A recent decision from the Civilian Board of Contract Appeals confirms that “only a ‘contractor’ may file an appeal of a contracting officer’s final decision.” Wattiker v. General Services Administration, 2026 WL 846001 (CBCA 2026) (citation omitted).
The term “contractor is not an ambiguous term. A ‘contractor’ refers to a party to a federal government contract. Wattiker (citing the Contract Disputes Act). This is why the Contract Disputes Act does not apply to parties that are NOT in contract with the federal government. Id.
In Wattiker, an appellant (appealing party) challenged the dismissal of a co-appellant. The co-appellant was dismissed because he was not a contractor, i.e., a party in contract with the federal government. In other words, the co-appellant had no privity of contract with the federal government.
It is this analysis why subcontractors have no standing to pursue a Contract Disputes Act claim or can pursue a claim or appeal a claim in their own name against the federal government. To do so, they would need a liquidation agreement or pass-through agreement that lets them pursue a pass-through claim in the name of the contractor, i.e., the prime contractor that hired the subcontractor and is in privity of contract with the federal government.
If performing construction on a federal project, make sure you understand your rights as a government contractor, as a subcontractor, etc.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.