Under the Contract Disputes Act of 1978, a contractor may appeal to a Board of Contract Appeals an adverse contracting officer’s (“CO”) final decision within 90 days of receipt of the CO’s final decision. If the contractor elects to go to the U.S. Court of Federal Claims, it has one year to appeal by filing a complaint. The Armed Services Board of Contract Appeals (“ASBCA”) considered a situation where the CO issued more than one final decision. When that happens, what is the controlling date for the 90 days? Frasson Lodovico S.r.l., ASBCA No. 58645, Feb. 10, 2014. It is the date of the last final decision, not the first.
Frasson had a design build contract in Italy for the U.S. Government. The sequence of events was as follows:
On April 26, 2012, Frasson submitted a certified clam for a variety of additional items.
On Jan. 22, 2013, the CO issued a final decision by letter, which was addressed to Mr. Rodolfo Prischich, whom the CO believed represented Frasson, but this was incorrect.
On Feb. 5, 2013, Frasson received a copy of the final decision by certified mail
On February 25, 2013, the CO issued a correction to his January 22nd final decision.
On May 1, 2013, Frasson filed a notice of appeal, and attached both the January 22nd decision, and the February 25th decision.
The Government sought to dismiss the appeal, claiming it had been filed 97 days after receipt of the CO’s final decision, which was alleged to be January 22, 2013.
The Board rejected the Government’s arguments, noting that where multiple copies of a CO’s final decision have been provided to Appellant, the latest received decision begins the 90 day period for appeal. The board noted that the appeal was of the corrected decision, and the appeal was filed on day 85 after receipt of that decision. Earlier decisions on the same claim do not count for the 90 day appeal period.
TIP: When a contractor receives one CO final decision, it has 90 days to appeal it to a Board. But if a CO subsequent modifies or corrects that decision, the 90 day appeal period will begin to run again. So the contractor would essentially have two “bites of the apple.” If the contractor had appealed the initial decision before the correction, then any corrected or modified decision would be transmitted to the Board and considered during the appeal proceedings.