The Contract Disputes Act
The Contract Disputes Act (CDA) applies to nearly all
contracts [FN1] with the government, express or implied, executed
on or after March 1, 1979, for:|
See 41 U.S.C. § 7102(a).
- the procurement of property, other than real property;
- the procurement of services;
- the procurement of construction, alteration, repair or
maintenance of real property; or
- the disposal of personal property.
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. §§ 7102 (b) and (c).
The CDA sets forth 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 resolving disputes under this system is the submission of a
formal claim seeking a contracting officer's final decision. The
claims of both the contractor and the agency must be the subject of
a contracting officer's final decision. See 41 U.S.C.
§ 7103(a). A contractor dissatisfied with a contracting officer's
final decision may appeal the decision to the appropriate agency
board of contract appeals; such boards are specifically authorized
by the CDA. 41 U.S.C. § 7105. 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. § 7104(b). [FN2]
Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994)
(en banc). In both forums the claim is heard de novo.
Id. 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. § 7107(a).
See USAM 4-4.220.
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. § 7102(d), which confers jurisdiction in the district
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 National
Courts Section of the Commercial Litigation Branch
[updated September 2013;
cited in USAM 4-4.420]