ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                    )
                                               )
Godwin Corporation                             )      ASBCA No. 61410
                                               )
Under Contract No. F A301 O-l 5-C-0024         )

APPEARANCE FOR THE APPELLANT:                         A. Jeff Ifrah, Esq.
                                                       Ifrah Law
                                                       Washington, DC

APPEARANCES FOR THE GOVERNMENT:                       Jeffrey P. Hildebrant, Esq.
                                                       Air Force Deputy Chief Trial Attorney
                                                      Christopher S. Cole, Esq.
                                                      Col C. Taylor Smith, USAF
                                                       Trial Attorneys

          OPINION BY ADMINISTRATIVE JUDGE MELNICK
 ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

       The government moves to dismiss this appeal for lack of jurisdiction, asserting
that appellant failed to file its appeal within 90 days of receipt of a notice of partial
termination of its contract. We grant the government's motion.

           STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

       1. The Department of the Air Force (government) awarded this contract to
Godwin Corporation (appellant) on 24 September 2015, to supply a mental health
technician, a clinical child psychologist, and a child psychiatrist to perform services at
Keesler Medical Center, Keesler Air Force Base, Mississippi (R4, tab 1).

        2. The contract incorporated by reference FAR 52.212-4, CONTRACT TERMS
AND CONDITIONS - COMMERCIAL ITEMS (MAY 2015), which stated in relevant part
that "[f]ailure of the parties to this contract to reach agreement on any request for
equitable adjustment, claim, appeal or action arising under or relating to this contract
shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1,
Disputes" (R4, tab 1 at 22). FAR 52.233-l(t), DISPUTES (MAY 2014), stated that
"[t]he Contracting Officer's decision shall be final unless the Contractor appeals or
files a suit as provided in 41 U.S.C. chapter 71."

       3. By letter dated 19 September 2016, the contracting officer (CO) issued a
contracting officer's final decision (COFD) to appellant partially terminating the
contract for cause due to appellant's failure to fill the child psychiatrist position. The
final decision stated that appellant had the right to appeal under the contract's disputes
clause. (Compl. 142; R4, tab 29) Appellant does not deny that it received the
decision by 22 September 2016 (app. opp'n at 9).

       4. The government issued Modification No. P00003 (the modification) on
22 September 20'16. The modification terminated the contract line item numbers
relating to the child psychiatrist position and referenced the COFD. (R4, tab 4) The
government sent a copy of the modification to appellant via email on 22 September
2016 (R4, tab 30 at 1).

        5. In a series of emails dated between 13 February 2017 and 7 March 2017,
counsel for appellant contacted the government in an attempt to obtain relief from the
partial termination for default (R4, tab 47). Appellant alleges that during a 9 March
2017 teleconference, the CO represented that he would review any additional evidence
submitted by counsel for appellant (compl. 1 4 7). On 20 and 21 March 2017, counsel
for appellant submitted additional evidence to the CO (R4, tabs 48-54).

       6. On 8 November 2017, the contract assessing official finalized his evaluation
of appellant using the Contractor Performance Assessment Reporting System
(CPARS).* He gave appellant marginal ratings for quality, schedule, and cost control,
and a satisfactory rating for regulatory compliance. (R4, tab 79 at 4-6)

       7. On 8 November 2017, the contract reviewing official concurred with the
assessing official's evaluation (R4, tab 79 at 6-7).

        8. On 16 November 2017, appellant filed a notice of appeal with this Board,
appealing ''the decision ofthe contracting officer dated November 8, 2017 ... denying
its claim for a conversion to a termination for convenience" (R4, tab 79 at 2).

                                       DECISION

       Although appellant's notice of appeal states that it is appealing the denial of its
claim for a conversion to a termination for convenience, this appeal actually concerns
the government's decision to partially terminate the contract for cause.

       In moving to dismiss for lack of jurisdiction, the government argues that
appellant's 16 November 2017 appeal was not timely because appellant failed to file it
within 90 days of the 19 September 2016 COFD, which partially terminated the
contract for cause (gov't mot. at 1). The Contracts Disputes Act provides that "[a]

* CPARS is an agency's internal characterization of a contractor's performance. It
does not affect a contractor's rights with respect to the type of termination it receives.

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contractor, within 90 days from the date of receipt of a contracting officer's decision
under section 7103 of this title, may appeal the decision to an agency board."
41 U.S.C. § 7104(a). This 90-day appeal period is statutory, strictly construed and
cannot be waived. Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390-91
(Fed. Cir. 1982). Using 22 September 2016 as the receipt date, appellant had until
21 December 2016 to file a timely appeal.

      Appellant argues that the partial termination decision was vitiated of finality
when the CO agreed to accept appellant's additional evidence and reconsider the
termination decision. Appellant contends that the 90-day clock started to run when the
government published the CPARS on 8 November 2017. (App. br. at 10-11)

        "The power to reconsider is inherent in the power to decide. For this reason,
the courts have uniformly concluded that administrative agencies possess inherent
authority to reconsider their decisions, subject to certain limitations, regardless of
whether they possess explicit statutory authority to do so." Tokyo Kikai Seisakusho,
Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008) (citation and quote
omitted).

       This Board has repeatedly found the test for vitiation of finality "is whether the
contractor presented evidence showing it reasonably or objectively could have
concluded the CO's decision was being reconsidered." Sach Sinha and Associates,
Inc., ASBCA No. 46916, 95-1 BCA ,r 27,499 at 137,042. In Shafi Nasimi
Construction and Logistics Company, ASBCA No. 59916, 16-1 BCA ,r 36,215 at
176,697, we noted that "[t]he focus is upon the action of the government during the
appeal period, i.e., whether any government action could have reasonably led a
contractor to believe that the subject matter was not yet final, thereby making an
appeal to the board unnecessary." There we found no vitiation of finality where there
was no such evidence of government conduct during the 90-day appeal period, but
where months later the CO sent a number of emails reflecting his willingness to
consider a settlement. Id.

        Similarly, in the present appeal, there is no evidence of any government action
during the 90-day appeal period to this Board that could have reasonably led appellant
to believe that the subject matter was not yet final. Appellant argues that the CO's
9 March 2017 alleged agreement to review additional evidence vitiated the finality of
the decision. However, because the 90-day appeal window to this Board had already
expired at the time that the CO allegedly made this representation, it could not have
had any effect on appellant's understanding of finality during the appeal period.

       Appellant asserts that because the CO's agreement to review additional
evidence occurred within the 12-month period in which appellant could bring an action
in the United States Court of Federal Claims pursuant to 41 U.S.C. § 7104(b)(3), it


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served to vitiate the decision until the CPARS was published on 8 November 2017.
Appellant relies primarily on the ruling in Guardian Angels Med. Serv. Dogs, Inc. v.
United States, 809 F.3d 1244 (Fed. Cir. 2016).

       In Guardian Angels, the court found vitiation where within 12 months of
issuing a default termination notice, the CO agreed to review additional documentation
in response to a request for conversion to a termination for convenience. However, the
court's decision in Guardian Angels was based on the 12-month period in which
appellant could bring an action in federal court. It does not apply to the 90-day appeal
period to this Board.
                                     CONCLUSION

       Based on the foregoing, appellant's appeal was not timely filed; thus the Board
does not have jurisdiction over the appeal. Accordingly, the government's motion is
granted, and the appeal is dismissed for lack of jurisdiction.

      Dated: June 12, 2018


                                               2-(_~
                                                  MARK A. MELNICK
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

                                                  I concur
!cone~



RICHARD SHACKLEFORD                               J. REIDPROUTY
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




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      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 61410, Appeal of Godwin
Corporation, rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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