A recent Armed Services Board of Contract Appeals (“ASBCA”) case reminds us that you may not necessarily need a Contracting Officer’s (“CO’s”) final decision on your claim before you file an appeal. In Metag Insaat Ticaret A.S., ASBCA No. 58616 (Nov. 4, 2013), the CO issued the contractor a final performance evaluation with a rating of “marginal” or “unsatisfactory.” On February 19, 2013, the contractor filed a claim with the CO seeking reconsideration of the performance evaluation and requested that the CO issue a final decision. The CO responded the same day that the contractor’s performance was “still being evaluated based on continued problems.” However, this letter did not state that it was the CO’s final decision and did not inform the contractor of its rights to appeal.
On April 10, 2013 – 51 days after submitting its claim to the CO – the contractor filed an appeal with the ASBCA. On August 14, 2013, the Government moved to dismiss the appeal for lack of jurisdiction. Under the Contract Disputes Act, a CO typically has 60 days to respond to a claim where the amount requested is $100,000 or less. The Government argued that since the contractor did not wait the full 60 days before filing its appeal, the appeal was premature. Interestingly, however, by the date of the Government’s motion to dismiss, the CO still had not issued a final decision. Thus, 176 days had passed since the contractor filed its claim without a CO final decision.
The question before the Board was whether an unreasonable amount of time had passed without a CO’s final decision prior to the contractor filing its appeal. Although the Board assumed, without deciding, that 51 days was not an unreasonable amount of time to wait for the CO’s decision, it found that 176 days was clearly unreasonable. Thus, the Board found the 176 day passage of time “supports an appeal on a deemed denial basis.” The Board also noted that “when at the time [it] consider[s] a motion to dismiss, an unreasonable period of time has elapsed, no useful purpose would be served by dismissing an appeal and requiring appellant to refile.” Thus, the Board denied the Government’s motion to dismiss.
It’s curious why the Government filed its motion to dismiss under these circumstances since the Government waited 4 months to file and 176 days had passed without a CO final decision. Perhaps the Government was looking for a hard-and-fast rule from the Board that contractors must always wait 60 days before filing their appeals. But if that’s what the Government was looking for, then this clearly wasn’t the right case for the job!
Katie Calogero is the attorney responsible for the content of this article.
© Jackson Kelly PLLC 2013