Takeaways

FY 2018 ended with 409 new appeals docketed at the Board, which represents a modest increase from the number docketed in FY 2017.
The Board resolved 77 percent of the appeals that went through a CBCA alternate dispute resolution (ADR) process.
The Board’s jurisdiction now includes serving as the “arbitrator of choice” for certain FEMA disaster relief matters. Also, new rules of procedure went into effect on September 17, 2018.

This past weekend, the Civilian Board of Contract Appeals (CBCA) released its fiscal year (FY) 2018 Annual Report. The CBCA docketed 409 new matters in FY 2018, a modest increase from 385 docketed in FY 2017. Prior to FY 2018, the Board had experienced docket decreases for each of the previous five years. Also, for the first time since FY 2014, the number of new cases docketed during the year exceeded the number of appeals that the CBCA resolved.

The Board received 75 new requests for ADR in FY 2018. The Board resolved successfully 77 percent of the matters that completed ADR. The Board presently has 37 ADR matters that it expects to address in FY 2019. The report does not provide any information on the FY 2018 sustain rates.

We expect the Board to experience an increase in its workload. As the report notes, starting October 5, 2018, the Stafford Act was amended to designate the CBCA as the “arbitrator of choice to adjudicate disputes between applicants for public access grants and FEMA for any disaster that occurred after January 1, 2016.” The Board’s chair, Judge Jeri Kaylene Somers, reported that the change “significantly expands the potential pool of applicants for disaster relief arbitration,” and “[w]hat this means for [the Board’s] docket is yet to be determined.” This fact, coupled with the increase in active case mentioned above, suggests that the Board will have a busier docket in 2019, which may cause some delay in matter resolution.

The report also notes that new rules of procedure went into effect on September 17, 2018. The new rules more closely align the Board’s practice with the Federal Rules of Civil Procedure (FRCP). For example, the permissible scope of discovery at the CBCA under Rule 13 now mirrors Rule 26(b)(1) of the FRCP. Rule 13 also adds a good faith requirement for the resolution of discovery disputes. Additionally, CBCA Rule 4 files may now be submitted electronically, and for FY 2018, “approximately 93% of all filings were submitted electronically,” a slight increase from 89 percent in FY 2017.

FY 2019 promises to be an exciting year at the CBCA, given the procedural changes and the potential for the Board to see its docket sharply increase. Nevertheless, the Board seems to be eager to make the process for facilitating disputes more efficient and straightforward for all parties involved.