Some general observations on the preceding table are that, while SOW/S&D provisions were not heavily involved in two construction contract units (Navy and GSA), they were high (23 percent or more) in three non-constructionoriented units. In boards which handle numerous construction contract cases, SOW/S&D provisions were involved in more than 30 percent of the cases before two boards (ENGBCA and IBCA) and in more than 50 percent of the cases before one board (GSABCA). Changes were a major issue (52 percent of the cases) in the Navy unit, which is oriented toward construction contracts, but not in GSA, where only 6 percent of the contracting officer decisions involved construction contracts. The changes clause was fairly uniformly involved in the cases before most boards (18 percent to 25 percent). Default termination was high in GSA and NASA at the contracting officer level. Changed conditions did not appear as a major cause of disputes.

Certain contract provisions, then, rather than contract types, seem to be more causative of controversy. This conclusion can be drawn from the fact that the contract type varied; more than 60 percent of the disputes at the contracting officer level arose from supply contracts and nearly 50 percent of the board cases arose from construction contracts, while the same three provisions (SOW/S&D, changes, and default termination) were the major sources of controversy at both levels.

NASA GSA AEC

Claims of $25,000 and under

60%

100%

72%

Claims of $10,000 and under

37%

91%

43%

The total amount involved in the board appeals analyzed was $203 million. The breakdown of claims above and below $25,000 was:

Amount claimed Over $25,000 $25,000 and under

Comparison of the amounts sought at the board level and at the contracting officer level in the units where there are comparable data shows:

Agency

NASA

AEC

OBJECT OF APPEAL

The principal object of an appeal to a board was entitlement (involving no issue of quantum) in 51 percent of all the cases, and the amount of equitable adjustment was the object of 39 percent of all cases. Quantum was considered in only 3 percent of all the cases; however, GSABCA considered it in 11 percent of its cases and IBCA in 19 percent. Time extensions were sought in 7 percent of all appeals.

At the contracting officer level, the principal object of the claim was a time extension in 40 percent of the disputes, amount of equitable adjustment in 16 percent, and entitlement (without quantum) in 11 percent. The highest percentage of the claims for time extension at the contracting officer level occurred in GSA and NASA.

HEARINGS AND ACCELERATED PROCEDURES

The profiles showed that no hearing was held in 36 percent (778) of the cases on appeal at the board level while a hearing was held in 29 percent (636) of the cases. However, 30 percent (657) of the responses did not answer the question. If only the 1,533 replies are considered, in 51 percent of the cases no hearing was held, and in 41 percent there was a hearing.

Accelerated procedures, as provided and defined in the rules of the various boards polled, were used in only 7 percent (140) of the cases before the boards, although 51 percent of the claims were for $10,000 and under. Fifty percent of all the responses stated that no such procedure was invoked. However, AECBCA used accelerated procedures in 63 percent of its cases, a larger percentage than any other agency.

MANNER OF RESOLUTION

The manner of resolution at the board level was most often a decision on the merits, although almost an equal number of times it was a negotiated settlement prior to the board's decision. Of 2,187 cases in the sample, 875 (40 percent) went to decision on the merits, with 463 (or 53 percent of those decisions) indicated as denials of the claim. Denials represented 21 percent of the total number of appealed cases.

Nearly as many cases were settled as went to board decisions-825 or 38 percent. A total of 1,160 cases, or 53 percent, were dismissed; of these 873 (40 percent), including settlements, were dismissed with prejudice.

Resolution at the board of contract appeal level can be tabulated as follows: [See table at bottom of page; numbers represent cases.]

The data furnished indicate that in about half of the board of contract appeal cases decided on the merits, the board upheld the contractors' claims in whole or in part. The contractor enjoyed some success in 57 percent of all cases appealed, as represented by 825 settlements and 417 decisions wholly or partially favoring contractors.

Cases were remanded by the boards to the contracting officer in 4 percent of the decisions.

At the contracting officer level, the contracting officer issued a final finding of fact and decision (negative to the contractor) in 92 percent of the cases brought before him. The data bank shows that in 2 percent of the cases the contracting officer refused to issue a decision.

Overall, 46 percent of the contracting officer

percent between six and 12 months, another 19 percent between 12 and 18 months, and 9 percent between 18 and 24 months.

A breakdown by agency shows that AEC was the speediest in resolving disputes, disposing of 93 percent of the cases within the first six months. DOTCAB was the slowest, since only 7 percent of their cases were concluded within a similar time period. The ASBCA, the board with the largest docket, disposed of almost two-thirds of their cases within a year from the date docketed.

Thirty percent of the ENGBCA cases went on for more than two years. However, 28 percent of the ENGBCA cases involved more than $100,000 as compared to 17 percent of the ASBCA cases with claims in that category.

The following table shows the length of time cases were on the dockets of the boards:

12-18

months

CORRELATION OF TIME AND
CONTRACT PROVISION

A matrix displaying time against the clause in dispute shows that, of the cases at the board level involving the Changes clause, 21 percent are resolved within six months, an additional 26 percent within the next six months, and yet another 21 percent within a 12- to 18month period, in other words, more than twothirds within a year and a half. Of the cases that took more than four years to resolve, the largest number concerned the Changes clause.

Time for disposing of SOW/S&D cases runs fairly uniformly with the Changes clause.

Thirty-five percent of the cases before boards involving the default provisions were resolved within the first six months.

Changed conditions disputes generally took more than a year to resolve at board level, since only 33 percent of such disputes were on the docket less than 12 months.

At the contracting officer level, more than 90 percent of the cases involving default terminations were decided within six months. For most of the cases involving the inspection provision, a final decision was also made within six months.

DISPUTES RELATED TO AWARD
OF CONTRACTS

DISPOSITION OF AWARD PROTESTS

Protests were denied in 92 percent of the decisions rendered during 1969-1972. Cancellation of the contract was recommended in one percent of the decisions rendered, representing 15 percent of the decisions favoring the protestor. GAO suggested corrective action in agency award practices in 12 percent of the protests resolved by it. During 19711972, 24 percent of the protests received by GAO were withdrawn. The following table shows the disposition of award protests received by GAO during 1969-1972:

Protests denied

Protests sustained

Protests withdrawn

Miscellaneous disposition

Total protests handled

Contract cancellation recommended

Corrective action suggested

706

641

52

74

Seven of 16 responding agencies put the responsibility for the decision to suspend award into the hands of the contracting officer. Of these seven, four allow the contracting officer to act alone, one requires GAO concurrence, and two have the contracting officer consult an official in higher headquarters. Nine more of the responding agencies indicated that a higher authority decides the issue of suspension of procurement activity, generally (except for one agency) in a headquarters office.

Eleven agencies stated that they conduct exhaustive review of protests filed with GAO and act to rectify the situation if appropriate. The review may include presentation of additional evidence to the contracting officer, conferences and correspondence, and submission of technical or legal opinions. Only four agencies stated that no attempt is made to review such protests, and one agency replied that it

seldom attempts to resolve protests at this stage. One agency did not answer the question.

SIZE OF CONTRACT AWARD CANCELED

Data was gathered on 21 award protests decided during 1967-1971 in which GAO recommended cancellation of a contract. Analysis of this data does not support a hypothesis that GAO recommends cancellation of the contract only where the size of the contract is nominal. GAO recommended cancellation of ten contracts where the contract price was less than $100,000. In another 11 contracts, GAO recommended cancellation where the dollar amount exceeded $100,000. Four of the 11 involved sums greater than $250,000; another four had a contract price above $500,000. The largest contract award reversed by GAO exceeded $6,000,000.

CAUSES OF AWARD PROTESTS

Data was collected from 13 procuring agencies or agency components to determine the primary causes of award protests. Each agency supplied information on both protests submitted directly to the agency and those submitted to GAO. Analysis of 1,052 protests revealed that three major issues were raised.

The adequacy or legality of the solicitation was challenged in 29 percent of the protests. The responsiveness of another bid or offer was at issue in another 30 percent of the cases. The responsibility of another bidder was disputed in 13 percent of the protests. The remaining 28 percent of the challenges were concerned with various matters, including ambiguous or restrictive specifications, evaluation criteria, mistake in bid, and set-aside procedures. The causes by agency during 19681970 are shown below: