Alexander Gorelik and Barbara A. Duncombe | Taft Stettinius & Hollister
A recent opinion from the Armed Services Board of Contract Appeals (ASBCA) suggests that contractors may be able to appeal before receipt of a contracting officer’s final decision (COFD) when the government seeks to delay issuing a decision. On April 3, 2024, the ASBCA addressed the government’s motion to dismiss two appeals by a contractor, North Wind Construction Services, LLC, for lack of jurisdiction. In its motion, the government argued that the appeals were premature because North Wind filed them (1) before a final decision on the claims underlying those appeals and (2) even though the contracting officer notified North Wind of the need for additional time to issue those decisions.
The ASBCA denied the government’s motion for both appeals, but it did so for different reasons with each appeal.
In the first appeal, the ASBCA held that it had jurisdiction because North Wind filed its appeal 124 days after submitting the underlying claim—well beyond the 60-days reasonably necessary for a final decision under the Contract Disputes Act (CDA)—rendering the government’s failure to address the claim a “deemed denial.” Notably, the ASBCA reached that holding even though the government notified North Wind that it would provide a final decision on a specific date after the 60-day cut-off and eventually met that later date. As the ASBCA explained, it did so because, the contracting officer provided no explanation or evidence that addressed why the date that the contracting officer set for completing the final decision was reasonable. And, without such information, the ASBCA could not determine that the government’s “inaction by the appeal date was reasonable.”
In the second appeal, North Wind faced a different challenge. It had filed its appeal less than 30 days after submitting the claim. Thus, the government did not receive the full 60 days allowed before issuance of a final decision under the CDA. But, because the government, in that appeal, only provided its final decision after the required 60 days anyhow, the ASBCA held that the government’s failure to address that claim in 60 days was another “deemed denial.” As the ASBCA explained, North Wind’s second “claim was already deemed denied before the contracting officer issued [its] denial” on the later date that the government requested. And, so, the ASBCA noted that North Wind could simply refile the appeal the next day if the ABSCA found itself to be without jurisdiction to consider North Wind’s second appeal. The ASBCA determined that such a result would be “inefficient and put form over substance.” The Board retained jurisdiction over the second appeal to avoid that outcome.
Observations.
The ASBCA has shown a willingness to assist contractors facing delays in obtaining a final decision on a certified claim from the government before. In one prior case, for example, the ASBCA utilized its authority under the ASBCA Rule 1(a)(5) to set an earlier date for a final decision than desired by the government. This opinion, however, confirms the ASBCA’s view that the government must provide contractors with a final decision within a reasonable time of receiving the certified claim. It also outlines an approach for challenging the government’s failure to issue a decision within the 60-day period provided by the CDA without reason. Contractors contemplating a claim will be wise to remember the ASBCA’s stance.
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