MOTION TO DISMISS FOR LACK OF JURISDICTION
DENIED:  December 16, 2008
CBCA 1239
DEVI PLAZA, LLC,
Appellant,
v .
DEPARTMENT OF AGRICULTURE, 
Respondent.
Nancy O. Dix and Arthur C. Rinsky of DLA Piper US LLP, San Diego, CA, counsel
for Appellant.
Marnie G. Ganotis, Office of the General Counsel, Department of Agriculture,
San Francisco, CA, counsel for Respondent.
Before Board Judges BORWICK , GOODMAN , and McCANN .
McCANN , Board Judge.
Respondent, the United States Department of Agriculture, Forest Service (Forest
Service), has filed a motion to dismiss for lack of jurisdiction on the grounds that appellant,
Devi Plaza, LLC (Devi Plaza) failed to timely file its notice of appeal from the contracting
officers’s final decision.


CBCA 1239 2
1 Respondent has alleged in its motion that appellant received the LCO decision
on March 27, 2008.  Appellant has not disputed this.  Accordingly, the Board will accept this
date as the date that appellant received the March 25, 2008, LCO decision.
Background
The Forest Service and Devi Plaza were parties to lease number 57-91S8-7-2A05 for
property located at 1731 Research Drive, Davis, California.  On January 22, 2008, Devi Plaza
submitted a letter to the lease contracting officer (LCO) claiming it was entitled to additional
costs in the amount of $488,670.  Appeal File, Exhibit 18 at 11.  The LCO considered this
letter to constitute a claim under the Federal Acquisition Regulation (FAR).  Appeal File,
Exhibits 19, 20.  Negotiations between the parties ensued, but were unsuccessful.  On
March 25, 2008, the LCO issued his decision.  Appeal File, Exhibit 23.  This decision set
forth appellant’s appeal rights and specifically instructed appellant that if it decided to
appeal, it must do so “within 90 days from the date you receive this decision.”  In this
decision the LCO also stated “[T]he Government is willing to continue a meaningful and
productive dialogue with a view to reach a fair and equitable final settlement.”  Appeal File,
Exhibit 23 at 2.  Appellant received the decision on March 27, 2008. 1  Accordingly, the
appeal period expired on June 25, 2008, ninety days later. 
After the decision, the parties continued to negotiate in an attempt to reach a
resolution of the  dispute.  The parties had multiple telephone conversations following the
decision.  Appeal File, Exhibits 24, 25.  On April 2, 2008, the LCO e-mailed appellant,
stating “I’m willing to meet with you once again to discuss a settlement offer. . . .  I agree to
meet with you in the interest of settling this matter as quickly as possible.”  He also indicated
that an upcoming meeting would be “a final effort to negotiate full settlement of your request
for cost adjustment.”  Appeal File, Exhibit 24.  In a May 29, 2008, e-mail message the LCO
stated, “[W]e are willing to listen to any new material that you are prepared to present that
could influence my written decision.”  Appeal File, Exhibit 25.  The parties met on June 11,
2008, to “further discuss my decision concerning your request for cost adjustment.”  Appeal
File, Exhibit 27.
 By e-mail message dated May 29, 2008, the LCO indicated that appellant was advised
of its appeal rights in the LCO’s March 2008 decision.  Appeal File, Exhibit 25.  Also, by
letter to appellant dated June 20, 2008, the LCO again indicated that appellant had been
advised of its appeal rights in the March 25, 2008, decision and that the appeal period would
expire on June 28, 2008.  Appeal File, Exhibit 27.  By letter dated June 26, 2008, which was
received by the Board on June 27, 2008, appellant appealed that decision.  Appeal File,
Exhibit 28. 

CBCA 1239 3
Discussion 
Respondent contends that the Board lacks jurisdiction over this appeal because the
LCO’s final decision was appealed after the expiration of the ninety-day time period allowed
by the Contract Disputes Act.  41 U.S.C. § 606 (2000).  Appellant, on the other hand,
contends that the LCO’s letter dated March 25, 2008, was not a final decision and that, even
if it was a final decision when issued, the finality of that decision was vitiated by subsequent
events, specifically, the parties’ continued negotiations and attempts to settle the dispute.
Appellant contends that this led it reasonably to believe that the decision was being
reconsidered. 
The standard for when a final decision is no longer effective because it is being
reconsidered was comprehensively covered in 
Sach Sinha and Associates, Inc ., ASBCA
46916,  95-1 BCA ¶ 27,499:
It is well-established that, if a CO's decision is not truly “final,” but being
reconsidered, a “failure to appeal from the decision within the prescribed
period will not defeat . . . [a] contractor's opportunity to be heard on the
merits.” E.g., Johnson Controls, Inc ., ASBCA No. 28340, 83-2 BCA ¶ 16,915
at 84,170.  As the Court of Claims explained in Roscoe-Ajax Constr. Co. v.
United States , 458 F.2d 55, 63, 198 Ct. Cl. 133, 148 (1972) a CO’s agreeing
to meet with a contractor and “to reconsider the question, serve[s] to keep the
matter open and necessarily destroy[s] any finality the [CO’s] decision
theretofore had.”  Accordingly, to ascertain if this appeal is timely, we must
determine whether the “finality” of the CO’s decision was vitiated.
. . . .
We have determined repeatedly that the issue to be resolved with respect to
vitiation of “finality” is whether the contractor presented evidence showing it
reasonably or objectively could have concluded the CO’s decision was being
reconsidered.  E.g., Royal International Builders Co. , ASBCA No. 42637,
92-1 BCA ¶ 24,684 (finality vitiated where CO actions created sufficient
uncertainty that contractor could reasonably believe decision not final); Birken
Manufacturing Co. , ASBCA No. 36587, 89-2 BCA ¶ 21,581 (finality attached
where contractor not reasonably led to believe decision being reconsidered);
Johnson Controls, Inc ., ASBCA No. 28340, 83-2 BCA ¶ 16,915 (finality
vitiated where CO granted contractor audience to discuss decision and did not
“make it very clear” that original appeal period was running); Precision Tool
& Engineering Corp ., ASBCA No. 16652, 73-1 BCA ¶ 9878 (use of word

CBCA 1239 4
“reconsider” not “a sine qua non”; issue is whether contractor “reasonably
concluded” CO was “reconsidering his final decision”).
Other tribunals have determined likewise. Edward R. Ester and Lorraine
Ester , PSBCA No. 3051, 92-2 BCA ¶ 24,822 (reasonable interpretation of
letter was CO willing to reconsider; contractor led to believe decision would
be reconsidered); Summit Contractors v. United States , 15 Cl. Ct. 806 (1988)
(post-decision review of same record vitiated finality); Jen’s-Beck Associates ,
VABCA No. 1988, 85-2 BCA ¶ 18,086 (“test is not limited to the subjective
state of the [contractor’s] mind but is an objective one considering all the
facts”; finality not vitiated where meetings were to discuss matters other than
decision); Riverside General Constr. Co. , IBCA No. 1603-7-82, 82-2 BCA
¶ 16,127 at 80,049 (issue is what CO caused contractor to believe after
issuance; finality vitiated because CO “h[e]ld out the prospect . . . that what
was described as a ‘final decision’ would be subject to further discussion and
possibly reconsideration”).
95-1 BCA at 137,041-42.
A board of contract appeals cannot waive the statutory appeal period.  Cosmic
Construction Co. v. United States , 697 F.2d 1389, 1390 (Fed. Cir. 1982).  Accordingly, the
standard set forth in  Sach Sinha applies as long as the events that give rise to the vitiation of
the finality take place prior to the expiration of the appeal period.  Once the appeal period
expires, the decision becomes final and the contracting officer lacks the authority to
reconsider it.  As one of our predecessor boards indicated, 
Our research has not disclosed any case arising under the Contract Disputes
Act where an untimely request for reconsideration, that is, one submitted after
the 90-day appeal period expired, has been deemed to vitiate the finality of an
unappealed decision.  Moreover, the applicable decisions make clear that,
under the Act, a request for reconsideration of a contracting officer’s decision
implicitly must be made within the statutory appeal period to avoid finality.
(Citations omitted.)
Schleicher Community Corrections Center, Inc ., DOT BCA 3046, et al., 98-2 BCA ¶ 29,941,
at 148,148.
In the present situation there is much in the record to support appellant’s position that
it reasonably believed that the decision was being reconsidered.  The LCO, in his April 25,
2008, decision, clearly indicated that he was willing to continue a meaningful and productive

CBCA 1239 5
dialogue after the decision in an attempt to reach a settlement.  Furthermore, subsequent to
the decision, there were multiple contacts, communications, and meetings held all in an effort
to come to some kind of resolution of the dispute. 
It was not until May 29, 2008, that the LCO informed the appellant by e-mail that he
had provided appellant with its appeal rights in his original March 2008 decision.  Such a
statement is not a clear statement that the original appeal period is continuing to run, or that
the contracting officer has not reconsidered his decision since that time.  It is only a statement
indicating that, when the decision was issued, the appellant had certain appeal rights.  Later,
in his June 20 letter, the LCO  again referred to the fact that he had informed the appellant
of its ninety-day appeal rights in his March 25 decision, and that those rights expired
(incorrectly) on June 28, 2008.  It seems clear then that at the very least, prior to the May 29,
2008, e-mail message, and more probably prior to the June 20, 2008 letter, appellant could
reasonably have concluded that the contracting officer was reconsidering his decision. 
Accordingly, we find that the finality of the decision dated April 25, 2008, was vitiated at
least until May 29, 2008.  Therefore, the June 26, 2008, appeal letter received June 27, 2008,
is  timely. 
Decision
For the above stated reasons, respondent’s motion to dismiss for lack of jurisdiction
is DENIED .
__________________________________
R. ANTHONY McCANN
Board Judge
 
We concur:
__________________________________ ___________________________________
ANTHONY S. BORWICK ALLAN H. GOODMAN
Board Judge Board Judge