In HOF Construction v. General Services Administration, CBCA 6306, the Civilian Board of Contract Appeals dismissed a contractor’s claim as untimely because it was not filed within 90 days after the Contracting Officer’s final decision. The contractor argued that it did not file within 90 days because the Contracting Officer’s decision did not adequately apprise it of its right to do so. The Board ruled against the contractor, and in doing so, overturned prior case law.
Here, the Contracting Officer’s final decision provided the following right to appeal language:
Therefore, you are hereby notified that the above referenced contract is being terminated for default under the clause titled “FAR 52.249-10 Default (Fixed Price Construction)[.”] The termination is effective immediately upon receipt of this notice. The Government reserves all rights and remedies provided by law and under the contract. This notice constitutes the final decision of the Contracting Officer. You may have the right to appeal under the Disputes clause. You may invoice for all work completed to date; the invoice is subject to review and approval by GSA. Your invoice must be received no later than December 21, 2017. In addition, GSA will be assessing liquidated damages from November 2, 2017, until the work is complete.
The above appeal language was clearly defective because it violates FAR 33.211. For example, the CO’s final decision wrongly states that the contractor “may have the right to appeal” instead of “you may appeal this decision.” The CO’s decision also fails to state that if you decide to appeal, you must do so within 90 days to the Board of Contract Appeals, or 1 year to the Court of Federal Claims.
Despite these deficiencies, the Civilian Board of Contract Appeals decided that they were harmless. In other words, the contractor should have known that it had only 90 days to appeal to the Board even though the final decision did not expressly say so. In the Board’s view, it was enough to state that this is a final decision and to refer generally to the disputes clause, which the contractor could go search for.
In so holding, the Board overturned prior case precedent, specifically Ledford, 02-1 BCA at 156,442, where the predecessor Department of Veterans Affairs Board of Contract Appeals found that a final decision was fatally defective because it did not identify the Board as the place to file an appeal.
So, be careful to appeal a final decision of the Contracting Officer. Always calendar the date to appeal a final decision either to the Board (within 90 days) or the Court of Federal Claims (within 1 year). If you are not sure a decision constitutes a formal Contracting Officer’s final decision, ask for immediate clarification.
This is for educational purposes only and does not constitute legal advice. Using this blog does not create an attorney-client relationship between you and the author or Manfredonia Law Offices, LLC. The information provided on this blog is not guaranteed to be complete, correct or up-to-date.
