Hejran and Zafer: Reiterating the CDA’s March to Meaningful Review on the Merits

The Government Contractor

The ability for a Government contractor to secure fair resolution of a contract dispute is essential for maintaining a vibrant competitive marketplace for federal contracts. The perceived fairness of the contract dispute resolution process is influential on contractor participation. S. Rep. No. 95-1118, at 4 (1978) (“The way potential contractors view the disputes-resolving system influences how, whether, and at what prices they compete for Government contract business.”). Yet even after passage of the Contract Disputes Act of 1978, it is often difficult for a contractor to secure a review of a claim on the merits due to a barrage of procedural and jurisdictional hurdles. The U.S. Court of Appeals for the Federal Circuit has cleared some of the thicket in recent years by reiterating its commonsense approach to evaluating the sufficiency of claims, finding that if a submission meets the requirements of a claim, it may be heard on the merits, even if it was not originally styled as a claim.

This Feature Comment discusses this recent guidance, including the Federal Circuit’s treatment of the difficult question of which contractor submissions may be treated as valid claims under the CDA, even if not styled as such in the first instance. We then offer practical guidance for contractors navigating these issues.

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Hejran and Zafer: Reiterating the CDA’s March to Meaningful Review on the Merits,” by Michael J. Bauer,* Stephanie M. Harden, and David L. Bodner was published on October 5, 2022, in The Government Contractor, a Thomson Reuters publication.

* Michael J. Bauer is the deputy general counsel of WSP USA. He focuses primarily on government contracts matters and is responsible for some of the company’s U.S.-based litigation.