Ft. McCoy Shipping & Services
Docket: ASBCA 58673
Decision date: 2012-09-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Ft. McCoy Shipping & Services 
Under Contract No. MCC 08-205 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58673 
Ms. Jane Barnas 
Owner 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
LTC Peter H. Tran, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE STEMPLER 
ON THE GOVERNMENT'S MOTION TO DISMISS 
Contending Ft. McCoy Shipping & Services (appellant) failed to file a notice of 
appeal within the 90-day period following receipt of the contracting officer's final 
decision as required by 41 U.S.C. § 7104(a), the Army (government) filed a motion to 
dismiss for lack of jurisdiction. We deny the motion for the reasons stated below. 
STATEMENT OF FACTS CSOF) FOR PURPOSES OF THE MOTION 
1. The Army & Air Force Exchange Service (AAFES) awarded Contract 
No. MCC 08-205 to appellant on 30 April2008. The contract was "a negotiated contract 
for concession operation of a business center located at Ft. McCoy, WI" for a period of 
five years, unless terminated earlier according to the contract's general provisions. (R4, 
tab 1) 
2. General Provision 8(b) stated: "This contract may be terminated in whole or in 
part by either party upon thirty (30) days notice (ninety (90) days for vending 
contracts) 
in writing to the other party" (R4, tab 2 at 3). 
3. The DISPUTES (FEB 95) clause is found at General Provision 11 ofthe 
contract, and states the contract is subject to the Contract Disputes Act, and except as 
provided in that Act, "all disputes arising under or relating to this contract shall be 
resolved under this clause." The clause sets forth the 90-day appeal period for appeals to 
this Board, and the one-year appeal period for appeals to the Court of Federal Claims. 
(R4, tab 1 at 3, 4) 

4. On 20 September 2012, appellant, through its owner, Ms. Jane Barnas, 
informed the government it was terminating the contract and would close its shipping 
store no later than 28 September 2012 (R4, tabs 9, 10). 
5. The contracting officer acknowledged receipt of appellant's notice of 
termination by letter dated 25 September 2012 (R4, tab 10). 
6. By letter dated 29 November 2012, appellant through Ms. Barnas, submitted a 
claim to the contractin~ officer for $17,000 for what it described as "undue costs 
incurred" (R4, tab 13). 
7. In a letter dated 11 January 2013, the contracting officer denied the claim in its 
entirety. After enumerating her reasons for the denial, the contracting officer stated: 
This is the final decision ofthe contracting officer. You may 
appeal this decision to the Armed Services Board of Contract 
Appeals (ASBCA) within 30 days from the date you receive 
this decision, by mailing or otherwise furnishing written 
notice to the ASBCA and providing a copy of the notice to 
me at the following address: 
Army and Air Force Exchange Service 
Attn: Tanisha Davis (SDV /C/E) 
3911 S. Walton Walker 
Dallas, Texas 75236 
The notice must state that an appeal is intended, reference this 
decision, and identify the contract by number. 
(R4, tab 14) (Emphasis in original) 
1 For unexplained reasons, the letterhead on the claim letter reads "La Crosse Talent 
Services Inc." 
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8. Appellant sent the contracting officer a letter dated 16 January 2013, 
acknowledging receipt of the contracting officer's decision on 15 January 2013.2 
Appellant's letter was captioned: "Subject: Appeal to Monetary Claim dated 11 January 
2013 contract number MCC08-205." Appellant stated that its letter was in response to 
the 11 January 2013 final decision and referenced the contract number. Appellant also 
asked for the address of the ASBCA since it was not provided in the final decision. 
Appellant went on: 
This letter serves as my notice of intent to appeal. I request 
all required information, forms, and contact numbers, 
addresses, etc. to adequately file and prepare for my appeal. 
(Gov't mot., ex. 1) The record does not contain a response from the contracting officer to 
the appellant. The contracting officer did not forward this letter to the Board. 
9. By letter dated 22 January 2013, appellant complained to the AAFES Inspector 
General (I G) that the contracting officer had not provided assistance with the contract or 
the monetary claim (R4, tab 15 at 1). In the attached chronology, appellant noted: "20. 
Jan 16- Appeal notice- as of Jan 23 still no complete information" (id. at 2). 
10. Mr. Ray McGhee, AAFES Associate Director of Personal Services, in a letter 
to appellant dated 6 March 2013, acknowledged appellant's letter to the IG. He 
addressed the issues raised in the 22 January 2013 letter, item by item. In 
response to 
appellant's complaint of inadequate assistance regarding an appeal, Mr. McGhee stated, 
"For any appeal, the complainant is responsible for pursuing the appeals process with 
[the] ASBCA." He stated he had reviewed 
the documentation sent appellant and found 
"no improprieties" by the government. (R4, tab 16 at 2) He did not provide an address 
for the Board (ASBCA) or correct other mistakes in the contracting officer's final 
decision, nor did he forward appellant's correspondence to the Board. 
11. Appellant responded to Mr. McGhee by letter dated 18 March 2013 and again 
by email on 12 May 2013 asking about its claim (R4, tabs 17, 18). Mr. McGhee, by 
email on 17 May 2013, informed appellant the claim for $17,000 had been denied in its 
entirety by the contracting officer on 11 January 2013 and the Exchange considered the 
matter closed (R4, tabs 17, 18). 
12. Appellant appealed to the Board by letter dated 23 May 2013. Appellant's 
correspondence included a copy of its 29 November 2012 claim, Mr. McGhee's 6 March 
2013 letter, and the contracting officer's final decision. The Board docketed the appeal 
as ASBCA No. 58673. 
2 Establishing 16 April 2013 as the end of the 90-day appeal period. 
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DECISION 
The government has moved for dismissal of the appeal on the basis the Board 
lacks jurisdiction due to appellant's 23 May 2013 notice of appeal being filed 128 days 
after receipt of the contracting officer's final decision by appellant (gov't mot. at 1, 4, 5). 
The government argues that even though the 11 January 2013 contracting officer's final 
decision was mistaken in stating appellant had only 30 days to file with the Board, 
appellant had not shown detrimental reliance on the contracting 
officer's erroneous and 
incomplete explanation of the appeal rights sufficient "to excuse the tardiness" of the 
appeal (gov't mot. at 5, 6). In regard to appellant's post-final decision communications 
with the contracting officer and AAFES management, the government states none of the 
communications "amounted to a reconsideration" of the final decision by the contracting 
officer (gov't mot. at 6). 
We need not address the question of detrimental reliance by appellant on the 
erroneous appeal information supplied by the contracting officer in her final decision. 
See Decker & Co. v. West, 76 F.3d 1573 (Fed. Cir. 1996). We also do not need to 
address the issue of whether the contracting officer's decision of 11 January 2013 was 
under reconsideration at any point. See, e.g., Johnson Controls, Inc., ASBCA No. 28340, 
83-2 BCA ~ 16,915. Instead, we view as relevant an examination of our body of case law 
concerning misdirected notices of appeal with regard to appellant's 16 January 20 13 
letter to the contracting officer. 
To be considered timely, an appeal from a contracting officer's final decision to an 
agency board must be made within 90 days of receipt of a contracting officer's final 
decision. 41 U.S.C. § 7104(a). The 90-day period is statutory, and the Board has no 
discretion to waive it. Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. 
Cir. 1982); Campania de Asesoria y Comercio, S.A., ASBCA No. 52047, 99-2 BCA 
~ 30,400; Zolman Construction & Development, Inc., ASBCA No. 48135,95-1 BCA 
~ 27,469. 
In the matter before us, the 90-day period for filing of a notice of appeal expired on 
16 April 20 13. The question of whether appellant filed a timely notice of appeal is 
answered by analyzing appellant's 16 January 2013 letter to the contracting officer, 
captioned "Appeal to Monetary Claim .... " This letter, submitted within the 90-day filing 
period, referenced the contracting officer's final decision, included the contract number, 
expressed dissatisfaction 
with the decision, made clear appellant was seeking resolution by 
higher authority and stated, "This letter serves as my notice of intent to appeal." (SOF ~ 8) 
The "fundamental purpose of [a notice of appeal] is to provide the Board and the 
Government with notice of an impending appeal." Thompson Aerospace, Inc., ASBCA 
Nos. 51548, 51904, 99-1 BCA ~ 30,232 at 149,570. The Board has historically liberally 
read contractors' communications in finding effective appeal notices and has repeatedly 
held a notice of appeal requires only a writing filed within the requisite time period that 
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expresses dissatisfaction with the contracting officer's decision and indicates an intention 
to appeal the decision to a higher authority. ESA Environmental Specialists, Inc., ASBCA 
No. 55620, 07-1 BCA ~ 33,573 at 166,312; Thompson Aerospace, 99-1 BCA ~ 30,232 
at 149,570; New Mexico Professional Standards Review Organization, Inc., ASBCA 
No. 25867, 82-1 BCA ~ 15,499 at 76,878. A notice of appeal, meeting the above criteria, 
has been found effective "notwithstanding some degree of futurity." All Seasons 
Construction & Roofing, Inc., ASBCA Nos. 43941,45085, 93-1 BCA ~ 25,435 at 126,675 
(quoting Kos Kam, Inc., ASBCA No. 34633, 88-1 BCA ~ 20,311 and cases cited therein); 
Massachusetts Microwave Tube & Device Corp., ASBCA No. 52020, 99-1 BCA ~ 30,350 
at 150,100 (holding a letter to the contracting officer within 90 days of receipt of a notice 
of a termination for default stating the contractor intends to "protest the action taken by 
your office" and requesting "information necessary to start the protest and appeal process," 
constituted an effective notice of appeal). 
The content of appellant's 16 January 2013 letter to the contracting officer 
adequately fulfills well established criteria for an effective notice of appeal. The letter 
reflects dissatisfaction with the contracting officer's final decision and indicates an 
intention to appeal to a higher authority. Moreover, it is well settled that filing an appeal 
with the contracting officer is tantamount to filing with the Board. ESA Environmental 
Specialists, 07-1 BCA ~ 33,573 at 166,312; Thompson Aerospace, 99-1 BCA ~ 30,232 
at 149,569; Massachusetts Microwave, 99-1 BCA ~ 30,350 at 150,100. 
We conclude that appellant timely complied with the requirements for filing a 
notice of appeal by submitting its letter dated 16 January 2013 to the contracting officer. 
The motion is denied. 
Dated: 9 October 20 13 
L~~ MARK N. ST~LER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
(Signatures continued) 
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I concur 
0 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
ruCHARDSHACKLEFORD 
Administrative Judge 
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. 58673, Appeal of Ft. McCoy 
Shipping & Services, rendered in conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals