41 U.S.C. § 7104 — Contractor’s right of appeal from decision

Page 180 TITLE 41—PUBLIC CONTRACTS § 7104 HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 7103(h)(1) .... 41:605(d) (1st, last sentences). Pub. L. 95–563, § 6(d) (1st, last sentences), as added Pub. L. 101–552, § 6(a), Nov. 15, 1990, 104 Stat. 2745, 2746; Pub. L. 104–106, div. D, title XLIII, § 4322(b)(6), Feb. 10, 1996, 110 Stat. 677; Pub. L. 105–85, div. A, title X, § 1073(g)(3), Nov. 18, 1997, 111 Stat. 1906. 7103(h)(2) .... 41:605(d) (2d sen- tence). Pub. L. 95–563, § 6(d) (2d sen- tence), as added Pub. L. 101–552, § 6(a), Nov. 15, 1990, 104 Stat. 2745; Pub. L. 104–320, § 6(1), Oct. 19, 1996, 110 Stat. 3871. 7103(h)(3)(A) 41:605(e) (1st sen- tence). Pub. L. 95–563, § 6(e), as added Pub. L. 101–552, § 6(a), Nov. 15, 1990, 104 Stat. 2746; Pub. L. 103–355, title II, § 2352, Oct. 13, 1994, 108 Stat. 3322; Pub. L. 104–106, div. D, title XLIII, §§ 4321(a)(7), 4322(b)(6), Feb. 10, 1996, 110 Stat. 671, 677; Pub. L. 104–320, § 6(2), Oct. 19, 1996, 110 Stat. 3871; Pub. L. 105–85, div. A, title X, § 1073(g)(3), Nov. 18, 1997, 111 Stat. 1906. 7103(h)(3)(B) 41:605(e) (last sen- tence). In subsection (b)(1)(D) and (2), the word ‘‘duly’’ is omitted as unnecessary. In subsection (b)(3), the words ‘‘of contract appeals’’ are omitted as unnecessary because of the definition of ‘‘agency board’’ in section 7101 of the revised title. In subsection (c)(2), the words ‘‘this subsection’’, which appear in section 5 of the Contract Disputes Act of 1978 (Pub. L. 95–563, 92 Stat. 2384), and which were probably intended to mean ‘‘this section’’, are trans- lated as ‘‘this paragraph’’ in accordance with the prob- able intent of Congress. In subsection (f)(5), the words ‘‘the commencement of’’ are omitted as unnecessary. The words ‘‘of the ap- peal or action’’ are substituted for ‘‘in the event an ap- peal or suit is so commenced in the absence of a prior decision by the contracting officer’’ to eliminate un- necessary words. § 7104. Contractor’s right of appeal from decision by contracting officer (a) APPEAL TO AGENCY BOARD.—A contractor, within 90 days from the date of receipt of a con- tracting officer’s decision under section 7103 of this title, may appeal the decision to an agency board as provided in section 7105 of this title. (b) BRINGING AN ACTION DE NOVO IN FEDERAL COURT.— (1) IN GENERAL.—Except as provided in para- graph (2), and in lieu of appealing the decision of a contracting officer under section 7103 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regu- lation, or rule of law to the contrary. (2) TENNESSEE VALLEY AUTHORITY.—In the case of an action against the Tennessee Valley Authority, the contractor may only bring an action directly on the claim in a district court of the United States pursuant to section 1337 of title 28, notwithstanding any contract pro- vision, regulation, or rule of law to the con- trary. (3) TIME FOR FILING.—A contractor shall file any action under paragraph (1) or (2) within 12 months from the date of receipt of a con- tracting officer’s decision under section 7103 of this title. (4) DE NOVO.—An action under paragraph (1) or (2) shall proceed de novo in accordance with the rules of the appropriate court. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3820.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 7104(a) ........ 41:606. Pub. L. 95–563, § 7, Nov. 1, 1978, 92 Stat. 2385. 7104(b) ........ 41:609(a). Pub. L. 95–563, § 10(a), Nov. 1, 1978, 92 Stat. 2388; Pub. L. 97–164, title I, § 161(10), Apr. 2, 1982, 96 Stat. 49. In subsection (a), the words ‘‘of contract appeals’’ are omitted as unnecessary because of the definition of ‘‘agency board’’ in section 7101 of the revised title. In subsection (b)(1), the words ‘‘United States Court of Federal Claims’’ are substituted for ‘‘United States Claims Court’’ because of section 902(b)(1) of the Fed- eral Courts Administration Act of 1992 (Pub. L. 102–572, 106 Stat. 4516, 28 U.S.C. 171 note). § 7105. Agency boards (a) ARMED SERVICES BOARD.— (1) ESTABLISHMENT.—An Armed Services Board of Contract Appeals may be established within the Department of Defense when the Secretary of Defense, after consultation with the Administrator, determines from a work- load study that the volume of contract claims justifies the establishment of a full-time agen- cy board of at least 3 members who shall have no other inconsistent duties. Workload studies will be updated at least once every 3 years and submitted to the Administrator. (2) APPOINTMENT OF MEMBERS AND COMPENSA- TION.—Members of the Armed Services Board shall be selected and appointed in the same manner as administrative law judges ap- pointed pursuant to section 3105 of title 5, with an additional requirement that members must have had at least 5 years of experience in pub- lic contract law. The Secretary of Defense shall designate the chairman and vice chair- man of the Armed Services Board from among the appointed members. Compensation for the chairman, vice chairman, and other members shall be determined under section 5372a of title 5. (b) CIVILIAN BOARD.— (1) ESTABLISHMENT.—There is established in the General Services Administration the Civil- ian Board of Contract Appeals. (2) MEMBERSHIP.— (A) ELIGIBILITY.—The Civilian Board con- sists of members appointed by the Adminis- trator of General Services (in consultation with the Administrator for Federal Procure- ment Policy) from a register of applicants maintained by the Administrator of General Services, in accordance with rules issued by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) for estab- lishing and maintaining a register of eligible applicants and selecting Civilian Board members. The Administrator of General Services shall appoint a member without re-