Kentucky Business Enterprise ( 2022 )


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  •                   ARMED SERVICES BOARD OF CONTRACT APPEALS
    Appeal of -                                 )
    )
    Kentucky Business Enterprise                )    
    ASBCA No. 63023
    )
    Under Contract No. W9124J-20-D-0007         )
    APPEARANCE FOR THE APPELLANT:                    Dondra J. Meredith, Esq.
    Education and Workforce
    Development Cabinet
    Frankfort, KY
    APPEARANCES FOR THE GOVERNMENT:                  Scott N. Flesch, Esq.
    Army Chief Trial Attorney
    CPT Philip L. Aubart, JA
    Trial Attorney
    OPINION BY ADMINISTRATIVE JUDGE EYESTER
    ON THE GOVERNMENT’S MOTION TO DISMISS
    The Department of the Army (Army or government) moves to dismiss the appeal
    for lack of jurisdiction under the Contract Disputes Act (CDA), 
    41 U.S.C. §§ 7101-7109
    .
    Specifically, the Army argues that Kentucky Business Enterprise (KBE or appellant)
    failed to file its appeal with this Board within 90 days of the contracting officer’s final
    decision (COFD). In this case, KBE erroneously filed its appeal with the Civilian Board
    of Contract Appeals (CBCA) on day 90, and upon learning of the mistake, filed its appeal
    with this Board on day 91. KBE contends the Board nonetheless has jurisdiction because
    KBE submitted its notice of intent to appeal to the contracting officer within 90 days of
    the COFD. For the reasons set forth below, we grant the government’s motion.
    STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
    On February 10, 2020, the Army awarded indefinite-delivery, indefinite-quantity
    contract W9124J-20-D-0007 to KBE 1 for full food service functions at the Army base
    1
    The request for proposals solicited offers from state licensing agencies (SLA) under the
    Randolph-Sheppard Act (RSA), 
    20 U.S.C. § 107
     et. seq. (R4, tab 2 at 78). The
    Army awarded the contract to the Vocational Rehabilitation Division of the Office
    of the Blind, which is an SLA pursuant to the RSA (R4, tab 5 at 1, 110). By an
    in Ft. Knox, Kentucky (R4, tab 5 at 1, 49). The contract incorporated by reference
    Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND
    CONDITIONS-COMMERCIAL ITEMS (OCT 2018) (R4, tab 5 at 1, 25, 45-47). That
    clause contains subparagraph (d) on disputes stating, in relevant part that “[f]ailure of
    the parties to this contract to reach agreement on any request for equitable adjustment,
    claim, appeal or action arising under or relating to this contract shall be a dispute to be
    resolved in accordance with the clause at [FAR] 52.233-1, Disputes, which is
    incorporated herein by reference.” FAR 52.233-1(f), DISPUTES, states 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.”
    The Army subsequently issued task orders W9124D-20-F-0754 and W9124D-21-
    F-0313 pursuant to the contract (R4, tabs 12, 16, 29). All task orders were subject to the
    terms and conditions of the contract (R4, tab 5 at 40).
    On Friday, June 4, 2021, at 10:01 pm, 10:20 pm, and 10:28 pm, the contract
    specialist emailed KBE modifications to the contract and two task orders (R4, tab 37).
    The modifications, which were signed by the contracting officer, stated:
    A.) In accordance with Federal Acquisition Regulation (FAR) 52.212-4(m)
    the Government is permitted to terminate this contract, or any part hereof,
    for cause in the event [the] Contractor fails to provide the Government,
    upon request, with adequate assurances of future performance. The
    Contracting Officer has determined that the contractor failed to provide the
    Government with adequate assurances of future performance via the letter
    received 4 June 2021 and termination is warranted.
    B.) Since this is a termination for cause, the Government shall not be liable
    to the Contractor for any amount for supplies or services not accepted, and
    Order dated October 20, 2021, the Board requested clarification regarding the
    name of the contractor and appellant. KBE has explained that the appellant and
    contractor here are the same--the Commonwealth of Kentucky--and that the proper
    legal name is actually the Commonwealth of Kentucky, Education and Workforce
    Development Cabinet, Office of Vocational Rehabilitation, Division of KBE.
    According to KBE, the different names used in the contract and related documents
    arose from agency reorganizations. (Clarification of app. name at 1) KBE states
    that the Commonwealth of Kentucky, through KBE, is therefore the contractor and
    appellant (id.at 1-2).
    2
    the Contractor shall be liable to the Government for any and all rights and
    remedies provided by law.
    C.) The Government will inform the contractor of the remedies the
    government intends to seek on or about 6 July 2021.
    D.) This notice constitutes a final decision of the Contracting Officer[;] the
    Contractor has the right to appeal under the Disputes clause (see FAR
    33.211)
    (R4, tabs 37a-37c at 1) The Army states it terminated the contract and task orders for
    cause because KBE submitted a June 4, 2021 letter to the Army that demonstrated an
    anticipatory repudiation “which clearly manifested [the] contractor’s inability to perform
    the contract” beginning June 5, 2021 (R4, tabs 37a-37c at 2). The Army provided a
    document showing that the emails were delivered to KBE on June 4, 2021 (R4, tab 38).
    In addition, the appellant agrees that it received these modifications on June 4, 2021 (app.
    resp. at 2). We find that the Army issued a COFD on June 4, 2021, terminating the
    contract and task orders for cause, and KBE received this COFD on that same day.
    On Thursday, September 2, 2021, counsel for KBE filed a notice of appeal with
    the CBCA requesting that the termination for cause be modified to a termination for
    convenience and stating that KBE was not seeking monetary relief. KBE also sent the
    notice to the contracting officer at his .mil email address. The attachment to the email
    was titled “Notice of Appeal W Exhibits.pdf.” (App. sup. R4, tab 6) We find there is no
    mention of an intent to appeal to the ASBCA in this email.
    On Friday, September 3, 2021, counsel for KBE filed its notice of appeal with the
    ASBCA. The attachment to the appeal was titled “Notice of Appeal – ASBCA.pdf.”
    (App. supp. R4, tab 7)
    DECISION
    As noted above, the Army moves to dismiss the appeal because the appellant did
    not file its notice of appeal with this Board within 90 days of receipt of the COFD (gov’t
    mot. at 2). KBE contends that although it errantly filed its notice of appeal with the
    CBCA within 90 days of receipt of the COFD, it nonetheless also sent the notice to the
    contracting officer on that same day. According to KBE, since the notice to the
    contracting officer expressed dissatisfaction with the final decision (i.e., termination for
    cause), and stated an intention to appeal to an authority above the contracting officer, this
    Board has authority to hear the appeal under its longstanding precedent concerning
    3
    “misdirected appeals.” (See App. resp. at 2-4) 2 In sum, KBE contends that misdirection
    of a notice of appeal is not fatal when sufficient notice is sent timely to the contracting
    officer (app. resp. at 4).
    The CDA states that a COFD “is final and conclusive and is not subject to review
    by any forum, tribunal, or Federal Government agency, unless an appeal or action is
    timely commenced as authorized by this chapter.” 
    41 U.S.C. § 7103
    (g). The CDA
    further states that a contractor, “within 90 days from the date of receipt of a contracting
    officer’s decision . . . may appeal the decision to an agency board. . . .” 
    Id.
     § 7104(a).
    Accordingly, the “90-day period in which to appeal to an agency board is part of a statute
    waiving sovereign immunity which must be strictly construed and which cannot be
    waived by a board.” Maria Lochbrunner, 
    ASBCA No. 57235
    , 
    11-2 BCA ¶ 34,783
    at 171,186 (citing Cosmic Constr. Co. v. United States, 
    697 F.2d 1389
    , 1390 (Fed. Cir.
    1982); Waterstone Envtl. Hydrology and Eng’g, Inc., 
    ASBCA No. 57557
    , 
    12-1 BCA ¶ 35,028
     at 172,142. “Thus, even if an appellant files an appeal 91 days after its receipt
    of the COFD, we do not possess jurisdiction over that appeal.” Haakenson Elec. Co.,
    
    ASBCA No. 62606
    , 
    21-1 BCA ¶ 37,757
     at 183,283.
    To calculate whether KBE filed its appeal in the required time period, we determine
    both the date the COFD was received by the contractor and the 90-day period for making
    an appeal commenced, and the effective date KBE filed its notice of appeal. Here, KBE
    2
    KBE’s statement of facts concludes that the COFD did not contain the requisite
    paragraph of appeal rights required by 
    48 C.F.R. § 33.211
    (a)(4)(v) (app. resp.
    at 2). However, KBE does not argue that the alleged defect prejudiced KBE with
    respect to its appeal. And nor could it, since KBE had counsel file its appeal, an
    appeal was filed with a Board within 90 days of the COFD, and therefore KBE
    knew of its appeal rights when it received the decisions. See Bushra Co., 
    ASBCA No. 59918
    , 
    16-1 BCA ¶ 36,355
     at 177,239 (where appellant made no allegation
    that it was misled by termination letter that did not fully explain appeal rights, the
    deficient notice did not invalidate the termination letter’s starting of appeal clock);
    Grand Serv., Inc., ASBCA 42448, 
    91-3 BCA ¶ 24,164
     (prescribed notice of appeal
    rights, as set forth at FAR 33.211, does not require the contracting officer to
    identify the Board’s address, or even the board’s specific name, in the decision);
    Medina Contracting Co., 
    ASBCA No. 53783
    , 
    02-2 BCA ¶ 31,979
     (appeal was
    untimely where not filed with the Board within 90 days and appellant did not
    allege or demonstrate defect in contracting officer’s final decision involving a
    termination for default which stated the contractor had a right to appeal but failed
    to identify appeal forums or deadlines).
    4
    received the COFD on June 4, 2021, and appealed to the ASBCA on September 3, 2021,
    91 days later. That appeal was plainly untimely.
    As KBE notes, the Board has in the past, under narrow circumstances, taken
    jurisdiction of appeals under the CDA where notices of appeal were timely filed with a
    contracting officer, or certain Defense components, since in those cases it was tantamount
    to filing with the Board; this is sometimes referred to as a “misdirected appeal.” See
    Afghan Active Grp., 
    ASBCA No. 60387
    , 
    16-1 BCA ¶ 36,349
     at 177,211-12; Ft. McCoy
    Shipping & Servs., 
    ASBCA No. 58673
    , 
    13 BCA ¶ 35
    , 429 at 173,794-95; Waterstone
    Envtl. Hydrology and Eng’g, Inc., 
    12-1 BCA ¶ 35,028
     at 172,142; Thompson Aerospace,
    Inc., ASBCA Nos. 51548, 51904, 
    99-1 BCA ¶ 30,232
     at 149,569-70 (timely notice of
    appeal to contracting officer). “To be adequate, a notice of appeal requires only a writing
    filed within the requisite time period, expressing dissatisfaction with the [contracting
    officer]’s decision, and indicating an intention to appeal the decision to a higher
    authority.” Eur-Pac Corp., 
    ASBCA No. 61647
    , 
    18-1 BCA ¶ 37,202
     at 181,107; see also
    Contraves-Goerz Corp., 
    ASBCA No. 26317
    , 
    83-1 BCA ¶ 16,309
    . With respect to the
    requirement that the notice indicate an intention to appeal to a higher authority--the
    criterion most important here--we have stated that the notice to appeal to the contracting
    officer must “reasonably . . . demonstrate an intent to appeal to the Board in order for our
    jurisdiction to attach.” Eur-Pac Corp., 
    18-1 BCA ¶ 37,202
     at 181,107 (quoting Oconto
    Elec., Inc., 
    ASBCA No. 36789
    , 
    88-3 BCA ¶ 21,188
     at 106,939).
    Accordingly, in the past, the Board has “not taken jurisdiction over appeals
    misfiled with different tribunals” despite being filed on time with the contracting officer.
    Waterstone Envtl. Hydrology and Eng’g, Inc., 
    12-1 BCA ¶ 35,028
     at 172,142. For
    example, and similar to the facts here, in Interaction Research Instit., Inc., 
    ASBCA No. 55198
    , 
    06-1 BCA 33,189
    , we dismissed as untimely a late appeal filed with the
    ASBCA, which had been timely filed with the General Services Board of Contract
    Appeals (which is now the CBCA). In that appeal, we concluded that the appellant’s
    letter to the contracting officer “did not clearly express its election to appeal to this
    Board. . . .” 
    Id. at 164,512
     (emphasis added) (citing Stewart-Thomas Indus., Inc.,
    
    ASBCA No. 38773
    , 
    90-1 BCA ¶ 22,481
     at 112,836 (notice of appeal must express an
    election to appeal to this Board)); see also Maria Lochbrunner, 
    11-2 BCA ¶ 34,783
    at 171,186 (letter sent to contracting officer expressed intent to appeal to a German court
    and not ASBCA and therefore was not a “misdirected appeal”).
    We likewise conclude that KBE’s email to the contracting officer did not express
    any intent to appeal to the ASBCA. Rather, the email, which was filed with the CBCA at
    the same time, demonstrates that KBE knows how to file appeals on time with a Board.
    KBE’s email to the contracting officer is not a misdirected appeal, and KBE’s appeal is
    untimely.
    5
    CONCLUSION
    We do not possess jurisdiction because appellant failed to file a notice of appeal
    with this Board within 90 days of the COFD. Therefore, we grant the government’s motion
    to dismiss, and dismiss this appeal with prejudice.
    Dated: February 16, 2022
    LAURA EYESTER
    Administrative Judge
    Armed Services Board
    of Contract Appeals
    I concur                                          I concur
    RICHARD SHACKLEFORD                               OWEN C. WILSON
    Administrative Judge                              Administrative Judge
    Acting Chairman                                   Vice Chairman
    Armed Services Board                              Armed Services Board
    of Contract Appeals                               of Contract Appeals
    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. 63023
    , Appeal of Kentucky
    Business Enterprise, rendered in conformance with the Board’s Charter.
    Dated: February 16, 2022
    PAULLA K. GATES-LEWIS
    Recorder, Armed Services
    Board of Contract Appeals
    6
    

Document Info

Docket Number: ASBCA No. 63023

Judges: Eyester

Filed Date: 2/16/2022

Precedential Status: Precedential

Modified Date: 3/8/2022