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Oles Morrison

ASBCA Fiscal Year 2015 Annual Report: Sustain Rate of Appeals Remains over 50% and ASBCA Resolves More Appeals

By on October 29, 2015 | Posted in Claims and Disputes

On O5006396635_c5359a439d_zctober 20, 2015, the Armed Services Board of Contract Appeals (ASBCA) released its Annual Report of Transactions and Proceedings for the fiscal year ending 30 September 2015.  The report indicates that the number of appeals pending have more than doubled since 2011, but that the increase has slowed considerably with a net increase of 21 appeals, for a total of 1,087 appeals pending at the end of FY 2015.

This stability can be attributed to the fact that the ASBCA continues to dispose of more appeals each year (647 appeals this year) and that there was a slight decrease in the number of appeals docketed in FY 2015, 668 as compared to 708 in FY 2014.  At the same time, 52.9% of the published decisions of the ASBCA found the contractor’s claim meritorious (in whole or in part).  The ASBCA report indicates that 526 appeals were dismissed and states that “in the majority of cases, a dismissal reflects the parties have reached a settlement.”  The success rate measured by sustained appeals and settlements indicates the ASBCA remains an excellent avenue for the resolution of contractors disputes, and that the ASBCA is resolving appeals at an increasing pace.

At the same time, the success rate for non-binding Alternate Dispute Resolution (ADR) at the ASBCA remains extremely high.  The ASBCA reports that of the 31 ADR requests that were concluded in FY2015, 29 resulted in successful resolution of the matter (including one matter that was resolved by ADR before it was even docketed).  These results are similar to previous years in confirming an extremely high rate of success.  It also highlights the fact that contractors do not have to have a docketed appeal to request the ASBCA’s ADR services, which services are provided to contractors at no cost.  This is a great benefit to contractors facing a pre or post claim dispute who want to avoid a formal appeal to the ASBCA and at the same time save the cost of a private mediator.

The ASBCA hears appeals from the Department of Defense (DOD), which includes the Army, Navy, Air Force, Army Corps of Engineers, Defense Logistics Agency (DLA), and Defense Contract Management Agency (DCMA).  The Board also hears appeals from the National Aeronautics and Space Administration, Central Intelligence Agency, and the Washington Metropolitan Area Transit Authority.  DLA and DCMA reported the most new appeals docketed followed by the Army Corps of Engineers and then the Army.

What does the Board’s report mean for contractors?  The ASBCA’s caseload is stabilizing as the ASBCA resolves and dismisses a higher number of appeals each year, with the majority of contractors receiving either a positive decision on the merits or obtaining a settlement with the Government.  Those contractors who can agree with the Government to ASBCA ADR experienced even a higher rate of success in resolving their disputes.  This report is great news for contractors, as it confirms that there is a good chance their disputes brought to the ASBCA will be resolved with some measure of success.

Image Courtesy of Flickr (licensed) by Sam Howzit