The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
The Sithe Group, LLC, dba TSG Industries ) ASBCA No. 63605
)
Under Contract No. W9126G-18-P-0012 )
APPEARANCES FOR THE APPELLANT: Thomas Dunlap, Esq.
Alexander Jonathan Brittin, Jr., Esq.
Dunlap Bennett & Ludwig PLLC
Vienna, VA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Erin Zetterstrom, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Galveston
OPINION BY ADMINISTRATIVE JUDGE WILSON
ON THE GOVERNMENT’S MOTION TO DISMISS
The Board, sua sponte, questioned whether it has jurisdiction over this appeal.
The United States Army Corps of Engineers (USACE or government) subsequently
moved to dismiss this appeal for lack of jurisdiction, contending that The Sithe Group,
LLC, dba TSG Industries (TSG) failed to file a timely appeal from the contracting
officer’s final decision (COFD) pursuant to the 90-day limitations period in the
Contract Disputes Act, 41 U.S.C. § 7104 (CDA). For the reasons stated below, we
grant USACE’s motion and dismiss the appeal.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On November 26, 2017, USACE awarded Contract No. W9126G-18-P-0012
to TSG for site preparation, installation, and purchase or lease of modular buildings to
provide classrooms, an office trailer, and a restroom for the Orangefield Elementary
School in Orangefield, Texas (gov’t reply at 2, ex. 4 at 48).
2. TSG alleges that, on or about June 14, 2018, TSG substantially completed
performance under the contract, (app. resp. at 1; gov’t reply at 2 and ex. 1).
3. On June 18, 2018, TSG executed an assignment of payment on the contract
to SouthStar Financial, LLC (SouthStar) (gov’t reply at 2 and ex. 2).
4. On or around July 1, 2018, TSG submitted a request for equitable
adjustment (REA) to USACE requesting $1,087,852.97 for unpaid contract funds,
additional costs incurred, damages, and lost profits. TSG claimed that these costs were
the result of USACE adding work beyond what was originally specified in the
contract, providing faulty design specifications, and causing schedule delays. (Gov’t
reply at 2 and ex. 3; app. resp. at 1) On July 13, 2018, citing the remaining punch list
work, USACE advised TSG that it was 163 calendar days beyond the January 31, 2018
contract completion date and had incurred over $400,000 in liquidated damages (gov’t
reply at ex. 1 at 2).
5. On August 23, 2018, TSG and USACE held an REA settlement conference.
After several months of correspondence, TSG and USACE accepted, in principle, a
USACE provided settlement offer on November 2, 2018. (Gov’t reply, ex. 4 at 48;
app. resp. at 2) According to a contracting officer’s memorandum, for the next several
weeks, TSG and USACE attempted to negotiate the final language to their settlement
agreement, but on November 29, 2018, TSG withdrew from the settlement
negotiations. After TSG’s withdrawal, USACE committed to provide a response to
the REA on the merits by December 21, 2018. (Gov’t reply, ex. 4 at 48)
6. On December 20, 2018, USACE issued a “Memorandum for the File” which
responded to TSG’s REA; the decision approved TSG’s request in small part and
denied the remainder (gov’t reply, ex. 4; app. resp., ex. 3). The contracting officer
determined that TSG was entitled to an additional nine days of contract duration due to
weather delays and an increase in the contract price of $6,075 to account for additional
concrete aggregate. The decision noted that these adjustments would be considered
“in connection with the assessment of liquidated damages” and work TSG did not
complete. The remaining items in the REA were otherwise denied. (Gov’t reply at 2
n.2 and ex. 4 at 48; app. resp. at 3-4, ex. 3)
7. On December 20, 2018, the contracting officer executed a unilateral
modification to the contract (P00003) which adjusted the contract by incorporating the
approved REA entitlement ($6,075 and a 9-calendar day extension), assessed
liquidated damages of 157 calendar days totaling $390,705.49, and reduced the
contract price by $1,600 for nonconforming supplies or services (gov’t reply at 2-3 and
ex. 5 at 56; app. resp. at 3-4).
8. Around January and February of 2019, a series of email correspondence
occurred between Mr. Theodore Sims, the managing partner of TSG, and USACE
(app. resp., ex. 5). In an email dated February 8, 2019, Mr. Jeffrey Neill, the
Galveston District Chief of Contracting, replied to TSG’s payment request and stated
that the remaining balance could not be paid due to a defective invoice submitted by
TSG and that TSG needed to submit an ENG 93 form (i.e., a payment estimate for
contract performance form) and supporting information for the final payment to be
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processed (app. resp. at 5-6 and ex. 5 at 39). In a second email dated February 12,
2019, Mr. Neill provided additional information about what constituted an acceptable
invoice and further stated, “since this is the final payment, you will need to include a
release of claims with any exclusions identified therein (e.g., you probably want to
exclude the issues in your former REA).” Mr. Neill stated he attached a sample
release statement for TSG’s convenience. (App. resp. at 6 and ex. 5 at 36) On
August 27, 2019, Mr. Sims submitted an ENG 93 form to USACE (app. resp. at 6 and
ex. 6).
9. According to a declaration submitted by Mr. Sims, he believed that “USACE
would not provide a final payment for the remaining balance of the Contract until a
final settlement agreement was reached and TSG executed a release of claims” (app.
resp. at 7 and ex. 8 at 50).
10. On December 19, 2019, TSG submitted its first certified claim to
Mr. Curtis Cole, the USACE contracting officer, for $1,780,428.76 which incorporated
TSG’s denied REA claims and disputed the assessment of liquidated damages,
alleging the government caused the delays (gov’t reply at 3 and ex. 7; app. resp. at 7).
The certified claim also contained the statement, “the USACE stated that remaining
payment under the Contract could not be made unless TSG executed a release of
claims. The Contract provides no such requirement.” (Gov’t reply, ex. 7 at 70). The
contracting officer sent TSG an acknowledgement of receipt of the claim by email on
December 31, 2019, and indicated that a COFD would be issued by February 24, 2020
(gov’t reply at 3 and ex. 8).
11. By email dated January 6, 2020, Mr. Sims provided a copy of the certified
claim to Colonel Robert Miceli, USACE Deputy Director of Contracting, and
requested that he review and acknowledge receipt of the certified claim. By email and
letter dated January 7, 2020, Mr. David Curry, the acting Senior Contracting Official
at Dallas, responded to TSG on Colonel Miceli’s behalf by acknowledging that the
contracting officer was in receipt of TSG’s claim and informed Mr. Sims that a COFD
would be issued by February 24, 2020. Mr. Curry further advised Mr. Sims that
Mr. Cole was the contracting officer and that if he had any further questions, he could
contact Mr. Cole. (Gov’t reply at 3 and ex. 9, attach. 1)
12. Following the February 12, 2019, email and TSG’s submission of its
certified claim, Mr. Neill states, by affidavit, that he had telephonic discussions with
Mr. Sims in which he advised TSG that a release of claims was not required for an
invoice to be paid (gov’t reply at 3-4 n.5 and ex. 12 at 98). 1
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In his affidavit, Mr. Neill states he informed Mr. Sims that he could also include any
exclusions within the release of claims so that TSG could later submit an REA
or claim (gov’t reply, ex. 12 at 98).
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13. By email and letter dated April 2, 2020, TSG sent a revised certified claim
to USACE seeking $1,695,718.55 (gov’t reply at 3 and ex. 11; app. resp. at 7). The
revised claim included the statement, “USACE has asserted that it cannot pay TSG
under the Contract until full completion and/or until TSG executes a release of claims.
But contrary to the USACE’s representation, the Contract contains no such clause or
requirement” (gov’t reply at 3 and ex. 11 at 91). In the claim, TSG again asserted that
USACE breached the contract by failing to make payment, changed the contract terms
by adding work beyond the contract specifications, and caused delays to the approved
schedule; TSG also demanded that USACE forgo liquidated damages (gov’t reply, ex.
11 at 91).
14. By email dated April 27, 2020, TSG submitted a final revised certified
claim to USACE seeking $1,706,038.55 which included an updated claim summary
(gov’t reply at 4 and ex. 14). The revised claim included the statement, “[t]he USACE
has asserted that it cannot pay TSG under the Contract until full completion and/or
until TSG executes a release of claims” (gov’t reply, ex. 14, attach. 1 at 12).
15. By email and certified mail dated July 29, 2020, the contracting officer,
Mr. Cole, issued a COFD to TSG which accepted in part and denied in part TSG’s
certified claim (gov’t reply at 4; gov’t mot., ex. 1 at 7 and attach.; app resp. at 7). The
COFD approved payment of $8,657.48 due to an improperly rejected invoice, but
otherwise denied the claim (gov’t reply at 4 n.6; gov’t mot., ex. 1, attach). The COFD
failed to include the FAR 33.211(a)(4)(v) appeal rights language (gov’t mot., ex. 1,
attach.).
16. Following his receipt of the COFD, by email dated July 29, 2020 at 11:43 a.m.,
Mr. Sims provided Mr. Curry a copy of the COFD and asked, “[p]lease advise” (gov’t
reply at 4 and ex. 16 at 108; app. resp. at 7). By email on that same day at 2:39 p.m., after
receiving Mr. Sims’ email, Mr. Curry contacted Mr. Neill, the Galveston District Chief of
Contracting, and inquired about the risk for not including the FAR 33.211(a)(4)(v) appeal
rights language (gov’t reply at 4 and ex. 17 at 112). By email dated July 29, 2020
at 2:52 p.m., Mr. Neill replied to Mr. Curry and stated that the COFD would be updated and
resent on that same day (gov’t reply at 4 and ex. 17 at 111-12). By email dated July 29,
2020 at 2:57 p.m., Mr. Curry responded back to Mr. Sims and explained that the Chief of
the Contracting Office and procurement contracting officer would be in touch with him
shortly to discuss the path forward and his options (gov’t reply at 4 and ex. 16 at 108).
17. In a declaration, Mr. Sims states that on July 29, 2020, the same day he
received the COFD, he contacted Mr. Curry. Mr. Sims, however, did not identify the
method of contact (e.g., email or phone). (App. resp. at 7 and ex. 8 at 50) Mr. Sims
states that he told Mr. Curry, “it was my understanding that the parties were still
negotiating the REA settlement and that the final decision should not be viewed as
final” (id. app. resp. at 7 and ex. 8 at 50). Mr. Sims alleges that Mr. Curry responded
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by stating that “in his experience these types of issues happen and the average time to
reach a settlement is 3-5 years” (id. app. resp. at 7 and ex. 8 at 50). Mr. Sims further
claims that this conversation with Mr. Curry led him “to believe that the [contracting
officer’s] decision was not truly final because the government was planning to revisit
denied portion(s) of the claim by re-engaging in final settlement negotiations” (app.
resp. at 7 and ex. 8 at 50-51).
18. USACE, however, disputes Mr. Sims’ claims. In an affidavit, Mr. Curry
states that he has no recollection of such a conversation taking place with Mr. Sims
and further indicated that he would not make the statement that in his “experience
these types of issues happen and the average time to reach a settlement is 3-5 years.”
(Gov’t reply, ex. 31 at 174) USACE also indicated that its Cyber Forensics team
conducted a search of Mr. Curry’s emails from January 2020 to December 2020 using
certain key words and the latest email communication recovered that occurred between
Mr. Curry and Mr. Sims was the July 29, 2020 email exchange discussed above (gov’t
reply at 4 n.8).
19. On July 29, 2020 at 4:37 p.m., the contracting officer submitted a revised
COFD to TSG by email and certified mail, return receipt requested (gov’t reply at 4-5;
gov’t mot. at 1-2 and ex. 3; app resp. at 7). The return receipts indicated that TSG 2
received the COFD by email on July 29, 2020 at 5:14 p.m. and by certified mail on
August 6, 2020 at 1:37 p.m. (gov’t mot. at 2 and ex. 6, ex. 7; gov’t reply at 5). TSG
does not dispute these facts (see app. reply at 7, 11). As in the initial COFD, the
contracting officer approved TSG’s failure to make payment claim of $8,657.48 but
otherwise denied all remaining claims. (Gov’t mot., ex. 3; gov’t reply at 4-5) Neither
the original nor the revised COFD specifically assessed liquidated damages but, citing
the Liquidated Damages clause, the contracting officer denied TSG’s allegation that
USACE waived the deadline for performance (gov’t mot., ex. 3, attach. at 13). In
addition, the COFD set forth the following, which includes the FAR 33.211(a)(4)(v)
appeals right 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 . . .
(Gov’t mot., ex. 3, attach. at 13; gov’t reply at 4-5) (emphasis added)
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The record shows a return receipt for an email to an attorney that USACE states was
TSG’s attorney at the time it submitted the certified claim (gov’t mot. at 4).
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20. TSG has not cited any evidence that the contracting officer reconsidered his
final decision during the remainder of 2020, nor in 2021 or 2022. Based on the
documents submitted by the parties, there is no evidence that anything happened in
2020 after August 6, or in 2021 or 2022.
21. On March 28, 2023, the contracting officer issued a revised unilateral
Modification No. P00003, which referred to the July 29, 2020 COFD, and authorized
the payment of $9,619.55, the remaining amount owed under the contract as
referenced in the COFD ($8,657.48) plus interest to date, to appellant’s assignee,
SouthStar (gov’t reply at 5 and ex. 24; app. resp. at 7-8). That same day, the
contracting specialist emailed the revised modification to TSG (gov’t reply ex. 25;
app. resp. at 8) The modification did not include any language regarding the
assessment of liquidated damages (see gov’t reply, ex. 24 at 142-46).
22. By email dated April 17, 2023, the contracting officer requested that
Mr. Sims submit the final invoice (gov’t reply at 6 and ex. 26 at 154-55; app. resp.
at 8). By email dated April 28, 2023, the contracting specialist followed up with
Mr. Sims and further requested that an invoice be provided so that a payment could be
made to SouthStar (gov’t reply, ex. 27 at 154).
23. That same day, Mr. Sims responded to the contracting specialist and
inquired why USACE was withholding the remaining balance of the base contract
“($650k+)” (gov’t reply, ex. 27 at 153; app. resp. at 8).
24. Later that day, the contracting officer responded via email and provided
Mr. Sims with a breakdown of the payments made by the government under the
contract. The contracting officer then explained that the final amount owed under the
contract was $9,619.55 to TSG’s assignee, the amount identified in the COFD plus
interest, and further inquired when TSG would provide an invoice for $8,657.48 so a
final payment could be processed. (Gov’t reply at 6 and ex. 27 at 152; app. resp. at 9)
25. In response, by email dated April 28, 2023, Mr. Sims once again asked the
contracting officer about the remaining funds that he contended were owed to TSG for
the accepted completion of the contract (gov’t reply at 6 and ex. 28 at 157; app. resp.
at 9).
26. On May 2, 2023, TSG submitted a notice of appeal to this Board for the
July 29, 2020 COFD.
27. By email dated May 9, 2023, the contracting officer again explained to
Mr. Sims that the final amount owed to TSG under the contract was “$8,657.78 plus
interest based on TSG’s April 2, 2020 certified claim for failure to make payment
under progress payment request #002. . . .” The contracting officer then inquired when
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TSG would submit a final invoice so the amount owed could be submitted for
payment. (Gov’t reply at 6 and ex. 29; app. resp. at 9-10) Based on the record, at no
time within the 90 days after the revised COFD was issued, or at any time after the
COFD was issued, did the contracting officer give an indication that he was
reconsidering his final decision on TSG’s claim.
28. On May 10, 2023, the Board, sua sponte, questioned whether it had
jurisdiction over this appeal.
29. On May 30, 2023, USACE submitted a motion to dismiss for lack of
jurisdiction due to untimeliness. TSG has responded in opposition to the
government’s motion.
DECISION
USACE moves to dismiss this appeal for lack of jurisdiction, asserting that
TSG failed to file its appeal within the requisite 90-day time period (gov’t mot. at 2-5).
In support of its motion, USACE argues that the 90-day window began on July 29,
2020, when appellant’s counsel received the COFD via email and USACE received a
read receipt (gov’t mot. at 4). In the alternative, the government argues TSG received
the COFD at the latest on August 6, 2020, when appellant received the COFD via
certified mail (id. at 4-5). As TSG filed its notice of appeal on May 2, 2023, USACE
argues the appeal is long outside the 90-day time period (id. at 2, 5).
In its response, TSG argues that its appeal is not untimely because the COFD
was not actually final since TSG was misled to believe that USACE would revisit the
denied portions of its claim through settlement negotiations (app. resp. at 10-12).
Alternatively, TSG contends that even if we do find that the May 2, 2023 appeal was
untimely, USACE’s contract modification on March 28, 2023 qualified as a
government claim which superseded the COFD and, therefore, TSG has timely
appealed (id. at 12-13). Finally, TSG argues that, at the very least, the Board should
deny USACE’s motion to dismiss because USACE’s conduct following the COFD
warrants investigation by the Board (id. at 13-14).
TSG’s Receipt of the COFD Initiated the 90-day Window
The Board’s jurisdiction is governed by the CDA, which requires that each
claim by a contractor be submitted to the contracting officer for a final decision.
41 U.S.C. § 7103(a)(1). The contractor may appeal a COFD to an agency board if the
appeal is initiated within 90 days of the receipt date of the decision. 41 U.S.C.
§ 7104(a). It is well established that the 90-day window is statutory and cannot be
waived or extended. Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390-91
(Fed. Cir. 1982). Therefore, the Board lacks jurisdiction for any appeal that is
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untimely filed outside the 90-day period. Id.; Carter Safety Consultants, Inc., ASBCA
No. 60779, 17-1 BCA ¶ 36,669 at 178,553.
While the appellant has the burden of proof to establish that its appeal was
timely filed, the government has the burden of proving the date appellant received the
final decision. TTF, LLC, ASBCA No. 59511 et al., 15-1 BCA ¶ 35,883 at 175,434.
According to the Federal Acquisition Regulation (FAR), “[t]he contracting officer
shall furnish a copy of the decision to the contractor by certified mail, return receipt
requested, or by any other method that provides evidence of receipt.” FAR 33.211(b),
CONTRACTING OFFICER’S DECISION (2023). To meet its burden, the
government must provide “objective indicia” of actual physical receipt of the decision
by the appellant to establish the proper receipt date and start the 90-day window. Riley
& Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1372 (Fed. Cir. 2005) (citing
Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991)).
In this case, USACE sent the COFD via email and certified mail. Here,
USACE has provided evidence, via an email return receipt, that TSG (through
counsel) received the COFD on July 29, 2020 (SOF ¶ 19). TSG has also not denied
receiving the COFD on this date (id.). Therefore, USACE has met the requirements of
FAR 33.211(b) by providing “objective indicia” of actual physical receipt of the
COFD by TSG. Riley, 408 F.3d at 1372. Additionally, the COFD contained the
required FAR 33.211(a)(4)(v) appeal rights language which notified TSG that they
must appeal the decision “within 90 days from the date [the decision is received]”
(SOF ¶ 19). Thus, the 90-day window started on July 29, 2020 and TSG was required
to file its appeal by October 27, 2020.
TSG filed its notice of appeal on May 2, 2023, nearly two and a half years
beyond the allowable 90-day timeframe. Unless TSG can provide a valid defense to
overcome the 90-day jurisdictional requirement, its appeal will be deemed untimely,
and the Board will lack jurisdiction.
The COFD was Final
TSG argues that the COFD should not be viewed as final since TSG was misled
to believe that USACE would revisit the denied portion of its claim through REA
settlement negotiations. Therefore, since the COFD was vitiated by this misbelief,
TSG argues that the 90-day clock did not start on July 29, 2020, and its appeal is thus
timely. (App. resp. at 10-12)
It is well established that if a contracting officer’s decision is not truly final, but
is being reconsidered, then a “failure to appeal the decision within the [90-day
window] will not defeat . . . [a] contractor’s opportunity to be heard on the merits.”
Sach Sinha and Assocs., ASBCA No. 46916, 95-1 BCA ¶ 27,499 at 137,041 (quoting
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Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA ¶ 16,915 at 84,170). The
finality of a contracting officer’s decision may be vitiated by subsequent action that
leads the contractor to reasonably conclude that the contracting officer was
reconsidering the decision. Precision Metals Corp., ASBCA No. 61422, 18-1 BCA
¶ 37,035 at 180,315 (citing Sach Sinha, 95-1 BCA ¶ 27,499 at 137,041-42).
The test for vitiation of a COFD is whether the contractor has presented
evidence that shows it reasonably or objectively could have concluded that the
contracting officer was reconsidering the decision. Nauset Construction Corp.,
ASBCA Nos. 61673, 61675, 21-1 BCA ¶ 37852 at 183,817, aff’d Nauset Construction
Corp. v. Secretary of the Army (Fed. Cir. March 4, 2024 slip op); Precision Metals,
18-1 BCA ¶ 37,035 at 180,315; Aerospace Facilities Grp., Inc., ASBCA No. 61026,
18-1 BCA ¶ 37,105 at 180,605; Sach Sinha, 95-1 BCA ¶ 27,499 at 137,042.
On several occasions, this Board has recognized events that have led to the
vitiation of a contracting officer’s final decision. In each decision, the Board
determined that it was reasonable for the contractor to believe that the decision was not
truly final. For instance, in Royal Int’l. Builders Co., ASBCA No. 42637,
92-1 BCA ¶ 24,684 at 123,135, the contracting officer issued a final decision but later
decided to meet with the contractor after the contractor provided additional
information for consideration. The Board stated that in agreeing to meet with the
contractor and not cautioning that the original decision still applied, the contracting
officer gave a reasonable appearance that the decision was being reconsidered, which
ultimately caused its vitiation. Id. at 123,135-34; see also Sach Sinha and Assocs.,
Inc., 95-1 BCA ¶ 27,499 at 137,042; Johnson Controls, Inc., ASBCA No. 28340,
83-2 BCA ¶ 16,915 at 84,170 (a meeting held by the new contracting officer with the
contractor after issuance of a final decision to further consider the contractor’s claim
was sufficient to vitiate the decision).
This Board has also indicated that there must be evidence that a contracting
officer has communicated with or reached out to the contractor to discuss the contract
following a final decision. For instance, in Precision Metals Corp., ASBCA
No. 61422, 18-1 BCA ¶ 37,035 at 180,314, soon after a final decision was issued, the
contractor emailed the contracting officer and requested that the decision be
reconsidered. The Board found no evidence of any further communications between
the parties and concluded that “a request [for reconsideration] is not tantamount to
reconsideration tolling the 90-day deadline.” Id. at 180,315. Additionally, the Board
in Nauset Constr. Corp., ASBCA Nos. 61673, 61675, 21-1 BCA ¶ 37,852 at 183,818,
ruled that communication between the parties that did not include the contracting
officer was “not sufficient to reasonably lead [the contractor] to believe that the
[contracting officer] was reconsidering the termination” thereby vitiating the final
decision. See also Shafi Nasimi Constr. and Logistics Co., ASBCA No. 59916,
16-1 BCA ¶ 36,215 at 176,698 (no vitiation where contractor failed to present
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evidence that reconsideration discussions took place with the government or that the
contracting officer met with or otherwise engaged the contractor following a contract
default termination).
To support its position that it was misled by USACE, TSG primarily relies on a
phone conversation that took place on July 29, 2020 between Mr. Sims and Mr. Curry
the Regional Chief of Contracting for the USACE Southwestern Division (SOF ¶ 17).
During this conversation, Mr. Sims states that he told Mr. Curry, “it was my
understanding that the parties were still negotiating the REA settlement and that the
final decision should not be viewed as final.” Mr. Sims alleges that Mr. Curry
responded by stating, “in his experience these types of contractual issues happen and
the average time to reach a settlement is three to five years.” (Id.) Mr. Sims claims
that this conversation with Mr. Curry led him to believe that the COFD was not final
since USACE was planning to reengage in settlement negotiations.
First, Mr. Curry has denied making this statement and believes that the
conversation with Mr. Sims never took place (SOF ¶ 18). Second, even assuming that
this conversation did take place, it was not with the contracting officer. In this case,
Mr. Sims knew, or should have known, that Mr. Cole was the contracting officer and
had the authority to make decisions regarding the contract. On January 7, 2020,
responding on Colonel Robert Miceli’s behalf, Mr. Curry explained in a letter to
Mr. Sims that the contracting officer, Mr. Cole, was in receipt of his claim and would
issue a final decision. Mr. Curry also stated that Mr. Sims could contact the
contracting officer if he had any further questions. (SOF ¶ 11) Furthermore, on
July 29, 2020, in response to a question about the COFD, Mr. Curry told Mr. Sims that
the contracting officer would be in touch with him shortly to discuss his options and
the path forward (SOF ¶ 16). Since Mr. Curry deferred to the contracting officer on
multiple occasions, Mr. Sims should have known that it was the contracting officer
who had authority over the contract, and therefore the claim and COFD, and not
Mr. Curry. It is also worth noting that Mr. Sims corresponded with the contracting
officer on various prior occasions such as TSG’s submittal of its certified claim and
TSG’s receipt of the COFD, further suggesting that Mr. Sims knew that Mr. Cole was
the appropriate contract authority (SOF ¶¶ 10, 13-14).
Other than Mr. Sims’ self-serving statements, there is not a scintilla of evidence
that would suggest that the contracting officer reconsidered his final decision in the
90 days following the decision, or even in the years that followed (SOF ¶ 20) There
was no subsequent communication by the contracting officer about the COFD. There
is nothing in the record showing the contracting officer reached out to TSG during the
90-day window, or at any time prior to the May 2, 2023 notice of appeal, to suggest
reconsideration of the COFD. There is no evidence that TSG formally asked the
contracting officer to reconsider his decision or provided him evidence that might
cause him to reconsider the decision. Accordingly, we conclude that it was not
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reasonable for TSG to believe that the contracting officer was reconsidering the final
decision, thereby causing its vitiation.
TSG further contends that it was misled to believe that USACE would not make
any remaining payments under the contract unless TSG executed a release of claims;
meaning that settlement negotiations were still ongoing and that “USACE was going
to revisit and re-engage REA settlement negotiations in order to reach a final
agreement” (app. resp. at 6-7, 11; SOF ¶ 9). The facts here do not support TSG’s
position. TSG’s argument relies on an email sent to Mr. Sims on February 12, 2019,
in which Mr. Neill informed Mr. Sims that he would need to include a release of
claims with his invoice to receive a final payment (SOF ¶ 8). However, in an affidavit,
Mr. Neill states that he had a telephone conversation with Mr. Sims soon after this
email where he explained to Mr. Sims that TSG could be paid even if they did not
ultimately provide a release of claims (SOF ¶ 12). But, in this email, Mr. Neil
informed TSG that it could list exclusions to the release and he even went so far so as
to suggest an exclusion for TSG’s previous REA (SOF ¶ 8). Thus, we do not see how
any reasonable contractor could have been misled by Mr. Neil’s comments to believe
that a COFD issued 1.5 years prior was not final.
In addition, in the July 29, 2020 COFD, USACE approved progress payment
No. 002 for the completed work that should have been paid to TSG and notified TSG
of its appeal rights to the Board. In doing so, USACE acknowledged that this money
was owed to TSG and did so without indicating that it was contingent on TSG
executing a release of claims. (SOF ¶¶ 15, 19) Based on the foregoing, it was not
reasonable for TSG to conclude that USACE would refuse payments to TSG due to the
absence of a release of claims.
Accordingly, the COFD was not vitiated, and TSG’s notice of appeal is
untimely.
The March 28, 2023 Revised Contract Modification Did Not Assert a Government
Claim
In the alternative, TSG argues that the March 28, 2023 unilateral contract
modification is a government claim that superseded the July 28, 2020 COFD (SOF
¶ 21; app. resp. at 12-13). Since the COFD was superseded, TSG argues that the
90-day appeal window restarted on March 28, 2023, the day of the contract
modification, and the appellant’s appeal is therefore timely (app. resp. at 12-13). We
disagree.
According to the CDA, “a contractor may appeal a Government claim to the
appropriate board without submitting a claim of its own to the [contracting officer].”
Garrett v. General Elec. Co., 987 F.2d 747, 749 (Fed. Cir. 1993); 41 U.S.C §7103.
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Additionally, the FAR states that a claim is a “written demand or written assertion by
one of the contracting parties seeking, as a matter of right, the payment of money in a
sum certain, the adjustment or interpretation of contract terms, or other relief arising
under or relating to [the] contract.” FAR 52.233-1(c), DISPUTES (MAY 2014);
Greenland Contractors I/S, ASBCA Nos. 61113, 61248, 19-1 BCA ¶ 37,259
at 181,331.
As noted, TSG asserts USACE’s unilateral modification was a government
claim. We have held that a government’s unilateral reduction of the contract price for
unfinished and poorly performed work constituted a government claim. JAAAT Tech.
Servs., LLC, ASBCA No. 61792 et al., 21-1 BCA ¶ 37,878 at 183,950. In addition, in
Dynport Vaccine, we concluded that a government unilateral contract modification
directing the appellant to perform corrective or replacement work at no cost to the
government was also a government claim. ASBCA No. 59298, 15-1 BCA ¶ 35,860
at 175,333. In each of these actions, the government had a demand or assertion
seeking relief against the contractor.
On the other hand, when a contract action has no demands or assertions by the
government seeking relief against the contractor, a government claim cannot exist.
Lockheed Martin Aeronautics Co. v. Sec’y of Air Force, 66 F.4th 1329, 1336 (Fed. Cir.
2023); See also Bell Helicopter Textron, ASBCA No. 35950, 88-2 BCA ¶ 20,656
at 104,392 (a unilateral contract definitization action in which the government
established the price of a contract, as required by its terms, was not a government
claim). We have also indicated that a simple administrative action is an action in
which a contracting officer would not expect a challenge. JAAAT, 21-1 BCA ¶ 37,878
at 183,950.
Here, the revised modification specifically referenced the July 29, 2020 COFD,
and did not set forth any demands or assertions seeking relief against TSG or other
relief related to the contract. The purpose of the modification was to provide TSG’s
assignee with the funds that were accepted and approved in the COFD, updated to
include interest. (SOF ¶ 21) According to the COFD, TSG was owed $8,657.78 for
work that it had completed but was not paid due to an improperly rejected invoice
(SOF ¶¶ 15, 19). Because USACE only sought to provide TSG with the money it was
owed, including interest, the contract modification was an administrative action, not a
new government claim. Accordingly, the contract modification failed to supersede the
COFD and TSG’s appeal remains untimely.
Equitable Tolling
Finally, TSG argues that USACE’s actions following the submission of the
COFD warrant investigation by the Board, and therefore the Board should allow the
CDA’s statute of limitations to be equitably tolled. In making its argument, TSG also
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appears to suggest that equitable tolling is available to extend the CDA’s 90-day
window to file an appeal. (App. resp. at 13-14) While not rendering an opinion on
whether equitable tolling can, or should be applied to the CDA’s limitation on actions,
we conclude, based on the facts of this appeal, that tolling is not warranted.
The record shows that the statutory 90-day appeal window started at the latest
on July 29, 2020, the day TSG received the COFD by email. Ninety days later, the
window ended. On May 2, 2023, TSG submitted its notice of appeal, nearly two and a
half years beyond the allowable 90-day timeframe. (SOF ¶ 26) Equitable tolling is
available only when a litigant shows that it (1) has been pursuing its rights diligently
and (2) that some extraordinary stood in its way and prevented timely filing.
Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 255 (2016).
As we have already described, there is nothing in the record that demonstrates that
TSG diligently pursued its rights, nor any extraordinary circumstance that stood in its
way and prevented it from filing an appeal. The record is more consistent with a
contractor that largely sat on its hands in the months and years that followed the
COFD. Equitable tolling has no application to this appeal.
CONCLUSION
USACE’s motion is granted, and the appeal is dismissed for lack of jurisdiction.
Dated: April 3, 2024
OWEN C. WILSON
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
I concur I concur
MICHAEL N. O’CONNELL LAURA EYESTER
Administrative Judge Administrative Judge
Vice Chairman Armed Services Board
Armed Services Board of Contract Appeals
of Contract Appeals
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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. 63605, Appeal of The
Sithe Group, LLC, dba TSG Industries, rendered in conformance with the Board’s
Charter.
Dated: April 3, 2024
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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