Contractor’s Timely Notice to the CO of an ‘Intent to Appeal’ is Good Enough for the ASBCA
A recent decision from the Armed Services Board of Contract Appeals (ASBCA) serves as an important reminder that a contractor’s timely notification to the contracting officer (CO) of its intent to appeal a CO’s final decision will satisfy the Board’s 90-day deadline for filing appeals under the Contract Disputes Act (CDA). Although the facts of Afghan Active Group (AAG), ASBCA No. 6037, 2016 WL 1715461 (Apr. 14, 2016) are somewhat unusual, the decision illustrates the Board’s willingness to elevate substance over form when it comes to enforcing its jurisdictional timeliness requirements.
Under the CDA, a contractor may challenge a CO’s final decision on a claim by filing a “notice of appeal” at the ASBCA within 90 days of receiving of the decision. See 41 U.S.C. § 7104 (2011). As a general matter, the Board lacks jurisdiction over an appeal if it is filed after the 90-day deadline has expired. See Cosmic Constr. Co. v. United States, 697 F.2d 1389,1390 (Fed. Cir. 1982). But in Afghan Active Group (AAG), the Board reminds us that these rules are subject to some important exceptions ─ namely, that the 90-day deadline for ASBCA appeals is satisfied if a contractor timely notifies the CO of its intent to appeal a final decision, even if the contractor does not file a formal “notice appeal” at the Board.
AAG was awarded a government contract to construct an asphalt parking pad in 2009. But beyond conducting a site visit and obtaining a Defense Base Act (DBA) insurance policy, AAG did not perform any work under the contract. In 2015, a contracting specialist who was closing out the contract for the government contacted AAG and asked if it wanted to raise “any issues, claims or disputes.” AAG responded by email and asserted it was entitled to 30% of the total contract value because it had made a site visit, secured DBA insurance, and purchased materials and machinery for the project. After several more email exchanges, the contracting specialist advised AAG that it could file a claim at a specified email address.
Shortly thereafter, AAG sent an email with the subject line, “Claims ON CONTRACT # W91B4N-10-C-8033,” to the email provided by the contracting specialist. Although AAG’s email was not entirely clear, it sought compensation for expenses incurred on the contract in the amount of $35,559. The government treated AAG’s email as a “claim” under the CDA and eventually denied it in a CO’s final decision. Among other things, the CO’s final decision advised AAG of its right to file an appeal at the ASBCA within 90 days. The decision did not indicate that AAG also had the option to pursue an action at the U.S. Court of Federal Claims (COFC).
A few days later, AAG sent the CO an email expressing its disagreement with the final decision. AAG sent several follow-up emails inquiring about the status of its claim, all of which went unanswered. Then, after several months, the government informed AAG that, if wanted to appeal the CO’s final decision, it should send its appeal to the ASBCA. The government also provided AAG the mailing and email addresses of the Board for the first time. Several weeks later, AAG sent an email to the ASBCA expressing its desire to “appeal the Contracting Officer’s Final Decision which related to the subject contract.”
The government moved to dismiss AAG’s appeal on the basis that it was filed after the 90-day filing deadline had expired.
The Board’s Decision Denying The Government’s Motion to Dismiss
In a 7-page decision, Administrative Judge J. Reid Prouty denied the government’s motion to dismiss for two reasons.
First, relying on Board precedent that says “providing a notice of appeal to the CO ‘is tantamount to filing with the Board,’” the ASBCA found that AAG’s email communications to the CO, while “somewhat awkward,” expressed “dissatisfaction” with the final decision and clearly indicated a desire to “officially commence an appeal.” See Afghan Active Group (AAG), 2016 WL 1715461 at *5. In doing so, the Board noted that it has “historically liberally read contractors’ communications in finding effective appeals notices . . .,” id. at 4-5, and found that the government was not prejudiced because it “clearly recognized what AAG was requesting,” id. at 5.
Second, the ASBCA rejected the government’s argument that AAG’s notice of appeal was defective because it did not specify whether it intended to appeal to the ASBCA or COFC, as is required under the CDA. The Board found AAG had, in fact, selected the ASBCA because one of its emails used the word “appeal,” which indicated its intent to appeal to the Board, rather than the phrase “bring an action,” which applies to cases brought at COFC. See id. at 5-6. The Board noted this conclusion also was supported by the fact that the government had not advised AAG of its right to pursue an appeal at COFC. See id. at 6.
The Board’s decision in Afghan Active Group (AAG) is a reminder of a few simple, but important points that should be considered when contemplating a CDA appeal to the ASBCA:
To avoid jurisdictional-timeliness disputes at the Board, the best practice is to: (1) file a formal notice of appeal at the ASBCA within 90-days of receiving a CO’s final decision, and (2) after filing an appeal at the Board, promptly provide a copy of the notice to the CO.
Even if a contractor is unsure about appealing a CO’s final decision to the Board within 90 days, it still has substantially more time to pursue an action at COFC (i.e., 12 months from receipt of the CO’s final decision). In other words, all may not be lost if a contractor cannot decide whether to appeal a CO’s decision within the Board’s 90-day timeframe.
Upon receiving a CO’s final decision, contractors who are still mulling an appeal to the ASBCA may consider making a timely written submission to the CO that “expresses dissatisfaction” with the decision and indicates “an intention to appeal the decision” to the ASBCA. Although there is no guarantee the Board will take jurisdiction based solely upon such a submission, it may help the contractor overcome a government motion to dismiss like the one filed in Afghan Active Group (AAG). (Note: contractors who are undecided about whether they want to appeal to the ASBCA or to COFC should be careful not to make what could be considered a binding forum election. If a contractor is unsure about whether to proceed at the Board or at COFC, it is best to consult with counsel and make an informed and timely appeal to the forum of its choice).
If a contractor wants to file what would otherwise be an untimely notice of appeal at the ASCBA, it may consider referencing and/or attaching any prior written notice(s) made to the CO that expressed an intention to file an ASBCA appeal. Although this approach also is not guaranteed to succeed, it could help the contractor preempt a motion to dismiss for lack of jurisdiction by the government.