ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Precision Metals Corp.                         )      ASBCA No. 61422
                                               )
Under Contract No. SPE7Ll-15-M-2140            )

APPEARANCE FOR THE APPELLANT:                         Mr. Tony Figlozzi
                                                       Vice President

APPEARANCES FOR THE GOVERNMENT:                       Daniel K. Poling, Esq.
                                                       DLA Chief Trial Attorney
                                                      Matthew 0. Geary, Esq.
                                                       Trial Attorney
                                                       DLA Land and Maritime
                                                       Columbus, OH

                OPINION BY ADMINISTRATIVE JUDGE YOUNGER
                 ON THE GOVERNMENT'S MOTION TO DISMISS

       DLA Land and Maritime Land Supply Chain (the government) moves to dismiss
this appeal, arguing that appellant, Precision Metals Corp. (Precision or appellant), failed
to submit a timely appeal as required by the Contract Disputes Act, 41 U.S.C. § 7104(a).
Appellant opposes the motion. We grant the government's motion and dismiss the appeal
for lack of jurisdiction.

            STA TEMENT OF FACTS FOR PURPOSES OF THE MOTION

       1. On 16 July 2015, the government awarded Contract No. SPE7Ll-15-M-2140 to
Precision for the purchase of "leg, machine gun bipod, left hand" parts. The total award
amount of the contract was $22,440.00. (Gov't mot., ex. 1)

        2. The contract contained various standard clauses, including Federal Acquisition
Regulation (FAR) 52.209-3, FIRST ARTICLE APPROVAL - CONTRACTOR TESTING
(SEP 1989), which provided, in paragraph (b ), that the contractor "shall submit the first
article test report within 280 calendar days from the date of this contract," a date elsewhere
specified as 21 April 2016; FAR 52.233-1, DISPUTES (MAY 2014); and FAR 52.249-8,
DEFAULT(FIXED-PRICE SUPPLY AND SERVICE) (APR 1984) (R4, tab 1 at 11, 17, 20-21).
       3. The contract was modified twice during performance, including once by
Modification No. POOOO 1, dated 12 May 2016, to extend the first article test delivery date
to 12 August 2016 (gov't mot., exs. 2-3).

       4. By letter dated 13 March 2017, the government issued a show cause notice to
Precision, asserting that the first article test had not been delivered by the modified
delivery date (incorrectly stated to be 2 August 2016), and Precision had not requested a
new delivery date (gov't mot., ex. 4).

       5. By letter dated 22 March 2017, Precision indicated that it would deliver the
materials by 10 May 2017 (gov't mot., ex. 5 at 2).

         6. In a letter to Precision dated 3 April 2017, the contracting officer stated that he
would forbear from terminating the contract until IO May 2017, to allow delivery of the
first article test report (gov't mot., ex. 6 at 2). The contracting officer warned, however,
that if the first article test report were not delivered by that date, "the [contract] may be
terminated in accordance with the default clause" (id.).

        7. By final decision dated 12 May 2017, the contracting officer terminated the
contract for default following Precision's failure to deliver the first article test report by
 IO May 2017 (gov't mot., ex. 8 at 3-4). The final decision included an advice of rights (id.
at 4). The contracting officer emailed the final decision to Amy Pitarra, contracts
administrator at Precision, the same day, and included a read receipt. The read receipt stated
that the email was read by Ms. Pitarra on 12 May 2017 at 3:24 pm. (Gov't mot., exs. 8-9)

       8. By email dated 15 May 2017, Precision requested reconsideration of the final
decision (gov't mot., ex. 10 at 1-2). We find no evidence of any subsequent
communication between the parties until Precision filed its notice of appeal.

       9. Precision filed a notice of appeal with the Board by email dated 21 November
2017, and the Board thereafter docketed the appeal as ASBCA No. 61422.

                                         DECISION

        The government's core argument in its motion to dismiss is that the Board lacks
jurisdiction over this appeal because Precision did not file its notice of appeal within the
90-day statutory period from receipt of the termination notification (Respondent's Motion
to Dismiss (motion) at 2-3). For its part, Precision asserts that the government terminated
the contract despite the fact that the parts were ready for inspection (Bd. corr. ltrs. dtd.
 12 December 2017, 22 January 2018). Precision also requests a no-cost cancellation in
lieu of the termination for default at issue here and marshals equitable considerations in
support of its position (id.).



                                              2
        We conclude that we lack jurisdiction over this appeal. It is familiar that, under the
Contract Disputes Act (Act), a contracting officer's final decision "is not subject to review
by any ... tribunal...unless an appeal...is timely commenced." 41 U.S.C. § 7103(g). In tum,
the Act defines timely commencement to be bringing an appeal to the Board "within 90
days from the date of receipt of a contracting officer's decision." 41 U.S.C. § 7104(a).
Numerous decisions give effect to this time limitation, treating it as jurisdictional. E.g.,
Cosmic Construction Co. v. United States, 

, 1390-91 (Fed. Cir. 1982)
(holding that the 90-day deadline "is thus part of a statute waiving sovereign immunity,
which must be strictly construed" and "which defines the jurisdiction" of the Board);
Decker & Co. v. West, 

, 1578 (Fed. Cir. 1996) (citing Cosmic where appeal
was filed almost two years after the notice of termination for default and holding that the
"90-day appeal deadline is jurisdictional and cannot be waived"); Bushra Co., ASBCA
No. 59918, 16-1 BCA, 36,355 at 177,238 (holding that timeliness of appeal "is a matter
of the Board's jurisdiction" and "must be brought before the Board within 90 days of that
decision being received by the contractor"); Mansoor International Development Services,
ASBCA No. 58423, 14-1 BCA, 35,742 at 174,925 (reciting that Board "may only
exercise jurisdiction over an appeal filed 'within 90 days from the date of receipt of a
contracting officer's decision"' under 41 U.S.C. § 7104(a)).

       The evidence shows that the contracting officer sent Precision the termination
notice by email on 12 May 2017, and the evidence also shows that Ms. Pitarra opened the
email the same day (statement 7). Taking 12 May 2017 as the receipt date, Precision
would have been required to file a timely appeal 90 days later, or by 10 August 2017.
Appellant did not file this appeal until 21 November 2017, well outside the 90-day
statutory period set forth in the Act for appeals to the Board.

        We also conclude that the contracting officer did not reconsider the decision. It is
 familiar that the finality of a contracting officer's decision may be vitiated by subsequent
 action that lead the contractor reasonably to conclude that the decision was being
 reconsidered. E.g., Sach Sinha and Associates, Inc., ASBCA No. 46916, 95-1 BCA
, 27,499 at 137,041-42 (holding finality of default termination was vitiated where, after
issuing decision, contracting officer met with contractor, discussed termination, and
requested written settlement alternatives). The test is "whether the contractor has
presented evidence showing it reasonably or objectively could have concluded that the
 [contracting officer's] decision was being reconsidered." 

As we have
found, there is no evidence of communication, much less discussion of reconsideration,
after Precision submitted its 15 May 2017 request (statement 8). That leaves only the
request itself, but a request is not tantamount to reconsideration tolling the 90-day
deadline. E.g., Propulsion Controls Engineering, ASBCA No. 53307, 01-2 BCA
, 31,494 at 155,508 (holding it "unreasonable to conclude that a contracting officer is
reconsidering a final decision simply as a result of a request to do so").




                                              3
        In opposing the motion, Precision stresses equitable considerations relating chiefly to
family difficulties and other considerations to justify setting aside the default. But the
Federal Circuit has held that such considerations are irrelevant to compliance with the
90-day deadline for appealing to the Board. Cosmic, 

. The government's
motion is granted and the appeal is dismissed for lack of jurisdiction. Appellant's attention
is directed to the deadline for filing appeals in the Court of Federal Claims.

                                      CONCLUSION

        The government's motion is granted and the appeal is dismissed for lack of
jurisdiction.

       Dated: 16 April 2018



                                                   ALEXANDER YOUNGER
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals


 I concur                                          I concur

    J\J>s_
RICHARD SHACKLEFORD                               J. REifi PROUTY
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




                                             4
      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. 61422, Appeal of Precision
Metals Corp., rendered in conformance with the Board's Charter.

      Dated:



                                               JEFFREY D. GARDIN
                                               Recorder, Armed Services
                                               Board of Contract Appeals




                                          5