to proceed under the Board’s Small Claim Procedure, or its accelerated procedure.
A Contractor may elect to proceed directly in the United States Court of Federal Claims (pursuant to the Contract Disputes Act of 1978) within 12 months of the date of the Final Decision.
A prime contractor can sponsor a subcontractor’s appeal if the prime contractor may be liable to the subcontractor for the amounts it claims. Ordinarily, sponsored subcontractor appeals are pursued in the name of the prime contractor. However, a timely appeal filed in the name of the subcontractor may be sufficient to establish jurisdiction as long as the prime contractor’s sponsorship can be shown.
