Afghan Active Group (AAG) ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Afghan Active Group (AAG) ) ASBCA No. 60387)
Under Contract No. W91B4N-10-C-8033 )
APPEARANCE FOR THE APPELLANT: Mr. M. Masoud
Chairman
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
Erica S. Beardsley, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE PROUTY ON
THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The government has moved to dismiss this appeal on the ground that the Board
lacks jurisdiction to consider it since it was filed more than 90 days after appellant
Afghan Active Group (AAG) 1 received the contracting officer's final decision. AAG
responded to the government's motion with a short email stating that it had already
submitted all documents related to the contract and requesting the Board's guidance in
the event that it did not possess jurisdiction over the appeal. Because we find that AAG
made a timely notice of appeal to the contracting officer (CO), we deny the
government's motion.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION2
On 2 December 2009, the government awarded the above-captioned contract (the
contract) to AAG to construct an asphalt parking pad (R4, tab 1). Beyond a preliminary
email discussion of conducting a site visit immediately thereafter (R4, tabs 3, 4 ), and an
email discussion regarding a Defense Base Act (DBA) insurance policy in March 20 I 0
(R4, tabs 5, 6), the record does not indicate that any performance was ever undertaken on
the contract.
1
The parenthetical (AAG) is both part of the full name of the contractor on the award
document (R4, tab I), and is also how we will refer to the contractor in this decision.
2
AAG has not disputed any of the proposed facts included in the government's motion.
On 19 June 2015, a government contracting specialist, Barbara Sennet, sent
AAG an email explaining that she was closing out contracts for the government and
asking whether there were "any issues, claims or disputes" regarding the contract (R4,
tab 7 at 1-2). On 20 June 2015, AAG responded to Ms. Sennet, stating that it was
entitled to 30% of the contract total because it had made a site visit, obtained the DBA
insurance, and bought some materials and machinery for the project (R4, tab 7 at l).
Ms. Sennet responded on 22 June 2015, seeking records of the DBA insurance (R4,
tab 8 at 4 ). The parties engaged in a further email colloquy in which it became clear
that Ms. Sennet considered the government to be, at most, obligated only to provide a
refund for the DBA insurance, while AAG wished to receive further compensation for
its equipment costs (id. at 2-4). Ultimately, Ms. Sennet explained that she could do no
more for AAG, but that it could file a claim for the equipment costs at a specified
email address (id. at 2).
On 7 July 2015, AAG sent an email with the subject line, "Claims ON
CONTRACT# W91B4N-10-C-8033" to the contract closeout email address that
Ms. Sennet had provided for filing claims (R4, tab 8 at 1). Although English was clearly
not the first language of the author of this email, its short text appears to seek
compensation for the expenses it incurred on the contract (id.). The email also included
an attachment, which appears to be an invoice for $35,559 (id. at 6).
The government treated the 7 July 2015 email as a claim for $35,559, and issued a
contracting officer's final decision (COFD) on 8 July 2015 denying it (R4, tab 9). The
two-page COFD included the following penultimate paragraph:
This is the final decision of the Contracting Officer. You
may appeal this decision to the Armed Services Board of
Contract Appeals (ASBCA). If you decide to appeal, you
must, within 90 days from the date you receive this
decision, mail or otherwise furnish written notice to the
ASBCA and provide a copy to the Contracting Officer
from whose decision this appeal is taken. This notice shall
indicate that an appeal is intended, reference this decision
and identify the contract by number.
(R4, tab 9 at 2) The COFD did not notify AAG of its appeal rights to the United States
Court of Federal Claims, although it did provide contact information for the CO,
Thomas A. Petkunas (R4, tab 9). Ms. Sennet emailed the COFD to AAG on 9 July 2015
(R4, tab 10 at 1).
AAG was not pleased with the COFD, and, on 12 July 2015, sent an email to
the government (including the CO identified in the COFD) that we replicate below:
2
Good evening everyone
Dear Sir, we received contract officer final decision letter,
but its NOT acceptable for our company. Contracting
officer has stated within the letter that equipment
purchased before Notice to proceed letter.
1- we done several contracts without NTP
2- the contract duration was only 45 days it mean
that contractor not able to purchase the needed equipment
for the contract during the small time.
3- When a contract award for our company we
became legal responsible for the contract and should get
full redress for contract successfully completion and not
wait for NTP
4- If all thing is related to NTP what is the meaning
of contract award (contract winner)
Also respectable contracting officer mentioned
within his letter that respected ALINV HENSON sent
to our company an email on December 12, ... and
December 14, 2009 for site visit but our company didn't
response back to her, I think its not correct because we
done site visit on the contract with technical team and we
forwarded that email to you, please kindly forward us the
email which remained without response
Note: we ask USG officials earnest cooperation
regarding this problem and hope their support
Thank you, await for your soon response
(R4, tab 11 at 1) (Punctuation, syntax, and spelling in original)
Having apparently received no response, AAG sent the following email to the
same government recipients on 20 July 2015:
Good morning everyone
Dear respectable sir please kindly put us in progress
if you need document for appeal process, thank you and
hope your legal cooperation regarding our money
(R4, tab 11 at 1) (Punctuation and syntax in original)
3
The record indicates no reply from the government to this email. On 31 August
2015, AAG sent an email to the same group of government individuals seeking an
"update" (R4, tab 11 at 1). Again, the record is devoid of a government response.
On 15 November 2015, AAG sent another email to the government, stating,
"Dear sir, we are waiting for your response, thank you" (R4, tab 12 at 1). At this
point, on 19 November 2015, after an internal discussion in which the contracting
specialist characterized AAG's communications as "contesting [the CO's] final
decision" (see R4, tab 12 at 2), the government sent an email to AAG stating that, "[i]f
you want to appeal the Contracting Officer's Final Decision you will have to send it to
the following address" after which the government provided the mailing and email
addresses of this Board (R4, tab 12 at 1). There is no evidence in the record that the
government had previously provided the Board's contact information to AAG.
On 25 December 2015, AAG filed its appeal to the Board by email, stating
simply, "Dear respectable sir, we want to appeal the Contracting Officer's Final
Decision which related to the subject contract, therefore we need for your guide, thank
you" (R4, tab 13 at 1) (syntax in original).
DECISION
We are squarely presented with the question of whether AAG presented its
appeal of the COFD in a timely fashion. Because we have previously held that a
contractor's notification to the CO of intent to appeal suffices to act as notice to the
Board, and AAG's communications with the CO in July 2015 can be fairly read as
expressing the intent to appeal, we hold that AAG's appeal was timely and deny the
government's motion to dismiss.
The timeliness of appealing a COFD is a matter of the Board's jurisdiction. See
41 U.S.C. § 7104 (2011) (formerly 41 U.S.C. § 606); Cosmic Constr. Co. v. United
States, 697 F.2d 1389, 1390 (Fed. Cir. 1982) (requirement that appeal be made within
90 days is jurisdictional). And, by statute, any challenge to a COFD must be appealed
to the Board within 90 days of that decision being received by the contractor.
41 U.S.C. § 7104; Cosmic Constr., 697 F.2d at 1390; Decker & Co. v. West, 76 F.3d
1573, 1578 (Fed. Cir. 1996) (citing Cosmic Constr., 697 F.2d at 1390).
Importantly here, we have long held in cases involving misdirected appeals that
providing a notice of appeal to the CO "is tantamount to filing with the Board." See
Ft. McCoy Shipping & Services, ASBCA No. 58673, 13 BCA ~ 35,429 at 173, 795
(citing multiple cases); see also Bahram Malikzada Constr. Co., ASBCA Nos. 59613,
59614, 15-1 BCA ~ 36, 134 at 176,371. And we have "historically liberally read
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contractors' communications in finding effective appeal notices and [have] repeatedly
held a notice of appeal requires only a writing filed within the requisite time period
that expresses dissatisfaction with the contracting officer's decision and indicates an
intention to appeal the decision to a higher authority." Ft. McCoy, 13 BCA ii 35,429 at
173, 794 (citations omitted). Such standards are easily met by AAG here.
The 12 July 2015 email was sent within three days of AAG's receipt of the
decision, 3 handily meeting the timeliness requirement. Moreover, the email plainly
"expresses dissatisfaction" with the COFD. Ft. McCoy, 13 BCA ii 35,429 at 173,794.
The only arguable ambiguity is whether this 12 July email expresses an intention to
appeal to a higher authority. See id. We find, however, that the letter's concluding
sentence - "Note: we ask USG officials earnest cooperation regarding this problem
and hope their support" - evinces such an intention. Moreover, the subsequent email
from AAG, sent only eight days later, disposes of any remaining question of AAG's
intent to appeal by requesting that the government, "please kindly put us in progress if
you need document for appeal process, thank you and hope your legal cooperation
regarding our money." We interpret this to be AAG's somewhat awkward, but
nonetheless clear, request that, if a document were needed to officially commence an
appeal, that email be considered to be such a document.
Not surprisingly, the government's contracting officials clearly recognized what
AAG was requesting when they directed it to file an appeal with the Board in the
19 November 2015 email. The government's current argument, that the 20 July 2015
email should be read as a request for documents that would be necessary for advancing
an appeal (a request to which the government did not reply) (see gov't br. at 5), is a
cramped way of reading that communication that we do not share.
The government's other argument against considering AAG's July 2015
communications to constitute the initiation of an appeal is based upon the fact that AAG
did not make a forum selection in the emails (see gov't br. at 5). This argument is flawed
because, under our precedent, AAG did make a forum selection, seeking appeal at the
Board. To be sure, there is Board precedent holding that a notice of appeal sent to the
CO needs to select a forum if it is to be effective. See, e.g., Bahram Ma/ikzada, 15-1
BCA ii 36, 134 at 17 6,3 71; Stewart-Thomas Industries, Inc., ASBCA No. 3 8773, 90-1
BCA ii 22,481at112,835-36; McNamara-Lunz Vans & Warehouses, Inc., ASBCA
No. 38057, 89-2 BCA ii 21,636 at 108,856. But we have held that the use of the word,
"appeal" in the notice to the CO, rather than the phrase "bring an action," which applies
to cases brought in the Court of Federal Claims, indicates an election to bring an appeal
3 The record does not indicate when AAG received the emailed 9 July 2015 COFD,
but it makes no difference to our analysis whether AAG received it on 9 July
2015 or on 12 July 2015, when it first responded to it.
5
before the Board. See McNamara-Lunz, 89-2 BCA ii 21,636 at 108,856; see also Axxon
Int'/, LLC, ASBCA Nos. 59497, 59498, 15-1BCAii35,864 at 175,342 (considering,
without comment, an "appeal" provided to the CO to constitute notice of appeal to the
Board). AAG's 20 July 2015 email used the term, "appeal" to characterize its intention,
thus we deem it to constitute an election to bring its appeal to the Board.
Our conclusion that AAG intended to elect proceeding before the Board is
further buttressed by the fact that the government did not include the full scope of
AAG's appeal rights in the COFD. The COFD is required by the Federal Acquisition
Regulation (FAR) to inform the contractor of its full appeal rights, including the
alternate fora of the Board and the United States Court of Federal Claims (CoFC). See
FAR 33.21 l(a)(3)(v). But the COFD issued here only provided notice of AAG's
rights to appeal to the Board, leaving the CoFC out completely. In these factual
circumstances, it would be unreasonable and unfair to conclude that AAG selected any
forum other than the single one of which it was informed by the government.
Accordingly, we hold that AAG presented its appeal to the Board in a timely
manner, and thus we possess jurisdiction to consider this appeal. The government's
motion to dismiss is DENIED.
Dated: 14 April 2016
J. REIJ315ROUTY
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~~-
MARK N. STEMPLER RICHARD SHACKLEFORD
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. 603 87, Appeal of Afghan
Active Group (AAG), rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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