ASBCA FY18 Report: Continued Decline in Appeals Filed, But Success in Cases Decided on the Merits Rises

On Oct. 10, 2018, the Armed Services Board of Contract Appeals (ASBCA) released its annual report describing its case activity for FY 2018. The good news for contractors is that out of the 139 cases decided on the merits, the Board found merit in 69.1 percent of them. In addition, out of the 420 cases dismissed, the majority were dismissed after the parties reached a settlement. Parties have also found success through the Board's ADR process, with the successful resolution of 21 ADR requests covering 60 matters.

The ASBCA also made progress on its backlog of appeals. While the ASBCA started the year with 970 pending appeals, its total pending appeals decreased by 69 to 901 pending appeals – its lowest level since Oct. 1, 2013. This decline in pending appeals was aided by a continued decline in the amount of appeals filed with the ASBCA. While 708 appeals were docketed in FY14, this number has declined every year since, with only 490 appeals were docketed in FY18. Out of the 901 pending appeals, 92 cases are ready to be written. Contractors also requested expedited or accelerated appeals under Rule 12 for 20 appeals in FY18.

The majority of cases still originate from contracts with the Army Corps of Engineers. USACE has the highest percentage of active appeals at 30.4 percent. The following table illustrates the breakdown of cases per agency:

Finally, the ASBCA's statistics show that the Board's decisions are only rarely appealed. Out of 559 cases disposed of in FY18, including 129 decisions determined on the merits, only nine appeals were docketed with the Federal Circuit. Contractors appealing to the Federal Circuit did not find success. All four disposed appeals before the Federal Circuit that involved ASBCA decisions were denied or dismissed.

Given the significant costs for pursuing claims, it is important for contractors to understand these metrics in designing claims and appeals strategy.