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Choice of Forum for Government Contract Claims: Court of Federal Claims vs. Board of Contract Appeals

The Contract Disputes Act of 1978 (CDA) provides contractors with a choice of forum to challenge a Contracting Officer’s (CO) adverse Final Decision1  on a contract claim. A contractor has the exclusive right to choose the forum to litigate its claim3  and either may file a suit in the United States Court of Federal Claims (CFC) or may appeal to the appropriate agency board of contract appeals.4  Because the Government cannot appeal a CO’s decision, only a contractor may initially invoke the jurisdiction of the CFC or a board. However, once a contractor has filed an action in one of the forums, the choice ordinarily is final.6  It is therefore important that the contractor select the most advantageous forum in its initial filing.

 1 As discussed below, for purposes of a contractor’s right either to file suit in the Court of Federal Claims or right to appeal to the appropriate Board of Contract Appeals, an adverse Contracting Officer’s Final Decision can include, for example, the failure of the Contracting Officer to issue a requested Final Decision within a reasonable period of time, which is known as a “deemed denial” of the contractor’s claim. See 41 U.S.C. § 605(c)(5) (2000); FAR § 33.211(g) (2007). up
 2 41 U.S.C. § 607 (2000); see also 41 U.S.C. §§ 601–613 (2000). up
 3 LaBarge Prods., Inc. v. West, 46 F.3d 1547, 1554 (Fed. Cir. 1995); S.J. Groves & Sons Co. v. United States, 661 F.2d 171, 173 (Ct. Cl. 1981); Holly Corp., ASBCA No. 24975, 80-2 BCA ¶ 14,675. up
 4 41 U.S.C. §§ 606, 609(a); see also LaBarge Prods., 46 F.3d at 1554; Nat’l Neighbors, Inc. v. United States, 839 F.2d 1539, 1541 (Fed. Cir. 1988); S. R . N. 95-1118, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5236. up
 5 See 41 U.S.C.A. §§ 606, 609(a); Seaboard Lumber Co. v. United States, 903 F.2d 1560, 1562 (Fed. Cir. 1990); see also Pathman Constr. Co. v. United States, 817 F.2d 1573, 1578 (Fed. Cir. 1987) (“A major purpose of the Disputes Act {CDA] was to induce resolution of contract disputes with the Government by negotiation rather than litigation.”). up
 6 Bonneville Assocs. v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994); Glenn v. United States, 858 F.2d 1577, 1580 (Fed. Cir. 1988); Nat’l Neighbors, 839 F.2d at1542; Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644, 646 (Ct. Cl. 1981). up

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