A recent decision from the Civilian Board of Contract Appeals highlights that the Board will demand sufficiently detailed privilege logs from both agency and contractor litigants.
The Civilian Board of Contract Appeals (CBCA or Board) recently released its fiscal year (FY) 2020 report. The CBCA docketed 378 new matters in FY 2020, which was down from the 418 new matters docketed in FY 2019. This represents the first time the number of new docketed matters dipped below 400 in 10 years. Of the 418 new matters, 210 were Contract Disputes Act cases, with the remaining consisting mostly of either appeals by civilian government employees concerning travel or relocation expense decisions or FEMA arbitration matters. The Board resolved more disputes than it docketed during FY 2020—a fact which indicates that the Board’s activity level has remained consistent notwithstanding the pandemic’s challenges.
Judge Somers, the CBCA Chair, noted in her introductory message that the Board quickly and successfully adapted to the “new world.” By May 2020, the Board had established procedures and protocols for conducting video proceedings. The CBCA conducted eight virtual hearings and resolved more than 20 cases by virtual ADR under these procedures and protocols during FY 2020. The Board also noted that litigants submitted approximately 97 percent of their FY 2020 filings electronically. The Board expects to continue to utilize its virtual procedures and protocols for as long as needed during FY 2021. Judge Somers also noted that the CBCA hopes to resume its practice of traveling to ADR proceedings and hearings as soon as it can. In our view, the CBCA’s flexibility is another factor to consider when contractors decide whether to appeal contracting officer final decisions to the Board or the Court of Federal Claims.