In government contracting, a Contract Adjustment Board is a department board at the Secretariat level in the U.S. Government that deals with disputes and requests for extraordinary relief under Public Law 85-804[1] of Aug. 28, 1958.[2]
Public Law No. 85-804, codified at 50 U.S.C. § 1431-35 (Supp. IV 1998), grants to the President the authority to authorize any agency which exercises functions in connection with the national defense to enter into contracts or into amendments or modifications of contracts, and to make advance payments, without regard to other applicable legal provisions whenever such action would facilitate the national defense. 50 U.S.C. § 1431. The legislative history of the statute indicates that it may also be used as the basis for making indemnity payments under certain government contracts, the so-called "residual powers. " ECR Current Materials at 1005, 1021. The legislative history explains that "[t]he need for indemnity clauses in most cases arises from the advent of nuclear power and the use of highly volatile fuels in the missile program. The magnitude of the risks involved under procurement contracts in these areas have rendered commercial insurance either unavailable or limited in coverage.[4]
During World War I, a "Board of Contract Adjustment" was created to determine "all claims, doubts and disputes which may arise under departmental contracts";[5] it implemented the policies for Liquidation, Cancellation, and Adjustment of contracts.[6]
According to Evans Reamer Machine Company v. United States. 386 F.2d 873, "since the early days of World War II," the main defense agencies have been authorized to grant discretionary relief to contractors suffering losses on account of mistakes.[7] The underpinning for the granting of relief must be a finding that such action would facilitate the national defense or prosecution of the war.[8] Title II relief has been referred to variously as "far-reaching," "extraordinary," and "a snare and a delusion."[9]
According to U.S. v. Utah Constr. & Mining Co., pursuant to a delegation by the President under Public Law 85—804,[10] government departments and agencies exercising functions in connection with the national defense may, upon a finding that such action would 'facilitate the national defense,' enter into amendments and modifications of contracts without regard to other provisions of law respecting such amendments and modifications. As implemented by the Atomic Energy Commission's procurement regulations,[11] the authority conferred encompasses amendments without consideration, correction of mutual mistakes, and formalization of informal commitments. This authority, which in many respects is analogous to power to settle claims, is delegated to Contract Adjustment Boards established within the departments and agencies concerned separate from the Boards of Contract Appeals. Because the regulations preclude resort to the powers conferred by Public Law 85—804, "unless other legal authority in the Department concerned is deemed to be lacking or inadequate",[12] the Army Contract Adjustment Board has generally required contractors to exhaust remedies before the ASBCA under the disputes clause.[13] Thus it is quite evident from the administration of Public Law 85—804 and its predecessors that the limitations on the jurisdiction of the Boards of Contract Appeals are well understood by the military procurement departments and Congress.
Examplesedit
The Departments of the Army, Navy, and Air Force each have a contract adjustment board.[14]
The NASA Contract Adjustment Board considers requests by NASA contractors for equitable contractual relief.
In the U.S. Department of Transportation, a "Board of Contract Appeals"[15] is responsible for hearings and decisions on appeals from decisions of departmental contracting officers; when sitting as the Contract Adjustment Board it acts on petitions for extraordinary contractual relief under Public Law 85-804.[16]
Further readingedit
Smith, The War Department Board of Contract Appeals, 5 Fed. B.J. 74, 82 (1943)
"Federal Boards of Contract Appeals, The". LR Caruso - S. Cal. L. Rev., 1959 - [1]
"Disputes and Appeals: The Armed Services Board of Contract Appeals". JP Shedd Jr - Law and Contemporary Problems, 1964 [2]
^(PDF). C. B. Cochrane, E. P. Vollmer. Diane Publishing. 1995. p. 175. ISBN978-0-7881-2139-5. Archived from the original (PDF) on 2009-08-25. Retrieved 2009-06-27.{{cite book}}: CS1 maint: others (link)
^(PDF). Archived from the original (PDF) on 2009-09-21. Retrieved 2009-10-09.{{cite web}}: CS1 maint: archived copy as title (link) United States General Accounting Office, Decision
^dept.), United States Claims board (War; Adjustment, United States War Department Board of Contract (1920). Decisions of the War Department Board of Contract Adjustment. U.S. Government Printing Office.
^Crowell, J.F. (1920). Government War Contracts. Oxford University Press. p. 314. Retrieved 2014-12-27.
^Crowell, J.F. (1920). Government War Contracts. Oxford University Press. Retrieved 2014-12-27.
^Title II, Section 201, First War Powers Act, 55 Stat. 838 (1941); Executive Order No. 9001, 6 F.R. 6787 (1941); Act of Jan. 12, 1951, 64 Stat. 1257; 50 U.S.C. App. Sec. 611 (1952 ed.); P.L. 85-804, 72 Stat. 972, 50 U.S.C. Secs. 1431–1435 (1958).
^See Kramer, Extraordinary Relief for War Contractors, 93 U. of Pa.L. Rev. 357, 360 (1945); Correction of Mistakes in Contracts Under Public Law 85-804, Government Contracts Monograph No. 1, p. 4 (The Geo. Wash. Univ.) (1961)
^See Fain and Watt, War Procurement — A New Pattern in Contracts, 44 Col. L. Rev. 127, 199 (1944) and McClelland, Title II — One Year Later: A Legislative Midsummer Night's Dream, 62 Dick. L. Rev. 327 (1958)
^Defense Federal Acquisition Regulation Supplement; Conforming Changes--Standards of Conduct and Extraordinary Contractual Actions (DFARS Case 2008-D004) Defense Department Documents and Publications August 12, 2008
^established pursuant to the Contract Disputes Act of 1978 (92 Stat.2383; 41 U.S.C. 601)
^Kane, R.M. (2003). Air Transportation. Kendall/Hunt Pub. p. 155. ISBN9780787288815. Retrieved 2014-12-27.
External linksedit
Armed Services Board of Contract Appeals
April 07, 2024
contract, adjustment, board, government, contracting, contract, adjustment, board, department, board, secretariat, level, government, that, deals, with, disputes, requests, extraordinary, relief, under, public, 1958, brief, public, codified, 1431, supp, 1998, . In government contracting a Contract Adjustment Board is a department board at the Secretariat level in the U S Government that deals with disputes and requests for extraordinary relief under Public Law 85 804 1 of Aug 28 1958 2 In brief 3 Public Law No 85 804 codified at 50 U S C 1431 35 Supp IV 1998 grants to the President the authority to authorize any agency which exercises functions in connection with the national defense to enter into contracts or into amendments or modifications of contracts and to make advance payments without regard to other applicable legal provisions whenever such action would facilitate the national defense 50 U S C 1431 The legislative history of the statute indicates that it may also be used as the basis for making indemnity payments under certain government contracts the so called residual powers ECR Current Materials at 1005 1021 The legislative history explains that t he need for indemnity clauses in most cases arises from the advent of nuclear power and the use of highly volatile fuels in the missile program The magnitude of the risks involved under procurement contracts in these areas have rendered commercial insurance either unavailable or limited in coverage 4 Contents 1 History 2 Examples 3 Further reading 4 See also 5 References 6 External linksHistory editDuring World War I a Board of Contract Adjustment was created to determine all claims doubts and disputes which may arise under departmental contracts 5 it implemented the policies for Liquidation Cancellation and Adjustment of contracts 6 According to Evans Reamer Machine Company v United States 386 F 2d 873 since the early days of World War II the main defense agencies have been authorized to grant discretionary relief to contractors suffering losses on account of mistakes 7 The underpinning for the granting of relief must be a finding that such action would facilitate the national defense or prosecution of the war 8 Title II relief has been referred to variously as far reaching extraordinary and a snare and a delusion 9 According to U S v Utah Constr amp Mining Co pursuant to a delegation by the President under Public Law 85 804 10 government departments and agencies exercising functions in connection with the national defense may upon a finding that such action would facilitate the national defense enter into amendments and modifications of contracts without regard to other provisions of law respecting such amendments and modifications As implemented by the Atomic Energy Commission s procurement regulations 11 the authority conferred encompasses amendments without consideration correction of mutual mistakes and formalization of informal commitments This authority which in many respects is analogous to power to settle claims is delegated to Contract Adjustment Boards established within the departments and agencies concerned separate from the Boards of Contract Appeals Because the regulations preclude resort to the powers conferred by Public Law 85 804 unless other legal authority in the Department concerned is deemed to be lacking or inadequate 12 the Army Contract Adjustment Board has generally required contractors to exhaust remedies before the ASBCA under the disputes clause 13 Thus it is quite evident from the administration of Public Law 85 804 and its predecessors that the limitations on the jurisdiction of the Boards of Contract Appeals are well understood by the military procurement departments and Congress Examples editThe Departments of the Army Navy and Air Force each have a contract adjustment board 14 The NASA Contract Adjustment Board considers requests by NASA contractors for equitable contractual relief In the U S Department of Transportation a Board of Contract Appeals 15 is responsible for hearings and decisions on appeals from decisions of departmental contracting officers when sitting as the Contract Adjustment Board it acts on petitions for extraordinary contractual relief under Public Law 85 804 16 Further reading editSmith The War Department Board of Contract Appeals 5 Fed B J 74 82 1943 Federal Boards of Contract Appeals The LR Caruso S Cal L Rev 1959 1 Disputes and Appeals The Armed Services Board of Contract Appeals JP Shedd Jr Law and Contemporary Problems 1964 2 See also editContracting with the United States Government Price Anderson Nuclear Industries Indemnity Act Contract Disputes Act of 1978 Armed Services Board of Contract Appeals Civilian Board of Contract AppealsReferences edit 72 Stat 972 50 U S C 1431 Glossary Defense Acquisition Acronyms amp Terms PDF C B Cochrane E P Vollmer Diane Publishing 1995 p 175 ISBN 978 0 7881 2139 5 Archived from the original PDF on 2009 08 25 Retrieved 2009 06 27 a href Template Cite book html title Template Cite book cite book a CS1 maint others link Archived copy PDF Archived from the original PDF on 2009 09 21 Retrieved 2009 10 09 a href Template Cite web html title Template Cite web cite web a CS1 maint archived copy as title link United States General Accounting Office Decision dept United States Claims board War Adjustment United States War Department Board of Contract 1920 Decisions of the War Department Board of Contract Adjustment U S Government Printing Office Crowell J F 1920 Government War Contracts Oxford University Press p 314 Retrieved 2014 12 27 Crowell J F 1920 Government War Contracts Oxford University Press Retrieved 2014 12 27 Title II Section 201 First War Powers Act 55 Stat 838 1941 Executive Order No 9001 6 F R 6787 1941 Act of Jan 12 1951 64 Stat 1257 50 U S C App Sec 611 1952 ed P L 85 804 72 Stat 972 50 U S C Secs 1431 1435 1958 See Kramer Extraordinary Relief for War Contractors 93 U of Pa L Rev 357 360 1945 Correction of Mistakes in Contracts Under Public Law 85 804 Government Contracts Monograph No 1 p 4 The Geo Wash Univ 1961 See Fain and Watt War Procurement A New Pattern in Contracts 44 Col L Rev 127 199 1944 and McClelland Title II One Year Later A Legislative Midsummer Night s Dream 62 Dick L Rev 327 1958 Public Law 85 804 72 Stat 972 50 U S C 1431 1964 ed see ASPR 32 CFR 17 000 et seq AECPR 41 CFR 9 17 000 et seq ASPR 32 CFR 17 205 1 b 2 Blaw Knox Co ACAB Dkt No 1019 Nov 2 1960 Defense Federal Acquisition Regulation Supplement Conforming Changes Standards of Conduct and Extraordinary Contractual Actions DFARS Case 2008 D004 Defense Department Documents and Publications August 12 2008 established pursuant to the Contract Disputes Act of 1978 92 Stat 2383 41 U S C 601 Kane R M 2003 Air Transportation Kendall Hunt Pub p 155 ISBN 9780787288815 Retrieved 2014 12 27 External links editU S Army Judge Advocate General s Legal Center and School s Contract Attorneys Deskbook Armed Services Board of Contract Appeals Retrieved from https en wikipedia org w index php title Contract adjustment board amp oldid 981410592, wikipedia, wiki, book, books, library,
