The Civilian Board of Contract Appeals has published its annual report for FY 2023, providing data regarding the number of appeals and contractor success rates at the Board.  The data illustrated a number of noteworthy points — and a few welcome trends — for the contracting community.

First, contractors obtained some form of relief in the vast majority of cases.  The Board resolved 185 Contract Disputes Act appeals in FY 2023.  Of those appeals, the Board issued 47 merits decisions, granting full or partial relief in 21 of those cases.  In addition, the Board dismissed 138 appeals — 13 of those appeals were dismissed by decision, while the remaining 125 were dismissed voluntarily at the request of the parties.  Typically, voluntary dismissals reflect a settlement by the parties.  Thus, taking into account both merits decisions and dismissals, it appears that contractors received some type of relief in roughly 78% of appeals resolved in FY 2023 (21 merits decisions plus 125 voluntary dismissals, out of 185 appeals resolved).  That figure is comparable to the data from the annual report for FY 2022, when contractors received some form of relief in roughly 75% of appeals.

Second, although the overall rate of gaining some relief was about the same as the prior year, there was a significant uptick in contractor success on the merits in FY 2023 versus FY 2022.  In FY 2022, the Board issued 43 merits decisions, granting full relief in just 1 case, granting partial relief in 8, and denying 34 appeals.  Thus, contractors had an effective success rate of 21% on the merits for FY 2022.  As the figures above reflect, in FY 2023 contractors had an effective success rate of 45% on the merits, more than doubling the same statistic from the prior year.

Third, the report provided data regarding which agencies had the greatest number of appeals docketed in FY 2023.  The data showed that the Department of State had the most appeals (115) of all civilian agencies, followed by the Department of Veterans Affairs (52), the General Services Administration (24), and the Department of Transportation (11).  Other civilian agencies had appeals in the low single-digits.

Finally, the Board is trending toward providing more granular and comprehensive data in its annual reports.  For example, the Board’s reports in the 5 years prior to FY 2022 did not provide data regarding case outcomes — i.e., grants, partial grants, denials, or dismissals of appeals. That data was added last year.  Similarly, the FY 2023 report is the first time in recent years that the Board has provided data regarding numbers of appeals by specific agency.  This is a welcome trend, and one that we hope continues, as more data is helpful to the contracting community. Going forward, it will be worth monitoring future reports to see if the trend continues and if the Board considers reporting additional data regarding, for example: specific bases for grants/denials; numbers of appeals resolved at summary judgment versus after a hearing; and the age/lifespan of the resolved appeals.

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Photo of Evan R. Sherwood Evan R. Sherwood

Evan Sherwood helps government contractors to resolve disputes with the federal government, prime and subcontractors, and contractor employees. He has helped clients to successfully navigate large federal contract claims, cost/pricing audits, contract terminations, and related litigation and investigations. He looks for constructive solutions…

Evan Sherwood helps government contractors to resolve disputes with the federal government, prime and subcontractors, and contractor employees. He has helped clients to successfully navigate large federal contract claims, cost/pricing audits, contract terminations, and related litigation and investigations. He looks for constructive solutions to disputes between contractors and their customers/business partners, so that companies can achieve their strategic goals.

Photo of Daniel Russell Jr. Daniel Russell Jr.

Dan Russell has extensive experience representing government contractors in complex, high-stakes litigation.  He has litigated numerous “contractor on the battlefield” tort suits arising out of wartime incidents, as well as other tort suits that implicate significant national defense interests.  Mr. Russell is frequently…

Dan Russell has extensive experience representing government contractors in complex, high-stakes litigation.  He has litigated numerous “contractor on the battlefield” tort suits arising out of wartime incidents, as well as other tort suits that implicate significant national defense interests.  Mr. Russell is frequently called upon by clients to develop and assert an array of federal-law-based defenses, including the political question doctrine, federal preemption, the government contractor defense, and derivative sovereign immunity.

Mr. Russell has litigated a variety of claims brought by or against the federal government, including: contract disputes before the Court of Federal Claims and the Armed Services Board of Contract Appeals; enforcement actions brought by the U.S. Food & Drug Administration; and claims against federal agencies brought under the Administrative Procedure Act and the Federal Tort Claims Act.