Government Contracting Database
The contractor has the burden of proof and therefore will be required to present its case first. It is incumbent upon the contractor to present witnesses and evidence which support the claim. Each witness and exhibit should have a particular purpose and should support the basic theory of the case. It is particularly important to remember that the judge is not as familiar with the facts as the parties, and the facts should be presented in a manner which is both understandable and persuasive.
Each side will have the opportunity to cross-examine the other side’s witnesses and a transcript will be kept by a court reporter. The judge may have questions of the witnesses in addition to those asked by the attorneys, and each side should be prepared to address any questions raised by the judge.
Cases which go to trial are usually “bifurcated,” meaning that they are divided into two parts – entitlement and quantum. Entitlement deals with whether or not there is merit in your position, and quantum concerns the amount to which you may ultimately be entitled. Since judges do not like to waste time hearing testimony about how much money you lost, unless it has already been determined that you are entitled to compensation, the Boards and Courts will usually bifurcate the case and try entitlement only. This means that the trail will focus on the issue of whether and why you are entitled to compensation and the decision will deal with that subject only. If you win an entitlement decision, the matter is remanded to the Contracting Officer for negotiation and payment. If, however, the parties cannot agree on quantum, the matter will then return to the judge for a decision on the quantum question. Usually, a favorable decision on entitlement will assure you of a satisfactory resolution of quantum as well.
Updated: August 9, 2018