Appeal Rights Per the act and as quoted above, the contracting officer’s decision is final unless there is a timely appeal to one of the following venues: The contractor may file a notice of appeal with the ASBCA within 90 days from the date of receipt of the contracting officer’s decision (which generally prefers electronic filings and provides a guide with instructions on how to file an appeal under rules 1 and 2. After a contractor files an appeal (copying the contracting officer), the government has 30 days from the notice of appeal to transmit an ap- peal file to the ASBCA and contrac- tor. Specific instructions are provided on how to create the file in Rule 4 of the ASBCA rules. This “Rule 4 file” in- cludes the decision, the contract, all correspondence and other documen- tation and becomes the basis for the government’s position. The contractor then has 30 days after receipt to sub- mit any additional documents. The file and all related documents are considered part of the official re- cord. The ASBCA prefers to decide based on the record but may hold hearings if it deems them necessary. After the ASBCA issues a decision, either party may make a motion for reconsideration within 30 days if they believe that they have grounds to do so.
Part of the ASBCA’s mandate is to provide informal, expeditious, and in- expensive resolution of disputes, and it may grant any relief that would be available from the courts. In service of the efficiency mandate, in some cases the contractor may request acceler- ated procedures for small claims and accelerated procedures. These are discussed in Rule 12 of the ASBCA guide. The contractor also may file an action with the U.S. Court of Federal Claims (US CFC) within 12 months of receiving the contracting officer’s decision. US CFC rules in Title III provide guid- ance for filing. Interest Per FAR 33.208, the government must pay interest on claims due and unpaid from the latter of the dates that the contracting officer receives a proper claim or when the payment otherwise would be due. The interest will be simple inter- est at the rate set by the Secretary of the Treasury effective on the date the government received the claim and is updated every six months until the claim is resolved. To clarify, if the claim is received in May 2025, but not resolved until January 2026, there would be three different interest rates paid—one for the first six months of 2025, one for the second half of 2025, and one for January 2026. The inter- est rate paid is the same as that in ef-
fect under the Prompt Payment Act. Currently, for the second half of calendar year 2025, that amount is 4.625 percent per year. If the contractor owes the govern- ment, interest may also be due per FAR 52.32-17. Continued Performance Under or Related to Contract The Disputes Act allows the gov- ernment to include language requiring the contractor to “proceed diligently with performance of the contract” per the contracting officer’s decision dur- ing the entire disputes process. This makes sense. You need the contrac- tor to continue to support the mission, even while working through these is- sues. Thus, you will see in the basic disputes clause that the contractor shall continue to perform for any ac- tion “arising under the contract.” Under a contract. This means the claim in question could be resolved under a contract clause other than disputes. Examples include termi- nations or changes or cancellation under multiyear contracts. These clauses give the contractor the right to request equitable adjustments for performance and associated allow- able costs. But if we cannot agree on an amount, the contractor may then bring them forward under disputes. Related to a contract. This is one of the major differences the Contract Disputes Act made from prior pro- cesses. It gave the contracting officer the right and responsibility to resolve matters related to the contract as well. This means the right to resolve issues for which there is no other contract term or clause that would provide a remedy. And the Disputes Clause FAR 52.233-1 with its Alternate 1 requires the contractor to continue to perform pending resolution of actions under or related to a contract. You must decide whether to include the basic clause (continue to perform only during dis- putes under the contract) versus Al- ternate 1 (also for disputes related to the contract). FAR 33.215(a) says to follow agency guidance on deciding.
42 | DEFENSE ACQUISITION | November-December 2025
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