In the Appeal of Bushra Company, ASBCA No. 59918 (April 22, 2016) , the Armed Services Board of Contract Appeals (“ASBCA”) dismissed a Contract Disputes Act appeal because it was filed more than 90 days after receipt of the Government’s termination for default. The termination for default failed to include the appeal clause required by FAR 33.211(a)(3)(v). This clause would have clearly informed the contractor of its right to appeal at the ASBCA within 90 days or Court of Federal Claims within one year. This is what we would normally expect the Government to do. This likely caused the contractor not to appeal on time.
The contractor failed to prove harm, however. Specifically, the ASBCA held that “the contractor did not prove that termination for default’s failure to more precisely set forth the contractor’s appeal rights caused it actual prejudice.” In other words, the contractor did not alleged that it was misled by the Government’s failure to inform it of its right to appeal as required by the Federal Acquisition Regulations.
It is worth noting that the contractor represented itself pro se and likely lacked the sophistication to argue prejudice. The lesson learned is that whenever you get a written letter or determination by the Government, which refers to the disputes procedures in the Federal Acquisition Regulations, treat it as a final decision and appeal it in a timely fashion. When in doubt, you can always ask the Government to clarify that a determination is, in fact, an appealable final decision.
