United States Court of Federal Claims - The Tucker Act 28 U.S.C. § 1491 gives the United States Court of Federal Claims jurisdiction to hear claims arising under Section 10(a)(1) of the Contract Disputes Act.  This includes claims by or against, or disputes with, a government contractor — including nonmonetary disputes, disputes concerning termination, cost accounting standards, and rights in tangible or intangible property.  A decision of the contracting officer must have been issued under the Contract Disputes Act (CDA) .  United States Court of Federal Claims has jurisdiction over actions filed within twelve months of a contracting officer’s final decision on a claim. 41 U.S.C. § 609(a).

Must have a valid “claim” within the meaning of the CDA and a contracting officer final decision for the United States Court of Federal Claims to have subject matter jurisdiction.  The FAR defines claim as: “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.” 48 C.F.R. § 33.201; FAR 33.201.

United States Court of Federal Claims has jurisdiction to hear breach of government contract claims under the Tucker Act, 28 U.S.C. §1491. Contracts may be express or implied.  COFC will also entertain bid protest cases based on breach of implied contract of fair dealing.

United States Court of Federal Claims also has bid protests jurisdiction under the Tucker Act.  28 U.S.C. §1491(b).  This includes both pre-award and post-award bid protests.  Generally only actual bidders are interested parties with standing to bring post-award bid protests.  Pre-award bid protests can object to a solicitation or proposed contract or any alleged violation of statute or regulation in connection with a procurement or proposed procurement (including preprocurement decisions).  Certain corporations in which the United States has a proprietary interest -such as FDIC and USPS – are “federal agencies” for purposes of COFC bid protest jurisdiction.

There was a time when federal district courts had jurisdiction under the Administrative Procedures Act to hear contract award challenges and violations of government contract law. The Administrative Dispute Resolution Act (“ADRA”) ended this shared jurisdictional arrangement, often called Scanwell jurisdiction, in 1996. The Tucker Act, 28 U.S.C. §1491(b)(1), as amended by the ADRA, consolidated the Court of Federal Claim’s (COFC) jurisdiction, allowing it:

  • to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract (bid protest jurisdiction).
  • to hear the full range of procurement disputes, including any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

The statute initially had allowed the Court of Federal Claims and the federal district courts to share jurisdiction over government contract and procurement disputes. However, by virtue of a sunset provision, the statute now vests exclusive jurisdiction with the COFC.

United States Court of Appeals, Federal Circuit - hears appeals from the United States Court of Federal Claims.  Reviews questions of law de novo.  Also hears appeals from the Boards of Contract Appeals.

Claims submitted to the Contracting Officer -  governed by the Contract Disputes Act of 1978, 41 U.S.C.A. § 601 et seq.  For a claim to be valid under CDA, it must give the contracting officer adequate notice of the basis and the amount of the claim, and request a contracting officer decision.

General Accountability Office (GAO) - hears pre-award and post-award bid protests pursuant to the regulations at Title 4 CFR Part 21.

Federal District Courts - hear a variety of government contract cases such as reverse-FOIA, qui tam suits under the False Claims Act,contractor liability under statutes such as Alien Tort Statute or Federal Tort Claims Act

Boards of Contract Appeals (BCA)- jurisdiction to hear appeals filed from contracting officer final decisions under CDA within 90 days.  There are a number of BCA for the various agencies – such as the Armed Services Board of Contract Appeals (ASBCA).  Under the Election Doctrine, once a contractor makes a binding decision to appeal a contracting officer final decision to a BCA or to the Court of Federal Claims, the contractor cannot pursue the same claim in the other forum.

To discuss your government contract claim or dispute, contact government contracts attorney Karen S. Hindson.