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On November 1, 2023, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2023 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, Central Intelligence Agency, National Aeronautics and Space Administration, Defense Logistics Agency, Defense Contract Management Agency, other Defense agencies, Non-Appropriated Fund Instrumentalities, and the Washington Metropolitan Area Transit Authority.

According to this year’s report, contractors prevailed on 67% of the appeals decided on the merits, continuing a recent uptick in contractor success relative to the success rate of 53% in 2020 and 2021. The report also indicates that the Board’s alternative dispute resolution program remains highly successful, resolving 94% of appeals for which the parties completed ADR in FY 2023. Additionally, the Federal Circuit continued to see steady action from the ASBCA, docketing 14 new appeals beyond the 16 ASBCA matters already on appeal.

It is encouraging to see that the Board continues to have a high percentage of successful contractor appeals, but these statistics also show that the Board’s ADR program remains an important tool to successfully resolve disputes at the ASBCA.

Tags: ASBCA, government contracts
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Photo of Steve McBrady Steve McBrady

Steve McBrady is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He also serves as a member of the firm’s Finance and Strategic Growth Committees, where he has played a leading role in expanding client service offerings throughout the U.S.…

Steve McBrady is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He also serves as a member of the firm’s Finance and Strategic Growth Committees, where he has played a leading role in expanding client service offerings throughout the U.S., Europe, Asia, and the Middle East.

In recent years, Steve has received the National Law Journal’s “Winning Litigator” award as a lawyer who has “tackled some of the most widely watched cases of the year,” as well as the “D.C. Trailblazer” award, recognizing lawyers who have “made significant marks on the practice.” In 2018, he was named “Government Contracts MVP” by Law360.

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Photo of Skye Mathieson Skye Mathieson

Skye Mathieson is a partner in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office. He works with and advises clients from diverse industries on a wide array of matters, including contract performance disputes (CDA claims and equitable adjustments), cost allowability…

Skye Mathieson is a partner in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office. He works with and advises clients from diverse industries on a wide array of matters, including contract performance disputes (CDA claims and equitable adjustments), cost allowability issues, defective pricing, fiscal law questions, prime-sub disputes, bid protests, internal investigations, and responding to DCAA audits. Prior to joining Crowell & Moring, Skye spent several years as a trial attorney at the procurement litigation division of the Air Force Headquarters for Legal Operations, where he pioneered the seminal “Laguna Defense” that is now widely raised and litigated at the Boards of Contract Appeals.

Skye has extensive experience litigating cases before the Armed Services Board of Contract Appeals (ASBCA), the Civilian Board of Contract Appeals (CBCA), the Government Accountability Office (GAO), and the Small Business Administration (SBA). Through this litigation, Skye has gained valuable experience in a wide variety of industries, such as aerospace (fighter jets, satellites, refueling tankers, simulators, and counter-measures), information technology and software development, construction, healthcare services, intelligence gathering, battlefield services and logistics, scrap disposal, base maintenance and repair contracts, and many others.

Skye also has experience counseling and litigating on a broad range of legal issues, including defective pricing, cost disallowances, contract terminations, unique commercial item issues, constructive changes, differing site conditions, statute of limitations problems, CDA jurisdictional hurdles, contract fraud, Government superior knowledge, unabsorbed overhead and Eichleay damages, CICA stays and overrides, and small business issues.

Having advocated and litigated on behalf of both the government and contractors, Skye has unique insights into both parties’ perspectives that he leverages when exploring and negotiating settlements or other avenues for alternative dispute resolution (ADR). Where settlements are not possible, Skye embraces opportunities for courtroom advocacy. He has significant trial experience examining both expert and fact witnesses on both direct and cross examination, as well as taking and defending depositions, drafting hearing briefs and dispositive motions, and managing millions of pages of document production.

Skye is an active member of the government contracts community. He is the editor-in-chief of the BCA Bar Journal, a quarterly publication of the Boards of Contract Appeals Bar Association, which allows him to work alongside judges, government attorneys, and in-house counsel in the production of each issue. He is also a member of the ABA Section of Public Contract Law.

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Photo of Michelle Coleman Michelle Coleman

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and…

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and requests for equitable adjustments, terminations, prime-sub disputes, other transaction authority, and AI.

Michelle also has an active pro bono practice, representing clients as an attorney volunteer with the Washington Legal Clinic for the Homeless. Michelle has helped multiple clients receive long term housing through the Rapid Rehousing Program and other permanent voucher programs. In addition to being a volunteer, Michelle serves as an ambassador and as co-chaired the firm’s fundraising campaign for the Clinic for the last two years.

Prior to working at Crowell & Moring, Michelle served as an attorney in the Air Force’s Acquisition Law and Litigation Directorate, where she provided acquisition and litigation risk advice on procurements valued over $14 billion on major Air Force procurements. She also served as a trial attorney in the Air Force Legal Operations Agency, Commercial Law and Litigation Directorate. As a trial attorney, Michelle litigated complex contract disputes before the Armed Services Board of Contract Appeals (ASBCA) and bid protests before the Government Accountability Office (GAO).

As an Air Force litigator, Michelle litigated a broad range of issues before the ASBCA, including organizational conflicts of interest; small business issues; price realism analysis; past performance; NAICS code issues; technical acceptability; nonmanufacturing rule, brand name, or equal issues; construction claims; commercial items; terminations; assignment of claims; reprocurement; limitation of funds; release; differing site conditions; setoffs/withholding; and evidentiary issues. Among the construction cases, Michelle litigated a $28 million Air Force design-build construction claim involving complex differing site conditions and delay issues, and she also litigated and won a claim for alleged defective specifications, undisclosed information, constructive interpretation, and technical impossibility for a contract for the design and construction of an Air Force dynamic break test stand.

Before her Air Force career, Michelle was employed by a defense contractor, where she gained valuable government contract experience in her roles as a business analyst and a subcontracts administrator. Michelle’s government and contractor experience gives her the unique ability to take both parties’ perspectives into consideration when providing advice on government contract issues.

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Photo of Eric Herendeen Eric Herendeen

Eric Herendeen is a counsel in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office. He advises clients on a wide array of performance dispute issues, including requests for equitable adjustments, CDA claims, cost allowability issues, and prime–sub disputes. He has…

Eric Herendeen is a counsel in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office. He advises clients on a wide array of performance dispute issues, including requests for equitable adjustments, CDA claims, cost allowability issues, and prime–sub disputes. He has represented clients before the Civilian Board of Contract Appeals, Armed Services Board of Contract Appeals, and the U.S. Court of Appeals for the Federal Circuit. In addition to his disputes and litigation practice, Eric has also counseled clients through internal investigations to support disclosures to the government and to advocate before the Department of Justice on False Claims Act matters.

After graduating law school, Eric clerked at the Civilian Board of Contract Appeals, where he worked with the judges drafting opinions and mediating cases concerning appeals of CDA claims.

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Photo of John Nakoneczny John Nakoneczny

John Nakoneczny is an associate in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office.

John represents and counsels contractors from diverse industries on contract disputes and other government contract matters. Prior to joining Crowell & Moring, he clerked at the…

John Nakoneczny is an associate in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office.

John represents and counsels contractors from diverse industries on contract disputes and other government contract matters. Prior to joining Crowell & Moring, he clerked at the Civilian Board of Contract Appeals, where he supported its judges in resolving and mediating appeals under the Contract Disputes Act. John earned his J.D. from The George Washington University Law School, where he was the president of the Government Contracts Student Association and on the Federal Circuit Bar Journal. While in law school, John served as a legal intern at the U.S. General Services Administration and the Fraud Section of the U.S. Department of Justice, Criminal Division. Upon graduation, John was awarded the President’s Volunteer Service Award.

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Photo of Tyler Piper Tyler Piper
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