70.

The Contract Disputes Act

The CDA applies to nearly all contracts[FN1] with the government, express or implied, executed on or after March 1, 1979, for: A. The procurement of property, other than real property; B. The procurement of services; C. The procurement of construction, alteration, repair or maintenance of real property; or D. The disposal of personal property. See 41 U.S.C. § 602(a). FN1. Contracts with the Tennessee Valley Authority and contracts with foreign entities may be excepted from the CDA under certain circumstances. 41 U.S.C. §§ 601(b) and (c). The CDA creates a comprehensive system for resolving disputes between a contractor and a procuring agency relating to the performance of most procurement contracts. The starting point for this system is the contracting officer's decision. The claims of both the contractor and the agency must be the subject of a contracting officer's decision. See 41 U.S.C. § 605(a). The contractor may appeal such a decision to the appropriate agency board of contract appeals; such boards are specifically authorized by the CDA. 41 U.S.C. § 607. Alternatively, the contractor, in lieu of appealing a contracting officer's decision to a board of contract appeals, may file suit on its claim in the United States Court of Federal Claims (CFC). 41 U.S.C. § 609(a).[FN2] Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994) (en banc). In both forums the claim is heard de novo. If the contractor or the agency (with the approval of the Attorney General) wishes, either may appeal a decision of a board of contract appeals or the CFC to the United States Court of Appeals for the Federal Circuit (CAFC). 41 U.S.C. § 607(g). See USAM 4-4.220 FN2. Where the claim arises under a maritime contract, jurisdiction over an appeal from a contracting officer's decision is governed by 41 U.S.C. § 603, which confers jurisdiction on the district court. Where the claim arises under a maritime contract, jurisdiction over an appeal from a contracting officer's decision is governed by 41 U.S.C. § 603, which confers jurisdiction in the district court. In the case of a claim brought by the United States, the contractor-defendant who fails to appeal from the contracting officer's determination will be foreclosed from challenging that decision in litigation. See United States v. Ulvedal, 372 F.2d 31 (8th Cir. 1967); see also Zidell Exploration, Inc. v. United States, 427 F.2d 735, 739 (Ct. Cl. 1970). Questions concerning the CDA should be directed to the Commercial Litigation Branch. [cited in USAM 4-4.420]