Judges: Delman
Filed: Jun. 15, 2016
Latest Update: Mar. 02, 2020
Summary: identifying six unrelated items of cost questioned by DCAA. Pleadings, were filed.Clearly, when appellant received the CO's decision denying this claim it was, unaware of its right to appeal the CO's decision to an agency board of contract appeals, within 90-days of its receipt of the decision.
SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Access Personnel Services, Inc. ) ASBCA No. 59900
)
Under Contract No. N00189-09-C-Zl 14 )
APPEARANCE FOR THE APPELLANT: Mr. Tyrone G. Miller
CEO
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.
Navy Chief Trial Attorney
Paul C. Scheck, Esq.
Attorney Advisor
NA VSUP Fleet Logistics Center Norfolk
Philadelphia, PA
OPINION BY ADMINISTRATIVE JUDGE DELMAN ON THE GOVERNMENT'S
MOTION TO DISMISS FOR LACK OF JURISDICTION
The government has filed a motion to dismiss this appeal for lack of jurisdiction,
on the ground that appellant did not timely file this appeal. Appellant opposes dismissal.
For reasons stated below, we deny the government's motion to dismiss.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 29 September 2009, the Naval Supply Systems Command Fleet Logistics
Center (government) awarded to Access Personnel Services, Inc. (APS or appellant)
Contract No. NOO 189-09-C-Z 114 for support services for the Naval Inventory Control
Point (R4, tab 1). The contract was a time-and-materials type contract.
2. On 2 February 2011, the Defense Contract Audit Agency (DCAA) issued to
APS a DCAA Form 1, Notice of Contract Costs Suspended and/or Disapproved,
identifying six unrelated items of cost questioned by DCAA. Insofar as pertinent, DCAA
disapproved costs under Item 1 in the amount of $22,236, as follows: "APS billed
subcontract direct labor hours at prime contract direct labor rates. We calculated the
differences between the prime contract direct labor rates and the subcontract direct labor
rates and applied the claimed subcontract direct labor hours to the difference." (R4, tab 2)
3. By letter to the contracting officer (CO) dated 10 February 2011, APS replied
to the DCAA Form 1. Appellant addressed each of the six items in tum, contending that
only Items 4 and 5 were valid disallowed costs, and it requested approval of the balance.
(R4, tab 3)
4. By letter to the CO dated 14 April 2011, appellant revised it position. In this
letter, appellant advised of its "official acceptance of Items 2, 4, 5 and 6.. .. However I
do contend that Items 1 and 3 represent legitimate charges that should not be
Suspended or Disapproved." Appellant sought the CO's "time and consideration in
resolving this matter." (R4, tab 4) This constituted a request for a CO's decision on
its claim.
5. By letter from the CO to appellant dated 28 April 2011, the CO proposed a
resolution for Item 3 not pertinent to this appeal. As for Item 1, the CO stated as
follows:
Item 1 is for $22,236.00 in costs that have been disallowed.
You have incorrectly billed the government for services
that were provided by Professional Services of America
(PSA). The amount you billed exceeds the amount that
you were billed by PSA for these services. I concur with
DCAA findings that these costs are disapproved.
This resolves all of the DCAA Form 1 issues.
(R4, tab 6) While this letter denied appellant's claim on Item 1, it was not identified
as a CO's decision, nor did it provide a statement of APS' appeal rights.
6. By email dated 28 April 2011, APS disagreed with the CO's decision. It
requested that the CO "take another look at this and approve my payment." (R4, tab 7)
7. By letter to APS dated 6 May 2011, the CO stated as follows:
I have again reviewed your request for the payment of
disallowed costs. You have billed the Government for
subcontract direct labor hours at prime contract direct labor
rates. You cannot bill the Government at a rate higher than
the rate billed to you by your subcontractor. This is a Time
and Material type contract and indirect costs, such as
vacation or holiday pay should [have] been built into the
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direct labor rate. Your request for approval of these
disallowed costs is denied.
(R4, tab 8) This letter also was not identified as a CO's decision, nor did it provide a
statement of APS' appeal rights.
8. On 20 March 2015, APS filed a notice of appeal with the ASBCA. Pleadings
were filed. The government's answer asserted that the Board lacked jurisdiction over the
appeal because APS failed to file its appeal within 90 days of receipt of the CO's
decision. This was followed by the subject motion to dismiss on 8 June 2015.
9. Within one hour of receipt of the government's motion, appellant replied to
the government by email, copy to the Board, asserting as follows:
[O]ver the past 5 years I have followed the instructions of
the Contracting Officer and DCAA representatives to
pursue my right to collect the monies, which are obviously
owed.
As unfair as it was to originally deny payment it is even
more unfair that I am now being penalized for following
the guidance of Federal officials, that have had me
repeatedly submitting the same information over and over
again to numerous departments, but never informing that I
should, could or need to file with ASBCA. I didn't even
know ASBCA existed until, at my wits end, I stumbled
upon your information as I searched the internet for help!
10. The record includes email communications between appellant and agency
employees over a number of years regarding appellant's claim. One such exchange
was between appellant and a Ms. Bell of the Small Business Administration (SBA) on
13 January 2012. Appellant attached, for her review, a lengthy chain of emails
between APS and various government personnel regarding the claim. Ms. Bell
acknowledged the email that day and stated: "Thanks, I will talk to the office on
Tuesday," but no subsequent communications between SBA and appellant are of
record. (See Bd. corr. ltr. dtd. 3 May 2016 with attachments) The government
contends that the SBA was providing assistance to APS on this dispute (surreply at
13 ), but the record does not support this contention.
11. Appellant also raised the issue of its claim in response to the government's
attempt to close-out the contract in 2014. On 19 March 2015, appellant contacted the
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GAO Contract Appeals Board by email regarding the claim, stating in pertinent part as
follows:
I have been contacted recently about the close out of the
subject line contract, for which I have been trying
desperately to collect the collect [sic] the outstanding
amount. It has been years and I have been shuffled around
and endure the retirements of several POC's and no one
seems interested in correcting this obvious wrong ....
Please take a look at what I have presented and let me
know if you have any questions ....
(See Bd. corr. ltr. dtd. 3 May 2016 with attachments) GAO's email response of that
date suggested that appellant contact the ASBCA (id.). Appellant's appeal was filed
here the next day, on 20 March 2015.
12. Attached to the notice of appeal was an email from CO Scott Rubin to
appellant, dated 18 March 2015, stating as follows:
The contract in question has been exhaustively reviewed
by Contracting Officers that preceded me in this position.
I have conducted my own cursory review of the file and I
have found nothing that would provide me a basis to
second-guess or overrule those prior determinations.
This email did not constitute a reconsideration of the CO's decision of 6 May 2011
denying appellant's claim.
DECISION
Insofar as pertinent here, our jurisdiction under the Contract Disputes Act,
41 U.S.C. §§ 7101-7109 (CDA), is predicated upon: (1) the submission of a proper
claim by a contractor to the CO for decision; (2) the issuance of an adverse written
decision on the claim by the CO (or a deemed denial of said claim); and (3) a timely
appeal to this Board within 90 days of receipt of the decision. In support of its motion
to dismiss, the government asserts that APS submitted a claim to the CO, that the CO
issued a decision denying the claim, but that APS failed to file a timely appeal with
this Board.
We agree with the government that appellant submitted a claim to the CO on
14 April 2011, seeking payment from the government in the amount of $22,236, which
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was the disputed amount under Item 1 (SOF ~ 4 ). We also agree that the CO issued to
appellant an adverse written decision, denying this claim on 28 April 2011 (SOF ~ 5), and
upon reconsideration, denying the claim again on 6 May 2011 (SOF ~ 7). However
neither decision advised APS of its rights of appeal.
The CDA, 41 U.S.C. § 7103(e), requires the CO's decision to inform the
contractor of"its rights as provided in this chapter." FAR 33.21 l(a)(4)(v) implements
this statutory language, requiring that the CO' s decision contain substantially the
following language:
This is the final decision of the Contracting Officer.
You may appeal this decision to the agency board of
contract appeals. If you decide to appeal, you must, within
90 days from the date you receive this decision, mail or
otherwise furnish written notice to the agency board of
contract appeals and provide a copy to the Contracting
Officer from whose decision this appeal is taken. The
notice shall indicate that an appeal is intended, reference
this decision, and identify the contract by number.
Instead of appealing to the agency board of contract
appeals, you may bring an action directly in the United
States Court of Federal Claims ... within 12 months of the
date you receive this decision ... .
The CO's decision here failed to comply with the CDA and the regulations.
The law is well settled that proof of detrimental reliance on a defective CO's
decision will toll the 90-day appeal period. See Decker & Co. v. West, 76 F.3d 1573
(Fed. Cir. 1996); Mansoor International Development Services, ASBCA No. 58423,
14-1 BCA ~ 35,742. The record shows that APS was unfamiliar with the contract
dispute process in general and the ASBCA in particular. Indeed, the record shows that
at all times relevant, APS was unaware of the Board's existence. 1
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As indicated above, appellant communicated this information to the government by
email on 8 June 2015, with copy to the Board, immediately after receipt of the
government's motion to dismiss. There has been no showing that this email
was provided in variance with the parties' course of dealing, or otherwise failed
to follow Board direction. Under these circumstances, we reject the
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The government argues that after appellant's claim was denied by the CO in
May 2011, it should have promptly searched the internet, hired counsel or taken other
pro-active steps to determine its appeal rights, and having failed to do so, must be held
responsible for this late appeal. We do not agree. We do not read Decker or the CDA
to impose a "due diligence" requirement on unknowledgeable contractors.
The government further contends that the Disputes clause in the contract,
FAR 52.233-1 (JUL 2002), advises appellant of its appeal rights. This is not entirely
correct. While subsection (f) of the clause refers generally to an "appeal'' under the
Act, it does not state with whom that appeal had to be filed, and the date by which that
appeal had to be filed. A contractor would need to ascertain this information in some
other way. However, neither Decker nor the CDA imposes an affirmative obligation
on a contractor to ascertain its appeal rights. The CDA places the obligation of
notification squarely on the shoulders of the government. When the government fails
to adequately provide this notice, the Decker test is one of detrimental reliance, i.e,
whether the CO's decision, by words of commission or omission, actually misled the
contractor to its prejudice regarding its appellate rights. Mansoor, 14-1BCAif35,742
at 174,926-27.
Clearly, when appellant received the CO's decision denying this claim it was
unaware of its right to appeal the CO's decision to an agency board of contract appeals
within 90-days of its receipt of the decision. A proper notice from the CO would have
provided this information. Appellant was misled and prejudiced by the CO's failure to
provide this notice in the decision.
The government argues that to toll the appeal period would, in effect, provide
for an indefinite appeal period. The short answer to this contention is that the
government has the ability to obviate this concern by issuing CO decisions in
accordance with law. See Pathman Construction Co. v. United States, 817 F.2d 1573,
1579 (Fed. Cir. 1987).
We have reviewed all the government's other contentions, but they are not
persuasive. We conclude that appellant has shown detrimental reliance upon the
omission of its appeal rights in the CO's decision denying its claim. Accordingly, this
appeal is timely.
government's request that we disregard appellant's email because it was
"unsigned" and/or because it was not in affidavit form. We exercise our
discretion to accept appellant's email into the evidentiary record.
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CONCLUSION
Under the circumstances presented, we conclude that the 90-day appeal period
to this Board from the CO decision was tolled. We have jurisdiction over appellant's
appeal, ASBCA No. 59900. The government's motion to dismiss for the lack of
jurisdiction is denied. 2
Dated: 15 June 2016
'"-------·-
A dmin is tra ti v e Judge
Armed Services Board
of Contract Appeals
I concur I concur
/--;;~
£:~~~-- RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
2
The government's reply brief dated 9 December 2015 requests a Board order to
show cause why this appeal should not be dismissed for failure to prosecute.
While the record does show that appellant failed to promptly reply to several
Board orders, we believe that the record, overall, shows that appellant has
manifested an active interest in its appeal and remains actively engaged in its
pursuit. The government's request for an order to show cause is denied.
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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. 59900, Appeal of Access
Personnel Services, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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