Eur-Pac Corporation
Docket: ASBCA 61647, ASBCA 61648
Decision date: 2018-11-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Eur-Pac Corporation ) 
) 
Under Contract Nos. N00104-16-P-BX72 ) 
N00104-15-P-EE01 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 61647, 61648 
Andrew J. Belofsky, Esq. 
The Law Office of Andrew J. Belofsky 
Washington, DC 
Craig D. Jens en, Esq. 
Navy Chief Trial Attorney 
Abram D. Burnett, Esq. 
Associate Counsel 
Courtney Hatcher, Esq. 
Assistant Counsel 
NAVSUP Weapon Systems Support 
Mechanicsburg, PA 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 
The Board raised the issue of jurisdiction, sua sponte, following indications that 
appellant's notices of appeal from the contracting officer's decisions, terminating 
appellant's contracts for default, may not have been filed within 90 days of appellant's 
receipt of the final decisions. The government then moved to dismiss the appeals, 
contending they were untimely. Appellant responded in opposition to the government's 
motion. We find the appeals untimely. They are dismissed for lack of jurisdiction. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. The government awarded Contract Nos. N00104-16-P-BX72 and 
N00104-15-P-EE01 (the contracts) to Eur-Pac Corporation (Eur-Pac or appellant) on 
May 8, 2016. 
2. By email dated February 16, 2018, the contracting officer (CO) informed 
appellant's president, Michael Cerulo, that the government was evaluating appellant's 
response to show cause notices, and was considering terminations for cause. The CO 
advised that the government was willing to pursue no-cost cancellations of these two 

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contracts if appellant was agreeable, and asked that appellant "respond with concurrence 
by COB 2/21/18." (App. resp., ex. A at 2) 
3. Later that same day, February 16, 2018, Mr. Cerulo responded by email that 
"neither a no-cost cancellation or termination for cause is acceptable" and continued: 
Eur-Pac still maintains its position of not recognizing or 
accepting these cancellations. Therefore this email will serve 
as formal protests to your actions .... I expect the protests be 
elevated to the next level of your chain of command. 
(App. resp., ex. A at 1) 
4. The CO terminated both contracts for default via modifications dated March 7, 
2018. Both modifications included the following language: 
This is the final decision of the Contracting Officer. This 
decision may be appealed to the Armed Service[ s] Board of 
Contract Appeals. If you decide to make such an appeal, you 
must, within 90 days from the date you receive this decision, 
mail or otherwise furnish written notice to the Armed 
Services Board of Contract Appeals and provide a copy to the 
Contracting Officer from whose decision the appeal is taken. 
The notice shall indicate that an appeal is intended, reference 
this decision, and identify the contract by number. 
(Gov't mot., encl. 1, attach. A at 2 of 2) 
5. By emails dated March 7, 2018, the CO sent the terminations to Mr. Cerulo and 
to appellant's contract administrator. Copies of the termination modifications were 
posted the same day to the government's Electronic Document Access (EDA) system, to 
which Eur-Pac was required to maintain access. However, the CO was unable to locate 
verification of receipt of the emails due to a "crash" of her computer in May 2018 during 
an automatic upgrade, which resulted in the loss of archived emails. (Gov't mot., encl. 1, 
,r 5, decl. of Andrea N. West) 
6. By email dated March 8, 2018, Mr. Cerulo, using the same email thread he had 
sent to the CO February 16, 2018, declared: 
As previously stated Eur-Pac is not recognizing these 
cancellations and is filing protest to your action.... This needs 
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resolution and I expect to hear from them directly. 
(App. resp., ex. A at 1) 
7. By correspondence dated May 9, 2018, government counsel wrote the Board 
regarding scheduling for nine different Eur-Pac appeals pending before the Board. After 
describing the parties' agreed upon schedule, the last paragraph of the letter read: 
Of note, appellant may be appealing additional final decisions 
recently made by agency contracting officers. Should those 
decisions be appealed and consolidated with this matter, the 
parties may request a modification to the above proposed 
schedule. 
(Gov't reply, encl. 2) 
8. By email dated June 8, 2018, more than 90 days after the March 7 termination 
notices were sent to appellant, Mr. Cerulo filed a notice of appeal with the Board on the 
two contracts which are the subject of these appeals, and included the two March 7, 2018 
final decisions. The appeals were docketed as ASBCA Nos. 61647 and 61648 .. 
9. By order dated June 13, 2018, the Board ordered appellant to show that it timely 
filed the appeals in accordance with the Contract Disputes Act (CDA), 41 U.S.C. § 7104(a). 
10. Mr. Cerulo responded to the Board's order by email dated June 18, 2018, stating: 
Although the notice of appeal was sent to the ASBCA office 
June 8, 2018, two calendar days beyond the 90 day window 
from the Contracting Officer[']s notice of contract 
termination, I respectively request from the Board and the 
Navy, Eur-Pac be allowed to continue with the appeals for the 
two subject contracts. 
Mr. Cerulo also sent his response to the Navy's chief trial attorney. 
11. On the same day, Mr. Cerulo also emailed government counsel in the nine 
other appeals Eur-Pac had pending before the Board. Referencing his letter to the Board 
and the chief trial attorney, he wrote, "I have no other excuse other than losing track of 
time. I'm hoping you can put in a good word on my behalf so that the appeals will be 
considered and move forward." (Gov't mot., encl. 3) 
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DECISION 
The government contends that we do not have jurisdiction over these appeals 
because appellant failed to file the appeals within 90 days of receipt of the emailed CO's 
termination notices, and has admitted its tardiness (gov't mot. at 2). Appellant's main 
argument, despite its two acknowledgments of Eur-Pac's late filing, counters that its 
communications with the CO, and government counsel's May 9, 2018 letter to the Board, 
both within the 90-day time frame, are sufficient to amount to timely notice of appeal to 
the Board (app. resp. at 2-3). 
Under the CDA, 41 U.S.C. § 7104(a), the 90-day period in which to appeal a CO's 
decision to the Board is jurisdictional and may not be waived. Cosmic Constr. Co. v. 
United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982); see also 41 U.S.C. § 7103(g) 
("The contracting officer's decision on a claim is final and conclusive and is not subject 
to review by any forum, tribunal, or Federal Government agency, unless an appeal or 
action is timely commenced as authorized by this chapter."). The day the contractor 
receives the final decision is not counted in determining the 90-day period, while the day 
the contractor mails or delivers its appeal is included. Images 11, Inc., ASBCA 
No. 47943, 94-3 BCA ,i 27,277 at 135,893. The government has the burden to establish 
the date the CO's final decision was received, "but the burden of proof is on appellant to 
establish that its appeal was timely filed." TTF, LLC, ASBCA No. 59511 et al., 15-1 
BCA ii 35,883 at 175,434. 
Mr. Cerulo received the March 7, 2018 final decisions at least by March 8, 2018, 
when he responded to the CO (SOF ,i 6). Therefore, the 90th day would be June 6, 2018, 
at the latest, and the Board received appellant's notices of appeal on June 8, 2018. 
Mr. Cerulo, in a letter to the Board, admitted he filed the appeals "two calendar days 
beyond the 90 day window from the Contracting Officer[']s notice of contract 
termination" (SOF ,i 10). He further elaborated on his tardiness in a letter to government 
counsel in which he stated, "I have no other excuse other than losing track of time" 
(SOF ,i 11 ). While the government is unable to provide a return receipt from the CO, as 
directed by the Board's June 13, 2018 order, it did provide a declaration by the CO that 
she sent the termination modifications to Mr. Cerulo and to appellant's contract 
administrator on March 7, 2018, and posted the terminations in the EDA system to which 
Eur-Pac was required to maintain access (SOF ,i 5). The CO's declaration, along with 
appellant's admissions, are sufficient to meet the government's burden to establish receipt 
and start the 90-day appeal period. North Arizona Constr. Co., ASBCA No. 61028, 18-1 
BCA ,i 36,931 at 179,930 (The government may meet its burden to establish the 
contractor's receipt of the final decision by providing "objective indicia" of actual 
physical receipt.). The burden is now on appellant to establish the appeals are timely. 
The facts in these appeals parallel the facts in Gaston & Associates, Inc., ASBCA 
No. 39131, 90-2 BCA ,i 22,816. Therein, after receiving a CO's final decision on March 28, 
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1989, appellant's notice of appeal to the Board was postmarked June 28, 1989. The 90-day 
filing period ended on June 26, 1989. Appellant admitted "it was not timely in its filing on 
this matter." Id. at 114,574. The appeal was dismissed for lack of jurisdiction. Here, 
however, although appellant initially admitted its filings were untimely (SOF ,i,i 10-11 ), 
appellant now contends that it has always maintained its intent to appeal the termination of 
these contracts and this intention was made known in emails to the CO in a timely manner 
(SOF ,J,J 3, 6). Relying on Afghan Active Group (AAG), ASBCA No. 60387, 16-1 BCA 
,i 36,349, appellant argues its actions conform to the line of Board cases which provide that 
"a contractor's timely notification to the [CO] of its intent to appeal a final decision will 
satisfy the ASBCA's 90-day deadline for filing appeals under the CDA" (app. resp. at 2-3). 
The Board has held a contractor's timely communication to the CO may satisfy 
the Board's notice requirement. Yankee Telecommunication Laboratories, Inc., ASBCA 
No. 25240, 82-1 BCA ,i 15,515 at 76,962 ("filing an appeal with the [CO] is tantamount 
to filing with the Board"). To be adequate, a notice of appeal requires only a writing 
filed within the requisite time period, expressing dissatisfaction with the CO's decision, 
and indicating an intention to appeal the decision to a higher authority. Ft. McCoy 
Shipping & Services, ASBCA No. 58673, 13 BCA ,J 35,429 at 173,794. 
As noted by appellant, historically, the Board has interpreted contractors' 
communications liberally in deciding whether a notice of appeal is effective (app. resp. at 2 
(citing Afghan Active Group, 16-1 BCA ,i 36,349 at 177,211)). We have inferred such an 
intent to appeal to this Board where a contractor's communication to the CO uses the term 
"appeal." The letter in Ft. McCoy, submitted to the CO within the 90-day filing period, was 
captioned "Appeal to Monetary Claim," referenced the CO's final decision, included the 
contract number, expressed dissatisfaction with the decision, requested the address and all 
forms needed to file and prepare its appeal, and stated, "This letter serves as my notice of 
intent to appeal." Ft. McCoy, 13 BCA ,i 35,429 at 173,794; see also Kos Kam, Inc., 
ASBCA No. 34633, 88-1 BCA ,i 20,311 at 102,705 (holding that a letter to the CO stating 
that the contractor "intends to appeal" constituted a notice of appeal). The emails relied 
upon by the Board in reaching its decision in Afghan Active Group were sent in a timely 
manner to the CO, and after expressing dissatisfaction with the final decision, asked "please 
kindly put us in progress if you need document for appeal process." Afghan Active Group, 
16-1 BCA ,J 36,349 at 177,212. 
However, we have also stated that "the record reasonably must demonstrate an 
intent to appeal to the Board in order for our jurisdiction to attach." Oconto Electric, 
Inc., ASBCA No. 36789, 88-3 BCA ,i 21,188 at 106,939 (contractor's response to the 
CO's decision merely indicated its "dispute" therewith); cf Nachtmann Analytical 
Laboratories, ASBCA No. 35037, 88-1 BCA ,i 20,229 at 102,434 (It is not necessary that 
the term "appeal" be used, but appellant is required to do more than merely indicate 
dissatisfaction with the CO's decision and a "general intent to take legal action if the 
[CO] does not change his views."). 
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In the present situation, the emails upon which Eur-Pac relies to indicate it was 
seeking an appeal before this Board are not clear in their intent. The first email in which 
it asserts it is not recognizing or accepting a cancellation of the contracts and is protesting 
any such action, was sent before the contracts had been terminated (SOF ,i 3). Thus, this 
could not be a request to appeal a CO's final decision because no final decision had yet 
been made. After receiving the CO's March 7, 2018 terminations, appellant replied on 
March 8, 2018, using the same email thread it had used earlier and said, "[a]s previously 
stated Eur-Pac is not recognizing these cancellations and is filing protest to your action .... 
This needs to be elevated to the next level in your chain of command for resolution and I 
expect to hear from them directly." (SOF ,i 6) In this context, it is simply not clear that 
the language in the March 8, 2018 email from Mr. Cerulo to the CO evidenced an intent 
to appeal to this Board. 
Further, appellant would have us find the requisite notice of appeal in a letter from 
government counsel to the Board, in separate matters before the Board, wherein 
government counsel, at the end of a joint proposed schedule for those different appeals on 
different contracts, adds "appellant may be appealing additional final decisions recently 
made by agency [CO]'s" (gov't reply, encl. 2). This communication to the Board, in 
separate matters, signed by government counsel-not appellant-reflects a conversation 
between the parties in which Eur-Pac may have expressed an intent to file an appeal at 
some future date. This cannot be construed as the filing of an appeal. Cf Concept 
International Systems, Inc., ASBCA No. 43361, 92-2 BCA ,i 24,804 at 123,739 (notice to 
the CO that appellant was preparing a claim did not constitute submission of a claim). 
Appellant's citation of this letter, and its reference to the nine appeals Eur-Pac 
presently has pending before the Board, does, however, illustrate that Eur-Pac knows 
how to file timely appeals at the Board. It was not unfamiliarity with Board procedure 
that resulted in tardy notices of appeal. This, coupled with Mr. Cerulo's acknowledgment 
to the Board, the Navy chief trial attorney, and government counsel that his filing was 
late, requires but one result. The notices are untimely. Absent timely notices of appeal, 
we lack jurisdiction to consider the appeals. The appeals are dismissed for lack of 
jurisdiction. 
Dated: November 13, 2018 
(Signatures continued) 
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OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
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I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative ge 
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 Nos. 6164 7, 61648, Appeals of 
Eur-Pac Corporation, rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
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