The Armed Services Board of Contract Appeals (the “ASBCA” or “Board”) recently rejected an unprecedented request from the U.S. Army Corps of Engineers (the “Corps”) to withhold publication of a Board decision on the merits in a construction delay appeal brought by KiewitPhelps. In a decision issued on June 25, 2026 (released publicly on July 16, 2026), the Board held that it was bound by the Freedom of Information Act (“FOIA”) and its own rules to publish the decision, and that the Corps had not demonstrated a basis for overcoming that requirement. This decision is noteworthy not only because the Board found no legal basis to suppress the opinion, but also because, as the Board observed, such a request had never before been directly presented to the Board.
The Board’s decision stems from three appeals brought by KiewitPhelps involving the construction of the new command facility for the U.S. Strategic Command at Offutt Air Force Base, Nebraska. On May 4, 2026, the Board issued a 148-page decision addressing KiewitPhelps’ delay and disruption claim, one of three related appeals arising from the project. Because the appeal was subject to a protective order, the decision was not immediately made public, and the Board, pursuant to its standard procedures, gave the parties an opportunity to propose redactions consistent with FOIA exemptions. Rather than propose redactions, however, the parties returned to the Board with a “Joint Motion for Consent Judgment to Effectuate Global Settlement,” contingent on the Board not publishing its May 4 decision.
The Board convened a status conference and, as a matter of courtesy, informed the parties that the decision would need to be public and that pursuing the motion might only draw additional attention to the underlying opinion. The Board also offered the parties the opportunity to withdraw the motion before issuing a ruling. The Corps declined and instead asked to provide supplemental briefing on the issue.[1] KiewitPhelps, by contrast, did not submit additional briefing. As the Board noted, KiewitPhelps’ primary interest appeared to be securing payment under the parties’ settlement and avoiding the cost of further litigation, rather than advancing an independent argument for non-publication.
The Corps advanced several arguments in support of withholding the decision, all of which the Board rejected. First, the Corps asserted that because the Contract Disputes Act (“CDA”) allows the Board to “issue a decision in writing or take other appropriate action on each appeal submitted,” 41 U.S.C. § 7105(g) (emphasis added), the phrase “other appropriate action” could encompass declining to publish a decision. Second, the Corps asserted that the Board’s decision was not yet final because it addressed only entitlement and not quantum and therefore could not yet be appealed to the Federal Circuit. Finally, the Corps argued that, if viewed as a request for vacatur, the request should be granted on the equities. The Board rejected each argument.
The CDA Does Not Authorize the Board to “Unpublish” Decisions
First, the Board rejected the Corps’ reliance on the CDA’s authorization to “take other appropriate action” on an appeal. The Corps argued that this language gave the Board discretion to forgo publication of the May 4 decision as part of the parties’ settlement. The Board disagreed, finding no support for the notion that the CDA’s catch-all language permits the Board to suppress an already issued and authenticated decision. Although the Board acknowledged its authority to take “other appropriate action” in resolving appeals, it concluded that any such authority must be exercised consistently with the Board’s rules and other applicable law. Here, ASBCA Rule 19 and FOIA pointed in the opposite direction, requiring public disclosure absent a recognized basis for confidentiality. In the Board’s view, the Corps was effectively asking it to disregard those obligations without identifying any legal justification for doing so.
A Decision Can Be Final for Publication, Even If Not Yet Appealable
Second, the Board rejected the Corps’ argument that the May 4 decision was not yet final. The Corps argued that because the decision addressed entitlement but not quantum, it was not appealable to the Federal Circuit and therefore was not the type of final decision that FOIA requires agencies to publish. The Board disagreed, explaining that the Corps had conflated finality for purposes of appellate jurisdiction with finality for purposes of the Board’s own rules and procedures. Although an entitlement-only decision may not yet be appealable, the Board explained that such decisions are nevertheless final Board decisions: they close the appeal before the Board, are subject to motions for reconsideration, and are treated as precedential in the same manner as decisions that address both entitlement and quantum.
Having concluded that the decision was final for the Board’s purposes, the Board found that both ASBCA Rule 19 and FOIA required publication absent a recognized basis for confidentiality. The Board explained that its rules are consistent with FOIA, which requires that “[e]ach agency, in accordance with published rules, shall make available for public inspection in an electronic format – (A) final opinions, including concurring and dissenting opinions . . . .” 5 U.S.C. § 552(a)(2). Because the Corps identified no applicable FOIA exemption to justify suppressing the decision, there was no basis to override the statutory requirement. The Board likewise rejected the Corps’ invitation to avoid FOIA’s publication requirement by designating the opinion as non-precedential.
Settlement Is Not a Basis to Erase a Decision
Finally, the Board rejected the Corps’ suggestion that the requested relief could be justified under principles governing vacatur. Citing the Supreme Court’s decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994), the Board emphasized that vacatur is an “extraordinary remedy” reserved for exceptional circumstances. The Board found that the Corps had not identified any such circumstances, noting that its principal justification was that confidentiality had become a condition of the parties’ global settlement agreement. That justification, the Board explained, was not enough. The Board further observed that the public interest weighed against withholding the decision, particularly where one of the parties was the Federal government and the dispute involved the expenditure of public funds. In short, the Board declined to allow settlement concerns, standing alone, to overcome the strong public interest in maintaining and publishing Board-issued decisions.
A Problem of the Corps’ Own Making
In supplemental briefing, the Corps raised an additional argument regarding appellant review. The Corps argued that because the Board’s decision addressed only entitlement and left quantum unresolved, the Government would not yet be in a position to evaluate any potential appeal. Indeed, as the Federal Circuit recently reiterated in Secretary of Defense v. Pratt & Whitney, 160 F.4th 1224, 1231 (Fed. Cir. 2025), Board decisions ordinarily are not appealable while quantum remains pending. However, the Board found the Corps’ complaint unpersuasive because the Corps itself had requested bifurcation of entitlement and quantum, over KiewitPhelps’ objection. In the Board’s view, the Corps could not complain about “the appellate consequences of getting what it wanted.” See Decision on Joint Motion for Consent Judgment at 5. The Board further noted that if the Corps truly wished to expedite appellate review, it could simply stipulate to quantum and obtain a final judgment. Accordingly, the Board viewed the Corps’ inability to immediately pursue appellate review not as a basis to suppress the decision, but as the foreseeable consequence of a litigation strategy of its own making.
The Public’s Interest in Publication of Board Decisions
At its core, the Board’s decision is a reaffirmation of the principle that judicial decisions are presumptively public. Throughout the opinion, the Board repeatedly emphasized that publication is not a matter of discretion or party preference, but a requirement grounded in its rules and FOIA. Absent a recognized basis for confidentiality, Board-issued decisions belong in the public domain.
The Board viewed that principle as particularly important in the government contracts context, where disputes concern the expenditure of taxpayer funds and the administration of public contracts. In explaining the public interest in publication of the KiewitPhelps decision, the Board observed that contractors should be able to see that their “legitimate complaints will be treated seriously and remedied, when appropriate, in accordance with the law.” See Decision on Joint Motion for Consent Judgment at 8. But that interest extends beyond any particular litigant or outcome. Whether a decision favors the government or the contractor, whether the request for confidentiality comes from the agency or the private party, and whether publication is viewed as beneficial or embarrassing to either side, the same principle applies: disputes involving public funds and public contracts are generally resolved in public, and the public has a legitimate interest in understanding how those disputes are decided.
The decision also sends a clear signal that parties should not assume a post-decision settlement can remove a Board-issued opinion from public view. As the Board observed, it had never before been directly asked to grant the relief sought by the Corps and had no intention of starting on the facts presented here. In light of this decision, litigants before the Board that perceive a risk of harmful precedent should consider pursuing settlement or Alternative Dispute Resolution before the Board issues a final decision.
Whether the parties ultimately proceed with their proposed settlement despite the Board’s refusal to withhold publication remains to be seen. Regardless, the decision stands as a notable affirmation of the strong presumption that ASBCA decisions, absent a valid basis for confidentiality, should remain available for public scrutiny.
[1] While it is not clear precisely why the Corps wanted the decision to be withheld from public view, the Board’s decision hints that the Corps may have been concerned about harmful precedent. See Decision on Joint Motion for Consent Judgment at 6 (referring to “the unspoken suggestion that what the Corps is truly concerned about is the precedential authority of the decision”).