When it Comes to the 90-Day Window to Appeal a Final Decision, Don't Play With Fire or You Might Get Burned
August 30, 2018
The Contract Disputes Act provides 90 days to appeal a Contracting Officer decision to the appropriate authority. While that might seem like a long window, it is one that must be given the utmost attention because missing it robs the Board of its jurisdiction over the matter. The decision in Aerospace Facilities Group, Inc., ASBCA No. 61026 (“Aerospace Facilities”) provides a good reminder of just how important this deadline is--and how contractors must always keep in mind that, regardless of settlement discussions or negotiations after termination or a final decision, an appeal must be formally filed to ensure appeal rights remain intact.
The contractor in Aerospace Facilities engaged in performance on the subject contract over the course of approximately four years spanning from September 2012 to July 2016. On August 4, 2016, the Contracting Officer (CO) issued a modification terminating the contract for cause and indicating that it constituted the CO’s final decision and including a statement of the appeal rights under FAR 33.211. The modification was also sent to the Contractor by certified mail showing it was “left with individual,” but no one signed for it.
Over the next several weeks, the Contractor and the government engaged in back and forth communications regarding the termination and potential options. On August 25, a government representative emailed the contractor indicating he was “optimistic” the parties could “work together to develop a solution that benefits all parties and best supports the war fighter.” Following that email, the parties held multiple telephone conferences to discuss options, but ultimately the parties were unable to reach a mutually agreeable resolution. In September, the CO issued a final decision demanding the contractor pay back almost $8 million in unliquidated government installment payments. After the parties were unable to reach an agreement, the contractor submitted an appeal on November 8 to the ASBCA pertaining solely to the August 4 termination for cause decision. This was 91 days after that final decision was issued.
The Board, sua sponte, raised the issue of jurisdiction and the government argued the appeal was untimely. The ASBCA confirmed the email receipt of the August 4 modification/termination decision was sufficient as the question of contractor receipt was all that mattered. The ASBCA also considered all the emails and telephone conferences that occurred after the termination decision was issued and ultimately found that none of the Contractor’s communications were sufficient to provide the requisite intent for giving notice of an appeal. Nevertheless, the ASBCA ultimately held the otherwise late-filed appeal was timely because of the “Army's willingness to engage [the contractor], discuss the facts surrounding the termination on three separate occasions and discuss whether [the contractor] would deliver the...equipment [kept] the matter open and destroyed the finality of the termination notice.” See Guardian Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d 1244, 1249-50 (Fed. Cir. 2016).
While the ASBCA found the 91-day appeal was timely based upon the government’s actions, this is not a fight you want to have when it is your appeal on the line. The 90-day rule is a bright-line test and should be met no matter how well settlement or negotiations with the government are going after a termination/final decision is issued. If a final decision is issued, whether by email, certified mail, or some other method, the question is all about receipt. The 90-day clock starts the day the contractor receives it, no matter how sent. If it is sent by multiple methods, the contractor should start the 90-day clock on the day it first receives the decision. Don’t get burned by playing with the jurisdictional fire of the ASBCA.
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