Turning the Tables: ASBCA Orders Government to File Complaint

Generally, in a litigation before the Armed Services Board of Contract Appeals (ASBCA), the contractor must file the initial Complaint after filing a Notice of Appeal.  This is because the Contract Disputes Act mandates that only a contractor may appeal a contracting officer’s final decision (regardless of whether it is arising from a contractor or Government claim), and Board Rule 6 requires the appellant (which is always the contractor) to file a Complaint.  Unfortunately, this practice can result in an awkward pleading when the contractor is merely appealing an affirmative Government claim, like a termination for default or defective pricing claim. This is why, in Beechcraft Defense Company, ASBCA No. 59173, the contractor motioned the ASBCA to direct the Government to file the initial Complaint. In this case, the contracting officer issued a final decision alleging that the contractor was noncompliant with CAS 402, and asserting a claim in the amount of $5,861,755. After filing its Notice of Appeal, the contractor argued that “since the appeal involved a government claim, the government was in a better position to file the complaint and that the proceeding would be facilitated by the government’s filing of the initial pleading setting forth the full rationale for the assertion of its claim.”  Otherwise, the contractor would be left to speculate about the underlying grounds for the Government’s claim and determine what facts were truly relevant.  Siding with the contractor, Judge Stempler ordered the Government to file the Complaint because the ASBCA recognizes that situations exist “when the proceedings would be facilitated by the government filing the complaint or initial pleading.” Judge Stempler also was persuaded by the fact that (i) the Government had the burden of proving the alleged noncompliance, and (ii) requiring the Government to file a Complaint would not be onerous as “the government should be fully conversant with its own claim.” The Civilian Board of Contract Appeals (CBCA) has also required the Government to file the complaint in appropriate cases. Contractors should take note of this decision when appealing a Government claim to the Board because requiring the Government to file the Complaint may provide a major tactical advantage in the ensuing litigation.