The Civilian Board of Contract Appeals (CBCA or Board) recently published its Annual Report for FY 2024, providing statistics regarding the adjudication of appeals between contractors and civilian agencies. This year, the civilian agencies with the highest number of docketed claims at the Board were the Department of Veterans Affairs, the General Services Administration, the Department of State, the Department of Homeland Security, and the Department of Agriculture. These agencies accounted for 126, or 76%, of the 165 Contract Disputes Act (CDA) appeals docketed at the Board. 

According to this year’s report, the CBCA experienced a net change of +17 in its total docket count from the end of FY 2023. The Board resolved 375 cases, with 132 of those cases decided on the merits. Of the cases decided on the merits, the CBCA tackled issues of CDA jurisdiction, breach of contract, contract interpretation, waiver, and compensable delay, among others. Crowell has reported on a number of these cases, which can be found on our Government Contracts Group’s “Insights” page here. A few of the notable cases that we have reported on include:

• In Parsons Government Services, Inc. v. Department of Energy, CBCA 7822 (May 10, 2024), a C&M case, the Board denied the government’s motion to dismiss concerning Parsons’ claim for additional incentive fee in connection with its performance operating a salt waste processing facility at DOE’s Savannah River Site. The underlying contract related to a first-of-its-kind facility to treat and reduce liquid radioactivity in nuclear waste. In its decision, the Board rejected the government’s motion to dismiss, holding that Parsons had pled sufficient facts to support its claims regarding superior knowledge, impracticability of performance, and breach of the duty of good faith and fair dealing. (Discussed here).
• In Fortis Industries, Inc. v. General Services Administration, CBCA 7967 (Sept. 18, 2024), the Board denied the government’s motion for summary judgment on the issue of whether the contractor released its claims by signing a modification terminating the contract for convenience, highlighting the importance of carefully reading and writing release terms. (Discussed here).
• In MLU Services, Inc. v. Department of Homeland Security, CBCA 8002 (Mar. 22, 2024), the Board reiterated that a motion to dismiss for failure to prosecute is a drastic measure and should only be alleged in exceptional circumstances. (Discussed here).
• In Avue Technologies Corp. v. Department of Health and Human Services, CBCA 8087(6360)-REM, 8088(6627)-REM (July 1, 2024), on remand from the Federal Circuit the Board held that Avue, the licensor of a software platform, had no enforceable rights against the government under its reseller’s Federal Supply Schedule contract. The Board further found that no procurement contract existed between Avue and the government, meaning that the Board did not have jurisdiction to hear Avue’s claims under the CDA. This case stands as a reminder of the complexities associated with incorporating end-user license agreements (EULAs) into contracts and the importance of knowing what avenues for relief are available based on the EULA structure. (Discussed here).

The report also discussed the Board’s highly successful alternative dispute resolution (ADR) program. For FY 2024, the Board reported that 85% of matters in ADR were fully or partially resolved, a reminder to contractors and the government alike that the Board’s ADR program remains a viable option for expedient resolution of disputes. 

The full report can be found here.