Government Contracts Monitor

When in Doubt, Make Sure Your Appeal is Filed Within 90 Days!

July 16, 2014

It is common knowledge (or should be) among federal government contractors that an appeal of a contracting officer’s final decision on a claim must be filed at the Board of Contract Appeals within 90 days. The recent case, Creek Services, LLC, ASBCA No. 59127 (July 1, 2014), demonstrates how important it is to keep your eye on the calendar.

The Army Corps of Engineers awarded a multiple award task order contract to Creek Services for hurricane and storm damage reduction in and around New Orleans. The claim in question came under a task order for flood protection improvements. Creek Services filed a request for equitable adjustment to the contracting officer (CO) on January 3, 2012 which listed several items including one for reseeding costs due to weather. On June 28, 2013, Creek Services requested a final decision on its claim. Then on July 18, 2013, Creek Services requested a meeting with the CO to discuss “the possibility of a global settlement for the project in exchange for a release of claims.” On August 27, 2013, the CO issued a final decision denying the claim for reseeding costs.

On September 5, 2013, Creek Services inquired whether the Corps had a chance to review the global settlement offer and was told the CO had been replaced. On October 2, 2013, Creek Services met with the new CO but the parties did not enter into negotiations about the reseeding claim. On December 11, 2013, the CO issued another final decision denying a different claim and stating that the global settlement offer was denied.

Creek Services appealed the CO’s final decision on the reseeding claim to the ASBCA on January 10, 2014. In its appeal, Creek Services acknowledged that the appeal was filed more than 90 days after the CO’s August 27, 2013 final decision but stated that it believed the CO was still considering the global settlement offer until December 11, 2013, and that the extended period of time was due to the replacement of the CO.

The Board did not agree. In a decision dismissing the appeal as untimely, the Board stated that the 90-day time period may be vitiated if the CO is reconsidering its final decision. However, the contractor has the duty to show that the CO was, in fact, reconsidering. Here, the Board found that Creek Services could not show that the CO had reconsidered its August 27, 2013 final decision. The Board noted that the global settlement offer was made before the final decision and, although it was not denied until December 11, 2013, there was no evidence it caused the CO to reconsider the August 27, 2013 final decision.

This case serves as an important reminder to contractors that they should be vigilant about the time limit for filing their appeals. If you think the CO may be reconsidering its final decision, get written confirmation before letting the 90 days expire. And if there is any doubt, file your appeal and let the Government argument that it’s premature. Otherwise, the alternative is an untimely dismissal like the one in Creek Services.

Katie Calogero is the attorney responsible for the content of this article.