/>iWe begin with these essential questions: What is a COFD? What can a contractor do if it does not like the COFD? And what is the timeline to appeal a COFD?
What Is a COFD?
A COFD is a Contracting Officer’s (“CO”) decision on the merits, which provides the reasons for the decision and notifies the contractor of its appeal rights. 41 U.S.C. § 7103(d)-(e). The FAR describes a COFD as a written decision that:
i. Describes the claim or dispute
ii. References pertinent contract terms
iii. States the factual areas of disagreement
iv. States the CO’s decision, with supporting rationale
v. includes notice of contractor’s appeal rights “substantially as follows:”
This is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number.
With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the board’s—
(1) Small claim procedure for claims of $50,000 or less or, in the case of a small business concern (as defined in the Small Business Act and regulations under that Act), $150,000 or less; or
(2) Accelerated procedure for claims of $100,000 or less.
Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States Court of Federal Claims (except as provided in 41 U.S.C. 7102(d), regarding Maritime Contracts) within 12 months of the date you receive this decision.
These required elements are for the Contractor’s benefit, especially notifying the contractor of the time to file an appeal at the applicable tribunal. However, not all purported COFD’s contain each FAR-required element of a COFD. Failure to satisfy these requirements may render a contracting officer’s decision on a Contract Disputes Act (“CDA”) claim invalid. Decisions that address the validity of a technically deficient COFD focus on the extent to which the deficiencies prejudiced the contractor’s ability to perfect a timely appeal of the decision.
Contractor Able to File Timely Appeal—if a contractor is able to make an informed choice as to whether, and in what forum, it will pursue an appeal, the COFD “continues to be . . . effective”. The protections are for the contractor and are theirs to waive.
Contractor Fails to File Timely Appeal—if a contractor fails to timely file an appeal from a technically deficient COFD, the tribunal will examine whether from the language of the COFD itself and/or the circumstances surrounding its issuance, the contractor subjectively understood, or objectively should have understood, what the dispute was about.
Decker & Co. v. West, 76 F.3d 1573, 1579–80 (Fed. Cir. 1996) (holding that a contracting officer’s final decision that omitted a notice of appeal rights was nevertheless effective with respect to triggering the CDA’s one-year statute of limitations because the contractor was not prejudiced in its ability to prosecute a timely appeal)
COFD Timeline
The CDA requires Contracting Officers to issue a COFD within 60 days for claims of $100,000 or less. 41 U.S.C. § 7103(f)(1). For certified claims over $100,000, the Contracting Officer must issue a decision within 60 days or inform the claimant within 60 days of the time in which the COFD will be issued. 41 U.S.C. § 7103(f)(2). If the Contracting Officer does neither of those two things within the 60 days, the contractor may, at its option, appeal from a “deemed” denial of its claim. FAR 33.211(g).
If the Contracting Officer sets a revised deadline for the COFD within 60 days but misses it, this missed revised deadline can be an appealable deemed denial. Any deadline the Contracting Officer sets within the 60 days is firm because there is “no language in the CDA provid[ing] the government with the right to a second extension.” Rudolph & Sletten, Inc. v. United States, 120 Fed. Cl. 137, 142 (2015). The CDA provides that a contractor can request a tribunal to direct a contracting officer to issue a decision within a specified time period if there is undue delay. 41 U.S.C. § 7103(f)(4). The Armed Services Board of Contract Appeals (“ASBCA”) held in one instance that a Contracting Officer’s revised COFD deadline of 14 months was unreasonable. Rizzani De Eccher (USA), Inc., ASBCA No. 61584-984, 18-1 B.C.A. ¶ 37092 (July 6, 2018).
Importance of a COFD
A COFD is a jurisdictional requirement that triggers a contractor’s right to appeal the decision. Indeed, it is the COFD that the contractor is appealing to either a Board of Contract Appeals or the U.S. Court of Federal Claims. The policy behind the COFD requirement is to encourage settlement through claim presentation to the Contracting Officer before litigation.
What to Do upon Receipt of a COFD
A COFD is final and conclusive unless timely appealed. Therefore, upon receipt of a COFD, the contractor is on the appeal clock between two mutually exclusive options:
Boards of Contract Appeals—upon receipt of a COFD, a contractor has 90 days to file a notice of appeal to the appropriate Board of Contract Appeals. 41 U.S.C. § 7104(a).
Jurisdiction of the Boards:
Postal Service Board of Contract Appeals (“PSBCA”): jurisdiction over U.S. Postal Service and Postal Regulatory Commission contracts
Civilian Board of Contract Appeals (“CBCA”): jurisdiction over most civilian, federal executive agency contracts (does not include NASA, Tennessee Valley Authority, and U.S. Postal Service-related contracts)
Armed Services Board of Contract Appeals (“ASBCA”): jurisdiction over the Department of Defense and NASA contracts
A contractor must appeal to the appropriate Board within 90 days. Kentucky Business Enterprise, ASBCA No. 63023 (Feb. 16, 2022) (dismissing appeal filed to the ASBCA on the 91st day even though the contractor filed with the CBCA within 90 days).
U.S. Court of Federal Claims (“COFC”)—upon receipt of a COFD, a contractor has 12 months to file an appeal at the COFC. 41 U.S.C. § 7104(b)(3).
While labeled a Contracting Officer’s Final Decision, a Contracting Officer may reconsider, withdraw, or rescind a final decision before the expiration of the appeals period. A Contracting Officer may also rescind the COFD during litigation if it moots all of the claims. Vectrus Sys. Corp., ASBCA No. 61651, 2023 WL 2446386 (Feb. 6, 2023). However, a Contracting Officer cannot divest the BCA of jurisdiction by rescinding their COFD if it does not moot all the issues before the BCA. Mountain Movers/Ainsworth-Benning, LLC, ASBCA No. 62164, 20-1 BCA ¶ 37664 (Aug. 7, 2020).
The COFD Value in Litigation
A COFD is not trump card in litigation. Tribunals treat the COFD as one more piece of documentary evidence and weigh it with all of the other evidence in the record. Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994) (en banc) (overruling previous case law that a contracting officer’s final decision constitutes a “strong presumption or an evidentiary admission” of the government’s liability).
Tips
Keep track of the date of submission of a certified claim to the contracting officer and ensure the contracting officer’s receipt. Set a calendar reminder for 60 days from receipt of the certified claim to provide notice of a potential deemed denial if the contracting officer does not act within 60 days.
While infrequent, in certain situations it is worth presenting additional information to the Contracting Officer after the issuance of a COFD, with the aim of getting the Contracting Officer to rescind the COFD prior to commencement of litigation.
Do not rely on a COFD’s technical defects to extend the tribunal’s timelines for filing an appeal of a COFD.
Consider the election between the U.S. Court of Federal Claims and the appropriate Board of Contract appeals once the COFD is issued. Keep track of the date of issuance of the COFD and set a calendar reminder sufficiently in advance of the intended tribunal filing deadline to ensure a timely appeal.
Contractors should carefully review modifications or Government correspondence on topics for which the contractor has submitted a claim for any indicia of such modifications or correspondence being treated as a final decision on that claim. If there is any doubt whether a contracting officer intends a document to be a COFD, promptly request a written response from the Contracting Officer.
