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.

Tags: appeals, CDA, claims, COTS, disputes
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Photo of Evan R. Sherwood Evan R. Sherwood

Evan Sherwood counsels federal contractors on Contract Disputes Act (CDA) claims, the cost accounting standards (CAS), cost allowability, requests for equitable adjustment (REAs), contract terminations for convenience/default, and related audits, litigations, and investigations. He also advises on contract compliance and formation issues, including TINA/defective pricing…

Evan Sherwood counsels federal contractors on Contract Disputes Act (CDA) claims, the cost accounting standards (CAS), cost allowability, requests for equitable adjustment (REAs), contract terminations for convenience/default, and related audits, litigations, and investigations. He also advises on contract compliance and formation issues, including TINA/defective pricing, data rights, mandatory disclosure rules, ethics, conflicts of interest, teaming arrangements, and other transaction agreements (OTAs). He has litigated matters before the Court of Federal Claims, the Armed Services Board of Contract Appeals, the Government Accountability Office, and the Federal District Courts.

In his work for defense and civilian agency contractors, Evan:

  • Prepares CDA claims and REAs;
  • Litigates matters involving CAS compliance, cost accounting practice changes, and cost allowability under the FAR and grant rules;
  • Defends contractors during audits and investigations involving the Defense Contract Audit Agency (DCAA), Defense Contract Management Agency (DCMA), and the Office of the Inspector General (OIG);
  • Advises on constructive changes, work delays, defective specifications, stop-work orders, government-furnished property, CPARS, warranty matters, data rights, and quality controls;
  • Counsels on disputes between primes and subcontractors, including teaming disputes; and
  • Conducts internal investigations and defends clients in federal investigations involving whistleblower allegations and retaliation claims.

Evan is a Vice Chair of the ABA Public Contract Law Section’s Contract Claims & Disputes Resolution Committee. He routinely writes and speaks about legal issues in federal contracting.

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Photo of Daniel Russell Jr. Daniel Russell Jr.

Dan Russell represents government contractors in complex, high-stakes litigation. Over the past two decades, Dan has served as lead counsel for some of the largest U.S. defense contractors in a broad range of contract disputes and tort claims, including cases valued well in…

Dan Russell represents government contractors in complex, high-stakes litigation. Over the past two decades, Dan has served as lead counsel for some of the largest U.S. defense contractors in a broad range of contract disputes and tort claims, including cases valued well in excess of $100 million.

Dan has experience litigating contract claims and disputes before federal judges and juries, the Boards of Contract Appeals, and the U.S. Court of Federal Claims, including matters arising out of terminations, cost-allowability disputes, defective pricing claims, prime-sub disputes, and claims under the Contract Disputes Act (CDA). Dan has also represented contractors in a myriad of tort suits arising out of work performed for the federal government. Dan has unparalleled experience defending “contractor on the battlefield” tort suits involving contracts performed during wartime or other high-risk, contingency environments. Dan has obtained complete dismissals of tort suits based on an array of federal-law-based defenses, including the government contractor defense, the political question doctrine, federal preemption, and derivative sovereign immunity.

Dan has litigated a variety of other matters involving government contracts and uniquely-federal issues, including: cases brought under the civil False Claims Act (FCA); insurance coverage matters for federal contractors; claims against federal agencies brought under the Administrative Procedure Act and the Federal Tort Claims Act; and regulatory enforcement actions.

At the appellate level, Dan has argued cases before the U.S. Courts of Appeals for the Fourth Circuit, the Fifth Circuit, and the Ninth Circuit. He has also represented clients in matters before numerous other appellate courts and the U.S. Supreme Court.

In addition to his litigation practice, Dan regularly provides risk-mitigation counseling for contractors, with a particular focus on strategies to reduce potential exposure to tort claims and other liabilities in connection with the performance of high-risk government contracts.

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