Access Personnel Services, Inc.
Docket: ASBCA 59900
Decision date: 2016-06-15

SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Access Personnel Services, Inc. 
Under Contract No. N00189-09-C-Zl 14 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59900 
Mr. Tyrone G. Miller 
CEO 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Paul C. Scheck, Esq. 
Attorney Advisor 
NA VSUP Fleet Logistics Center Norfolk 
Philadelphia, PA 
OPINION BY ADMINISTRATIVE JUDGE DELMAN ON THE GOVERNMENT'S 
MOTION TO DISMISS FOR LACK OF JURISDICTION 
The government has filed a motion to dismiss this appeal for lack of jurisdiction, 
on the ground that appellant did not timely file this appeal. Appellant opposes dismissal. 
For reasons stated below, we deny the government's motion to dismiss. 
STATEMENT OF 
FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 29 September 2009, the Naval Supply Systems Command Fleet Logistics 
Center (government) awarded to Access Personnel Services, Inc. (APS or appellant) 
Contract No. NOO 189-09-C-Z 114 for support services for the Naval Inventory Control 
Point (R4, tab 1 ). The contract was a time-and-materials type contract. 
2. On 2 February 
2011, the Defense Contract Audit Agency (DCAA) issued to 
APS a DCAA Form 1, Notice of Contract Costs Suspended and/or Disapproved, 
identifying six unrelated items of cost questioned by DCAA. Insofar as pertinent, DCAA 
disapproved costs under Item 1 in the amount of $22,236, as follows: "APS billed 
subcontract direct labor hours at prime contract direct labor rates. We calculated the 
differences between the prime contract direct labor rates and the subcontract direct labor 
rates and applied the claimed subcontract direct labor hours to the difference." (R4, tab 2) 

3. By letter to the contracting officer (CO) dated 10 February 2011, APS replied 
to the DCAA Form 1. Appellant addressed each of the six items in tum, contending that 
only Items 4 and 5 were valid disallowed costs, and it requested approval of the balance. 
(R4, tab 3) 
4. By letter to the CO dated 14 April 2011, appellant revised it position. In this 
letter, appellant advised of its "official acceptance of Items 2, 4, 5 and 6.. .. However I 
do contend that Items 1 and 3 represent legitimate charges that should not be 
Suspended or Disapproved." Appellant sought the CO's "time and consideration in 
resolving this matter." (R4, tab 4) This constituted a request for a CO's decision on 
its claim. 
5. By letter from the CO to appellant dated 28 April 2011, the CO proposed a 
resolution for Item 3 not pertinent to this appeal. As for Item 1, the CO stated as 
follows: 
Item 1 is for $22,236.00 in costs that have been disallowed. 
You have incorrectly billed the government for services 
that were 
provided by Professional Services of America 
(PSA). The amount you billed exceeds the amount that 
you were billed by PSA for these services. I concur with 
DCAA findings that these costs are disapproved. 
This resolves all of the DCAA Form 1 issues. 
(R4, tab 6) While this letter denied appellant's claim on Item 1, it was not identified 
as a CO's decision, nor did it provide a statement of APS' appeal rights. 
6. By email dated 28 April 2011, APS disagreed with the CO's decision. It 
requested that the CO "take another look at this and approve my payment." (R4, tab 7) 
7. By letter to APS dated 6 May 2011, the CO stated as follows: 
I have again reviewed your request for the payment of 
disallowed costs. You have billed the Government for 
subcontract direct labor hours at prime contract direct labor 
rates. You cannot bill the Government at a rate 
higher than 
the rate billed to you by your subcontractor. This is a Time 
and Material type contract and indirect costs, such as 
vacation or holiday pay should [have] been built into the 
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direct labor rate. Your request for approval of these 
disallowed costs is denied. 
(R4, tab 8) This letter also was not identified as a CO's decision, nor did it provide a 
statement of APS' appeal rights. 
8. On 20 March 2015, APS filed a notice of appeal with the ASBCA. Pleadings 
were filed. The government's answer asserted that the Board lacked jurisdiction over the 
appeal because APS failed to file its appeal within 90 days of receipt of the CO's 
decision. This was followed by the subject motion to dismiss on 8 June 2015. 
9. Within one hour of receipt of the government's motion, appellant replied to 
the government by email, copy to the Board, asserting as follows: 
[O]ver the past 5 years I have followed the instructions of 
the Contracting Officer and DCAA representatives to 
pursue my right to collect the monies, which are obviously 
owed. 
As unfair as it was to originally deny payment it is even 
more unfair that I am now being penalized for following 
the guidance of Federal officials, that have had me 
repeatedly submitting the same information over and over 
again to numerous departments, but never informing that I 
should, could or need to file with ASBCA. I didn't even 
know ASBCA existed until, at my wits end, I stumbled 
upon your information as I searched the internet for help! 
10. The record includes email communications between appellant and agency 
employees over a number of years regarding appellant's claim. One such exchange 
was between appellant and a Ms. Bell of the Small Business Administration (SBA) on 
13 January 2012. Appellant attached, for her review, a lengthy chain of emails 
between APS and various government personnel regarding the claim. Ms. Bell 
acknowledged the email that day and stated: "Thanks, I will talk to the office on 
Tuesday," but no subsequent communications between SBA and appellant are of 
record. (See Bd. corr. ltr. dtd. 3 May 2016 with attachments) The government 
contends that the SBA was providing assistance to APS on this dispute (surreply at 
13 ), but the record does not support this contention. 
11. Appellant also raised the issue of its claim in response to the government's 
attempt to close-out the contract in 2014. On 19 March 2015, appellant contacted the 
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GAO Contract Appeals Board by email regarding the claim, stating in pertinent part as 
follows: 
I have been contacted recently about the close out of the 
subject line contract, for which I have been trying 
desperately to collect the collect [sic] the outstanding 
amount. It has been years and I have been shuffled around 
and endure the retirements of several POC's and no one 
seems interested in correcting this obvious wrong .... 
Please take a look at what I have presented and let me 
know if you have any questions .... 
(See Bd. corr. ltr. dtd. 3 May 2016 with attachments) GAO's email response of that 
date suggested that appellant contact the ASBCA (id.). Appellant's appeal was filed 
here the next day, on 20 March 2015. 
12. Attached to the notice of appeal was an email from CO Scott Rubin to 
appellant, dated 18 March 2015, stating as follows: 
The contract in question has been exhaustively reviewed 
by Contracting Officers that preceded me in this 
position. 
I have conducted my own cursory review of the file and I 
have found nothing that would provide me a basis to 
second-guess or overrule those prior determinations. 
This email did not constitute a reconsideration of the CO's decision of 6 May 2011 
denying appellant's claim. 
DECISION 
Insofar as pertinent here, our jurisdiction under the Contract Disputes Act, 
41 U.S.C. §§ 7101-7109 (CDA), is predicated upon: (1) the submission of a proper 
claim by a contractor to the CO for decision; (2) the issuance of an adverse written 
decision on the claim by the CO (or a deemed denial of said claim); and (3) a timely 
appeal to this Board within 90 days of receipt of the decision. In support of its motion 
to dismiss, the government asserts that APS submitted a claim to the CO, that the CO 
issued a decision denying the claim, but that APS failed to file a timely appeal with 
this Board. 
We agree with the government that appellant submitted a claim to the CO on 
14 April 2011, seeking payment from the government in the amount of $22,236, which 
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was the disputed amount under Item 1 (SOF ~ 4 ). We also agree that the CO issued to 
appellant an adverse written decision, denying this claim on 28 April 2011 (SOF ~ 5), and 
upon reconsideration, denying the claim again on 6 May 2011 (SOF ~ 7). However 
neither decision advised APS of its rights of appeal. 
The CDA, 41 U.S.C. § 7103(e), requires the CO's decision to inform the 
contractor of"its rights as provided in this chapter." FAR 33.21 l(a)(4)(v) implements 
this statutory language, requiring that the CO' s decision contain substantially the 
following 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 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. 
Instead of appealing to the agency board of contract 
appeals, you may bring an action directly in the United 
States Court of Federal Claims ... within 12 months of the 
date you receive this decision ... . 
The CO's decision here failed to comply with the CDA and the regulations. 
The law is well settled that proof of detrimental reliance on a defective CO's 
decision will toll the 90-day appeal period. See Decker & Co. v. West, 76 F.3d 1573 
(Fed. Cir. 1996); Mansoor International Development Services, ASBCA No. 58423, 
14-1 BCA ~ 35,742. The record shows that APS was unfamiliar with the contract 
dispute process in general and the ASBCA in particular. Indeed, the record shows that 
at all times relevant, APS was unaware of the Board's existence. 1 
1 As indicated above, appellant communicated this information to the government by 
email on 8 June 2015, with copy to the Board, immediately after receipt of the 
government's motion to dismiss. There has been no showing that this email 
was provided in variance with the parties' course of dealing, or otherwise failed 
to follow Board direction. Under these circumstances, we reject the 
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The government argues that after appellant's claim was denied by the CO in 
May 2011, it should have promptly searched the internet, hired counsel or taken other 
pro-active steps to determine its appeal rights, and having failed to do so, must be held 
responsible for this late appeal. We do not agree. We do not read Decker or the CDA 
to impose a "due diligence" requirement on unknowledgeable contractors. 
The government further contends that the Disputes clause in the contract, 
FAR 52.233-1 (JUL 2002), advises appellant of its appeal rights. This is not entirely 
correct. While subsection (f) of the clause refers generally to an "appeal'' under the 
Act, it does not state with whom that appeal had to be filed, and the date by which that 
appeal had to be filed. A contractor would need to ascertain this information in some 
other way. However, neither Decker nor the CDA imposes an affirmative obligation 
on a contractor to ascertain its appeal rights. The CDA places the obligation of 
notification squarely on the shoulders of the government. When the government fails 
to adequately provide this notice, the Decker test is one of detrimental reliance, i.e, 
whether the CO's decision, by words of commission or omission, actually misled the 
contractor to its prejudice regarding its appellate rights. Mansoor, 14-1BCAif35,742 
at 174,926-27. 
Clearly, when appellant received the CO's decision denying this claim it was 
unaware of its right to appeal the CO's decision to an agency board of contract appeals 
within 90-days of its receipt of the decision. A proper notice from the CO would have 
provided this information. Appellant was misled and prejudiced by the CO's failure to 
provide this notice in the decision. 
The government argues that to toll the appeal period would, in effect, provide 
for an indefinite appeal period. The short answer to this contention is that the 
government has the ability to obviate this concern by issuing CO decisions in 
accordance with law. See Pathman Construction Co. v. United States, 817 F.2d 1573, 
1579 (Fed. Cir. 1987). 
We have reviewed all the government's other contentions, but they are not 
persuasive. We conclude that appellant has shown detrimental reliance upon the 
omission of its appeal rights in the CO's decision denying its claim. Accordingly, this 
appeal is timely. 
government's request that we disregard appellant's email because it was 
"unsigned" and/or because it was not in affidavit form. We exercise our 
discretion to accept appellant's email into the evidentiary record. 
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CONCLUSION 
Under the circumstances presented, we conclude that the 90-day appeal period 
to this Board from the CO decision was tolled. We have jurisdiction over appellant's 
appeal, ASBCA No. 59900. The government's motion to dismiss for the lack of 
jurisdiction is denied. 2 
Dated: 15 June 2016 
'"-------·-
I concur 
/--;;~ 
£:~~~--
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
A dmin is tra ti v e Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
Administrative 
Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
2 The government's reply brief dated 9 December 2015 requests a Board order to 
show cause why this appeal should not be dismissed for failure to prosecute. 
While the record does show that appellant failed to promptly reply to several 
Board orders, we believe that the record, overall, 
shows that appellant has 
manifested an active interest in its appeal and remains actively engaged in its 
pursuit. The government's request for an order to show cause is denied. 
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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. 59900, Appeal of Access 
Personnel Services, 
Inc., rendered in conformance with the Board's Charter. 
Dated: 
8 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals