Increasingly, the Federal Government relies on email to communicate with its contractors. A recent decision by the Armed Services Board of Contract Appeals (“ASBCA”) in Aerospace Facilities Group, Inc., ASBCA No. 61026, 2018 WL 3725567 (July 19, 2018) reinforces the importance of treating email communications the same as hard copy communications.

In the Aerospace Facilities Group, Inc. case, the contractor was awarded a contract to install paint-booth equipment, booth monitoring systems, and a personnel protection system. On August 4, 2016, the contracting officer sent a modification to the contractor terminating the contract for cause via email and certified mail. The modification stated that it was the final decision of the contracting officer and notified the contractor of its appeal rights. The contractor received the email on August 4, 2016, but denied that it ever received the copy of the modification that had been sent by mail.

Following the contractor’s receipt of the termination notice, the parties attempted unsuccessfully to resolve the dispute. On September 13, 2016, the contracting officer issued a second final decision demanding that the contractor repay $7.8 million in installment payments that had been made to the contractor. Subsequently, on November 8, 2016, the contractor filed an appeal of the termination for cause. The appeal was filed 91 days after the contractor received the notice of termination by email, and the Government moved to dismiss the appeal as untimely.

Under the Contract Disputes Act, a contractor has 90 days to appeal a contracting officer’s final decision to the applicable board of contract appeals. 41 U.S.C. § 7104(a). The requirement to file a timely appeal is jurisdictional and cannot be waived by the board. In other words, a contractor who fails to file its appeal within 90 days of receipt of a final decision cannot proceed before the board.

The contractor argued that its appeal was not untimely because it had not been properly served with a copy of the final decision. Specifically, the contractor argued that the contracting officer should have sent the termination for cause only through certified mail and that sending the termination by both email and certified mail violated FAR 33.211(b). FAR 33.211(b) states that the contracting officer shall furnish a copy of the final decision by certified mail, return receipt requested, or by any other method that provides evidence of receipt. According to AFG, the “or” language refers to the method of providing receipt of the certified mail. It does not give the contracting officer discretion to substitute email for certified mail.

The ASBCA rejected this argument. It held that the contracting officer may transmit a final decision to the contractor through fax, hand delivery, or email as long as there is evidence of receipt by the contractor. In this case, it was undisputed that the contractor received the emailed version of the final decision on August 4, 2016.

Although the contractor failed to file appeal within 90 days of receipt of the emailed final decision, the ASBCA held that it had jurisdiction over the appeal because the ASBCA concluded that the contracting officer had vitiated the finality of the August 4, 2016 final decision. The ASBCA found the Government’s actions in discussing proposals to resolve the dispute with the contractor after the notice of termination was issued constituted a reconsideration of the termination or at least reasonably lead the contractor to believe the Government was reconsidering the final decision.

Despite the fact that the ASBCA ultimately ruled in favor of the contractor, the decision provides an important reminder that contractors should treat communications sent by the Government through email the same as they would certified letters. If a contractor would like to receive formal notices from the Government in a particular manner, then the contractor should make a formal request to the Government. Otherwise, the Government can send these notices in any manner as long as the Government can prove the contractor received it.

* The author would like to acknowledge the contribution of Sabah Siddiqui, a law clerk in our Washington, D.C. office, to this blog.

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