Study of the Effects of Changes in the Contract Appeals Board System Under the Contract Disputes Act of 1978

In 1972, the Commission on Government Procurement reviewed the Federal appeals board process. It noted that this process would need substantive changes to effectively resolve contract disputes between contractors and the Government. A number of measures were introduced to Congress to respond to the Commission recommendations. The Contract Disputes Act was passed in November 1978. Its provisions were designed to help streamline the Boards of Contract Appeals system, standardize the selection process of judges, and remove appeals boards from the direct control of agency administrators. Some key changes in the appeals board structure and operations are that it set a compensation rate for the board chairmen, vice-chairmen and members, it established that appeals of between $10,000 and $50,000 may be processed under accelerated procedures at the contractor's option and appeals of $10,000 or less may be expedited under simplified rules of procedure at the contractor's option. It also established that boards may administer oaths, authorize depositions and discovery proceedings, and subpoena witnesses and evidence. The Office of Federal Procurement Policy's responsibilities under the act include consulting with agency heads to determine whether they need boards of contract appeals, allocating board positions to agencies, and issuing guidelines relative to the establishment, functions, and procedures of agency boards. The Office of Personnel Management was initially uncertain as to its authority to develop board personnel procedures, but Congress informally clarified these responsibilities to entail establishing and administering both selection and removal procedures for board members, administering a register of prospective board appointees, and developing procedures guaranteeing that board members are appointed solely on merit. Office of Federal Procurement Policy and the Office of Personnel Management actions to implement the act have been slow and controversial, and instructions which may be helpful in setting up and operating boards have not been issued. A major cause of problems has been uncertainty over congressional intent as to the extent of consolidation of agency boards, whether agencies could supplement board allocations made by the Office of Federal Procurement Policy, how closely board members are to follow hearing examiner personnel procedures, and how performance evaluations are to be made.

While insufficient time has passed to assess fully how the Contract Disputes Act of 1978 will affect the appeals board system, both the Office of Federal Procurement Policy and the Office of Personnel Management have acted slowly due to uncertainty and controversy over the act's provisions and the intent of Congress. Until these uncertainties are resolved and clear policies and procedures are established, it is not certain how far the act will go in streamlining the appeals board system.