The Armed Services Board of Contract Appeals’ 2023 annual report reveals the lowest number of docketed appeals in 40 years, while at the same time the Board deals with the largest number of motions for summary judgment in recent history.

TAKEAWAYS

• The Board docketed the lowest number of appeals in FY 2023 since it began releasing statistics in 1979.
• The Board reported another high “sustain rate” for appeals resolved in FY 2023.
• Litigants have 554 motions for summary judgment pending at the Board that await resolution.

On November 1, 2023, the Armed Services Board of Contract Appeals (ASBCA or Board) issued its fiscal year (FY) 2023 annual report, covering the period from October 1, 2022, through September 30, 2023. During FY 2023, contractors filed 342 new appeals at the ASBCA. This activity represents a 15% decrease from the number of appeals docketed during FY 2022. In fact, this was the lowest number of docketed appeals during any fiscal year since 1979. A significant percentage of the appeals—105 of the 342 new cases (or roughly 30%)—were filed against the U.S. Army Corps of Engineers. Over the last 10 years, the U.S. Army Corps of Engineers has generally been the agency against which most new ASBCA appeals have been filed.

As of October 2023, the Board had 927 active matters. At the beginning of FY 2023, the Board had 957 pending cases, so the backlog has gone down somewhat. The Board resolved 132 appeals on the merits during FY 2023, reporting a sustain rate, “in whole or in part,” of 67%. The Board reported a 71% sustain rate following FY 2022. By way of comparison the sustain rates from FY 2021 (52.7%) and FY 2020 (52.8%) were considerably lower. That said, we caution contractors not to rely on this percentage alone when deciding whether to appeal claims to the Board or the Court of Federal Claims. The Board’s sustain rate does not provide any data about the amount contractors recovered versus the amount they sought—which is an important consideration in assessing litigation at the ASBCA.

With respect to the 927 active matters, the Board reported that its 24 judges held 23 hearings, for a total of 110 days during FY 2023.

The Board reported that it dismissed 243 cases during FY 2023, with bilateral settlement prompting such dismissals in the “majority of cases.” As we have mentioned in previous client alerts, our anecdotal experience is that agencies—and more recently contractors—are pursuing dispositive motions to resolve cases with considerable frequency. By the conclusion of FY 2023, the Board had 554 motions for summary judgment pending. This is more than double the number of motions for summary judgment pending at the end of FY 2022. Reading the tea leaves, with only 23 hearings conducted in 2023 and 554 motions for summary judgment pending, contractors should expect that their appeals might continue to take years to resolve if they do not settle or proceed through Alternate Dispute Resolution (ADR).

With respect to ADR, the Board continues to experience success. The Board initiated 83 ADR proceedings during FY 2023. Two of the 83 cases settled prior to the commencement of ADR, and three were withdrawn. Of the 78 remaining cases, 67 settled, four did not settle, and seven remained pending at the conclusion of FY 2023. This 86% success rate suggests that ADR is the best option to resolve cases at the Board successfully and swiftly.

[View source.]