Afghan Active Group (AAG)

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Afghan Active Group (AAG) ) ASBCA No. 60387

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Under Contract No. W91B4N-10-C-8033 )

APPEARANCE FOR THE APPELLANT: Mr. M. Masoud

Chairman

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.

Army Chief Trial Attorney

Erica S. Beardsley, Esq.

Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE PROUTY ON

THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

The government has moved to dismiss this appeal on the ground that the Board

lacks jurisdiction to consider it since it was filed more than 90 days after appellant

Afghan Active Group (AAG) 1 received the contracting officer's final decision. AAG

responded to the government's motion with a short email stating that it had already

submitted all documents related to the contract and requesting the Board's guidance in

the event that it did not possess jurisdiction over the appeal. Because we find that AAG

made a timely notice of appeal to the contracting officer (CO), we deny the

government's motion.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION2

On 2 December 2009, the government awarded the above-captioned contract (the

contract) to AAG to construct an asphalt parking pad (R4, tab 1). Beyond a preliminary

email discussion of conducting a site visit immediately thereafter (R4, tabs 3, 4 ), and an

email discussion regarding a Defense Base Act (DBA) insurance policy in March 20 I 0

(R4, tabs 5, 6), the record does not indicate that any performance was ever undertaken on

the contract.

1

The parenthetical (AAG) is both part of the full name of the contractor on the award

document (R4, tab I), and is also how we will refer to the contractor in this decision.

2

AAG has not disputed any of the proposed facts included in the government's motion.

On 19 June 2015, a government contracting specialist, Barbara Sennet, sent

AAG an email explaining that she was closing out contracts for the government and

asking whether there were "any issues, claims or disputes" regarding the contract (R4,

tab 7 at 1-2). On 20 June 2015, AAG responded to Ms. Sennet, stating that it was

entitled to 30% of the contract total because it had made a site visit, obtained the DBA

insurance, and bought some materials and machinery for the project (R4, tab 7 at l).

Ms. Sennet responded on 22 June 2015, seeking records of the DBA insurance (R4,

tab 8 at 4 ). The parties engaged in a further email colloquy in which it became clear

that Ms. Sennet considered the government to be, at most, obligated only to provide a

refund for the DBA insurance, while AAG wished to receive further compensation for

its equipment costs (id. at 2-4). Ultimately, Ms. Sennet explained that she could do no

more for AAG, but that it could file a claim for the equipment costs at a specified

email address (id. at 2).

On 7 July 2015, AAG sent an email with the subject line, "Claims ON

CONTRACT# W91B4N-10-C-8033" to the contract closeout email address that

Ms. Sennet had provided for filing claims (R4, tab 8 at 1). Although English was clearly

not the first language of the author of this email, its short text appears to seek

compensation for the expenses it incurred on the contract (id.). The email also included

an attachment, which appears to be an invoice for $35,559 (id. at 6).

The government treated the 7 July 2015 email as a claim for $35,559, and issued a

contracting officer's final decision (COFD) on 8 July 2015 denying it (R4, tab 9). The

two-page COFD included the following penultimate paragraph:

This is the final decision of the Contracting Officer. You

may appeal this decision to the Armed Services Board of

Contract Appeals (ASBCA). 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

ASBCA and provide a copy to the Contracting Officer

from whose decision this appeal is taken. This notice shall

indicate that an appeal is intended, reference this decision

and identify the contract by number.

(R4, tab 9 at 2) The COFD did not notify AAG of its appeal rights to the United States

Court of Federal Claims, although it did provide contact information for the CO,

Thomas A. Petkunas (R4, tab 9). Ms. Sennet emailed the COFD to AAG on 9 July 2015

(R4, tab 10 at 1).

AAG was not pleased with the COFD, and, on 12 July 2015, sent an email to

the government (including the CO identified in the COFD) that we replicate below:

2

Good evening everyone

Dear Sir, we received contract officer final decision letter,

but its NOT acceptable for our company. Contracting

officer has stated within the letter that equipment

purchased before Notice to proceed letter.

1- we done several contracts without NTP

2- the contract duration was only 45 days it mean

that contractor not able to purchase the needed equipment

for the contract during the small time.

3- When a contract award for our company we

became legal responsible for the contract and should get

full redress for contract successfully completion and not

wait for NTP

4- If all thing is related to NTP what is the meaning

of contract award (contract winner)

Also respectable contracting officer mentioned

within his letter that respected ALINV HENSON sent

to our company an email on December 12, ... and

December 14, 2009 for site visit but our company didn't

response back to her, I think its not correct because we

done site visit on the contract with technical team and we

forwarded that email to you, please kindly forward us the

email which remained without response

Note: we ask USG officials earnest cooperation

regarding this problem and hope their support

Thank you, await for your soon response

(R4, tab 11 at 1) (Punctuation, syntax, and spelling in original)

Having apparently received no response, AAG sent the following email to the

same government recipients on 20 July 2015:

Good morning everyone

Dear respectable sir please kindly put us in progress

if you need document for appeal process, thank you and

hope your legal cooperation regarding our money

(R4, tab 11 at 1) (Punctuation and syntax in original)

3

The record indicates no reply from the government to this email. On 31 August

2015, AAG sent an email to the same group of government individuals seeking an

"update" (R4, tab 11 at 1). Again, the record is devoid of a government response.

On 15 November 2015, AAG sent another email to the government, stating,

"Dear sir, we are waiting for your response, thank you" (R4, tab 12 at 1). At this

point, on 19 November 2015, after an internal discussion in which the contracting

specialist characterized AAG's communications as "contesting [the CO's] final

decision" (see R4, tab 12 at 2), the government sent an email to AAG stating that, "[i]f

you want to appeal the Contracting Officer's Final Decision you will have to send it to

the following address" after which the government provided the mailing and email

addresses of this Board (R4, tab 12 at 1). There is no evidence in the record that the

government had previously provided the Board's contact information to AAG.

On 25 December 2015, AAG filed its appeal to the Board by email, stating

simply, "Dear respectable sir, we want to appeal the Contracting Officer's Final

Decision which related to the subject contract, therefore we need for your guide, thank

you" (R4, tab 13 at 1) (syntax in original).

DECISION

We are squarely presented with the question of whether AAG presented its

appeal of the COFD in a timely fashion. Because we have previously held that a

contractor's notification to the CO of intent to appeal suffices to act as notice to the

Board, and AAG's communications with the CO in July 2015 can be fairly read as

expressing the intent to appeal, we hold that AAG's appeal was timely and deny the

government's motion to dismiss.

The timeliness of appealing a COFD is a matter of the Board's jurisdiction. See

41 U.S.C. § 7104 (2011) (formerly 41 U.S.C. § 606); Cosmic Constr. Co. v. United

States, 697 F.2d 1389, 1390 (Fed. Cir. 1982) (requirement that appeal be made within

90 days is jurisdictional). And, by statute, any challenge to a COFD must be appealed

to the Board within 90 days of that decision being received by the contractor.

41 U.S.C. § 7104; Cosmic Constr., 697 F.2d at 1390; Decker & Co. v. West, 76 F.3d

1573, 1578 (Fed. Cir. 1996) (citing Cosmic Constr., 697 F.2d at 1390).

Importantly here, we have long held in cases involving misdirected appeals that

providing a notice of appeal to the CO "is tantamount to filing with the Board." See

Ft. McCoy Shipping & Services, ASBCA No. 58673, 13 BCA ~ 35,429 at 173, 795

(citing multiple cases); see also Bahram Malikzada Constr. Co., ASBCA Nos. 59613,

59614, 15-1 BCA ~ 36, 134 at 176,371. And we have "historically liberally read

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contractors' communications in finding effective appeal notices and [have] repeatedly

held a notice of appeal requires only a writing filed within the requisite time period

that expresses dissatisfaction with the contracting officer's decision and indicates an

intention to appeal the decision to a higher authority." Ft. McCoy, 13 BCA ii 35,429 at

173, 794 (citations omitted). Such standards are easily met by AAG here.

The 12 July 2015 email was sent within three days of AAG's receipt of the

decision, 3 handily meeting the timeliness requirement. Moreover, the email plainly

"expresses dissatisfaction" with the COFD. Ft. McCoy, 13 BCA ii 35,429 at 173,794.

The only arguable ambiguity is whether this 12 July email expresses an intention to

appeal to a higher authority. See id. We find, however, that the letter's concluding

sentence - "Note: we ask USG officials earnest cooperation regarding this problem

and hope their support" - evinces such an intention. Moreover, the subsequent email

from AAG, sent only eight days later, disposes of any remaining question of AAG's

intent to appeal by requesting that the government, "please kindly put us in progress if

you need document for appeal process, thank you and hope your legal cooperation

regarding our money." We interpret this to be AAG's somewhat awkward, but

nonetheless clear, request that, if a document were needed to officially commence an

appeal, that email be considered to be such a document.

Not surprisingly, the government's contracting officials clearly recognized what

AAG was requesting when they directed it to file an appeal with the Board in the

19 November 2015 email. The government's current argument, that the 20 July 2015

email should be read as a request for documents that would be necessary for advancing

an appeal (a request to which the government did not reply) (see gov't br. at 5), is a

cramped way of reading that communication that we do not share.

The government's other argument against considering AAG's July 2015

communications to constitute the initiation of an appeal is based upon the fact that AAG

did not make a forum selection in the emails (see gov't br. at 5). This argument is flawed

because, under our precedent, AAG did make a forum selection, seeking appeal at the

Board. To be sure, there is Board precedent holding that a notice of appeal sent to the

CO needs to select a forum if it is to be effective. See, e.g., Bahram Ma/ikzada, 15-1

BCA ii 36, 134 at 17 6,3 71; Stewart-Thomas Industries, Inc., ASBCA No. 3 8773, 90-1

BCA ii 22,481at112,835-36; McNamara-Lunz Vans & Warehouses, Inc., ASBCA

No. 38057, 89-2 BCA ii 21,636 at 108,856. But we have held that the use of the word,

"appeal" in the notice to the CO, rather than the phrase "bring an action," which applies

to cases brought in the Court of Federal Claims, indicates an election to bring an appeal

3 The record does not indicate when AAG received the emailed 9 July 2015 COFD,

but it makes no difference to our analysis whether AAG received it on 9 July

2015 or on 12 July 2015, when it first responded to it.

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before the Board. See McNamara-Lunz, 89-2 BCA ii 21,636 at 108,856; see also Axxon

Int'/, LLC, ASBCA Nos. 59497, 59498, 15-1BCAii35,864 at 175,342 (considering,

without comment, an "appeal" provided to the CO to constitute notice of appeal to the

Board). AAG's 20 July 2015 email used the term, "appeal" to characterize its intention,

thus we deem it to constitute an election to bring its appeal to the Board.

Our conclusion that AAG intended to elect proceeding before the Board is

further buttressed by the fact that the government did not include the full scope of

AAG's appeal rights in the COFD. The COFD is required by the Federal Acquisition

Regulation (FAR) to inform the contractor of its full appeal rights, including the

alternate fora of the Board and the United States Court of Federal Claims (CoFC). See

FAR 33.21 l(a)(3)(v). But the COFD issued here only provided notice of AAG's

rights to appeal to the Board, leaving the CoFC out completely. In these factual

circumstances, it would be unreasonable and unfair to conclude that AAG selected any

forum other than the single one of which it was informed by the government.

Accordingly, we hold that AAG presented its appeal to the Board in a timely

manner, and thus we possess jurisdiction to consider this appeal. The government's

motion to dismiss is DENIED.

Dated: 14 April 2016

J. REIJ315ROUTY

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

~~-

MARK N. STEMPLER RICHARD SHACKLEFORD

Administrative Judge Administrative Judge

Acting Chairman 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. 603 87, Appeal of Afghan

Active Group (AAG), rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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