U.S. Pan American Solutions, LLC
Docket: ASBCA 62629
Decision date: 2021-08-05

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE ARMY’S MOTION 
TO DISMISS FOR LACK OF JURISDICTION  
 
 The Army moves the Board to dismiss this appeal because U.S. Pan American 
Solutions, LLC’s (Pan Am) appeal was untimely and the Board lacks jurisdiction.  
Pan Am’s President appears pro se.  Pan Am failed to file an Opposition to the Army’s 
Motion.  We have jurisdiction to consider the Army’s Motion pursuant to the Contract 
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109.  As explained below, the Army’s 
actions caused confusion as to when the appeal period started.  Pan Am’s appeal to the 
reissued termination letter was timely.  The Army’s motion is denied.   
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 We present cursory background facts and focus on the facts surrounding the 
appeal.  Not having filed an Opposition Brief, Pan Am has not disputed the Army’s 
recitation of facts and we use them selectively and add additional facts we deem material.  
 
1.  On September 25, 2019, the government awarded Contract No. W911S2-19-P-
2528 (the Contract) to Pan Am to provide commercial privacy screens for computer 
monitors (R4, tab 1, 3).  The Contract provided that Pan Am had until October 25, 2019, 
to deliver the privacy screens (id. at 5-6).  
 
2.  The Contract was a 100% Small Business set-aside, firm-fixed-price contract 
for a commercial item, with a total price at the time of award of $77,147.00 (id. at 1, 5).  
 
Appeal of - )  
 )  
U.S. Pan American Solutions, LLC ) ASBCA No. 62629 
 )  
Under Contract No. W911S2-19-P-2528 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Jorge DelPino 
    President 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 MAJ Aaron McCartney, JA 
Robert B. Neill, Esq. 
    Trial Attorneys 

2 
 
3.  Pan Am failed to deliver the privacy screens by October 25, 2019.  The failure 
to deliver the privacy screens was not initially explained by Pan Am, and the government 
issued a Show Cause Notice on January 29, 2020, for failure to deliver the privacy 
screens by the delivery date.  (R4, tab 5) 
 
4.  On March 10, 2020, Ms. Katherine Bender from MICC - Fort Drum informed 
Pan Am that she intended to request that the Contract be terminated for default due to the 
appellant’s failure to deliver the items required by the Contract by the required delivery 
date.  Ms. Bender informed Mr. DelPino,
1 Pan Am’s President, through email, stating, 
“Good morning.  I am sorry, but delivering 8% of our order 5 months late is 
unacceptable2.  I will be contacting the MICC today to cancel for default.  We have been 
as patient as we could and now your default is affecting the government’s performance.” 
(R4, tab 11 at 3) 
 
5.  On May 8, 2020, contracting officer (CO) Lacey-Gonzalez signed a four page 
“Determination to Terminate for Cause Because of Failure to Deliver in Accordance with 
the Terms and Conditions of the Contract Pursuant to FAR 52.212-4(m), W911S2-19-P-
2528.”  The Determination set forth the facts supporting her decision to terminate.  (R4, 
tab 13) 
 
6.  Also on May 8, 2020, CO Lacey-Gonzalez signed a two page “Final 
Determination”: 
 
SUBJECT:  Contracting Officer’s Final Determination 
Termination Notice – Termination for Cause:  Contract 
Number W911S2-19-P-2528 
 
1. Contract W911S2-19-P-2528 is hereby being terminated 
for cause.  This termination for cause is for failure to deliver 
according to the terms and conditions of the contract. 
 
                                              
1 Mr. DelPino’s name is shown in the majority of documents with a small “p” however 
his signature on his “request or an appeal” shows a capital “P” which is what we 
use.  (Board’s files)  We do not change the spelling in the record documents.    
2 The government apparently felt that Pan Am had only provided 8% of the privacy 
screens, but we make no finding here whether that was accurate as it is not 
necessary for the disposition of this motion.”  

3 
 
(R4, tab 14 at 1)  Appeal rights were included at paragraph 4 (id.).  The header on the 
second page read: 
 
SUBJECT:  Contracting Officer’s Final Determination 
Termination Notice – Termination for Convenience:  Contract 
Number W911S2-19-P-2528 
 
(id. at 2) (Emphasis added). 
 
7.  Also on May 8, 2020. CO Lacey-Gonzalez signed Modification No. P00001, 
SF 30, stating in Block 14, “The purpose of this modification is to Terminate Contract 
W911S2-19-P-2528 for Cause because the Contractor failed to deliver Monitor Privacy 
Screens.  This Termination for Cause constitutes a final decision of the Contracting 
Officer.”  (R4, tab 15 at 1).  There were no appeal rights stated in Modification 
No. P00001. 
 
8.  Also on May 8, 2020, Ms. Bethel Faciane of MICC - Fort Drum emailed a 
“modification” terminating the contract for cause to Mr. DelPino:   
 
Attached is the modification to terminate for cause the above 
mentioned contract.  This is the final decision of the 
Contracting Officer.  This concludes this contract.   
 
Respectfully, 
Bethel M. Faciane 
Purchasing Agent 
 
(R4, tab 16 at 4).  We interpret this to refer to Modification No. P00001. 
 
9.  On May 12, 2020, Mr. DelPino sent the following email to CO Lacey-
Gonzalez: 
 
Ms Lacey Gonzalez  
 
Once again thank you for your time and attention.  Im [sic] 
embarrassed for this inconvenience and appreciate your 
attention on our call.  I apologize to you and Ms Bender as we 
compromised the Army inspection as we discussed today. 
 
Please feel free to can contact me at this email or directly at “   
-   -    .”  Please stay safe and sound –Thanks again.  I 
attached our termination doc that shows the convenience 
header on page 2 as well. 

4 
 
 
Regards 
Jorge Delpino 
VICE PRESIDENT 
 
(R4, tab 16 at 3) (Emphasis added)  
 
10.  On May 13 2020, CO Lacey-Gonzalez sent a corrected copy of the 
termination memo to Pan Am:  
 
Mr. Delpino, 
 
I have attached a corrected copy of my final termination 
memo.  I corrected the header on page 2 changing the word 
convenience to cause.  I apologize for not catching the error 
and causing your confusion.  
 
I talked to both Ms Bender and my supervisor and have 
decided to stand by the termination for cause.  After talking 
with my supervisor I decided one termination for cause will 
not affect your ability to get future contracts.  Your past 
record of fulfilling contracts will override this one 
termination.  
 
Ramona Lacey-Gonzalez 
Contracting Officer 
 
(R4, tab 16 at 2) (Emphasis added) 
 
11.  On May 13, 2020, after CO Lacey-Gonzalez’s email of the same date, 
Mr. DelPino sent the following email: 
   
Gm Ramona 
 
Thank you for your prompt attention.  I'm disappointed with 
this resolution and appreciate your comment regarding future 
contracts.  Our financial institution funded our invoice and 
the termination for cause defaults our lending program. This 
will basically close our business and the loss of jobs in our 
group as we confirmed a contract cancelation in March. This 
situation, compounded with the current Covid delays in our 
industry, we have product delivered that cant [sic] be 
accounted for to support the process of payment.  We will 

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have to appeal this termination as the convenience 
designation will be the only way to salvage our financial 
dilemma.  I apologize to be so personal and passionate but 
this unique situation creates a domino effect.  If possible, is 
there any way to speak to your supervisor to avoid this appeal 
process? 
 
Jorge Delpino 
President 
 
(R4, tab 16 at 1) (Emphasis added)  
 
12.  On August 7, 2020, Mr. DelPino filed a notice of appeal with the ASBCA 
requesting an appeal of the “Termination of Cause” of contract W91152-19-P-2528.   
 
DECISION 
 
 The Army sums up its position as follows:  
 
The date of the appellant’s receipt of the contract termination 
notice is undisputed (R4, tab 14 at 1).  The appellant’s notice 
of appeal was filed by email message sent to the ASBCA 
Recorder Mailbox on August 7, 2020, 91 days after May 8, 
2020.  This date is also undisputed.  Accordingly, because the 
appeal was not filed within 90 days of the appellant’s receipt 
of the contract termination notice, the Board lacks jurisdiction 
under the CDA to decide this appeal and it must dismiss the 
appeal with prejudice.  41 U.S.C. § 7104(a); Cosmic 
Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 
1982). 
 
(gov’t mot. at 9).  The question of our jurisdiction is not as simple as the Army 
apparently believes.  August 7, 2020, the date Pan Am appealed its termination to the 
Board, is indeed 91 days from May 8, 2020.  Although, the “Final Determination” 
termination memo was signed and emailed on May 8, 2020,3 it contained an error.  The 
header on page two referred to a termination for convenience (SOF ¶ 6).  On May 13, 
2020, CO Lacey-Gonzalez issued a corrected copy of the termination memo to Pan Am. 
(SOF ¶ 10)  August 7, 2020 is 86 days from the reissued corrected termination memo.  
Our task is to determine which date starts the 90-day appeal period.   
                                              
3 Modification No. P00001 terminating the contract was also delivered on May 8, 2020 
(SOF ¶ ¶ 6-8) but since it did not include appeal rights we do not view it as 
significant as the termination memo that does include notice of appeal rights.   

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Relevant Law 
  
 Confusion plays a large role in our analysis.  In Langdon Eng’g & Mgt., ASBCA 
No. 61959, 19-1 BCA ¶ 37,427 we wrote: 
 
The central concept of our case law in this area is confusion.  
TTF, 15-1 BCA ¶ 35,883 at 175,434.  When the government 
sends multiple copies of a final decision without making the 
appeal start date clear there is confusion on the part of the 
contractor and the last delivery date of the final decision starts 
the 90-day appeal period. Id.  We conclude that there is ample 
evidence of confusion on the part of Langdon. 
 
(Id. at 181,908)  In Frasson Lodovico S.R.L, ASBCA No. 58645, 14-1 BCA ¶ 35,525 we 
wrote: 
 
The appeal would be untimely if receipt was counted from 23 
June 1995 but timely if receipt was 28 June 1995.  The Board 
said that sending multiple copies of a CO's final decision 
confuses a contractor as to the date for appeal of the decision 
and the contractor is entitled to compute the date from receipt 
of the last copy.  Eastern, 96-2 BCA ¶ 28,343 at 141,550. 
 
(Id. at 174,114) 
 
Discussion  
 
As shown above, confusion that is caused by the government over which date the 
final COFD was issued is the essence of these dual final decision cases.  Just as in 
Langdon and Frasson Lodovico there is ample evidence that the government’s issuance 
of materially different COFD’s caused confusion as to the starting date of the appeal 
period by Pan Am’s, Mr. DelPino.  On May 12, 2020, Mr. DelPino emailed CO Lacey-
Gonzalez apologizing for any “inconvenience” Pan Am caused but also attaching a copy 
of the erroneous headnote.4  (SOF ¶ 9)  The most compelling evidence of confusion is 
CO Lacey-Gonzalez’s May 13, 2020 statement acknowledging Mr. DelPino’s confusion, 
“I apologize for not catching the error and causing your confusion.” 5  (SOF ¶ 10).  This 
is essentially an admission that we cannot overlook and standing alone would justify our 
                                              
4 Testimony from Mr. DelPino would have been useful but Pan Am failed to submit an 
affidavit / declaration.  The same is true for the Army.  The documents in the 
record are sufficient for our purposes.   
5 The Army disclosed the error in its facts but did not address it in its argument to explain 
why the Board should not give it the weight we do in this decision. 

7 
 
decision.  On May 13, 2020, Mr. DelPino again wrote CO Lacey-Gonzalez referring to 
the error, “We will have to appeal this termination as the convenience designation will be 
the only way to salvage our financial dilemma” (SOF ¶ 11).  This evidence, and 
particularly the CO’s admission that the error caused Mr. DelPino’s confusion, cannot be 
overcome by the Army’s arguments.  
 
CONCLUSION 
 
 Based on the above, the Army’s motion is denied.   
 
 Dated:  August 5, 2021 
 
 
 
 
 
 
 
 
 
 
 
CRAIG S. CLARKE 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 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. 62629, Appeal of U.S. Pan 
American Solutions, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  August 5, 2021  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals