Guardian Angels Medical Service Dogs, Inc. v. United States ( 2016 )


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  •   United States Court of Appeals
    for the Federal Circuit
    ______________________
    GUARDIAN ANGELS MEDICAL SERVICE DOGS,
    INC.,
    Plaintiff-Appellant
    v.
    UNITED STATES,
    Defendant-Appellee
    ______________________
    2015-5058
    ______________________
    Appeal from the United States Court of Federal
    Claims in No. 1:14-cv-00020-MCW, Judge Mary Ellen
    Coster Williams.
    ______________________
    Decided: January 8, 2016
    ______________________
    JOSEPH A. DAVIDOW, Willis & Davidow, LLC, Naples,
    FL, argued for appellant.
    ROBERT C. BIGLER, Commercial Litigation Branch,
    Civil Division, United States Department of Justice,
    Washington, DC, argued for appellee. Also represented by
    DEBORAH A. BYNUM, ROBERT E. KIRSCHMAN, JR.,
    BENJAMIN C. MIZER.
    ______________________
    Before REYNA, MAYER, and CHEN, Circuit Judges.
    2                         GUARDIAN ANGELS MED. SERV.   v. US
    MAYER, Circuit Judge.
    Guardian Angels Medical Service Dogs, Inc. (“Guardi-
    an Angels”) appeals a final judgment of the United States
    Court of Federal Claims dismissing its claim as time-
    barred. Guardian Angels Med. Serv. Dogs, Inc. v. United
    States, 
    118 Fed. Cl. 87
    , 88 (2014) (“Trial Court Decision”).
    We reverse and remand.
    I. BACKGROUND
    Guardian Angels entered into a firm fixed-price blan-
    ket purchase agreement, Contract No. VA248-BP-0218
    (“BPA 218”), with the Department of Veterans Affairs
    (“VA”) on June 26, 2011. Pursuant to this agreement,
    Guardian Angels agreed to furnish service dogs trained to
    meet the needs of disabled veterans and to provide health
    insurance for the dogs it supplied. On August 5, 2011, the
    parties executed a modification to BPA 218 which re-
    quired Guardian Angels to provide an increased number
    of service dogs.
    Approximately one year later, the contracting officer
    sent Guardian Angels an email stating that “some ques-
    tions ha[d] been raised” about its performance under the
    contract. On August 31, 2012, the contracting officer sent
    Guardian Angels a notice terminating BPA 218 for de-
    fault and suspending any open delivery orders issued
    under the contract. The default termination notice in-
    formed Guardian Angels that it had the right to appeal
    the termination under the disputes clause of the parties’
    contract. This disputes clause incorporated by reference
    Federal Acquisition Regulation (“FAR”) 52.233-1, a
    lengthy provision which states, among other things, that
    “[t]his contract is subject to 41 U.S.C. chapter 71,” and
    that a “Contracting Officer’s decision shall be final unless
    the Contractor appeals or files a suit as provided in 41
    U.S.C. chapter 71.” 48 C.F.R. § 52.233-1(a), (f).
    GUARDIAN ANGELS MED. SERV.   v. US                         3
    On December 21, 2012, Guardian Angels sent a letter
    to Dr. Sunil Sen-Gupta, an official at the VA’s Rehabilita-
    tion Research & Development Service. In this letter,
    Guardian Angels argued that it had fulfilled its duties
    under BPA 218 and that the default termination should
    be converted to a termination for the convenience of the
    government. On February 28, 2013, Guardian Angels
    sent a letter to the contracting officer, stating that it was
    making a “formal demand against the [VA]” and that it
    “materially disagree[d]” with the decision to terminate
    BPA 218 for default. Guardian Angels further asserted
    that because BPA 218 should have been terminated for
    convenience rather than cause, it was entitled to be paid
    “a percentage of the contract price reflecting the percent-
    age of work performed prior to the notice of termination,
    plus reasonable charges that have resulted and will
    continue to result from the termination.”
    On March 21, 2013, the contracting officer sent
    Guardian Angels a letter stating that she had received
    the claim that it had submitted on February 28, 2013, but
    that she could not “reasonably evaluate or respond to
    [that] claim due to the lack of supporting documentation
    provided with the claim.” The contracting officer directed
    Guardian Angels to “provide all expense documentation”
    supporting its claim at its “earliest convenience,” and
    explained that once the VA had received this documenta-
    tion it could “proceed with a review of the material and
    provide a response as required by the [FAR].”
    Guardian Angels then began compiling documenta-
    tion supporting its claim. On May 3, 2013, however, the
    contracting officer sent Guardian Angels another letter,
    stating that she had not yet received the documentation
    she had requested in her March 2013 letter and that she
    had not reconsidered, and would not reconsider, her
    August 2012 default termination decision. The contract-
    ing officer advised Guardian Angels that it had “the right
    4                         GUARDIAN ANGELS MED. SERV.   v. US
    to appeal [the default termination] decision at the U.S.
    Court of Federal Claims pursuant to 41 U.S.C. § 7104(b).”
    On January 7, 2014, Guardian Angels brought suit in
    the Court of Federal Claims. In its complaint, it alleged
    that it had fulfilled its contractual obligations under BPA
    218 and that the contract should have been terminated
    for convenience rather than cause. Guardian Angels
    sought damages of $1,046,474.30, asserting that it was
    entitled to be paid for work performed under the contract
    prior to the notice of termination and to be compensated
    for the “reasonable charges” resulting from that termina-
    tion.
    On August 29, 2014, the Court of Federal Claims
    dismissed Guardian Angels’ complaint for lack of jurisdic-
    tion. In the court’s view, Guardian Angels’ claim was
    time-barred because it “failed to file its complaint within
    12 months of receiving the Contracting Officer’s August
    31, 2012 decision to terminate the contract for default.”
    Trial Court 
    Decision, 118 Fed. Cl. at 90
    . In rejecting
    Guardian Angels’ argument that it was required to file a
    written claim with the contracting officer prior to filing
    suit, the court explained that a default termination is a
    government claim which is “immediately appealable.” 
    Id. at 91.
    The court found no merit in Guardian Angels’
    assertion that the formal dispute letter it sent to the
    contracting officer in February 2013 extended the statuto-
    ry appeal period, concluding that this contention was
    premised on a “fundamental misunderstanding of the
    nature of a termination for default under the procedural
    regime established by the Contract Disputes Act.” 
    Id. On September
    18, 2014, Guardian Angels filed a
    motion for reconsideration. It argued that the Court of
    Federal Claims erred in dismissing its complaint as
    untimely because it was not until it received the contract-
    ing officer’s May 3, 2013 letter that its “rights . . . were
    terminated, thereby triggering the twelve (12) month
    GUARDIAN ANGELS MED. SERV.   v. US                         5
    statute of limitations under [41 U.S.C. § 7104(b)(3)].”
    The trial court rejected this argument. See Guardian
    Angels Med. Serv. Dogs, Inc. v. United States, 
    120 Fed. Cl. 8
    , 9–10 (2015) (“Reconsideration Decision”). The court
    determined that Guardian Angels’ February 2013 formal
    dispute letter qualified as a request for reconsideration of
    the contracting officer’s August 2012 decision to terminate
    BPA 218 for default. 
    Id. at 10.
    It further acknowledged
    that, under certain circumstances, “a request for recon-
    sideration of a contracting officer’s final decision may toll
    the statute of limitations.” 
    Id. The court
    concluded,
    however, that because the contracting officer “spent no
    time reviewing” Guardian Angels’ request for reconsidera-
    tion, that request did not suspend the running of the
    twelve-month appeal period. 
    Id. According to
    the court,
    because the contracting officer “did not reconsider her
    decision, the statute of limitations was never tolled, and
    the appeal period expired 12 months after [Guardian
    Angels] received the Contracting Officer’s August 31,
    2012 decision to terminate for default.” 
    Id. Guardian Angels
    then appealed to this court. We
    have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
    While we review the legal conclusions of the Court of
    Federal Claims de novo, we review its factual findings for
    clear error. Sikorsky Aircraft Corp. v. United States, 
    773 F.3d 1315
    , 1322 (Fed. Cir. 2014); Raytheon Co. v. United
    States, 
    747 F.3d 1341
    , 1348 (Fed. Cir. 2014).
    II. DISCUSSION
    A. The Requirement of a Final Decision from the
    Contracting Officer
    Under the Contract Disputes Act (“CDA”), a contrac-
    tor has the option of appealing a contracting officer’s
    decision either to the appropriate board of contract ap-
    peals or the Court of Federal Claims. See 41 U.S.C.
    § 7104. Regardless of which forum a contractor elects,
    however, only final contracting officer decisions may be
    6                           GUARDIAN ANGELS MED. SERV.    v. US
    appealed. See M. Maropakis Carpentry, Inc. v. United
    States, 
    609 F.3d 1323
    , 1327 (Fed. Cir. 2010) (emphasizing
    that the Court of Federal Claims’ authority to adjudicate
    a CDA claim “requires both a valid claim and a contract-
    ing officer’s final decision on that claim”); James M. Ellett
    Constr. Co. v. United States, 
    93 F.3d 1537
    , 1541 (Fed. Cir.
    1996) (explaining that the CDA extends to “actions
    brought on claims within twelve months of a contracting
    officer’s final decision”); Reflectone, Inc. v. Dalton, 
    60 F.3d 1572
    , 1573 (Fed. Cir. 1995) (en banc) (“Board jurisdiction
    is grounded in the CDA which authorizes Board review
    only of a contracting officer’s final decision on a ‘claim.’”).
    Accordingly, although a termination for default is deemed
    to be a government, rather than a contractor, claim, see
    Malone v. United States, 
    849 F.2d 1441
    , 1443–44, modi-
    fied on other grounds, 
    857 F.2d 787
    (Fed. Cir. 1988), the
    linchpin for the start of the statutory appeal period is a
    final decision by a contracting officer terminating a con-
    tract for cause. See Placeway Constr. Corp. v. United
    States, 
    920 F.2d 903
    , 906 (Fed. Cir. 1990) (“Generally,
    exhaustion of administrative remedies should occur before
    a case is ripe for judicial review.”); see also Pathman
    Constr. Co. v. United States, 
    817 F.2d 1573
    , 1579 (Fed.
    Cir. 1987) (“Compelling the contractor to file suit at what
    may be a relatively early stage of its negotiations and
    discussions with the contracting officer is likely to impede
    the free exchange of vital information between the con-
    tractor and the contracting officer that is necessary for a
    settlement.”).
    Resolution of the present appeal turns on when the
    contracting officer issued a final decision terminating
    BPA 218 for default. The government argues that the
    contracting officer’s August 2012 default termination
    notice was a final decision, and that Guardian Angels’
    claim is time-barred because it failed to file suit within
    twelve months of receiving that notice. See 41 U.S.C.
    § 7104(b)(3) (requiring a contractor to bring suit in the
    GUARDIAN ANGELS MED. SERV.   v. US                          7
    Court of Federal Claims “within 12 months from the date
    of receipt of a contracting officer’s decision”). The gov-
    ernment does not dispute that Guardian Angels had the
    right to seek reconsideration of the contracting officer’s
    August 2012 default termination decision. See Tokyo
    Kikai Seisakusho, Ltd. v. United States, 
    529 F.3d 1352
    ,
    1360 (Fed. Cir. 2008) (“The power to reconsider is inher-
    ent 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.”); Dayley v.
    United States, 
    169 Ct. Cl. 305
    , 308 (1965) (“[U]nless there
    is legislation to the contrary it is the inherent right of
    every tribunal to reconsider its own decisions within a
    short period after the making of the decision and before
    an appeal has been taken or other rights vested.”); see
    also Summit Contractors v. United States, 
    15 Cl. Ct. 806
    ,
    808 (1988) (explaining that although the CDA does not
    explicitly provide for reconsideration of a contracting
    officer’s decision, it is firmly established that “an adminis-
    trative agency may reconsider its own decisions” (citations
    and internal quotation marks omitted)). It argues, how-
    ever, that because the contracting officer “did not spend
    any time considering [Guardian Angels’] request for
    reconsideration,” that request did not abrogate the finali-
    ty of the August 2012 default termination notice or sus-
    pend the running of the twelve-month limitations period.
    We disagree with the government. Under the facts of
    this case, we hold that whether the contracting officer
    “spends time” considering the request is not the proper
    standard. On February 28, 2013, Guardian Angels sent a
    letter to the contracting officer requesting reconsideration
    of her August 2012 default termination decision and
    asserting that BPA 218 should have been terminated for
    8                         GUARDIAN ANGELS MED. SERV.   v. US
    convenience rather than cause. * In response, the con-
    tracting officer, in a letter dated March 21, 2013, directed
    Guardian Angels to provide documentation supporting its
    claim at its “earliest convenience” and stated that she
    would then “proceed with a review of the material and
    provide a response as required by the [FAR].” J.A. 71. If
    the August 2012 termination for default had been a final
    and irrevocable decision, there would have been no reason
    for the contracting officer to request—or agree to evalu-
    ate—additional documentation supporting Guardian
    Angels’ claim that BPA 218 should have been terminated
    for the convenience of the government. See, e.g., Crippen
    & Graen Corp. v. United States, 
    18 Cl. Ct. 237
    , 240 (1989)
    (concluding that a government demand letter seeking the
    return of unliquidated progress payments was not a final
    contracting officer decision because “[t]he clear intent of
    the letter was to allow the contracting officer to gather
    and consider all relevant information concerning the
    dispute in rendering a final decision”); Summit Contrac-
    
    tors, 15 Cl. Ct. at 807
    (concluding that the finality of a
    decision was suspended where the contracting officer
    *   Although we can imagine letters from a contractor
    to a contracting officer that would not provide sufficient
    information and therefore could not be properly character-
    ized as a complete request for reconsideration, the gov-
    ernment does not challenge the trial court’s determination
    that Guardian Angels’ February 2013 letter qualified as a
    valid request for reconsideration of the contracting of-
    ficer’s August 2012 default termination decision. See
    Reconsideration 
    Decision, 120 Fed. Cl. at 10
    (“Because the
    Contracting Officer had to reverse the default termination
    to provide [Guardian Angels] its requested relief on
    reconsideration, [its] February 28, 2013 letter qualifies as
    a request for reconsideration.”). Nor does the government
    object to the timeliness of Guardian Angels’ request for
    reconsideration.
    GUARDIAN ANGELS MED. SERV.   v. US                        9
    “reviewed the record” in response to a contractor’s request
    for reconsideration, notwithstanding the fact that the
    contracting officer ultimately affirmed his original termi-
    nation decision); Devi Plaza, LLC v. Dep’t of Agric., CBCA
    No. 1239, 09-1 BCA ¶ 34033 (2008) (concluding that there
    was no “final decision” and that the appeal period did not
    commence where a contracting officer “indicated that he
    was willing to continue a meaningful and productive
    dialogue” with the contractor after issuing the decision);
    Nachtmann Analytical Labs., ASBCA No. 35037, 88-1
    BCA ¶ 20229 (1987) (explaining that where a contracting
    officer issues a default termination notice but, in response
    to a contractor’s request for reconsideration, undertakes a
    “review of the facts surrounding the default termination,”
    the finality of the original termination decision is vitiat-
    ed); Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA
    ¶ 16,915 (1983) (concluding that a contracting officer’s
    initial decision was “not truly final” where he subsequent-
    ly granted the contractor an audience to discuss the
    “merits” of that decision and did not “make it very clear”
    that the original appeal period was running).
    The situation here parallels that presented in Roscoe-
    Ajax Construction Co. v. United States, 
    458 F.2d 55
    (Ct.
    Cl. 1972). There, a contracting officer issued a decision
    adverse to the contractor, but subsequently agreed to
    meet with the contractor to “discuss and consider the
    problem further.” 
    Id. at 61.
    Although the contracting
    officer ultimately declined to modify his original decision,
    the United States Court of Claims, one of our predecessor
    courts, held that his willingness to meet with the contrac-
    tor to discuss his original decision “served to keep the
    matter open and necessarily destroyed any finality [the
    original] decision theretofore had.” 
    Id. at 63.
    The court
    explained that “[t]he Contracting Officer’s agreement to
    meet for further discussions of the disputed subject would
    have been meaningless unless the purpose was to give
    [the contractor] further opportunity to be heard, and if
    10                        GUARDIAN ANGELS MED. SERV.   v. US
    persuaded as to the correctness of [the contractor’s]
    position, to change his position.” 
    Id. (citations and
    inter-
    nal quotation marks omitted).
    A similar analysis applies here. The contracting of-
    ficer’s decision, in March 2013, to obtain and review
    additional documentation on the question of whether BPA
    218 should have been terminated for convenience rather
    than cause “served to keep the matter open,” 
    id., and vitiated
    the finality of her original default termination
    notice. An agency decision will be deemed final only if it
    “mark[s] the consummation of the agency’s decisionmak-
    ing process.” Bennett v. Spear, 
    520 U.S. 154
    , 178 (1997)
    (citations and internal quotation marks omitted). Be-
    cause the contracting officer’s March 2013 letter evinced a
    clear willingness to consider additional evidence, it was
    reasonable for Guardian Angels to conclude that the VA
    had not yet made any definitive determination on wheth-
    er to terminate BPA 218 for default and that the twelve-
    month statutory appeal period therefore had not yet
    begun to run. See Zomord Co., ASBCA No. 59065, 14-1
    BCA ¶ 35626 (2014) (explaining that the limitations
    period does not begin to run if a contractor “present[s]
    evidence showing that it reasonably could have concluded
    that the [contracting officer’s] decision was being recon-
    sidered”); Royal Int’l Builders Co., ASBCA No. 42637, 92-
    1 BCA ¶ 24684 (1992) (“While receipt by the contracting
    officer of a request for reconsideration of a decision in
    itself does not serve to vacate a decision or the period in
    which to appeal, reconsideration of a decision by the
    contracting officer or creation of a reasonable appearance
    that the decision is being reconsidered both serve to vacate
    the earlier decision along with the accompanying appeal
    period.” (emphasis added)). This is particularly true
    given that the August 2012 default termination notice did
    GUARDIAN ANGELS MED. SERV.   v. US                       11
    not explicitly state that the time period for appeal began
    to run on the date it was issued. **
    The fact that in May 2013 the contracting officer re-
    versed course—sending a letter to Guardian Angels
    stating that she had not yet received the additional docu-
    mentation she had requested and that she had not recon-
    sidered and would not reconsider her original default
    termination decision—does not alter this result. In eval-
    uating whether the August 2012 default termination
    notice qualified as a final contracting officer decision
    sufficient to trigger the twelve-month statutory appeal
    period, our focus must be on the contracting officer’s
    actions, not on her own after-the-fact characterization of
    those actions. See ICC v. Bhd. of Locomotive Eng’rs, 
    482 U.S. 270
    , 281 (1987) (“Locomotive Eng’rs”) (explaining
    that it is an agency’s “action, rather than its discussion,
    that is dispositive”); VWP of Am., Inc. v. United States,
    
    163 F. Supp. 2d 645
    , 655 (Ct. Int’l Trade 2001) (“Actions
    speak louder than words . . . . In the case of inconsisten-
    cy, conduct controls.”). Although the contracting officer
    stated in May 2013 that she had not reconsidered her
    August 2012 default termination decision, this statement
    cannot override or erase the fact that in March 2013 she
    **   The August 2012 default termination notice did
    inform Guardian Angels that it had the right to appeal as
    provided in the disputes clause of BPA 218. J.A. 67. This
    disputes clause incorporated by reference FAR 52.233-1,
    which provides 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.” Significantly,
    however, FAR 52.233-1 does not address the issue of
    whether a contractor’s timely request for reconsideration
    vitiates the finality of a contracting officer’s original
    decision or extends the time deadline for challenging that
    decision in the Court of Federal Claims.
    12                         GUARDIAN ANGELS MED. SERV.   v. US
    agreed to review and respond to additional evidence on
    the question of whether BPA 218 should have been termi-
    nated for convenience. See Vepco of Sarasota, Inc. v.
    United States, 
    26 Cl. Ct. 639
    , 645 (1992), aff’d without
    opinion, 
    6 F.3d 786
    (Fed. Cir. 1993) (concluding that the
    fact that the contracting officer unequivocally stated that
    he did not reconsider his original decision was not deter-
    minative on the question of whether the finality of that
    decision was suspended); see also Ralph C. Nash & John
    Cibinic, Reconsideration of Final Decisions: It’s Not Over
    Until It’s Over, 3 No. 2 Nash & Cibinic Rep. ¶ 13 (1989)
    (explaining that if a contracting officer wishes to avoid a
    determination that a decision has been reconsidered he or
    she “should refrain from any discussions, negotiations,
    review of documents or other actions which could be
    considered to be a de facto reconsideration”). The con-
    tracting officer’s March 2013 letter vitiated the finality of
    her August 2012 default termination notice and it was not
    until May 2013—when she unequivocally denied Guardi-
    an Angels’ request for reconsideration—that the VA
    issued a final decision terminating BPA 218 for cause.
    See 
    Dayley, 169 Ct. Cl. at 309
    (“The general rule is that
    the period for appeal or review does not begin to run until
    the disposition of a timely request for reconsideration,
    rehearing, or new trial, because such a request suspends
    the finality of the decision pending a ruling on the appli-
    cation.”); see also B.D. Click Co. v. United States, 225 Ct.
    Cl. 605, 607 (1980). Because Guardian Angels submitted
    its complaint to the Court of Federal Claims within
    twelve months of the VA’s May 2013 final decision, its
    suit was timely filed.
    B. The Effect of a Motion for Reconsideration
    In many situations, a timely request for reconsidera-
    tion is sufficient to render an agency decision non-final
    and thereby suspend the running of the appeal period.
    See, e.g., Locomotive 
    Eng’rs, 482 U.S. at 284
    –85 (explain-
    ing that under the Hobbs Act, 28 U.S.C. § 2344, a petition
    GUARDIAN ANGELS MED. SERV.   v. US                        13
    for administrative reconsideration stays the running of
    the limitations period until the petition has been acted
    upon by the agency); Clifton Power Corp. v. FERC, 
    294 F.3d 108
    , 110 (D.C. Cir. 2002) (“A request for administra-
    tive reconsideration renders an agency’s otherwise final
    action non-final with respect to the requesting party.”);
    V.I. Conservation Soc’y, Inc. v. Virgin Is. Bd. of Land Use
    Appeals, 
    881 F.2d 28
    , 31 (3d Cir. 1989) (“We think that
    the federal law is clear that a pending petition for agency
    reconsideration, timely filed, renders the underlying
    agency action nonfinal and thus nonreviewable with
    respect to the filing party. Thus, the statute of limita-
    tions for judicial review is tolled until the agency decides
    the petition for reconsideration.”); see also United States
    v. Dieter, 
    429 U.S. 6
    , 8 (1976) (noting “that the consistent
    practice in civil and criminal cases alike has been to treat
    timely petitions for rehearing as rendering the original
    judgment nonfinal for purposes of appeal for as long as
    the petition is pending”). Indeed, although the Adminis-
    trative Procedure Act specifically states that “agency
    action otherwise final is final for the purposes of this
    section whether or not there has been presented . . . an
    application for . . . any form of reconsideration,” 5 U.S.C.
    § 704, the Supreme Court has made clear that this lan-
    guage serves “merely to relieve parties from the require-
    ment of petitioning for rehearing before seeking judicial
    review . . . but not to prevent petitions for reconsideration
    that are actually filed from rendering the orders under
    reconsideration nonfinal.” Locomotive 
    Eng’rs, 482 U.S. at 284
    –85; see also Am. Farm Lines v. Black Ball Freight
    Serv., 
    397 U.S. 532
    , 541 (1970).
    Here, however, we need not—and therefore do not—
    decide whether under section 7104(b)(3) a request for
    reconsideration vitiates the finality of a contracting
    officer’s decision only if the contracting officer actually
    “spends time” considering that request. For example, we
    do not hold, at this point, that all communications from a
    14                         GUARDIAN ANGELS MED. SERV.    v. US
    contracting officer after receipt of a request for reconsid-
    eration will be sufficient to evince the necessary willing-
    ness to entertain the request for reconsideration. Given
    this recognition, we do not address the question of wheth-
    er, in the absence of any indication that the contracting
    officer is open to reconsidering, the finality of the original
    decision may be suspended if the contracting officer
    nevertheless “spends time” considering the request. See
    Reconsideration 
    Decision, 120 Fed. Cl. at 10
    ; Arono, Inc. v.
    United States, 
    49 Fed. Cl. 544
    , 550 (2001) (“[A] reaffirma-
    tion of a final [contracting officer’s] decision does not, per
    se, constitute reconsideration of that decision. Instead, it
    is the amount of time, if any, a contracting officer spends
    reviewing a [contractor’s] request for reconsideration that
    suspends the finality of the decision regardless of whether
    that decision is ultimately reconsidered or reversed.”).
    Rather, we hold only that because the contracting officer
    agreed in March 2013 to obtain and evaluate additional
    evidence on the question of whether BPA 218 should have
    been terminated for convenience rather than cause, her
    August 2012 default termination notice was not a final
    decision sufficient to trigger the twelve-month statutory
    appeal period. Thus, the twelve-month statutory appeal
    period did not begin to run until the contracting officer
    rejected Guardian Angels’ request for reconsideration on
    May 3, 2013.
    Nor need we decide whether compliance with the
    twelve-month filing period set out in section 7104(b)(3) is
    a jurisdictional requirement. The Supreme Court in
    recent years has repeatedly emphasized that “filing
    deadlines ordinarily are not jurisdictional.” Sebelius v.
    Auburn Reg’l Med. Ctr., 
    133 S. Ct. 817
    , 825 (2013); see
    United States v. Kwai Fun Wong, 
    135 S. Ct. 1625
    , 1632
    (2015) (“[T]he Government must clear a high bar to
    establish that a statute of limitations is jurisdictional.”);
    Henderson ex rel. Henderson v. Shinseki, 
    562 U.S. 428
    ,
    439–42 (2010) (concluding that the 120-day deadline for
    GUARDIAN ANGELS MED. SERV.   v. US                      15
    filing a notice of appeal with the United States Court of
    Appeals for Veterans Claims is a claim-processing rule
    rather than a jurisdictional requirement). Accordingly,
    we held in Sikorsky that the failure to comply with 41
    U.S.C. § 7103(a)(4)(A), which requires a claim related to a
    government contract to be submitted within six years of
    the date it accrues, does not create a jurisdictional 
    bar. 773 F.3d at 1322
    (explaining that section 7103(a)(4)(A)
    “does not have any special characteristic that would
    warrant making an exception to the general rule that
    filing deadlines are not jurisdictional”). Here, however,
    the dispositive issue is not whether the twelve-month
    appeal period set out in section 7104(b)(3) is a jurisdic-
    tional prerequisite, but instead when that appeal period
    begins to run. See Stone v. INS, 
    514 U.S. 386
    , 395 (1995)
    (explaining that “[f]inality is the antecedent question” in
    assessing the timeliness of an appeal).
    III. CONCLUSION
    Accordingly, the judgment of the United States Court
    of Federal Claims is reversed and the case is remanded
    for further proceedings consistent with this opinion.
    REVERSED AND REMANDED
    COSTS
    No costs.