In Safe Haven Enterprises, LLC, CBCA 3871, 3912 (September 29, 2015), the Civilian Board of Contract Appeals ruled that a contractor’s appeal under the Contract Disputes Act was timely even though filed after 90-days. The Board held that the 90-day appeal period restarted when the Contracting Officer offered to reconsider his final decision. The Board noted that the Federal Acquisition Regulations do not provide guidance on this issue and whether the 90-day period should restart is dependent on the facts unique to each case. The Board then employed a reasonable person standard:
Without FAR guidance, the determination of whether a contracting officer’s actions in response to a reconsideration request are sufficient to suspend an appeal deadline is “driven by facts unique to each case and is necessarily ad hoc.” Omni Abstract, 96-2 BCA at 141,643. To make that determination, the Board must look for some timely affirmative conduct by the contracting officer himself – either express or implied – that indicates to the contractor a willingness to revisit the previously issued “final decision“ and it is the [contracting officer’s] agreement to reconsider that triggers the extension.” Merritt Lumber Co., AGBCA 88-313-1, et al., 89-2 BCA ¶ 21,676, at 109,009.
“An objective test invokes the reasonable person standard, not whether authorized representatives of [the contractor], interested as they were, subjectively thought the decision was being reconsidered.” Omni Abstract, 96-2 BCA at 141,643.
Applying the above standard, the Board held that the 90-day period restarted when the Contracting Officer first made it clear that he was no longer going to reconsider his final decision. The Board held that on that date the Contracting Officer “constructively reinstated the previously issued final decision.” The appeal was timely since it was filed within 90-days from this date. This case provides a comprehensive discussion of the finality doctrine under the Contract Disputes Act. As a matter of practice, a contractor should always file an appeal within the CDA time limits and avoid disputes later over whether a final decision was retracted or under “reconsideration.”
