ADMINISTRATIVE CLAIMS PROCEDURES—FEDERAL

1. BACKGROUND 1
   1. THE DISPUTES CLAUSE IN FEDERAL CONTRACTS 1
      1. General Background 1
      2. General Obligation of Good Faith 2
      3. The Higher Disputes Clause Duty 4
   2. HISTORICAL DEVELOPMENT OF ADMINISTRATIVE REMEDY 5
      1. Origin of Disputes Clause 5
      2. Exhaustion of Administrative Remedies 5
      3. Judicial Review 6
2. THE CONTRACT DISPUTES ACT 6
   1. AN OVERVIEW 6
      1. Applicability 6
      2. The Current Disputes Clause 7
   JURISDICTIONAL REQUIREMENTS 10
   1. Demand for Money or Action 10
   2. A Dispute 10
   3. Certification 11
   4. To the Contracting Officer 13
   5. Contracting Officer's Decision 13
   6. Timely Notice of Appeal 14
3. APPEALS OF CONTRACTING OFFICERS' DECISIONS 14
   1. BOARDS OF CONTRACT APPEALS 14
      1. General 14
      2. Procedures 15
   2. UNITED STATES CLAIMS COURT 16
      1. History 16
      2. No Declaratory Judgments 16
      3. Composition 17
      4. Procedures and Practices 17
   3. FURTHER APPEALS 17
      1. Court of Appeals for the Federal Circuit 17
      2. Supreme Court of the United States 18

Abstract

The Disputes Clause required for all federal government contracts is a unique contractual disputes resolution method. It has long been recognized that the parties to a contract can agree to be bound by the decision of a designated third person (such as an architect or engineer) with respect to a matter arising under the contract. 14 Samuel Williston, Williston On Contracts § 1725 (3d ed. 1972); 6A Arthur Corbin, Corbin On Contracts § 1432 (1962). A decision of arbitrators designated by the parties has long been enforced if the arbitrators have given their incorrupt judgment after a full and fair hearing. Burchell v. Marsh, 58 U.S. 344 (1855).

The person designated to decide disputes under the standard Disputes Clause in government contracts is the "contracting officer." Federal Acquisition Regulation (FAR) § 52.233-1. This person is not a "third party" but, rather, the representative of one of the parties to the contract. Moreover, the contracting officer is not merely one of the representatives of the Government with respect to the contract; the contracting officer (or his or her authorized representative) is the only representative of the Government authorized to bind the Government with respect to the contract. FAR § 1.602-1; see also McDevitt Mechanical Contractors, Inc. v. United States, 21 Cl. Ct. 616 (1990); Scope Enterprises, Ltd. v. United States, 18 Cl. Ct. 875 (1989).

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