ASBCA Issues Annual Report, Providing Data on How Often Contractors Prevail

The Armed Services Board of Contract Appeals has issued its annual report for FY 2023, shedding light on how often contractor appeals reach a successful result, and what agencies are most frequently involved in contract litigation.

The report shows that the Board disposed of 132 contractor appeals on the merits, and in 67% of these dispositions the Board found that the appeal had merit in whole or in part.  The Board also dismissed 243 cases, a majority of which were dismissals due to settlement by the parties.  That means that in more than half of all cases resolved in FY 2023, the contractor received some manner of a favorable outcome.

The Board’s report also indicated that its Alternate Dispute Resolution program remains a strong option for settling disputed matters.  The Board addressed 78 cases through the ADR process, resolving 67.  Of the remaining 11 cases, four were not successful, and 7 remained pending as of the close of FY 2023.  These data are consistent with the Board’s policy statement of providing “to the fullest extent practicable” the “informal, expeditious, and inexpensive resolution of disputes.” 

Separately, the Board provided a breakdown of appeal figures by agency.  The Army Corps of Engineers and the Army had the most appeals pending, followed by the Navy and the Defense Contract Management Agency (“DCMA”), which handles appeals of cost disallowances and Cost Accounting Standards (“CAS”) noncompliance determinations.

Source of Cases Pending October 1, 2023

Sources of Cases Disposed During FYs 2019-2023

Disposition of Cases During FY 2023

As a final matter, litigants docketed 14 appeals from Board decisions to the U.S. Court of Appeals for the Federal Circuit, in addition to previously-pending appeals.  The Federal Circuit disposed of 11 Board cases in FY 2023, issuing 4 affirmances, 3 reversals/remands, and 4 dismissals.