A recent decision by the U.S. Court of Federal Claims (“COFC”) serves as an important reminder that forum selection under the Contract Disputes Act (“CDA”) can have consequences that extend beyond a single appeal. In Gilbane Federal v. United States, 182 Fed. Cl. 177 (2026), the Court transferred a contractor’s claim to the Armed Services Board of Contract Appeals (“ASBCA”) even though the contractor could no longer have filed that claim directly at the ASBCA because the CDA’s 90-day appeal period had already expired. The Court concluded nonetheless that transfer was appropriate because a separate appeal related to the same contract was pending before the ASBCA.
The decision highlights two often-overlooked features of CDA litigation. First, forum selection is not simply a matter of choosing between the COFC and the Boards of Contract Appeals for a particular claim. Second, when multiple claims arising from the same contract are litigated in different forums, the COFC has broad authority to consolidate or transfer those disputes in the interest of justice and efficiency.
The CDA’s Two Paths for Appealing a Contracting Officer’s Final Decision
The CDA gives contractors a choice of two forums to challenge an adverse Contracting Officer’s Final Decision or deemed denial. A contractor may either:
(1) File suit in the COFC; or
(2) Appeal to the appropriate Board of Contract Appeals.[1]
Under the Electrine Doctrine, however, that choice is generally a binding “either-or alternative.” See Nat’l Neighbors, Inc. v. United States, 839 F.2d 1539, 1542 (Fed. Cir. 1988) (cleaned up). Once a contractor elects a forum for a claim, it ordinarily may not abandon that forum and relitigate the same claim in the other forum. Id. at 1542–43.[2] Thus, it is important for contractors to understand the consequences of selecting each forum.
Most critically, the choice carries timing consequences. Contractors have only 90 days to file an appeal with the appropriate Board, but one year to file suit in the COFC.[3]
Understanding the Two Forums
Boards of Contract Appeals
Several Boards of Contract Appeals exercise jurisdiction over government contract disputes. The two boards that hear the vast majority of CDA appeals are the ASBCA and the Civilian Board of Contract Appeals (“CBCA”).[4]
The ASBCA has jurisdiction over appeals involving contracts with the Department of War, its component departments, and NASA. The CBCA hears most appeals involving contracts with civilian executive agencies. The CBCA also has jurisdiction over certain claims brought under the Administrative False Claims Act.[5]
Unlike judges appointed to the COFC, ASBCA and CBCA judges are required, by statute, to possess government contracts expertise.[6] Board proceedings are less formal than federal court litigation because the Boards are directed “to the fullest extent practicable [to] provide informal, expeditious, and inexpensive resolution of disputes.”[7] As a result, contractors often view Boards as a forum well-suited to resolving complex contract administration issues efficiently and with decision-makers who regularly handle government contracts disputes.
Decisions from the Boards are appealable to the U.S. Court of Appeals for the Federal Circuit.
Court of Federal Claims
If a contractor elects to appeal to the COFC, an Article I federal court, the case generally follows the procedural rules applicable to federal litigation. While COFC litigation is often more formal, more expensive, and slower than proceedings before the Boards, that is not always the case. There are circumstances in which contractors may prefer the COFC’s procedures, discovery tools, or precedent.
Importantly, the COFC is not bound by the decisions of the Boards, and vice versa. As a result, forum selection may involve strategic considerations where binding precedent differs between the forums.
Like Board decisions, COFC decisions are appealable to the Federal Circuit.[8]
The Often-Overlooked Transfer Provision
Many contractors are familiar with the CDA’s forum-selection provisions. Far fewer are familiar with the CDA’s transfer provision.
When multiple claims arising from the same contract are litigated simultaneously before the COFC and a Board, the COFC has discretionary authority to consolidate or to transfer claims to the appropriate Board “for the convenience of the parties or witnesses or in the interest of justice.”[9] The statute is designed to avoid duplicative litigation, inconsistent results, and inefficient use of party and judicial resources.
As the COFC’s recent decision in Gilbane demonstrates, that authority can significantly affect a contractor’s ability to maintain separate proceedings in different forums.
Gilbane: When a COFC Case Ends Up at the ASBCA
At first glance, Gilbane appears to be a straightforward application of the COFC’s discretionary transfer authority. A closer look, however, reveals why the decision is noteworthy.
Gilbane already had an appeal pending at the ASBCA related to modification preparation costs under a contract with the Army Corps of Engineers. Gilbane later filed a separate suit at the COFC, asserting claims under the same contract related to both modification preparation costs and COVID-19-related delays. The government moved to transfer the COFC case to the ASBCA.
The Court analyzed six factors when considering the government’s motion:
- Whether the disputes concern the same contract;
- The contractor’s initial choice of forum;
- The relative progress of the two proceedings;
- Whether concurrent resolution would create inefficiencies; and
- The risk of inconsistent results.
The Court found that all six factors favored transfer, including the plaintiff’s “initial choice of forum.” The Court explained that despite the contractor’s stated preference to litigate the COVID-19 delay claim in the COFC, the Court looks to the initial forum in which the contractor chose to litigate its appeals. The Court explained that the relevant inquiry was not where Gilbane preferred to litigate this particular claim, but rather where it first chose to litigate claims arising under the contract.
The Missed ASBCA Deadline Did Not Prevent Transfer
The most interesting aspect of the decision may be the Court’s treatment of the CDA’s filing deadlines.
When Gilbane appealed the denial of its claims to the COFC, the 90-day deadline for appealing those claims to the ASBCA had long expired. Ordinarily, that would mean a contractor could no longer have filed an appeal with the ASBCA. Gilbane therefore argued that transfer would be inappropriate because the ASBCA may lack jurisdiction over the transferred claims.
The Court rejected that argument, explaining that the transfer was appropriate notwithstanding the expired deadline because “the overwhelming weight of authority indicates that the ASBCA will retain jurisdiction over the claim upon transfer regardless of the original deadline to appeal before the ASBCA.” The Court further noted the government’s representation that it would not challenge timeliness following transfer. As a result, the expired ASBCA filing deadline did not prevent transfer of the case.
Key Takeaways for Contractors
The Gilbane decision underscores the breadth of the COFC’s transfer authority under 41 U.S.C. § 7107(d) and the willingness of the Court to use that authority when parallel proceedings create overlapping legal issues, duplicative discovery, or a risk of inconsistent results.
The decision also serves as an important reminder that forum selection may have consequences for future disputes arising under the same contract, even where the contractor could not have timely appealed a later claim in that forum. For contractors assessing whether to proceed before a Board of Contract Appeals or the COFC, their forum selection strategy should consider the potential contract-wide implications, not merely those specific to the claim at hand.
[1] 41 U.S.C. § 7104(a)–(b)(1).
[2] However, the Electrine Doctrine’s binding effect does not apply if the initial forum was improper, including where the initial appeal was untimely. Nat’l Neighbors, Inc., 839 F.2d at 1542–43.
[3] 41 U.S.C. § 7104(a), (b)(3).
[4] Other Boards continue to operate in more specialized areas. For example, the Postal Service Board of Contract Appeals hears disputes involving U.S. Postal Service contracts; the District of Columbia Contract Appeals Board hears disputes involving District of Columbia contracts; and the Government Accountability Office Contract Appeals Board exercises jurisdiction over certain legislative branch contracts.
[5] 31 U.S.C. § 3803(d); 41 U.S.C. § 7105(e)(1)(E). The Administrative False Claims Act mirrors the False Claims Act (31 U.S.C. §§ 3729–3733) in many respects but allows agencies to pursue false claims without solely relying upon the Department of Justice and sets a ceiling on claim liability.
[6] 41 U.S.C. §§ 7105(a)(2), (b)(2)(B).
[7] 41 U.S.C. § 7105(g)(1).
[8] Maritime contracts occupy a unique place within the CDA. Unlike most procurement contracts, maritime contracts do not provide contractors with the standard choice between the Board and the COFC. See 41 U.S.C. § 7102(d); FAR 33.211(a)(4)(v). While a contractor may still elect to proceed before the appropriate Board, it may not pursue the alternative CDA path of filing directly in the COFC. Nor may the contractor appeal a Board decision to the Federal Circuit. Instead, judicial review follows the traditional admiralty route through the federal district court rather than the COFC and Federal Circuit. Contractors accustomed to the CDA’s normal forum-selection framework should therefore recognize that maritime contracts operate under a substantially different jurisdictional scheme.
[9] 41 U.S.C. § 7107(d).