In
government contracting
Government procurement or public procurement is the procurement of goods, services and works on behalf of a public authority, such as a government agency. Amounting to 12 percent of global GDP in 2018, government procurement accounts for a subst ...
, a Contract Adjustment Board is a department board at the Secretariat level in the
U.S. Government
The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a fede ...
that deals with disputes and requests for extraordinary relief under Public Law 85-804 of Aug. 28, 1958.
In brief:
Public Law No. 85-804, codified at 50 U.S.C. § 1431-35 (Supp. IV 1998), grants to the President the authority to authorize any agency which exercises functions in connection with the national defense to enter into contracts or into amendments or modifications of contracts, and to make advance payments, without regard to other applicable legal provisions whenever such action would facilitate the national defense. 50 U.S.C. § 1431. The legislative history of the statute indicates that it may also be used as the basis for making indemnity payments under certain government contracts, the so-called "residual powers. " ECR Current Materials at 1005, 1021. The legislative history explains that " e need for indemnity clauses in most cases arises from the advent of nuclear power and the use of highly volatile fuels in the missile program. The magnitude of the risks involved under procurement contracts in these areas have rendered commercial insurance either unavailable or limited in coverage.
History
During
World War I
World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...
, a "Board of Contract Adjustment" was created to determine "all claims, doubts and disputes which may arise under departmental contracts";
it implemented the policies for Liquidation, Cancellation, and Adjustment of contracts.
According to Evans Reamer Machine Company v. United States. 386 F.2d 873, "since the early days of World War II," the main defense agencies have been authorized to grant discretionary relief to contractors suffering losses on account of mistakes. The underpinning for the granting of relief must be a finding that such action would facilitate the national defense or prosecution of the war. Title II relief has been referred to variously as "far-reaching," "extraordinary," and "a snare and a delusion."
According to
U.S. v. Utah Constr. & Mining Co., pursuant to a delegation by the President under Public Law 85—804, government departments and agencies exercising functions in connection with the national defense may, upon a finding that such action would 'facilitate the national defense,' enter into amendments and modifications of contracts without regard to other provisions of law respecting such amendments and modifications. As implemented by the
Atomic Energy Commission's procurement regulations, the authority conferred encompasses amendments without consideration, correction of mutual mistakes, and formalization of informal commitments. This authority, which in many respects is analogous to power to settle claims, is delegated to Contract Adjustment Boards established within the departments and agencies concerned separate from the Boards of Contract Appeals. Because the regulations preclude resort to the powers conferred by Public Law 85—804, "unless other legal authority in the Department concerned is deemed to be lacking or inadequate", the Army Contract Adjustment Board has generally required contractors to exhaust remedies before the ASBCA under the disputes clause. Thus it is quite evident from the administration of Public Law 85—804 and its predecessors that the limitations on the jurisdiction of the Boards of Contract Appeals are well understood by the military procurement departments and Congress.
Examples
*The Departments of the
Army
An army (from Old French ''armee'', itself derived from the Latin verb ''armāre'', meaning "to arm", and related to the Latin noun ''arma'', meaning "arms" or "weapons"), ground force or land force is a fighting force that fights primarily on ...
,
Navy
A navy, naval force, or maritime force is the branch of a nation's armed forces principally designated for naval warfare, naval and amphibious warfare; namely, lake-borne, riverine, littoral zone, littoral, or ocean-borne combat operations and ...
, and
Air Force
An air force – in the broadest sense – is the national military branch that primarily conducts aerial warfare. More specifically, it is the branch of a nation's armed services that is responsible for aerial warfare as distinct from an a ...
each have a contract adjustment board.
*The
NASA
The National Aeronautics and Space Administration (NASA ) is an independent agency of the US federal government responsible for the civil space program, aeronautics research, and space research.
NASA was established in 1958, succeeding t ...
Contract Adjustment Board considers requests by NASA contractors for equitable contractual relief.
*In the
U.S. Department of Transportation
The United States Department of Transportation (USDOT or DOT) is one of the executive departments of the U.S. federal government. It is headed by the secretary of transportation, who reports directly to the President of the United States and ...
, a "Board of Contract Appeals"
[established pursuant to the Contract Disputes Act of 1978 (92 Stat.2383; 41 U.S.C. 601)] is responsible for hearings and decisions on appeals from decisions of departmental
contracting officers; when sitting as the Contract Adjustment Board it acts on petitions for extraordinary contractual relief under Public Law 85-804.
Further reading
*Smith, The War Department Board of Contract Appeals, 5 Fed. B.J. 74, 82 (1943)
*"Federal Boards of Contract Appeals, The". LR Caruso - S. Cal. L. Rev., 1959
*"Disputes and Appeals: The Armed Services Board of Contract Appeals". JP Shedd Jr - Law and Contemporary Problems, 196
See also
*
Contracting with the United States Government
The processes of government procurement in the United States enable federal, state and local government bodies in the country to acquire goods, services (including construction), and interests in real property.
In fiscal year 2019, the US Federal ...
*
Price-Anderson Nuclear Industries Indemnity Act
*
Contract Disputes Act of 1978 The Contract Disputes Act of 1978 ("CDA", , ), which became effective on March 1, 1979, establishes the procedures for handling "claims" relating to United States Federal Government contracts. It is codified, as amended, at .
Claims by contractors ...
*
Armed Services Board of Contract Appeals
The Armed Services Board of Contract Appeals (ASBCA) is an administrative tribunal within the United States Federal Government that hears certain claims arising from contract disputes between government contractors and either the Department of Defe ...
*
Civilian Board of Contract Appeals
The Civilian Board of Contract Appeals (CBCA) is an Article I court that was established under the Contract Disputes Act of 1978 as an independent tribunal to hear and decide contract disputes between Government contractors and the General Servic ...
References
{{reflist, 2
External links
U.S. Army Judge Advocate General's Legal Center and School's Contract Attorneys DeskbookArmed Services Board of Contract Appeals
United States contract law
Government procurement in the United States
United States administrative law
Nuclear liability