BOARDS DO NOT HAVE JURISDICTION OVER PUBLIC LAW 85-804 CLAIMS FOR EXTRAORDINARY RELIEF

Part 50 of the Federal Acquisition Regulation (“FAR”), Extraordinary Contractual Actions [and the Safety Act] prescribes policies and procedures for “entering into, amending or modifying contracts in order to facilitate the national defense under the extraordinary emergency authority granted by Public Law 85-804 (30 USC 1431-34)” as does its implementing Executive Order 10789, Nov. 14, 1958 (authorizing certain agency heads to exercise the authority of Pub. L. 85-804). The Department of Defense, one of the agencies which is authorized to exercise this authority, has established contract adjustment boards in the individual military services. See Defense FAR Supplement (“DFARS”) 250.102-2. 

The types of contract adjustments that are permitted under Pub. L. 85-804 are:

(1)   Amendments without consideration (not normally permitted under the FAR), where an actual or threatened loss under a defense contract will impair the productive ability of a contractor whose continued performance or as a source of supply is essential to the national defense.

(2)    Correcting mistakes to mitigate the effects of a mistake

(3)   Formalizing informal commitments, under certain circumstances (such as where informal

 commitments may be formalized to permit payments to persons who have taken action without a formal contract.)

FAR 50.103-2

It should also be noted that FAR 33.205, “Relationships of the Disputes Act [Contract Disputes Act or CDA”] statute to Pub. L. 85-804, specifically states that “[r]equests for relief under Pub. L. 85-804 are not claims within the disputes statute or the Disputes clause at [FAR] 52.233-1, Disputes.”

In Tanik Construc. Co., Inc., ASBCA no. 64203, May 26, 2026, the Armed Services Board considered a $4.4 million appeal for extraordinary contractual relief under Pub L. 85-804 after the Corps of Engineers failed to respond to Tanik’s claim for destruction of its business and intentional inflection of emotional distress.  The Corps moved to dismiss the appeal arguing that contractual relief under FAR Part 50 and Pub. L. No. 85-804 is not subject to appeal, and the Board could not provide a remedy.  The Board agreed that it had no jurisdiction to consider the appeal and dismissed it.

The Board concluded that without the submission of a valid CDA claim, it did not possess jurisdiction to consider Tanik’s appeal.  Furthermore, the Armed Services Board could not review requests for relief pursuant to Pub. L. 85-804, and that with respect to such requests “the agency [has] unfettered discretion in considering requests for relief.”  See Murdoch Mach. & Eng’g Co of Utah v. United States, 873 F. 2^nd 1410 (Fed. Cir. 1989.  As a result, the Board was without jurisdiction in this matter.

Takeaway.  If you have a denied (or partially denied) claim under the Contract Disputes Act, you may appeal it to the appropriate Board of Contract Appeal or to the Court of Federal Claims.  However, the Boards of Contract Appeals do not have jurisdiction to consider appeals of a request (claim) for Extraordinary relief under Pub. L. 85-804.