Case Information

*1 May 21, 1979 79-33 MEMORANDUM OPINION FOR THE

CHAIRMAN, BOARD OF CONTRACT APPEALS, GENERAL SERVICES ADMINISTRATION

Contract Disputes Act (41 U.S.C. § 601)— Effective Date of Act

This responds to your request for our opinion regarding the effective date o f the C ontract Disputes Act o f 1978, Pub. L. No. 95-563, 41 U.S.C. § 601 et seq. Based on the language o f the Act, its structure and legislative history, we conclude that the effective date is March 1, 1979.

Section 16 o f the Act, 41 U .S.C . § 601 note, provides: This Act shall apply to contracts entered into one hundred twenty days after the date o f enactm ent. Notwithstanding any provision in a contract made before the effective date o f this Act, the contractor may elect to proceed under this Act with respect to any claim pending then before the contracting officer or initiated thereafter.

Since the section is entitled “ Effective Date o f the A ct” and states that it applies to contracts entered into “ one hundred twenty days after the date o f enactm ent,” it is clear that the effective date is distinct from the date of enactm ent—November 1, 1978.

This is supported by the structure and legislative history o f the statute.' The Contract Disputes Act was enacted to bring order and uniformity to the disparate dispute resolution procedures that had developed in Govern ment agencies. See S. Rept. 1118, 95th Cong., 2d sess. 2-4 (1978). An ef fective date 4 m onths after the date o f enactm ent provides time to alter ex isting procedures and to issue the regulations required by the Act. As stated in the Senate report: “ Section 16 provides that the effective date of 1 The Supreme C ourt has m ade clear that analysis o f legislative history is proper for clarification o f congressional intent even where the language o f the statute appears unam biguous. Train v. Colorado Pub. Int. Research Croup, 426 U.S. 1, 9-10 (1976). the act will be 120 days after the date o f enactm ent. It is expected that the 120 days will be sufficient to manage the changeover from the current board system to the system o f consolidation as proposed in this act.” S. Rept., at 35 (emphasis added).

The importance and purpose o f the 120-day period is made clear in § 8 of the Act, providing for the continued existence or establishment o f an agency board. As introduced, the bill provided that a contract appeals board could be established in an executive agency if the head o f the agency and the Adm inistrator for Federal Procurem ent Policy agreed that the volume o f contract claims justified a five-member board. The Senate Governmental Affairs and Judiciary Committees added the requirement that a workload study be performed to justify establishment o f a board. The committees also added a subsection 8(i), which required consolidation of smaller existing boards and the preparation o f workload studies by larger boards within 120 days from the date o f enactm ent. The Senate Report explained that this subsection was added

to insure that specific actions will be taken prior to the effective date o f the act by the agency heads for consolidation o f boards that do not meet the requirements as identified in section 8(a). Also, workload studies justifying the existence o f boards pur suant to the provisions in section 8(a) will need to be carried out during this same period. [S. Rept., at 10 (emphasis added).]

Subsection 8(i) was amended on the floor o f the Senate. 124 C o n g . R e c . S. 18640-41 (daily ed., Oct. 12, 1978). As enacted, it provides:

Within one hundred and twenty days from [the date o f enact ment o f this ActJ, all agency boards, except that o f the Tennessee Valley Authority, o f three or more full time members shall develop workload studies for approval by the agency head as specified in section 8(a)(1). [41 U .S.C . § 607(i).] The clear purpose o f the 120-day period, which was retained from the Senate committees’ draft, is to provide sufficient time to carry out workload studies justifying the establishment or continued existence o f ap peals boards. That 120-day provision appears to have been carefully chosen to coincide with the 120 days provided in § 16 establishing the ef fective date o f the Act.

In sum, it is plain that the effective date o f the Contract Disputes Act o f 1978 is March 1, 1979. This general conclusion permits us to answer the specific questions you have subsequently posed regarding (1) appointm ent o f members o f agency boards (§ 8(b)(1)), (2) use o f subpoena power (§ 11), and (3) applicability o f the Act to cases filed before and after March 1, 1979.

Section 8(b)(1) provides: “ Full-time members o f agency boards serving as such on the effective date o f this Act shall be considered qualified [to be appointed to agency boards.]” Thus, any person who was a full-time agency board member on March 1, 1979 is qualified for appointm ent to boards established under the Act.

A lthough the effective date o f the Act is March 1, 1979, that date does not automatically determ ine the legality o f the exercise o f authorities under the Act for two reasons. First, the effective date o f the Act is keyed to the date o f the contract: the section establishing the effective date provides that the Act “ shall apply to contracts entered into one hundred twenty days after the date o f enactm ent” (emphasis added). This language is distinct from typical effective-date language such as, “ this Act shall take effect 120 days from enactm ent.” Second, a contractor may elect to pro ceed under the Act on a claim arising out o f a contract entered into before the effective date o f the Act if the claim was pending before a contracting officer on or after the effective d ate.2 We thus can foresee four perm uta tions regarding the effective date and the applicability o f the Act.

(A) Contract date, pendency o f claim before contracting officer and fil ing o f case before appeal board all before March 1, 1979. The Act does not apply because the contract was entered into prior to the effective date; the contractor may not elect to proceed under the Act because the claim was *3 not pending before the contracting officer on or after the effective date.

(B) Contract date and pendency o f claim before contracting officer before March 1, 1979; case filed with appeal board on March 1, 1979. Same answer as (A).

(C) Contract date before March 1, 1979; pendency o f claim before con tracting officer on or after March 1, 1979 and case filed with appeal board after March 1, 1979. The Act does not apply unless the contractor elects to proceed under it.

(D) Contract date after March 1, 1979. The Act applies.

Thus, the Act would not apply to any case filed with an appeal board before or on M arch 1, 1979, and would also not apply to some cases filed with an appeal board after March 1, 1979. Accordingly, the powers established under § 11 o f the Act could not be exercised by an appeal board prior to M arch 1, 1979. They may be exercised after March 1, 1979 (1) in cases based on contracts entered into after March 1, 1979, or (2) in cases pending before a contracting officer on or after March 1, 1979, where the contractor so elects. The contractor may not elect the Act if his claim was before an appeal board before or on the effective d ate.3 L a r r y A . H a m m o n d

D eputy Assistant A ttorney General Office o f Legal Counsel 1 See; § 16, quoted supra. ’ Cf. S. R ept., at 35: “ It is not intended that upon the effective date o f this act, a claim currently before an agency board can be switched to a court under this act’s provisions.”