ASBCA Holds that Sending Final Decision to Contractor’s Former Attorney Does Not Satisfy the CDA Requirement to Provide the Contractor with the Final Decision
By: Michael Hawkes
Published Date: June 24, 2019
Most government contractors are familiar with the disputes procedure for making claims against the Federal Government. The contractor submits a claim – certified if necessary – and the Contracting Officer issues a written final decision on the claim that is furnished to the contractor. The Contracting Officer’s final decision can be furnished to the contractor by certified mail, return receipt requested, or any other method that provides evidence of receipt. FAR 33.211(b).
In an earlier blog, we discussed how sending the final decision by email to the contractor can satisfy the requirement that the final decision be furnished to the contractor as long as there is evidence that the contractor actually received the email, such as a read receipt. Recently, the ASBCA addressed the issue of whether the final decision has to be sent to the contractor itself. Rohulhameed Construction Co., ASBCA No. 61359 (April 4, 2019).
In that case, back in April 2010, the Contracting Officer issued a final decision terminating a construction contract for convenience. That same day, the contracting officer issued a unilateral contract modification purporting to waive any contractor charges against the Government as a result of the termination and releasing the Government from all obligations except for the payment of Defense Base Act insurance charges. The contractor never responded to the final decision or the modification, and it was unclear whether the contractor ever actually received a copy of them. According to the ASBCA, the Government could not produce any evidence to show how the final decision was sent to the contractor or the date on which the contractor received the final decision.
Nearly four years later, a contract specialist sent an email to three different email addresses he had for the contractor, advising the contractor that he was closing out the contract and needed confirmation there were no outstanding claims, disputes, or other contractual issues. Several months later, the contractor notified the contract specialist by email that the contractor had not been paid for some construction work under the contract. The contract specialist responded that he only could help the contractor with the insurance issue and provided the contractor with a copy of the contract modification that terminated the contract.
Over two years later, an attorney for the contractor sent a certified claim for the unpaid work to an unspecified office at the Pentagon. Apparently, the Contracting Officer became aware of the claim because the Contracting Officer reached out to the attorney, who sent the Contracting Officer a copy of the contractor’s claim. Several months later, the attorney filed a petition with the ASBCA seeking to have the Contracting Officer issue a final decision on the claim. The Contracting Officer subsequently issued a final decision denying the claim.
The Contracting Officer emailed the final decision to the attorney who had been representing the contractor before the ASBCA but did not send a copy to the contractor. Further, the Contracting Officer did not use a “read receipt” on the email to the attorney.
Approximately seven months later, the contractor itself filed a notice of appeal of the final decision with the ASBCA. The Government moved to dismiss the appeal as untimely. Under the Contract Disputes Act, the contractor has 90 days from receipt to appeal a Contracting Officer’s final decision to the applicable board of contract appeals and one year to appeal to the Court of Federal Claims. The requirement to file a timely appeal is jurisdictional and cannot be waived by the board or court.
The crucial issue before the ASBCA was when the contractor received the final decision. The attorney acknowledged receiving the final decision on the day it was emailed by the Contracting Officer and stated that he had forwarded the final decision to the contractor on the same day. However, the attorney provided no proof that the final decision was forwarded to the contractor (such as a copy of the forwarding email) and no specific forwarding address for the contractor was given. The contractor, on the other hand, asserted that it had taken time for the attorney to send the contractor a copy of the final decision, although when the contractor received the final decision was unclear.
The ASBCA ultimately concluded that there were no objective indicia in the record when the contractor physically received the Contracting Officer’s final decision. Since the Government had the burden of establishing the date that the final decision was received by the contractor, the ASBCA denied the motion to dismiss.
With regard to the issue of whether receipt of the final decision by the attorney constituted receipt by the contractor, the ASBCA noted that receipt of a Contracting Officer’s final decision means the actual physical receipt of that decision by the contractor. Actual receipt can include receipt by an authorized representative of the contractor acting within the scope of the representative’s authority.
In this case, the ASBCA apparently found that the attorney was not acting within the scope of his authority. The attorney was no longer representing the contractor; although when that representation ended was unclear. Further, there was nothing in the record that indicated that the contractor ever requested that the final decision be sent to an address other than the contractor’s address of record. Indeed, the contractor asserted that, while it authorized the Contracting Officer to discuss the claim with its attorney, it did not authorize or request that the Contracting Officer’s final decision be sent or transmitted only to the attorney rather than the contractor. Thus, receipt of the final decision by the attorney was not receipt of the final decision by the contractor, and transmission by email of the final decision to the attorney did not trigger the 90-day period for appealing that decision.