By Dick Lieberman, Consultant and Retired Attorney
A final decision on a claim by a contracting officer is a jurisdictional requirement for the Court of Federal Claims or a Board of Contract Appeals to consider an appeal of a contractor’s claim. Absent such a decision, neither the Court nor a Board will have jurisdiction to consider an appeal. However, the Contract Disputes Act of 1978 (the “CDA”) contains provisions for failure of a contracting officer to issue a final decision on a claim. This is the “deemed denied” provision of the CDA, which generally requires that a contracting officer make a final decision within 60 days of receipt of a proper claim. Prior to the CDA, the timing of issuance of a final decision was within the discretion of the contracting officer, subject only to a broad requirement that the decision be issued within a “reasonable time” after submission of a claim. But, there was no limit, and contracting officers often took years to render a decision. The CDA remedied this problem by including the following requirements for the issuance of the contracting officer’s decision on any any proper claim:
(f) Time for Issuance of Decision.
(1) Claim of $100,000 or less. A contracting officer shall issue a decision on any submitted claim of $100,000 or less within 60 days from the contracting officer’s receipt of a written request from the contractor that a decision be rendered within that period.
(2) Claim of more than $100,000. A contracting officer shall, within 60 days of receipt of a submitted certified claim over $100,000:
(A) issue a decision; or (B) notify the contractor of the time within which a decision will be issued.
(3) General requirement of reasonableness. The decision of a contracting officer on submitted claims shall be issued within a reasonable time, in accordance with regulations prescribed by the agency, taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor.
(4) Requesting tribunal to direct issuance within specified time period. A contractor may request the tribunal concerned to direct a contracting officer to issue a decision in a specified period of time, as determined by the tribunal concerned, in the event of undue delay on the part of the contracting officer.
(5) Failure to issue decision within required time period. Failure by a contracting officer to issue a decision on a claim within the required time period is deemed to be a decision by the contracting officer denying the claim and authorizes an appeal or action on the claim as otherwise provided in this chapter. However, the tribunal concerned may, at its option, stay the proceedings of the appeal or action to obtain a decision by the contracting officer.
41 U.S.C. § 7103(f). Pursuant to the Contract Disputes Act of 1978, a Contracting Officer must issue a final decision on any proper claim within 60 days of its submission. For claims over $100,000, the contracting officer may defer the decision, but must “notify the contractor of the time within which a decision will be issued.” Any failure to issue the decision within the required period is deemed to be a denial of the claim, and authorizes an immediate appeal to a Board of Contract Appeals or to the Court of Federal Claims.
In a recent decision, the Court of Federal Claims held that subsection (f)(2) of the above section of the CDA gives the government the right to extend the deadline for issuing a final decision only once and that the deadline must be set during the initial 60-day period. Rudolph and Sletten, Inc. v. United States, No. 14-647C (Fed. Claims, Feb. 23, 2015). There are several other rules that the government must comply with, if it wants to extend the 60 day period, and these are: