In numbers: ASBCA’s annual report for the financial year 2022 | Pillsbury Winthrop Shaw Pittman LLP

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As of October 2022, the Council’s 22 judges had a total docket of 957 cases (at the start of FY2022, the Council had 954 pending cases). The Board resolved 142 appeals on the merits in FY2022, reporting a “full or partial” uptake rate of 71%. This reported retention rate marked a sharp increase from fiscal 2021 (52.7%) and fiscal 2020 (52.8%) and represents the highest retention rate since fiscal 2007 ( 71.6%). That said, we caution contractors not to rely solely on this percentage when deciding whether to appeal claims to the Commission or the Federal Claims Court. The statistic does not distinguish between claims by contractors and claims by the government. It does not reveal what percentage of contractors’ claims were, for example, supported as a whole at 75% or more or 50% or more. In short, the statistic does not provide any data on how much contractors recovered versus how much they claimed, which is an important factor in assessing litigation at the ASBCA.

The Commission reported that its 22 judges held 23 hearings, for a total of 89 days, in fiscal year 2022. This statistic suggests that the Commission has the capacity to conduct more hearings in fiscal year 2023. and beyond.

The Board said it rejected 255 cases in fiscal year 2022. It cited bilateral settlement as the reason for rejection in the “majority of cases” (i.e. more than 50%). This qualification masks the actual percentage of dismissals by regulation (versus dismissals following a procedural motion), which could vary between 51% and 99%. We suggest that contractors assume that the percentage of settlement layoffs is at the lower end of the “majority” when considering litigation risk at the ASBCA. We say this because our anecdotal experience is that agencies move to dismiss on non-merit procedural grounds with considerable frequency. As the Commission reports, of the 957 cases before it, the agencies filed 209 motions to dismiss on procedural grounds unrelated to the merits. The apparent proliferation of such procedural requests seems entirely inconsistent with one of the main missions of the Commission, expressed in its rules, to provide, “to the maximum extent possible, … an informal, rapid and inexpensive resolution of disputes “.

These issues aside, no one disputes that the Commission’s Alternative Dispute Resolution (ADR) program works. The Commission conducted 125 ADR proceedings in fiscal year 2022. Six of the 125 cases were settled before ADR began and nine were withdrawn. Of the remaining 110 cases, 105 were successfully resolved, three were unresolved, and two remained outstanding at the end of FY2022 (97% resolution rate). These statistics indicate that ADR is the best option for resolving cases successfully and quickly before the Board.

Finally, the Council’s report just published would benefit from the compilation and publication of additional information in future reports. It would be useful to know, for example, the government’s claims upholding rate compared to the contractors’ claims upholding rate, or the percentage of money recovered in relation to the amount of the claim in cases where the Commission decides on the amount. This additional statistical information would be useful to the entrepreneur community as a whole, and we hope the Board of Directors will consider including this information in future reports.

If you have any questions, please contact the Pillsbury Complaints and Cancellations team. Please also keep your eyes peeled for our client alert which discusses the annual report that we expect the Civil Council to publish soon.

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