Nauset Construction Corporation
Docket: ASBCA 61673, ASBCA 61675
Decision date: 2021-05-05

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE YOUNG ON THE GOVERNMENT’S 
PARTIAL MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
Pending before the Board is a motion filed by the Department of the Army 
(government or respondent) to dismiss two of the three appeals1 filed by Nauset 
Construction Corporation (Nauset or appellant).  The government argues that the 
Board lacks jurisdiction on ASBCA Nos. 61673 (Claim 1) and 61675 (Claim 2)2 
because the claims involved fraud.  The government also argues that ASBCA 
No. 61675, to the extent it appeals a termination for default, is untimely.  We grant the 
motion in part as it relates to ASBCA No. 61675, and deny the remainder. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 1.  On November 1, 2013, the National Guard Bureau (Guard) awarded a 
contract to Nauset for $20,521,858.00 to build the Unit Training Equipment Site 
Project in Camp Edwards, MA (the project) (R4, tab 1 at 2). 
 
                                              
1 A companion case, Appeal No. 61674, involves a subcontractor claim and is not 
included in the motion to dismiss. 
2 For simplicity’s sake we will refer to the claim appellant filed on May 12, 2017, as 
“Claim 1” and the claim it later filed on February 12, 2018, as “Claim 2” (see 
app. opp’n at 1-2).   
Appeals of - )  
 )  
Nauset Construction Corporation ) ASBCA Nos. 61673, 61675 
 )  
Under Contract No. W912SV-13-C-0007 )  
   
APPEARANCES FOR THE APPELLANT: John J. McNamara, Esq. 
Elise M. Kuehn, Esq. 
    Lane McNamara LLP 
    Southborough, MA 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 CPT Philip L. Aubart, JA 
Harry M. Parent, III, Esq. 
MAJ Felix S. Mason, JA 
    Trial Attorneys 

 2 
 2.  On May 12, 2017, Nauset submitted a certified claim (Claim 1) to the 
contracting officer (CO) for $2,563,622 plus an extension of time, from the inception 
of the contract through October 26, 2016 (R4, tabs 182-85). 
 
3.  On July 6, 2017, Nauset’s attorney researched the “best ave nue of relief, 
Armed Services Board of Contract Appeals or Federal Court of Claim for filing 
suit” (R4, tab 200 at 27-28).   
 
 4.  On July 10, 2017, the CO informed appellant that due to ongoing 
investigations into Nauset by multiple government agencies that may affect her 
decision, she would not be able to render a decision within the 60 days required by the 
Contract Disputes Act, and that she would issue a decision by November 7, 2017 (R4, 
tab 186 at 2). 
 
 5.  On September 27, 2017, Nauset’s  attorney researched “docketing dates” 
(R4, tab 200 at 30).  On October 18, 2017, Nauset’s attorney conducted 
“[r]esearch of entitlement to additional time to respond to notice of default,” and 
on October 19, 2017, he conducted “[r]esearch [on] FAR regulat ions; Research 
case law regarding termination for default under FAR” ( id. at 15). 
 
 6.  On November 7, 2017, the CO informed Nauset that she was still reviewing 
the claim of May 12, 2017, that ongoing investigations by multiple government 
agencies may affect her decision, and that she would issue a decision on Claim 1 by 
January 8, 2018 (app. supp. R4, tab 204). 
 
 7.  On November 17, 2017, the CO terminated the contract for default (R4, 
tab 39).  The 24-page termination notice detailed the causes for termination and 
included the following language:  
 
[T]he Government is completely Terminating [sic] Nauset 
for Default on contract W912SV-13-C-0007. 
 
. . . This notice constitutes such decision, and Nauset has 
the right to appeal under the Disputes clause of the contract 
. . . .  This notice constitutes a decision that the contractor 
is in default as specified and that the contractor has the 
right to appeal under the Disputes clause. 
 
. . . [T]his termination does not relieve Nauset of any and 
all liability relating to the outcome of the current  
  

 3 
investigations by the Department of Labor, Army Criminal 
Investigative Department, and the Defense Criminal 
Investigative Service.  
 
(R4, tab 39 at 23-24) 
 
 8.  The termination letter did not include the appeal language required by 
Federal Acquisition Regulation (FAR) 33.211(a)(4) (v). 
 
9.  On November 17, 2017, the same day the termination letter was issued, 
Nauset’s attorney reviewed “ [the] Government’s 23 page notice of termination of 
Nauset; [held] Teleconferences with Mark Williams regarding termination notice; 
Teleconferences with Anthony N. Papantonis regar ding termination notice; 
Teleconference with Robin P. Wilcox of Traveler’s regarding termination notice” 
and “review[ed] the Federal Acquisition Regulations  regarding avenues of appeal” 
(R4, tab 200 at 17-18).  On November 29, 2017, Nauset’s counsel conducted “[r]eview 
of cases under Contract Dispute Act regarding default terminations” (id. at 18). 
 
 10.  On November 28, 2017, during a telephone conference with counsel for 
Nauset, the government’s attorney stated that “it is possible that this matter could be 
converted to a termination for convenience”
3 (app. opp’n at 2 (citing McNamara aff. ¶ 5)). 
 
 11.  On January 8, 2018, the CO informed appellant that she was still 
reviewing Claim 1 in coordination with legal and other advisors, and that due to the 
ongoing investigations by multiple government agencies that may affect her decision, 
she was unable to render a decision at that time.  The CO stated that she would issue a 
decision on the claim by April 1, 2018.  
(R4, tab 197 at 3) 
 
 12.  On January 17, 2018, 61 days after the termination notice, Nauset’s project 
manager submitted a letter to the CO, titled “Response to Termination of 
November 17, 2017 and Certified Termination Claim and Request for Final Decision 
under the Contract Disputes Act” (R4, tab 198).  In the letter, Nauset responded to the 
issues identified by the CO in the termination letter, disputed the termination and 
                                              
3 We note the government’s objection to the inclusion of this statement in the 
record.  The government argues that the statement, to the extent that it was 
made, was a communication covered by Federal Rule of Evidence 408, 
Compromise Offers and Negotiations, which prohibits the use of a 
statement made during compromise negotiations to prove the validity of a 
claim (gov’t reply at 3).  The Federal Rules of Evidence are not binding 
on the Board, but may guide the Board’s rulings.  See  Board Rule 10(c).  
We will weigh the evidentiary value of this statement as appropriate .   
 

 4 
stated that it intended to submit a second claim for costs not included in Claim 1.  
Appellant stated:  “Nauset takes exception to the government’s decision to terminate 
for default . . . .  Nauset will continue to vehemently invest every available resource to 
support our Claim, our position and reputation” (R4, tab 198 at 14).  Although the 
subject of the letter included the words “Certified Termination Claim and Request for 
Final Decision Under the Contract Disputes Act,” Nauset did not include certification 
language nor request anywhere else in the letter a decision by the CO.  Nauset’s letter 
did not explicitly state that it wished to appeal the termination decision to the Board or 
to any other tribunal.    
 
 13.  The CO acknowledged receipt of the January 17, 2018 letter by email of 
January 17, 2018, stating “email received” (app. supp. R4, tab 207). 
 
 
14.  On February 12, 2018, 87 days after the termination notice, appellant 
submitted to the CO a certified claim ( Claim 2), titled “Claim for Extended Time 
and Unpaid Completed Contract Work – Part 2 and Wrongful Termination” (R4, 
tab 200).  In Section I of the letter, Nauset asserted that the causes of termination 
were beyond its control and demanded payment of $1,076,189.00 for costs incurred 
from November 2016 until the date of termination in November 20174 (id. at 1-2).  
Section II of the letter, “Wrongful Termination,” reflects that “Nauset intends to 
defend its position and prove that the government’s decision to terminate was 
based on [circumstances] beyond our control” ( id. at 3).  Section II concludes with 
this statement:  “Nauset specifically asserts that the termination was wrongful as a 
matter of fact and as a matter of law.  Nauset specifically submits this wrongful 
termination claim in accordance with the Contract Disputes Act .”  (Id. at 4)  
Section III of the letter, titled “Request for Final Decision of the Contracting 
Officer Pursuant to the Contracts Dispute Act” requests that “the Contract [sic] 
Officer render a decision on the claim submitted by Nauset Construction Corp. within 
sixty (60) days of the date of this claim” (id.). 
 
 15.  Nauset’s letter of February 12, 2018,  did not state it wished to appeal to 
the ASBCA or to any other tribunal . 
 
 16.  The CO acknowledged receipt of Claim 2 via email on February 13, 2018, 
in a single word:  “Received” (app. supp. R4, tab 208). 
 
 17.  On March 26, 2018, the CO informed appellant that she was still 
reviewing Nauset’s claims, and that due to the ongoing investigations, her 
projected decision date for both claims was July 1, 2018 (R4, tab 202).
 
 
 18.  On April 25, 2018, the government (including the CO) met with Nauset 
                                              
4 Nauset did not specify how many days of delay it wished to claim. 

 5 
and Nauset’s surety (app. supp. R4, tab 210).  The minutes of the meeting reflect that 
the purpose of the meeting was to “assist the Surety in moving forward” (id. ¶ 8).  The 
minutes reflect that Nauset’s counsel inquired whether the government would be 
willing to rescind the termination (id. ¶ 16).  The government responded that “it was 
confident that the termination of the principal was impartial, factually supported, 
properly executed and includes a number of grounds for termination that collectively 
and in some cases individually by themselves, would provide an appropriate basis for 
the termination findings” (id. ¶ 19).   
 
 19.  On May 24, 2018, counsel for the Guard wrote to the attorneys for Nauset 
and the Surety responding to previous correspondence to coordinate a meeting 
between the attorneys (app. supp. R4, tab 211 at 1).  The letter states:  “At this time, 
the Government will not rescind the default termination” (id.).  The letter further states 
that “the Government . . . clearly and unequivocally . . . re-state[s] our position . . . .  
The Government does not desire Nauset to be involved in the completion effort.  The 
Government is required to contract with responsible contractors . . . .  Nauset’s actions 
have given rise to serious concerns about its contractor responsibility.”  (Id. at 1-2)  
Further, the letter states that “the Government cannot assent to the use of Nauset in 
the completion effort due to contractor responsibility concerns” (id.) (emphasis in 
original) (footnote omitted).  
 
 20.  On June 27, 2018, Nauset appealed to the Board the deemed denial of 
Claims 1, 2, and the default termination.   
 
 21.  On June 30, 2018, the CO informed appellant that due to ongoing 
investigations into Nauset by multiple government agencies including the Army 
Criminal Investigations Division and US Department of Labor , her projected 
decision date was now October 1, 2018 ( app. supp. R4, tab 212). 
 
 22.  On October 1, 2018, the CO informed Nauset that she was still reviewing 
Claims 1 and 2, that there were multiple government agencies investigating Nauset 
including the Army Criminal Investigative Division, and that she would issue a 
decision by November 1, 2018 (app. supp. R4, tab 214). 
 
 23.  On November 1, 2018, the CO issued a letter to appellant containing 
the following language: 
 
The purpose of this letter is to provide a response to 
your 12 May 2017 and 12 February 2018 claims 
received by the National Guard for Contract 
No. W912SV- 13-C-0007.  I have reviewed all of the 
facts pertinent to this claim with the assistance of legal 
as required by FAR§ 33.211. 

 6 
 
As I have previously informed you, the claims and this 
matter have been referred to investigative agencies.  See 
FAR 33.209 (“If the contractor is unable to support any 
part of the claim and there is evidence that the inability 
is attributable to misrepresentation of fact or to fraud on 
the part of the contractor, the contracting officer s hall 
refer the matter to the agency official responsible for 
investigating fraud”). 
 
Based on preliminary findings of the Army Criminal 
Investigation Division, the Defense Contract Audit 
Agency, as well as my review of the claimed cost, this 
office suspects that claimed costs are fraudulent or false.  
The National Guard is currently considering referral of 
this matter under the False Claims Act [FCA].  
 
FAR 33.210 states that a Contracting Officer’s authority 
does not extend to the settlement, compromise, 
payment, or adjustment of any claim involving fraud.  
Therefore, I have no authority to take action on your 
claims. 
 
(App. supp. R4, tab 215) 
 
 24.  Appellant asserts that throughout 2018, Nauset continued to meet with the 
government, Nauset’s surety, and counsel in regard to the project and Nauset’s 
termination (app. opp’n at 3 (citing Papantonis aff. ¶ 29)).  
 
 25.  On November 7, 2018, the CO’s representative issued a Notice to Comply 
(the notice) to Nauset and to the Surety.  The notice stated that Nauset had failed to 
comply with contract drawings and that water was leaking into the building, that the 
problems had been identified in a walk-through conducted on October 12, 2018, and 
that they needed to be resolved immediately (app. supp. R4, tab 216). 
 
 26.  In response to the notice, Nauset and two subcontractors met with the 
government on December 4, 2018 (app. opp’n at 4 (citing Williams aff. ¶ 20, 
Papantonis aff. ¶ 34)).   
 
 27.  Appellant asserts that December 13, 2018 was Nauset’s last day on the 
project site (app. opp’n at 4 (citing McNamara aff. ¶ 21, Papantonis aff. ¶ 35)).  
 
 28.  On February 6, 2019, the Army Criminal Investigation Command, Major 

 7 
Procurement Fraud Unit, issued a memorandum stating that it “has an open, active 
investigation on [appellant] concerning the Massachusetts Army National Guard’s 
construction project at the unit Training Equipment Site (UTES) project, Camp 
Edwards, MA” (gov’t reply, ex. 2). 
 
DECISION 
 
The motion before us challenges our jurisdiction in two distinct areas.  First, the 
government argues that the Board lacks jurisdiction on ASBCA Nos. 61673 and 61675 
because the claims involved fraud.  Secondly, the government argues that ASBCA 
No. 61675, to the extent it appeals a termination for default, is untimely.  We examine 
each part of the motion in turn. 
 
I.  Does the Board lack jurisdiction over the claims in ASBCA Nos. 61673 and 
    61675 because the claims involved fraud? 
 
The government argues that the CO had no authority to decide the claims 
because they involved fraud and accordingly the Board lacks jurisdiction over the 
deemed denial of the claims.  Appellant opposes the motion, arguing that the CO’s 
refusal to issue a decision based on a mere suspicion of fraud is not enough to deprive 
the Board of jurisdiction.5 
 
We first examine the language of the applicable statute and regulation.  The 
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, states that an agency head has 
no authority to “settle, compromise, pay, or otherwise adjust any claim involving 
fraud.”  41 U.S.C. § 7103(c)(1) (emphasis added).  The FAR provides a similar 
limitation on the CO’s authority, establishing that the CO has no authority to decide or 
resolve “any claim involving fraud.”  FAR 33.210 (emphasis added).  Additionally, the 
FAR provides that in case of “suspected fraudulent claims . . . the CO shall refer that 
matter to the agency official responsible for investigating fraud.”  FAR 33.209 
(emphasis added). 
 
When interpreting a statute we look first to the language of the statute itself.  If 
that language is unambiguous our inquiry stops, unless there is a clearly expressed 
legislative intention contrary to the language of the statute itself.  See LSI Computer 
Sys., Inc. v. United States Int’l Trade Comm’n, 832 F.2d 588, 590 (Fed.Cir.1987).  
This is sometimes called the “plain meaning” rule.  As there appears to be no 
ambiguity in the CDA and FAR language quoted above, we examine the plain 
                                              
5 Appellant also argues that the CO’s refusal to issue a decision upon suspicion of 
fraud amounts to an indefinite stay, as the investigation into the suspected fraud 
may take an undetermined amount of time.  We do not reach this issue, as we 
decide the motion on other grounds. 

 8 
meaning of the terms at issue.  According to the NEW OXFORD AMERICAN 
DICTIONARY (3d ed. 2010), to “involve” means “to include (something) as a necessary 
part or result.”  In contrast, to “suspect” means “to have an idea or impression of the 
existence, presence, or truth of (something) without certain proof.”  Id.  It becomes 
clear that “involve fraud” and “suspect fraud” are not interchangeable.  The record 
shows that the CO referred the suspected fraud to the investigative agencies, as 
required by the FAR, but she took her suspicion a step further:  because she suspected 
fraud in Nauset’s claims, she concluded that the claims involved fraud and that she had 
no authority to resolve them.  In other words, substituting the terms for the definitions 
above, the CO had “an idea or impression of the existence, presence, or truth of fraud 
without certain proof” and concluded that the claims “included fraud as a necessary 
part or result.”  As explained further below, we do not agree that a CO’s articulation of 
a suspicion of fraud is sufficient to deprive the Board of jurisdiction.   
 
In a recent decision, ESA South, Inc., ASBCA Nos. 62242, 62243, 20-1 BCA 
¶ 37,647, the CO issued a letter declining to issue a final decision due to a suspicion of 
fraud after the appellant appealed to the Board the deemed denial of its claim.  The 
Board held:  
 
We do not agree that the contracting officer’s 2020 letter 
divests us of jurisdiction to entertain these 2019 appeals.  If 
it did, the government presumably could defeat any appeal 
before this Board simply by presenting to the Board a letter 
from the contracting officer written after the filing of the 
appeal articulating the contracting officer’s suspicion that 
the claim underlying the appeal was fraudulent.  We do not 
agree that section 7103(c)(1) [of the CDA] goes that far. 
Indeed, discussing that section we have said that “[we] 
have jurisdiction under the CDA to decide the contract 
rights of the parties even when fraud has been alleged,” 
“we possess jurisdiction over an appeal if we do not have 
to make factual determinations of fraud,” and “[t]hat fraud 
allegedly may have been practiced in the drafting or 
submission of . . . [a] claim does not deprive this Board of 
jurisdiction under the CDA.” 
 
ESA South, 20-1 BCA ¶ 37,647 at 182,772 (citing Sand Point Servs., LLC, ASBCA 
Nos. 61819, 61820, 19-1 BCA ¶ 37,412 at 181,859). 
 
The government relies on PROTEC GmbH, ASBCA No. 61161 et al., 18-1 
BCA ¶ 37,010, for the proposition that when a CO’s final decision is based upon a 
suspicion of fraud there is no CDA jurisdiction (gov’t mot. at 6).  The government’s 
reliance is misplaced.  In PROTEC the Board found jurisdiction because the final 

 9 
decision was grounded “exclusively in disputed contract issues . . . .  [and was] not 
based upon – let alone solely based upon – a suspicion of fraud . . . .”  PROTEC, 18-1 
BCA ¶ 37,010 at 180,244.  The government also offers Medina Constr., Ltd. v. United 
States, 43 Fed. Cl. 537(1999) and Savannah River Nuclear Sols., LLC v. Dep’t of 
Energy, CBCA No. 5287, 17-1 BCA ¶ 36,749 for the same proposition.  The Board 
rejected this argument in a recent decision, Mountain Movers/Ainsworth-Benning, 
LLC, ASBCA No. 62164, 20-1 BCA ¶ 37,664 at 182,868.  Accordingly, we conclude 
the government’s reliance on these cases inapposite. 
 
The government also argues that the fact that there are ongoing investigations 
lends support to the CO’s determination that the claims involved fraud (gov’t mot. 
at 6, gov’t reply at 6).  We disagree.  The fact that there is an ongoing investigation 
does not divest the Board of jurisdiction in a matter otherwise properly before the 
Board.  ESA South, 20-1 BCA ¶ 37,647 at 182,772 (citations omitted).   
 
In its ultimate analysis, in order to resolve the jurisdictional motion at hand, the 
government asks the Board to agree with the CO’s determination that she had no 
authority to resolve the claims because they involved fraud.  It is well settled that we 
possess jurisdiction over an appeal if we do not have to make factual determinations of 
fraud.  ESA South, 20-1 BCA at 182,772.  The Board has previously held that it “can 
maintain jurisdiction over a [separate defense] involving . . . fraud as long as it does 
not have to make factual determinations of the underlying fraud.”  Laguna Constr. Co. 
v. Carter, 828 F.3d 1364, 1368 (Fed. Cir. 2016); see Supply & Service Team GmbH, 
ASBCA No. 59630, 17-1 BCA ¶ 36,678 at 178,602 (following Laguna).  In this vein, 
the Board has maintained jurisdiction, for example, when a finding of fraud is made by 
another authority competent to make such a finding.  See Laguna, 828 F.3d at 1368-69 
(citing AAA Eng’g & Drafting, Inc., ASBCA No. 48729, 01–1 BCA ¶ 31,256 
at 154,367 (Board had jurisdiction where the government alleged fraud in contract 
administration, and the United States Court of Appeals for the Tenth Circuit had 
already determined that the contractor had committed fraud)); see also Laguna Constr. 
Co., ASBCA No. 58324, 14-1 BCA ¶ 35,748 at 174,947-48 (the Board declined to 
make factual findings of fraud, but admitted into the record the guilty pleas of 
Laguna’s officers entered in the United States District Court for the District of New 
Mexico, which the Board found helped “explain and support” how Laguna breached 
the contract).  In the appeal before us, the record does not support that a finding of 
fraud in these claims has been made by an authority competent to make such a finding.  
We decline to make such a finding ourselves. 
 
However, whether the claims involved fraud is not operative to resolve the 
jurisdictional matter before us.  The essential fact before us is that two claims were 
presented to the CO and she declined to issue a decision on those claims.  Under the 
CDA, the Board has jurisdiction over a CO’s final decision (41 U.S.C. § 7104(a)) and 
over the deemed denial thereof (41 U.S.C. § 7103(f)(5)).  Our jurisdiction attached 

 10 
when Nauset filed an appeal from the deemed denial of its claims, after the CO 
continued to delay, again and again, issuing a decision on the pending claims 
(SOF ¶¶ 4, 6, 11, 17).  The CO’s letter determining she had no authority to decide the 
claims, issued after appellant appealed the deemed denial to the Board, does not 
change this result.  “Once the Board is vested with jurisdiction over a matter, the 
contracting officer cannot divest it of jurisdiction by his or her unilateral action.”  
Mountain Movers/Ainsworth-Benning, LLC, 20-1 BCA ¶ 37,664 at 182,869 (citing 
Triad Microsystems, Inc., ASBCA No. 48763, 96-1 BCA ¶ 28,078 at 140,196).   
 
For the reasons discussed above, we conclude that we have jurisdiction to hear 
Nauset’s appeal of the CO’s deemed denial of Claims 1 and 2, docketed as ASBCA 
Nos. 61673 and 61675.  
 
II.  Does the Board lack jurisdiction over the termination for default in ASBCA 
      No. 61675 because it was untimely appealed to the Board? 
 
The government argues that ASBCA No. 61675, to the extent it appeals a 
termination for default,6 was not filed with the Board within 90 days of the termination 
and accordingly the Board lacks jurisdiction.  The termination for default was issued 
and received by appellant on January 17, 2018.  Thus, the government concludes that 
the 90-day appeal period expired on February 15, 2018.  It is undisputed that appellant 
appealed the termination to the Board on June 27, 2018 (SOF ¶ 20).  Appellant argues 
that the appeal is not time-barred because (1) the government’s conduct vitiated the 
finality of the termination for default; (2) appellant effectively appealed the 
termination for default to the Board by notice to the CO and thus tolled the 90-day 
clock; and (3) the termination notice failed to provide appeal language and thus 
prejudiced appellant.  We examine each argument in turn.  
 
1.  Did the government’s conduct vitiate the finality of the termination for 
     default? 
 
 Under the CDA, 41 U.S.C. § 7104 (a), the CO’s decision must be appealed to 
the Board within 90 days.  The 90-day period is jurisdictional and may not be waived.  
See Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982); 
Maria Lochbrunner, ASBCA Nos. 57235, 57236, 11-2 BCA ¶34,783 at 171,186.  We 
have recognized that the finality of a termination may be vitiated by acts of the 
government:  “The test for vitiation of the finality of the CO’s decision ‘is whether the 
contractor presented evidence showing it reasonably or objectively could have 
concluded the CO’s decision was being reconsidered.’”  Aerospace Facilities Group, 
Inc., ASBCA 61026, 18-1 BCA ¶ 37,105 at 180,605 (quoting Sach Sinha and Assocs., 
                                              
6 As explained further below, Nauset submitted its disagreement with the termination 
as a claim, rather than as an appeal from the termination for default. 

 11 
Inc., ASBCA No. 46916, 95-1 BCA ¶ 27, 499 at 137,042).  In Aerospace Facilities, 
“written and oral communications with the government [subsequent to the termination] 
created a cloud of uncertainty as to the status of the . . . termination.”  18-1 BCA ¶ 27, 
499 at 180,605.  However, a request to the CO to reconsider a final decision is not in 
itself sufficient to vitiate the termination decision.  Id. (citing Propulsion Controls 
Engineering, ASBCA No. 53307, 01-2 BCA ¶ 31,494 at 155,508 (“it is unreasonable 
to conclude that a [CO] is reconsidering a final decision simply as a result of a request 
to do so.”)).  It is well settled that the government’s actions must have occurred within 
the 90-day jurisdictional window in order to vitiate the finality of the termination.  See 
Godwin Corp., ASBCA No. 61410, 18-1 BCA ¶ 37,073 at 180,450 (finding that the 
CO’s alleged agreement to review additional evidence submitted six months after the 
termination notice could not have had any effect on appellant’s understanding of the 
termination’s finality during the appeal period because the 90-day appeal window to 
the Board had already expired at the time that the CO allegedly made this 
representation (see also Shafi Nasimi Constr. and Logistics Co., ASBCA No. 59916, 
16-1 BCA ¶ 36,215 at 176,698)). 
 
In the appeal at hand, Nauset argues that it reasonably believed the CO agreed 
to review her termination decision (app. opp’n at 9-15).  Appellant argues that since 
the CO acknowledged receipt of Nauset’s letters of January 17, 2018, and February 12, 
2018, Nauset reasonably believed that the CO “accepted Nauset’s [Claim 2] and would 
review her decision in regard to Nauset’s termination” and that “this reasonable 
expectation . . . is supported by the [CO’s] letter of March 26, 2018, [stating] that she 
was still reviewing Nauset’s [Claim 2]” (app. opp’n at 13) (emphasis in original).  
These arguments are not persuasive.  First, it is not reasonable for appellant to believe 
the CO was reconsidering the termination decision based on the cryptic 
acknowledgements of receipt (SOF ¶¶ 13, 16) of Nauset’s submissions.  Second, “it is 
unreasonable to conclude that a [CO] is reconsidering a final decision simply as a 
result of [appellant’s] request to do so”  Propulsion Controls Engineering, 01-2 BCA 
¶ 31,494 at 155,508.  Lastly, the CO’s correspondence of March 26, 2018, was issued 
outside the 90-day window to appeal to this Board, so it could not have had any effect 
on appellant’s understanding of the finality of the termination during the appeal 
period.  Godwin Corp., 18-1 BCA ¶ 37,073 at 180,450. 
 
Nauset also argues that several communications between its attorney and 
government counsel vitiated the finality of the termination.  Nauset asserts that on 
November 28, 2017, government counsel conveyed to appellant’s counsel that it was 
possible that the termination for default could be converted to a termination for 
convenience (app. opp’n at 13; see SOF ¶ 10).  Nauset argues that this conversation 
led it to believe that the CO was reconsidering the termination.  We view this 
conversation as a statement made between lawyers in the midst of legal discussions, 
and conclude that it does not support a reasonable belief by appellant that the CO was 
reconsidering her decision.  Nauset also argues that its counsel spoke with the 

 12 
government’s attorney “multiple times about the termination” (app. opp’n at 13) but 
we note that the supporting affidavit by Nauset’s attorney is careful to state that a 
meeting between the parties was discussed extensively in the late fall 2017 and early 
spring of 2018 (McNamara aff. ¶ 6).  Appellant also asserts that Nauset continued to 
meet with the government through 2018 in regard to the project and the termination 
(app. opp’n at 14; SOF ¶ 24).  We note, however, that the record does not show that 
the CO was part of any of these conversations.  For these reasons, we hold that these 
communications between the government and Nauset were not sufficient to reasonably 
lead Nauset to believe that the CO was reconsidering the termination.  
 
Nauset also points to the meeting with the government on April 25, 2018 
(SOF ¶ 18), the letter of May 24, 2018 (SOF ¶ 19) and the notice to comply issued on 
November 7, 2018 (SOF ¶ 25) as indicia that the CO was reconsidering the termination 
decision.  These events took place after February 15, 2018, when the 90-day appeal 
window closed, and could not have had any effect on appellant’s understanding of the 
finality of the termination during the appeal period.  See Godwin Corp., 18-1 BCA 
¶ 37,073 at 180,450.  
 
Appellant provided no evidence of government conduct during the 90-day 
appeal period that could have led the contractor to reasonably believe that the CO’s 
decision was being reconsidered.  Accordingly, we find that the government’s conduct 
did not vitiate the finality of the CO’s decision.  See, e.g., Shafi Nasimi Constr. and 
Logistics Co., 16-1 BCA ¶ 36,215 at 176,698. 
 
2.  Did appellant’s Claim 2 submitted to the CO effectively appeal the 
     termination for default to the Board and toll the 90-day clock? 
 
Filing an appeal with the CO may satisfy the Board’s notice requirement.  
Aerospace Facilities, 18-1 BCA ¶ 37,105 at 180,604 (citing Hellenic Express, ASBCA 
No. 47129, 94-3 BCA ¶ 27,189 at 135,503 (“filing an appeal with the [CO] is 
tantamount to filing with the Board” (citation omitted)).  The Board has historically 
taken a liberal reading of contractor’s communications to the CO in finding effective 
appeals.  Aerospace Facilities, 18-1 BCA at 180,604 (citing Thompson Aerospace, 
Inc., ASBCA Nos. 51548, 51904, 99-1 BCA ¶ 30,232 at 149,570).  See also Afghan 
Active Group (AAG), ASBCA 60387, 16-1 BCA ¶ 36,349 at 177,211.  Adequate 
notice to the CO must be (1) in writing, (2) express dissatisfaction with the CO’s 
decision, and (3) manifest an intent to appeal the decision to a higher authority 
(Aerospace Facilities, 18-1 BCA at 180,604 (citing McNamara-Lunz Vans & 
Warehouses, Inc., ASBCA No. 38057, 89-2 BCA ¶ 21,636 at 108,856)).   
 
As to the third requirement, i.e. manifest an intent to appeal the decision to a 
higher authority, “‘[w]hile the Board historically has interpreted contractors’ 
communications liberally in determining whether an intent to appeal exists, the record 

 13 
reasonably must demonstrate an intent to appeal to the Board in order for our 
jurisdiction to attach.’”  Bahram Malikzada Constr. Co., ASBCA Nos. 59613, 59614, 
15-1 BCA ¶ 36,134 at 176,370 (quoting Oconto Elec., Inc., ASBCA No. 36789, 88-3 
BCA ¶ 21,188 at 106,939, aff’d, 884 F.2d 1399 (Fed. Cir. 1989) (unpublished table 
decision)).  Thus, in Aerospace Facilities, we found that a letter stating that “‘we will 
appeal your decision through the various avenues open to us’ adequately expressed the 
contractor’s intent to appeal as a contractor can only ‘appeal’ to the Board.”  18-1 BCA 
¶ 37,105 at 180,604.  However, a contractor’s letter indicating [it] would appeal to either 
the Board or the Claims Court [is] not a notice of appeal because the CDA requires a 
notice of appeal to express an election of the forum in which it will seek relief.  
Stewart-Thomas Indus., Inc., ASBCA No. 38773, 90-1 BCA ¶ 22,481 at 112,836.  
 
In the appeal at hand, Nauset argues that its submission to the CO on 
February 12, 2018, satisfied the Board’s notice requirement, as it was in writing, 
expressed dissatisfaction with the CO’s decision, and manifested an intent to appeal 
the decision to higher authority (app. opp’n at 20-21).  We agree that Nauset fulfills 
the first two requirements, but the third prong fails.  Nauset’s letter of February 12, 
2018, (SOF ¶ 14) asserts that the termination was wrongful and submits a claim to the 
CO for additional costs.  In this letter, appellant does not express an intent to appeal 
the termination to higher authority, and the word “appeal” does not appear anywhere 
in Nauset’s letter.  We examined appellant’s letter of January 17, 2018, to ascertain 
whether, if read together with the letter of February 12, 2018, it may convey 
appellant’s intent to appeal the termination.  In the letter of January 12, 2018, appellant 
expresses its disagreement with the termination and states it intends to submit a new 
claim (SOF ¶ 12).  The letter states that Nauset will “continue to vehemently invest 
every available resource to support our claim, our position and reputation” (id.), but it 
fails to express Nauset wishes to appeal the termination for default.  Although we have 
historically construed liberally the language of a notice of appeal, Nauset’s letters fail 
to express an intent to raise appellant’s plight to an authority higher than the CO, and 
we hold that they do not suffice as a notice to appeal to the Board.  See Ft. McCoy 
Shipping & Svcs., ASBCA No. 58673, 13 BCA ¶ 35,429 at 173,794. 
 
3.  Was appellant prejudiced by the CO’s failure to provide appeal language 
      in the termination letter? 
 
Nauset argues that although the termination letter gave notice that it had the 
right to appeal under the Disputes clause, the CO failed to provide the appeal rights as 
required by the FAR and Nauset was prejudiced by this omission.  Appellant asserts 
that because the termination letter did not provide the appeal language, it did not set in 
motion the 90-day period to appeal to the Board.  The government argues that the 
omission of appeal rights in the termination letter did not prejudice appellant because 
appellant was represented by counsel throughout the performance of the contract, and 

 14 
counsel conducted research on its appeal rights so appellant was aware of its rights to 
appeal the termination decision.  We agree.  
 
 The termination letter included the following language:  “This notice constitutes 
[a termination] decision, and Nauset has the right to appeal under the Disputes clause 
of the contract . . . .  This notice constitutes a decision that the contractor is in default 
as specified and that the contractor has the right to appeal under the Disputes clause 
(SOF ¶ 7). 
 
 The contract incorporated by reference FAR 33.211(a)(4)(v) (SOF ¶ 1) 
which requires that a termination include language substantially as follows: 
 
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 and provide a copy to the Contracting Officer from 
whose decision this appeal is taken. The notice shall 
indicate that an appeal is intended, reference this decision, 
and identify the contract by number. 
 
 We have consistently held that ‘“when confronted with contracting officer 
decisions that only advise the contractor that it may appeal under the Disputes clause, 
omitting additional details of its rights, the Board has required the contractor to prove 
it was actually prejudiced by the omission, or that the contractor detrimentally relied 
upon it, to avoid the 90-day limitation period.’”  Shafi Nasimi Constr. and Logistics 
Co., 16-1 BCA ¶ 36,215 at 176,697 (quoting Mansoor Int’ll Dev.t Servs., ASBCA 
No. 58423, 14-1 BCA ¶ 35,742 at 174,926).  See also Access Personnel Servs., Inc., 
ASBCA No. 59900, 16-1 BCA ¶ 36,407 at 177,517.  We have also consistently held 
that a termination for default is a government claim, and starts the 90-day clock as a 
final decision of the CO.  Western Trading Co., ASBCA No. 61004, 18-1 BCA 
¶ 37,030 at 180,304 (citing Bushra Co., ASBCA No. 59918, 16-1 BCA ¶ 36,355 
at 177,238). 
 
Nauset states that it was prejudiced because it “did not understand that the 
Notice of Termination was a final decision of the contracting officer that was 
appealable to the ASBCA within ninety (90) days” (Papantonis aff. ¶ 9; see app. opp’n 
at 18; app. sur-reply at 3).  
 
The facts before us suggest that Nauset did not understand the distinction 
between filing a claim with the CO and appealing a termination for default, which is a 
contracting officer’s final decision (COFD) that must be appealed to the Board within 

 15 
90 days of the termination.  The January 17, 2018, letter states that Nauset intends, 
sometime in the future, to dispute the termination decision (SOF ¶ 12).  Indeed, in its 
letter of February 12, 2018, to the CO, Nauset states that it intends to defend its 
position, that Nauset submits its wrongful termination claim in accordance with the 
Contract Disputes Act, and that in accordance with the CDA, Nauset requests that the 
CO render a final decision on its certified claim disagreeing with the termination 
within 60 days (SOF ¶ 14).  This letter denotes Nauset’s intent to file a claim against 
the default termination with the CO instead of an appeal with the Board, showing that 
Nauset did not understand that a termination for default is in itself a government claim, 
and starts the 90-day clock as a final decision of the CO.  Western Trading Company, 
18-1 BCA ¶ 37,030 at 180,304.  The record does not explain the genesis of this 
confusion.  However, we note that appellant’s counsel conducted research on 
termination rights several times.      
The record demonstrates that Nauset’s attorney conducted extensive research 
on termination rights on the same day the termination letter was issued, including 
review of the “Government’s 23 page notice of termination” which directed Nauset to 
the Disputes clause, and “[r]eview of Federal Acquisition Regulations regarding 
avenues of appeal” (SOF ¶ 9).  On November 29, 2017, appellant’s counsel researched 
“cases under Contract Dispute Act regarding default terminations” (id.).  On July 6, 
2017, Nauset’s attorney researched the “best avenue of relief, Armed Services Board 
of Contract Appeals or Federal Court of Claims for filing suit” (SOF ¶ 3).  On 
September 27, 2017, Nauset’s attorney researched “docketing dates” (SOF ¶ 5).  On 
October 18, 2017, Nauset’s counsel conducted “[r]esearch of entitlement to additional 
time to respond to notice of default” and on October 19, 2017, he conducted 
“[r]esearch [on] FAR regulations; research case law regarding termination for default 
under FAR” (id.)  Additionally, appellant’s counsel was involved throughout the 
performance of the contract and termination process, and discussed the termination at 
length with the government (SOF ¶¶ 10, 18, 24).  The contract incorporates by 
reference the Disputes clause (SOF ¶ 1) and the termination letter directs Nauset’s 
attention to that clause, stating “Nauset has the right to appeal under the Disputes 
clause of the contract” (SOF ¶ 7).  Given the amount of research conducted by 
counsel, and counsel’s involvement throughout the performance and termination of the 
contract, we find it hard to believe that appellant was unaware of its appeal rights 
under the Disputes clause even if the termination letter did not include the language 
required by the FAR.  Considered together, these facts do not support appellant’s 
assertion that it was prejudiced by the termination letter’s omission of appeals rights 
language.  Accordingly, we conclude that the 90-day appeal period was not tolled (see 
Access Personnel, 16-1 BCA ¶ 36,407 at 177,517). 
 
The 90-day period within which the CO’s decision must be appealed to the 
Board is jurisdictional and may not be waived, and appellant failed to appeal the 

 16 
COFD within the 90-day window.  Accordingly, we do not have jurisdiction over 
ASBCA No. 61675.   
 
CONCLUSION 
 
For the reasons above, the Board asserts jurisdiction over the claims in the 
appeals docketed as ASBCA Nos. 61673 and 61675.  To the extent ASBCA 
No. 61675 also appeals a termination for default, that portion of the appeal is 
time-barred and is hereby dismissed for lack of jurisdiction.   
 
 Dated:  May 5, 2021 
 
 
 
LIS B. YOUNG 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 
  


 17 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 61673, 61675, Appeals of 
Nauset Construction Corporation, rendered in conformance with the Board’s Charter. 
 
 Dated:  May 5, 2021 
 
 
        
PAULLA GATES LEWIS 
Recorder, Armed Services 
Board of Contract Appeals