MOTION TO DISMISS DENIED:  September 29, 2015
CBCA 3871, 3912
SAFE HAVEN ENTERPRISES, LLC,
Appellant,
v.
DEPARTMENT OF STATE,
Respondent.
Jason R. Mischel, Executive Vice President and General Counsel of Safe Haven
Enterprises, LLC, New York, NY, counsel for Appellant.
Dennis J. Gallagher, Office of the Legal Adviser, Buildings and Acquisitions,
Department of State, Washington, DC, counsel for Respondent.
Before Board Judges SOMERS, SHERIDAN, and LESTER.
LESTER, Board Judge.
By decision dated March 25, 2015, the Board denied – without prejudice – the motion
of the Department of State (DOS or the Government) to dismiss these consolidated appeals
as untimely filed, pending resolution of disputed jurisdictional facts.  See Safe Haven
Enterprises, LLC v. Department of State, CBCA 3871, et al., 15-1 BCA ¶ 35,928.1 
1   Although, in our March 25, 2015, decision, we declined to dismiss these appeals
as time-barred on the then-existing record, we granted a more limited jurisdictional motion,
dismissing the appellant’s request for punitive damages.  Safe Haven, 15-1 BCA at 175,607. 
This decision does not affect our prior dismissal of appellant’s punitive damages claims.

CBCA 3871, 3912 2
Subsequently, after soliciting the parties’ views on resolving the factual disputes, the Board
conducted a one-day hearing, limited to the jurisdictional issue, at which the parties presented
testimony from two fact witnesses.  The parties have also submitted additional documentary
evidence about the jurisdictional facts that was not previously before the Board.  After
evaluating the witnesses’ hearing testimony and all of the documentary evidence in the
record, the Board finds that it possesses jurisdiction to entertain these appeals.  Accordingly,
we deny DOS’s motion to dismiss.
Jurisdictional Findings of Fact
As we explained in our decision dated March 25, 2015, these appeals arise out of two
task orders issued under contract number SALMEC-03-D-0035 (contract 0035), an indefinite
delivery/indefinite quantity contract that DOS awarded to Safe Haven:  (1) task order 0002,
issued March 26, 2006, was for chiller replacement and other construction work at the United
States Embassy in Georgetown, Guyana; and (2) task order 0003, issued August 24, 2006,
was for environmental security construction work at the United States Embassies in Sanaa,
Yemen, and Manama, Bahrain.
Following the one-day hearing on the jurisdictional issue, we make the following
findings of fact:
1. On June 27, 2012, Safe Haven submitted a certified claim to the DOS
contracting officer, seeking $1,827,211.80 allegedly due under various task orders issued
pursuant to contract 0035, including a claim for $469,916.65 associated with the deobligation
of funds for its work in Yemen and Bahrain under task order 0003 (Yemen/Bahrain
deobligation claim).  See Appeal File, Exhibit 34.2  On September 18, 2012, the DOS
contracting officer issued a decision denying that claim, with the necessary appeal language
from 48 CFR 33.211(a)(4)(v) (2011).  See Exhibit 35.
2. On July 25, 2012, Safe Haven submitted a letter, which the parties agree
constituted a claim,3 to the DOS contracting officer indicating that the Government had not
2   All exhibits referenced in this decision are found in the appeal file, unless otherwise
noted.
3   As we explained in our March 25, 2015, decision, the appeal file does not contain
a copy of Safe Haven’s July 25, 2012, letter.  Nevertheless, the Government has represented
that the letter satisfies the requirements for a claim under the Contract Disputes Act (CDA),
41 U.S.C. §§ 7101-7109 (2012).  Absent a challenge by the Government, we assume for
purposes of this jurisdictional analysis that it meets those requirements.

CBCA 3871, 3912 3
paid a ten-percent retainer, totaling $68,339.65, for equipment that Safe Haven had
purchased for its work at Georgetown, Guyana, under task order 0002 (the Georgetown
retainer claim).  On August 27, 2012, the contracting officer issued a decision denying that
claim and included in his decision the appeal language required by 48 CFR 33.211(a)(4)(v). 
See Exhibit 10.  
3. During the fall of 2012, the Department of State Office of Inspector General
(OIG) was investigating the activities of Kathleen McGrade, who, although an employee of
another Government contractor, was essentially serving the role of the DOS contracting
officer’s representative on Safe Haven’s contracts.  Ms. McGrade was indicted in early 2013
and was subsequently convicted of engaging in a fraudulent scheme to direct DOS contract
work to a company in which she and/or her husband held a financial interest.  By November
2012, both Safe Haven and the DOS contracting officer were aware of the OIG investigation
involving Ms. McGrade, and Safe Haven’s witness at the hearing, Alta Baker, indicated that
the DOS contracting officer had informed her of his concern that Ms. McGrade’s conduct
may have prejudiced Safe Haven in some way.
 4. Sometime before November 22, 2012, Safe Haven’s then-counsel, Bradley
Deutchman, received a phone call from the DOS contracting officer in which the contracting
officer represented that he would like to arrange a meeting to discuss the “outstanding issues”
relating to the Georgetown and Yemen/Bahrain task orders.  Affirmation of Bradley S.
Deutchman (Oct. 7, 2014) ¶¶ 2-3.  The current record does not indicate what the contracting
officer thought the “outstanding issues” were and does not clearly establish that the DOS
contracting officer, at that time, was proposing to revisit or reconsider his prior decisions on
the Georgetown retainer and Yemen/Bahrain deobligation claims or that he made any
representations indicating that the “outstanding issues” included claims for which he had
already issued final decisions.4  Based upon the existing record, it is quite possible that the
“outstanding issues” which the DOS contracting officer wanted to discuss related to whether
Ms. McGrade’s activities had affected Safe Haven in ways unrelated to the claims at issue
here, as well as other outstanding equitable adjustment requests and contracting matters
related to these task orders that the parties discussed at later times (including a roof
4   Mr. Deutchman, who did not testify at the jurisdictional hearing, suggests in a
written declaration that the “outstanding issues” relate to the two claims at issue here, but the
declaration provides no supporting details.  Further, Safe Haven has not provided any
contemporaneous e-mail messages or documents supporting its position.  We find the single
declaratory statement too inconsequential to establish that the DOS contracting officer, in
November 2012, was proposing to revisit his decisions on the Georgetown retainer and
Yemen/Bahrain deobligation claims.

CBCA 3871, 3912 4
penetration repair issue in Bahrain and an inventory issue in Yemen).  See, e.g., Transcript
at 35 (July 8, 2015).
5. On December 4, 2012, Mr. Deutchman sent an e-mail message to the DOS
contracting officer and three other DOS employees, seeking to schedule a meeting on the
“outstanding issues.”  In that e-mail message, Mr. Deutchman indicated that he wanted to add
the Georgetown retainer claim and the Yemen/Bahrain deobligation claim to the “outstanding
issues” for discussion, as follows:
We have recently discussed with [the DOS contracting officer] the idea of
having a meeting to discuss outstanding issues regarding Safe Haven
Enterprises receiving final payment for past work. . . . [W]e would like to take
this chance to set part of the agenda for the meeting. . . .
The issues we hope to discuss include the two deobligations that were made
regarding Contract No. SALMEC-03-D-0035 (Yemen and Bahrain), and
interest on certain payments.  Furthermore, we wish to discuss the payment of
the retainer on Contract No. SALMEC-03-D-0035, Subcontract SHE-06-0002
(Georgetown, Guyana).
. . . . 
[The DOS contracting officer] stated that the necessary parties would be
available in early December to hold the meeting.  Please provide us with
available dates so that we can hopefully reach a resolution soon.
Appellant’s July 1, 2015, Appeal File Supplement (AFS), Attachment 3 (emphasis added).
6. In a responsive e-mail message later on December 4, 2012, the DOS
contracting officer indicated that he would be able to meet with Mr. Deutchman in early 2013
“to discuss outstanding issues regarding” Safe Haven.  AFS Attachment 3.  In his e-mail
message, the DOS contracting officer did not indicate that he disagreed with the agenda that
Safe Haven’s counsel had proposed or with Safe Haven’s definition of the “outstanding
issues.”  See id.
7. On February 1, 2013, the DOS contracting officer and his then-supervisor,
James Thomas, met with Safe Haven’s owner, Alta Baker; her husband, John Baker; and
Safe Haven’s then-attorney, Mr. Deutchman.  Respondent’s Answer ¶ 22; AFS
Attachment 1.  The parties discussed the issues underlying the Georgetown retainer and
Yemen/Bahrain deobligation claims, even though those claims had been addressed in

CBCA 3871, 3912 5
contracting officer decisions, as well as a separate equitable adjustment request for roof
penetration repair in Bahrain.  See Transcript at 35-36, 41; Exhibit 41; AFS Attachments 1
& 2.  Mr. Deutchman averred in a written declaration that, at this meeting, the DOS
contracting officer and Mr. Thomas affirmatively stated that any deadline for filing an action
to appeal the decisions in either the Civilian Board of Contract Appeals or the Court of
Federal Claims was void because the contracting officer was reconsidering both decisions,
Deutchman Affirmation ¶ 4, and Ms. Baker testified that, at the conclusion of the meeting,
the DOS contracting officer specifically told her not to worry about appeal deadlines and that
“[e]verything has stopped,” “[e]verything is off the the table,” because “[w]e’re going to find
out what happened here” through an audit.  Transcript at 42.  Although DOS strongly
disputes these assertions, the parties agree that, at the very least, the DOS contracting officer,
who (for medical reasons) was unavailable to testify or provide a declaration, stated that he
would “take a look at it,” meaning that he would review the allegations of error in the
contracting officer decisions that Ms. Baker had raised.  Transcript at 55, 58, 82 (Testimony
of James Thomas); see Declaration of James Thomas (Oct. 29, 2014) ¶ 4.5  Although Mr.
Thomas indicated that the DOS contracting officer’s statement was meant as a mere courtesy
to Safe Haven in wrapping up the meeting, there is no dispute that Safe Haven interpreted
the DOS contracting officer’s statements to mean that DOS would conduct an audit of the
claims about which he had previously issued decisions.  See Transcript at 37 (Testimony of
Alta Baker).
8. During the February 1, 2013, meeting, Mr. Deutchman asked the DOS
contracting officer to issue a letter formally extending the deadlines for Safe Haven to
appeal.  AFS Attachments 1 & 2.  After a couple of weeks had passed, the DOS contracting
officer had not provided the letter.  Id.  Mr. Deutchman then contacted the contracting officer
by telephone, and the contracting officer verbally indicated his intent to send the letter that
day.  Id.  Nevertheless, by March 18, 2013, the DOS contracting officer had still not sent the
letter, and Mr. Deutchman sent him an e-mail message requesting it, as follows:
5   In its answer to Safe Haven’s complaint, DOS alleged that “Mr. Thomas recalls that
[the DOS contracting officer], who was the cognizant contracting officer and who has since
retired due to disability, agreed to consider withdrawing his decision if Appellant would
present a written request stating the rationale therefor” – that is, that the DOS contracting
officer made his agreement to reconsider conditional upon Safe Haven’s submission of a
written request – but that no such written request was ever made.  Answer ¶ 22.  Presumably,
DOS is arguing that any agreement to reconsider was conditional upon a specific submission
by Safe Haven – a condition that it did not fulfill.  Neither the testimony that Mr. Thomas
provided nor any other evidence in the record supports this statement.  Accordingly, we
disregard DOS’s allegation.

CBCA 3871, 3912 6
We spoke about a week and a half ago regarding the issues with Safe Haven
Enterprises.  In that conversation you reiterated that you would write a letter
extending the deadlines for either appeals or court filing regarding the two
final determinations you issued.  To date we have not received the letter. 
Please advise as to the status.
Id. Attachment 4.
9. On March 25, 2013, having still received no letter, Mr. Deutchman and the
DOS contracting officer had a telephone conference during which the contracting officer
apologized for his delay and requested that, because of other commitments that were taking
his time, Mr. Deutchman draft a letter for his review and signature.  AFS Attachments 1 & 2. 
Mr. Deutchman did so, but the DOS contracting officer did not respond.  Id.
10. Soon thereafter, the DOS contracting officer retired for medical reasons, which
had caused him to be absent from the office for various periods of time over the preceding
months, and Mr. Thomas became the cognizant contracting officer.  Thomas Declaration ¶ 5;
Transcript at 67 (Thomas testimony).
11. On April 8, 2013, Mr. Deutchman left a voicemail message for Mr. Thomas
(later confirmed in an e-mail message) as a follow-up to the February 1, 2013, meeting.  AFS
Attachment 2.  In his follow-up e-mail message, Mr. Deutchman again described the
agreements reached at the February 1, 2013, meeting, including the DOS contracting
officer’s agreement to “perform an audit of the contracts for Yemen/Bahrain and
Georgetown, Guyana,” for the purpose of “provid[ing] guidance as to what money, if any,
is owed to Safe Haven,” and “to provide Safe Haven with a letter extending the deadlines
contained in his two Final Decision letters relating to these two projects.”  Id.  Mr.
Deutchman complained that he had “not received any word as to the status of the audits” and,
despite the weeks that had passed, “not received any such letter.”  Id.  He asked to “know
where things stand” with the audit and “when we can see the results,” and he asked for “some
insight as to why [the contracting officer] still has not provided Safe Haven with the
promised letter extending the deadlines.”  Id.
12. Because of the press of business associated with taking over the retiring DOS
contracting officer’s responsibilities in addition to his own, Mr. Thomas did not respond to
Mr. Deutchman’s April 8, 2013, voicemail or e-mail messages.  Transcript at 62 (Thomas
testimony).
13. On April 24, 2013, following a telephone conversation in which Mr. Thomas
requested a list of open action items identified in order of priority, Ms. Baker provided Mr.

CBCA 3871, 3912 7
Thomas with a list of the “different items left to be settled” following the parties’ meeting
on February 1, 2013.  Exhibit 41 at 3.  That list included the ten-percent retainer under the
Georgetown, Guyana, task order, about which Ms. Baker asserted in her e-mail message the
Government had agreed “there [would] be a full accounting.”  Id.  It also included the
Yemen/Bahrain deobligation of funds, for which (Ms. Baker asserted in the e-mail message)
the Government had indicated during the February 1, 2013, meeting “[t]here was to be a full
audit,” as well as the Bahrain roof penetration repair issue and an inventory check in Yemen. 
Id. at 3-4.  On May 6, 2013, having not heard back from Mr. Thomas following her April 24,
2013, e-mail message, Ms. Baker, again by e-mail message, asked Mr. Thomas for “some
kind of response.”  Id. at 2.
14. In an e-mail message dated May 7, 2013, Mr. Thomas indicated that he had not
responded because he was waiting for Safe Haven to provide him with a list of items for
which it believed compensation was due, and he indicated that Safe Haven should submit that
list, “be[ing] specific” about the compensation due “and stat[ing] all of the facts associated
with each action.”  Exhibit 41 at 2.
15. By e-mail message dated June 19, 2013, Ms. Baker stated that, through her
prior April 24, 2013, e-mail message, she had already provided the “list” of action items
which Mr. Thomas requested in his May 7, 2013, e-mail message, and she further described
the action plan upon which she said the parties had agreed during their February 1, 2013,
meeting.  Exhibit 41 at 1.  After explaining the reasons that she believed Safe Haven’s claims
to have merit, Ms. Baker indicated that she “look[ed] forward to hearing from you about
what will be done to resolve the remaining issues.”  Id. at 2.  Mr. Thomas did not respond
to Ms. Baker’s e-mail message.  Transcript at 71 (Thomas testimony).
16. During this time, DOS was, in fact, reviewing its payment records relating to
the Georgetown and Yemen/Bahrain task orders to determine whether there was any
additional compensation owed to Safe Haven.  Transcript at 64-65, 80-81 (Thomas
testimony); Exhibit 41.  Based upon that review, DOS concluded that Safe Haven was not
owed any additional compensation.  Transcript at 70 (Thomas testimony).  There is nothing
in the record indicating that DOS notified Safe Haven that it had concluded its review.
17. On March 21, 2014, at Safe Haven’s request, Mr. Thomas and two other DOS
representatives met with Safe Haven’s owner, Ms. Baker, and Safe Haven’s current counsel,
Jason Mischel.  Thomas Declaration ¶ 5; Exhibit 42.  At that meeting, Ms. Baker stated that
Safe Haven’s reason for requesting the meeting was to discuss unresolved issues related to
the matters underlying the Yemen/Bahrain deobligation and Georgetown retainer claims. 
Exhibit 42.  Mr. Thomas informed Ms. Baker and Mr. Mischel that the time for appealing
the contracting officer’s decisions on those claims had long passed and that the contracting

CBCA 3871, 3912 8
officer’s prior decisions were not being reconsidered.  Thomas Declaration ¶ 5; Exhibit 42. 
Nevertheless, Mr. Thomas agreed to review DOS’s records relating to an invoice under the
Georgetown task order to determine whether DOS had already paid Safe Haven for the
invoiced work, payment that Mr. Thomas subsequently determined DOS had made. 
Transcript at 82-83 (Thomas testimony).
18. On May 28, 2014 (617 days after the DOS contracting officer originally issued
the contracting officer’s final decision, but only sixty-eight days after the March 21, 2014,
meeting), Safe Haven filed a notice of appeal with this Board on the Yemen/Bahrain
deobligation claim (docketed as CBCA 3871).
19. On June 19, 2014 (661 days after the contracting officer’s decision was issued,
and ninety days after the March 21, 2014, meeting), Safe Haven filed a notice of appeal
relating to the Georgetown retainer claim (docketed as CBCA 3912) in which it alleged that
DOS had not yet paid Safe Haven the Georgetown retainer under task order 0002.
Discussion
I. The Time Limits for Appeal of a Contracting Officer’s Decision
The Board’s jurisdiction is derived from the CDA, 41 U.S.C. §§ 7101-7109 (2012). 
“[T]he strict limits of the CDA” constitute “jurisdictional prerequisites to any appeal.” 
England v. Swanson Group, Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004).
As we explained in our March 25, 2015, decision, “[u]nder the CDA, the Board
cannot assume jurisdiction over a contractor’s request for monetary relief unless the
contractor previously submitted to the agency’s contracting officer, in writing, a claim
seeking payment of a sum certain and requesting a final decision.”  Safe Haven, 15-1 BCA 
at 175,603 (citing 41 U.S.C. § 7103(a)(1), (2)).  “A contractor, after receiving a written final
decision from the contracting officer, may appeal that written decision to a board of contract
appeals ‘[w]ithin ninety days from the date of receipt of [the] decision.’”  Id. at 175,605
(quoting 41 U.S.C. § 7104(a)).  “Alternatively, within twelve months from the date of the
contractor’s receipt of the contracting officer’s final decision, a contractor may bring an
action directly on the claim in the United States Court of Federal Claims.”  Id. (quoting 41
U.S.C. § 7104(b)).
“[B]ecause the authorization to make the filing is a waiver of the Government’s
sovereign immunity, failure to file an appeal within the ninety-day deadline divests the Board
of jurisdiction to consider the case on its merits.”  Safe Haven, 15-1 BCA at 175,603 (citing
D.L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir. 1997)).  As we recognized in our

CBCA 3871, 3912 9
prior decision, the contracting officer here “issued his final decisions on the Georgetown
retainer claim and the Yemen/Bahrain de-obligation of funds claim on August 27 and
September 18, 2012, respectively,” and “Safe Haven did not file an appeal of the disputes
underlying either final decision until more than twenty months after those final decisions
were issued.”  Id.  Although Safe Haven’s failure to appeal those final decisions within
ninety days of their issuance would appear to preclude us from entertaining jurisdiction over
them, Safe Haven has alleged facts, discussed below, that could vitiate the running of the
statute of limitations and render these appeals timely.
II. The Effect of Reconsideration by the Contracting Officer on the Appeal Time
Despite the purported finality of a contracting officer’s decision, “contracting officers
plainly have the authority to reconsider their own decisions.”  Safe Haven, 15-1 BCA at
175,605 (citing Riverside General Construction Co., IBCA 1603-7-82, 82-2 BCA ¶ 16,127,
at 80,049); see LRV Environmental, Inc., ASBCA 58727, et al., 15-1 BCA ¶ 36,042, at
176,038; Space Age Engineering, Inc., ASBCA 26028, 82-1 BCA ¶ 15,766, at 78,033.  That
is because “[t]he power to reconsider is inherent in the power to decide.”  Tokyo Kikai
Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008).  “[U]nless there is
legislation to the contrary it is the inherent right of every tribunal to reconsider its own
decisions within a short period after the making of the decision and before an appeal has been
taken or other rights vested . . . .”  Vepco of Sarasota, Inc. v. United States, 26 Cl. Ct. 639,
645 (1992) (quoting Dayley v. United States, 169 Ct. Cl. 305, 308 (1965)). Accordingly,
contracting officers may reconsider a purportedly final decision “at any time prior to the
expiration of the time period for filing an appeal, where no appeal is filed.”  Northcoast
Reinhabitation Group, Inc., AGBCA 81-174-2, 1981 AGBCA LEXIS 70, at *11 (July 20,
1981) (citing American Bosch Arma Corp., ASBCA 10305, et al., 67-2 BCA ¶ 6564, at
30,461); see Devi Plaza, LLC v. Department of Agriculture, CBCA 1239, 09-1 BCA
¶ 34,033, at 168,338 (2008) (contracting officer can reconsider what was viewed as a final
decision “as long as the events that give rise to the vitiation of the finality take place prior
to the expiration of the appeal period”).  But see Schleicher Community Corrections Center,
Inc., DOT BCA 3046, et al., 98-2 BCA ¶ 29,941, at 148,147-48 (once the time for appeal of
the contracting officer’s decision has expired, it is final, and the contracting officer no longer
has authority to revisit it); Space Age Engineering, 82-1 BCA at 78,034 (same); American
Construction Co., GSBCA 1375, 65-1 BCA ¶ 4828, at  22,867-68 (same).
“While a board cannot extend the time for appeal, an appeal period can be tolled
where one finds that a [contracting officer’s] decision was not truly final but was being
reconsidered.”  Staff Inc., AGBCA 95-181-1, et al., 96-1 BCA ¶ 28,051, at 140,071 (1995). 
Accordingly, “if a [contracting officer’s] decision is not truly ‘final,’ but being reconsidered,
a ‘failure to appeal from the decision within the prescribed period will not defeat . . . [a]

CBCA 3871, 3912 10
contractor’s opportunity to be heard on the merits.’”  Devi Plaza, LLC, 09-1 BCA at 168,337
(quoting Sach Sinha & Associates, ASBCA 46916, 95-1 BCA ¶ 27,499, at 137,041 (quoting 
Johnson Controls, Inc., ASBCA 28340, 83-2 BCA ¶ 16,915, at 84,170)).  “In that instance,
the time for appeal begins to run with the contractor’s receipt of the reconsideration.”  Staff
Inc., 96-1 BCA at 140,071; see Summit Contractors v. United States, 15 Cl. Ct. 806, 809
(1988) (“the contracting officer’s decision upon reconsideration constitute[s] the ‘final
decision’ for purposes of appeal pursuant to the” CDA).
III. What It Takes to Suspend the Time for Appeal
There is no guidance in either the CDA or the Federal Acquisition Regulation (FAR)
to assist in identifying when a contracting officer’s actions are sufficient to suspend or
eliminate the time for appeal.  In fact, neither the CDA nor the FAR even mentions the
possibility of reconsideration of a previously issued contracting officer’s decision, and
neither discusses the effect of reconsideration on the accrual of the appeal deadline.
Nevertheless, reviewing the case law from the various boards of contract appeals, the
Court of Federal Claims, and our appellate authority, there is no question that, if the
contracting officer (before the time for the contractor to appeal has expired) expressly
retracts a prior decision in writing,6 the time clock for appealing that decision entirely
disappears.  The contracting officer’s act of doing so eliminates the accrual of the time for
appeal because there is no “final” decision from which the time for appeal can run.  Staff Inc.,
96-1 BCA at 140,071.  Such action is the clearest means of showing that a contracting
officer’s decision is withdrawn.
Yet, “[f]or there to be a reconsideration by the contracting officer, the contracting
officer need not specifically withdraw the decision.”  Nash Janitorial Service, Inc., GSBCA
7338, 88-2 BCA ¶ 20,809, at 105,186-87.  As the Court of Claims, whose decisions
constitute binding precedent upon us, made clear in Roscoe-Ajax Construction Co. v. United
States, 458 F.2d 55 (Ct. Cl. 1972), a contracting officer’s agreement to meet with a contractor
to discuss the merits of the claim that is already the subject of a contracting officer’s
decision, coupled with action to revisit and reconsider the prior “final” decision, can serve
to keep the matter that is the subject of the decision open, destroying the finality of the
6  Contracting officers clearly have the authority formally to withdraw their decisions
on contractors’ claims, at least until the decisions become unappealable and the parties’
rights in them vest.  See, e.g., Lasmer Industries, Inc., ASBCA 56411, 09-1 BCA ¶ 34,115,
at 168,688, aff’d sub nom. Lasmer Industries, Inc. v. Gates, 360 F. App’x 118 (Fed. Cir.
2010); Security Services, Inc., GSBCA 11052, 92-1 BCA ¶ 24,704, at 123,302 (1991).

CBCA 3871, 3912 11
decision and therefore vitiating the deadline for appeal.  In Roscoe-Ajax, after the contracting
officer issued his decision, the contractor provided him with a copy of a letter from a
subcontractor asking for “a meeting . . . at which the parties could discuss and consider the
problem further,” a request to which the contracting officer agreed.  Id. at 61.  Subsequently,
the parties participated in meetings, and the Government conducted a test of the glass glazing
at issue.  Eventually, several months later, the contracting officer informed the contractor and
subcontractor that he saw no reason to modify his prior decision.  After the contractor
subsequently appealed the contracting officer’s decision, the Government argued that the
appeal came too late because the appeal time continued to run throughout the period when
the parties were meeting, but the Court of Claims rejected that argument:
The contracting officer’s decision of January 16, 1962, was not . . . “the final
decision,” for, obviously, the contracting officer’s agreement shortly thereafter
to meet with plaintiff and its subcontractor, and to reconsider the question,
served to keep the matter open and necessarily destroyed any finality the
decision theretofore had.  As shown, further meetings were in fact held and a
test conducted.
Id. at 63.  Although Roscoe-Ajax involved a contracting officer decision that pre-dated the
enactment of the CDA, several tribunals, including our predecessor boards, have held that
its rationale applies equally to contracting officer decisions on CDA claims.  See, e.g., M.G.
Technology Corp., ASBCA 35249, 88-3 BCA ¶ 21,185, at 106,933; Nash Janitorial Service,
88-2 BCA at 105,186; Jen-Beck Associates, VABCA 1988, 85-2 BCA ¶ 18,086, at 90,789;
West Land Builders, VABCA 1664, 83-1 BCA ¶ 16,235, at 80,666.
Following Roscoe-Ajax, the boards and the Court of Federal Claims have sometimes
struggled to define in a consistent manner exactly when a purportedly final decision is no
longer “final” for appeal purposes.  There is a clear consensus in the various board and court
decisions that a contractor’s mere request that the contracting officer reconsider a decision,
without any subsequent response from or action by the contracting officer, does not provide
a sufficient basis for vitiating an appeal deadline.  In Horton Electric, Inc., ASBCA 35677,
88-2 BCA ¶ 20,608, the contractor argued that it was:  within a month of the issuance of the
contracting officer’s decision in that case, the contractor wrote to the contracting officer
seeking reconsideration and made several telephone calls to pursue that relief, actions to
which the contractor asserted it was entitled to a response before having to appeal.  On the
advice of counsel, however, the contracting officer never provided any response – either
verbal or written – and the contractor eventually appealed to the Armed Services Board of
Contract Appeals (ASBCA) eleven months after the contracting officer had issued his
original decision.  The ASBCA dismissed the appeal as untimely, finding that the contracting

CBCA 3871, 3912 12
officer had done nothing to indicate that he was actually reconsidering his prior decision,
which the board found was a necessary prerequisite to vitiating the need to appeal:
In the present appeal, the contracting officer took no action which contributed
to the delay of the appellant in filing an appeal with this Board.  While it may
have been rude of the contracting officer not to respond to appellant’s letter or
telephone calls, his mere failure in this regard could not reasonably have led
appellant to believe that he would reconsider the decision.
Id. at 104,143; see Cosmopolitan Manufacturing Co. v. United States, 297 F.2d 546, 549 (Ct.
Cl. 1962) (per curiam) (“The making of a request for reconsideration does not deprive the
former decision of finality; it is the granting of the request that does so”); Guardian Angels
Medical Service Dogs, Inc. v. United States, 120 Fed. Cl. 8, 10 (2015) (“simply submitting
a request for reconsideration is insufficient to toll the statute of limitations”); Staff Inc., 96-1
BCA at 140,071 (“[a] contractor is not entitled to an automatic extension simply because he
requests reconsideration”); Omni Abstract, Inc., ENG BCA 6254, 96-2 BCA ¶ 28,367, at
141,643 (“unilateral actions taken or assumptions made by the [contractor] will not invalidate
[a decision’s] finality”).
However, if the contracting officer actually responds to the contractor’s request, but
then denies it, the issue of whether the appeal time is vitiated becomes murkier.  Several
tribunals have held that the original appeal deadline (running from the date of the original
decision’s issuance) will stand if the contracting officer responds with an affirmative refusal,
indicating that he or she has not engaged and is not engaging in any reevaluation or
reconsideration of the prior decision.  See, e.g., Environmental Safety Consultants, Inc. v.
United States, 95 Fed. Cl. 77, 94 (2010); Dawson Builders, Inc., ASBCA 53172, 01-2 BCA
¶ 31,618, at 156,215; United International Investigative Services, DOT BCA 3076, 00-1
BCA ¶ 30,598, at 151,103 (1999); Meditech, Inc., VABCA 3812, 93-3 BCA ¶ 26,111, at
129,785.  Nevertheless, if the contracting officer notifies the contractor that he “carefully
reviewed and considered” the contractor’s request for reconsideration before denying it, the
original appeal period may be vitiated, and a new appeal deadline will run from the date of
the reconsideration decision.  Herman Adams, ASBCA 5321, et al., 59-2 BCA ¶ 2454, at
11,588; see Martin Service Building Co., VACAB 418, 1962 VA BCA LEXIS 116, at *3
(Mar. 5, 1962) (where the contractor “requested reconsideration in response to which the
Contracting Officer did in fact reconsider and affirm his decision . . . , [s]uch reconsideration
tolls the running of the appeal period”).  Yet, it has also been held that, if “the contracting
officer made it clear that what he did was to read appellant’s arguments and submittals” in
response to a reconsideration request, determine that “the submittals and arguments revealed
nothing which had not been available to him at the time of his original decision,” and “then
affirmed his original decision,” the contracting officer’s action “does not amount to a

CBCA 3871, 3912 13
reconsideration of the final decision.”  Shimizu Kogyo Co., ASBCA 32279, 86-2 BCA
¶ 18,954, at 95,719 (emphasis added).7  Similarly, in Guardian Angels Medical Service Dogs,
the contracting officer was found “never actually [to have] reconsidered, or suspended the
finality of, her decision” because, even though she apparently read the contractor’s
reconsideration request, she determined that she could not “reasonably evaluate or respond
to [it] due to the lack of supporting documentation” and invited the contractor to submit
further information – information that the contractor never submitted.  120 Fed. Cl. at 10. 
From these decisions, it is difficult to pinpoint precisely when the contracting officer’s
review of a request transforms into a reconsideration process.
Even where the contracting officer actually meets or agrees to meet with the
contractor after issuance of a decision, it is sometimes not found to be enough to indicate a
willingness to reconsider.  In Missile Systems, Inc., ASBCA 33013, 86-3 BCA ¶ 19,213, the
contractor’s “theory of timeliness derived from multiple contacts with the contracting officer
and the contracting agencies after issuance of the final decision” through which, the
contractor alleged, there was a “continuing exchange of information and statements that
reviews would be made and additional facts considered,” which, according to the contractor,
“caused the contractor to conclude that the contracting officer’s initial decision was not truly
final.”  Id. at 97,180.  The ASBCA rejected that argument, stating that the contractor had met
repeatedly with the contracting officer before the final decision was issued and that it “offers
no distinction between the discussions before and after the issuance of the final decision.” 
Id.  The board held that “[p]ost-decision communications between the contracting officer and
the contractor do not impact the 90 day period [for appeal] unless they clearly constitute
reconsideration of the decision,” id. at 97,180-81, and it found that the communications and
meetings between the parties after the contracting officer issued his decision did not meet
that standard.  Id.; see Richard J. Wand, AGBCA 84-117-3, 84-1 BCA ¶ 17,018, at
84,745-46 (finding that, even though the contracting officer had met with the contractor, “the
[contracting officer] did not agree to reconsider her February 17 decision but merely agreed
to consider any ‘new’ claim the Contractor wished to submit,” and, because the new
submission “contained nothing new,” the appeal deadline arising out of the contracting
officer’s original decision was never vitiated).
In trying to harmonize the various decisions addressing suspension of the CDA appeal
time, the dividing line between a contracting officer’s mere review and rejection of a
reconsideration request, on the one hand, and actual reconsideration prior to denial of the
7   The ASBCA  has since questioned whether its decision in Shimizu is in accord with
other of its decisions regarding the acts necessary to suspend the time for appealing a
contracting officer’s decision.  Sach Sinha & Associates, 95-1 BCA at 137,042.

CBCA 3871, 3912 14
request, on the other, appears somewhat imprecise, and it seems virtually impossible to
identify a clear bright-line rule defining exactly when, in every situation, the contracting
officer’s review of (or meeting following) a request for reconsideration of a purportedly
“final” decision will suspend an appeal deadline.  “The danger of an unintentional
reconsideration” arises any time “the contractor wants to discuss further the merits of a final
decision and the contracting officer grants the contractor a meeting or reviews its further
submissions,” given that “any act evincing an intent on the part of the contracting officer to
reconsider the final decision will destroy its finality.”  Lt. Col. Michael J. Hoover,
Recognizing Contractors’ Claims and Contracting Officers’ Final Decisions, 29 A.F. L. Rev.
85, 91 (1988).  If the contracting officer, as a matter of courtesy, agrees to meet with a
disappointed claimant after issuing a final decision, or even reviews a reconsideration
request, it reduces the likelihood of a misunderstanding if the contracting officer expressly
represents “that the appeal period set forth in the final decision continues to run.”  Johnson
Controls, 83-2 BCA at 84,170.  Yet, as seen from the decisions discussed above, the absence
of such a representation from the contracting officer does not necessarily mean that an appeal
deadline is automatically suspended, even if the contracting officer agrees to meet with the
contractor.  Further, even if the contracting officer tells the contractor that the appeal
deadline continues to run, a tribunal could still view actions subsequent to that representation
as eliminating a decision’s finality, creating risk and confusion for both the contracting
officer and the contractor.
Without FAR guidance, the determination of whether a contracting officer’s actions
in response to a reconsideration request are sufficient to suspend an appeal deadline is
“driven by facts unique to each case and is necessarily ad hoc.”  Omni Abstract, 96-2 BCA
at 141,643.  To make that determination, the Board must look for some timely affirmative
conduct by the contracting officer himself – either express or implied – that indicates to the
contractor a willingness to revisit the previously issued “final” decision, “and it is the
[contracting officer’s] agreement to reconsider that triggers the extension.”  Merritt Lumber
Co., AGBCA 88-313-1, et al., 89-2 BCA ¶ 21,676, at 109,009-10.8  The “test is not limited
8   See, e.g., Royal International Builders Co., ASBCA 42637, 92-1 BCA ¶ 24,684,
at 123,134 (finality vitiated where the contracting officer’s actions “created sufficient
uncertainty” that contractor “could reasonably believe that the initial decision was not final”);
Birken Manufacturing Co., ASBCA 36587, 89-2 BCA ¶ 21,581, at 108,669 (finality attached
where contractor was not reasonably led to believe that decision was being reconsidered);
Johnson Controls, 83-2 BCA at 84,170 (finality vitiated where contracting officer met with
contractor to discuss decision and did not “make it very clear” that original appeal period
“continues to run”); Grunley-Walsh Construction Co., GSBCA 3132, 70-2 BCA ¶ 8399, at
39,052 (appeal deadline was not tolled because “[t]he record does not reveal that the

CBCA 3871, 3912 15
to the subjective state of the [contractor’s] mind but is an objective one considering all the
facts.”  Jen-Beck Associates, VABCA 1988, 85-2 BCA ¶ 18,086, at 90,790; see Devi Plaza,
09-1 BCA at 168,337 (“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 [contracting officer’s] decision was being reconsidered” (quoting Sach Sinha
& Associates, 95-1 BCA at 137,042)).  “An objective test invokes the reasonable person
standard, not whether authorized representatives of [the contractor], interested as they were,
subjectively thought the decision was being reconsidered.”  Omni Abstract, 96-2 BCA at
141,643.
IV. Whether, and When, the Contracting Officer Suspended The Appeal Deadline
Applying this objective “reasonable person” standard to the facts here, we cannot find
that the contracting officer’s exchanges with Safe Haven and its counsel in November 2012
were sufficient to justify a belief – from an objective standpoint – that the original appeal
deadlines were somehow suspended.  Although, in November 2012, Safe Haven and the
contracting officer discussed having a meeting to discuss “outstanding issues,” the parties’
conversations about what those “outstanding issues” were at that point in time did not clearly
point to the Georgetown retainer and Yemen/Bahrain deobligation claims.  “It is the
contractor’s responsibility to come forward with ‘evidence showing it reasonably or
objectively could have concluded the [contracting officer’s] decision was being
reconsidered.’”  Syntak Industries, Inc., ASBCA 52630, 00-2 BCA ¶ 31,023, at 153,219-20
(quoting Sach Sinha & Associates, 95-1 BCA at 137,042).  Safe Haven did not meet its
burden to show that the November 2012 exchanges satisfy that standard.
Nevertheless, on December 4, 2012, Safe Haven’s counsel informed the DOS
contracting officer that Safe Haven wanted to include in the impending meeting a discussion
of the merits of the Georgetown retainer and Yemen/Bahrain deobligation claims, and the
contracting officer affirmatively agreed to the request.  Further, during the subsequent
February 1, 2013, meeting, the DOS contracting officer, at the very least, indicated that he
would “take a look at” the merits of the two claims that were the subject of those decisions. 
It is clear that this type of post-decision representation is sufficient to justify the contractor’s
belief that the contracting officer is reconsidering his decisions.  See, e.g., Zomord Co.,
ASBCA 59065, 14-1 BCA ¶ 35,626, at 174,483 (contracting officer indicated that “we are
looking into this”); First Nationwide Postal Holdings, PSBCA 6331, et al., 10-2 BCA
¶ 34,609, at 170,583 (contracting officer said that he would “look into it and get back to
Government at any time gave Appellant any indication that it was reconsidering the final
decision”).

CBCA 3871, 3912 16
you”).  We need not resolve whether the DOS contracting officer affirmatively told Safe
Haven at that meeting not to worry about the appeal deadlines, as Safe Haven alleges,
because the DOS contracting officer’s expressed agreement again to review those claims is
enough to suspend the appeal deadlines – most likely by December 4, 2012, and, at the very
latest, by February 1, 2013.
DOS argues that the DOS contracting officer’s statements could not have affected the
appeal deadlines because he never expressly stated that he would reconsider his prior
decisions.  Yet, a contracting officer can effectively reconsider, and vitiate the finality of, a
prior decision without expressly saying that he is “reconsidering” or “revisiting” or
“reopening” it.  See, e.g., Guardian Angels, 120 Fed. Cl. at 10 (“A request for
reconsideration need not be so titled or even formally submitted.”); Metrotop Plaza
Associates v. United States, 82 Fed. Cl. 598, 601-02 (2008) (“Although defendant is correct
in saying that plaintiff never formally labeled its contacts with the government as a request
for ‘reconsideration,’ we do not find the absence of that term to be legally significant.”);
Precision Tool & Engineering Corp., ASBCA 16652, 73-1 BCA ¶ 9878, at 46,183 (“It is true
that neither party ever used the word ‘reconsider.’  But the use of this word is not a sine qua
non before a determination can be validly made that an appellant did, in fact, reasonably
conclude that a contracting officer was reconsidering his final decision.”).  We look to the
substance of what the contracting officer agreed to do and whether, despite the words used,
he effectively agreed to reconsider his decisions.  Here, it is clear that he expressed that intent
to Safe Haven, even if he did not use the word “reconsider,” and that Safe Haven relied upon
that representation.
DOS also seems to suggest that, even if there was some period of time during which
the contracting officer was actually reevaluating the claims, Safe Haven acted unreasonably
in waiting until mid-2014 to file its appeals because any period of agency reevaluation
following the February 1, 2013, meeting was very short and ended long before Safe Haven
actually filed its appeals.  Yet, once the decisions were no longer “final,” the appeal deadline
was vitiated.  For the appeal period to begin again, the contracting officer would have to
issue a new “final” decision – that is, he either had to issue a new decision or had to deny
reconsideration and effectively reinstate the prior decision.  See 41 U.S.C. § 7104(a) (time
for appeal does not commence until “the date of [the contractor’s] receipt of a contracting
officer’s decision”); Pathman Construction Co. v. United States, 817 F.2d 1573, 1577 (Fed.
Cir. 1987) (“‘receipt’ of the contracting officer’s decision by the contractor is the critical
event that starts the running of the limitations period”); Summit Contractors, 15 Cl. Ct. at 808
(“Only upon the decision on reconsideration did the action become final.”).  Perhaps Safe
Haven should have suspected that things were not going well for it when the DOS
contracting officer did not respond to repeated e-mail messages for several months, but there
is no basis for requiring the contractor to guess whether the contracting officer has internally

CBCA 3871, 3912 17
stopped his reconsideration process.  Once the finality of a contracting officer’s decision is
extinguished by reconsideration, the contracting officer must issue a “final” decision to start
the appeal clock again.9  Summit Contractors, 15 Cl. Ct. at 809.
For these reasons, we find that the DOS contracting officer effectively suspended the
appeal deadlines for the two claims at issue – most probably on December 4, 2012, and, at
the very latest, by February 1, 2013.
V. Calculating the New Appeal Deadline Following Reconsideration
DOS suggests that a contracting officer’s agreement to reconsider a decision does not
completely vitiate the existing appeal deadline, but merely stops it in place from the date of
the agreement to reconsider.  Under that theory, rather than the appeal time clock starting at
zero when the reconsideration decision is reached, the contracting officer’s agreement to
reconsider merely suspends the appeal deadline starting from the date that the agreement to
reconsider was made.  Accordingly, assuming that the time to appeal the contracting officer’s
September 18, 2013, decision on the Yemen/Bahrain deobligation claim was suspended by
the contracting officer’s e-mail message of December 4, 2013, seventy-seven days of Safe
Haven’s appeal time had passed before the reconsideration process began, leaving Safe
Haven with only thirteen days to appeal after reconsideration was affirmatively denied. 
Applying that theory, because Safe Haven waited sixty-eight days to appeal after learning
that reconsideration was denied, the Yemen/Bahrain deobligation appeal is untimely. 
Similarly, because more than ninety days passed before the DOS contracting officer
effectively agreed to reopen the Georgetown retainer claim, Safe Haven’s ability to appeal
that claim to the Board had expired before the contracting officer ever agreed to reconsider
9   The Court of Federal Claims has not held to the contrary.  In Arono, Inc. v. United
States, 49 Fed. Cl. 544 (2001), the court held that “it is the amount of time, if any, a
contracting officer spends reviewing a plaintiff’s request for reconsideration that suspends
the finality of the decision regardless of whether that decision is ultimately reconsidered and
reversed.”  Id. at 550; see Comprehensive Community Health & Psychological Services, LLC
v. United States, 120 Fed. Cl. 447, 454 (2015) (citing Arono for same proposition).  Although
that sentence, taken in isolation, could be read to indicate that communication of the decision
to the contractor is unnecessary to restart the appeal deadline, the court in Arono made clear,
consistent with 41 U.S.C. § 7104, that the appeal time does not commence “until the
disposition of the request for reconsideration,” Arono, 49 Fed. Cl. at 549, meaning the
contractor’s receipt of the decision on reconsideration.  See Borough of Alpine v. United
States, 923 F.2d 170, 172 (Fed. Cir. 1991) (receipt of decision starts appeal time); Pathman
Construction, 817 F.2d at 1577 (same).

CBCA 3871, 3912 18
the claim, although presumably it still could have pursued an appeal of the decision on that
claim before the Court of Federal Claims.
That argument conflicts with the Court of Claims’ decision in Roscoe-Ajax, in which
the Court recognized that, if the contracting officer reconsiders his original decision before
that decision becomes final and unappealable, it is the reconsideration decision that “finally”
decides the claim:
[T]he Board was mistaken in holding the 30-day period [the then-applicable
appeal time] within which plaintiff was required to appeal commenced to run
from such January 16, 1962 letter, and that such running was “tolled” by the
February 15, 1962 letter, whereby the contracting officer agreed to reconsider
the matter, until May 7, 1962, when he ended his reconsideration. . . . Under
the circumstances described, . . . the contracting officer did not purport to
decide the issue finally until his letter of May 7, 1962.
Roscoe-Ajax, 458 F.2d at 63.  Accordingly, if the contracting officer reconsiders a decision,
the appeal clock starts running, from zero, upon issuance of the “final” decision following
a timely-requested reconsideration.  See Nash Janitorial Service, 88-2 BCA at 105,187
(contracting officer’s reconsideration of final decision “nullifie[s] the original appeal
period”); Time Contractors, DOT CAB 1669, 85-3 BCA ¶ 18,271, at 91,718 (agreeing with
a party’s argument that “the decision of the Contracting Officer to reconsider a final decision
tolls its finality and the issuance of a new decision starts a new appeal time”); M.S.I. Corp.,
VACAB 503, 1964 VA BCA LEXIS 32, at *10 (Dec. 31, 1964) (“when a contracting
officer,” within the deadline for appeal, “grants a request for reconsideration, the time for
appeal does not begin until the contractor is notified of the new decision”).
This method of computation comports with the rule in federal courts, under which,
if a party timely files a request for reconsideration of a court judgment, the time clock for
appeal begins anew for all parties from the date of the court’s reconsideration decision.  See,
e.g., Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 445-46 (1974) (“Appellees’
motion for reconsideration of October 3 suspended the finality of the judgment of September
28 until the District Court’s denial of the motion on October 4 restored it.  Time for appeal
thus began to run from October 4.”); Kraft, Inc. v. United States, 85 F.3d 602, 605 (Fed. Cir.
1996) (if timely motion to alter judgment is filed, the “appeal period begins to run anew from
the date of entry of the court’s order disposing of such motion”); United States v. Rodriguez,
892 F.2d 233, 235 (2d Cir. 1989) (“Once the district court denies the motion, the clock is
reset to zero, and the full time for appeal ‘begins to run anew from the date of the entry of
the order disposing of the motion.’” (quoting 9 James W. Moore, Bernard J. Ward, & Jo D.
Lucas, Moore’s Federal Practice ¶ 204.17, at 4-137 (2d ed. 1989)); Dayley, 169 Ct. Cl. at

CBCA 3871, 3912 19
308 (“The general rule is that the period for appeal or review does not begin to run until the
disposition of a timely request for reconsideration.”); Fed. R. App. P. 4(a)(4)(A).
Here, the ninety-day clock for appealing to the Board did not start to run, at the
earliest, until DOS’s contracting officer, Mr. Thomas, for the first time made clear to Safe
Haven on March 21, 2014, that DOS was no longer reconsidering the previously issued
contracting officer’s decisions.  In essence, Mr. Thomas on that date constructively reinstated
the previously issued final decisions.  Safe Haven filed its appeals on both claims within
ninety days of that date.10
VI. Whether the Contracting Officer’s Agreement to Reconsider Was Timely
Lastly, we consider whether the contracting officer’s agreement to reconsider came
too late.  By December 4, 2012, the ninety-day period for appealing its Georgetown retainer
claim to the Board had expired.  By February 1, 2013, when the parties met, that ninety-day
deadline had expired with regard to both of Safe Haven’s claims.
Once the time for appealing a contracting officer’s decision has expired, that decision
becomes final, and the contracting officer loses his authority to vitiate that finality:
Our research has not disclosed any case arising under the Contract Disputes
Act where an untimely request for reconsideration . . . 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.
Schleicher Community Corrections Center, 98-2 BCA at 148,148.  That is because “rights
vest when no appeal is taken within the proscribed time,” Maitland Brothers, ASBCA 6607,
66-1 BCA ¶ 5416, at 25,428, and “[n]either the contracting officer nor the [agency]
department head has authority to waive the vested right of the Government in such
unappealed decision, as no officer or agent of the Government has authority to waive a
vested right of the Government without consideration.”  Id.; see Space Age Engineering, 82-1
BCA at 78,034 (“Once the final decision has indeed become final and conclusive because
10   Because Safe Haven appealed both decisions within ninety days of Mr. Thomas’s
verbal representation that he was not reconsidering the prior decisions, we need not consider
whether a written, rather than verbal, decision on reconsideration is necessary to restart the
appeal clock.

CBCA 3871, 3912 20
of no timely appeal the contracting officer has no authority to change it, for the rights of the
parties have vested.”); R.M. Wells Co., VACAB 1248, 78-1 BCA ¶ 13,034, at 63,573 (“we
find no authority . . . for the proposition that the Contracting Officer may overtly or implicitly
extend the [appeal] period once it has expired”); Dispatch Contractors, IBCA 636-5-67, 67-2
BCA ¶ 6707, at 31,080 n.10 (“a Government employee does not have authority to waive a
vested right of the Government without consideration”).11
Yet, here, even though the contracting officer’s suggestion that he would reevaluate
his decisions came more than ninety days after issuance of at least one of the two contracting
officer’s decisions at issue, they came well before the one-year deadline for direct action in
the Court of Federal Claims, meaning that the contracting officer’s decisions were not truly
final and unappealable before the reconsideration process began.  The CDA provides
contractors with two avenues of challenging a contracting officer’s decision:  the contractor
can appeal to the appropriate board of contract appeals within ninety days from receipt of the
decision or, alternatively, can file an action in the Court of Federal Claims within twelve
months of receipt.  EHR Doctors, Inc. v. Social Security Administration, CBCA 4117, 14-1
BCA ¶ 35,773, at 175,006 (citing 41 U.S.C. § 7104).  As one of our predecessor boards
recognized in May Ship Repair Contracting Corp., DOT BCA 2521, 93-2 BCA ¶ 25,561
(1992), if the ninety-day deadline for appealing a contracting officer’s decision to the Board
has expired, the contracting officer still retains authority to withdraw or reconsider his “final”
decision if time remains for the contractor to challenge the decision in federal court.  Id. at
127,320.  That is, until the last opportunity for challenging the decision expires, the decision
“has not yet attained statutory finality.”  Id.  Until that statutory finality is attained, the
Government’s right to finality has not vested, leaving the contracting officer free to
reconsider or withdraw the “final” decision.  Once the contracting officer effectively
withdraws or reconsiders the original decision, it becomes of no effect, and any appeal
deadline then starts to run anew from the  date that any decisions following reconsideration
are issued.  See Roscoe-Ajax, 458 F.2d at 63.
11   Recently, the ASBCA in LRV Environmental, Inc., ASBCA 58727, et al., 15-1
BCA ¶ 36,042, appears to have decided to the contrary, finding that a contracting officer
implicitly agreed to reopen and reconsider a prior decision after it had become final and
unappealable.  Id. at 176,038 (finding that, in July 2010, the contracting officer implicitly
reconsidered and reopened an October 2007 decision).  Although the result there may
conflict with earlier ASBCA decisions, see, e.g., Adventure Group, ASBCA 45511, 93-3
BCA ¶ 25,967, at 129,135; Space Age Engineering, 82-1 BCA at 78,034, we need not
attempt to reconcile those decisions because we are not bound by them.

CBCA 3871, 3912 21
It is true that, in the past, several boards of contract appeals have indicated, or at least
suggested, that the contracting officer’s agreement to reconsider is untimely and will not
vitiate the time for appeal if it comes after the ninety-day deadline for appeal to the boards
has run, even though it occurs before the one-year deadline for appeal to the Court of Federal
Claims.  See, e.g., Jacob Construction LLC v. Department of Veterans Affairs, CBCA 2838,
12-2 BCA ¶ 35,140, at 172,509-10; J. Leonard Spodek Nationwide Postal Management,
PSBCA 5285, 05-2 BCA ¶ 33,086, at 164,011; Propulsion Controls Engineering, ASBCA
53307, 01-2 BCA ¶ 31,494, at 155,508; Adventure Group, Inc., ASBCA 45511, 93-3 BCA
¶ 25,967, at 129,135; see also Midland Maintenance, Inc., ASBCA 44563, 93-2 BCA
¶ 25,618, at 127,520 (1992) (“it appears that the April and later meetings were held after the
[ninety-day] appeal period had expired and the denial of the claim had become
unappealable”).12  That position is inconsistent with 41 U.S.C. § 7104(a), which calls for one
contracting officer’s “final” decision on a single claim, see also 48 CFR 33.211 (2015), and,
as previously discussed, the time for appeal runs from the date of that truly “final” decision. 
Any holding that the contracting officer’s original decision becomes final for purposes of
appeal to the boards of contract appeals after ninety days, but that the contracting officer
could still reconsider and suspend the finality of the decision (and restart the appeal time
anew) only as it applies to an action in the Court of Federal Claims would effectively create
12   Similarly, in Schleicher Community Corrections Center, Inc., DOT CAB 3046, et
al., 98-2 BCA ¶ 29,941, one of our predecessor boards indicated that an untimely request for
reconsideration is “one submitted after the ninety-day appeal period expired.”  Id. at 148,148. 
Nevertheless, in that case, the board also noted that the one-year period for appealing the
decision at issue there to the Court of Federal Claims had also expired before the request for
reconsideration was made – in fact, the reconsideration request there came three years after
the contracting officer’s decision, id. at 148,147 – making it clear that the contracting
officer’s decision was truly final and unappealable to any forum by the time that the
contractor sought reconsideration.  See id. at 148,151 n.4.  The board’s statement about the
ninety-day deadline there was unnecessary to the result.
In addition, in Pixl Inc. v. Department of Agriculture, CBCA 1203, 09-2 BCA
¶ 34,187, we held that the contractor’s purported reconsideration request was untimely
because it came after the ninety-day appeal period, id. at 168,984, but it is also clear that the
contracting officer there never acted upon the alleged request for reconsideration.  Because
a mere request, without subsequent action by the contracting officer indicating his agreement
to reconsider his prior decision, is insufficient to suspend the CDA appeal deadline, see
Horton Electric, 88-2 BCA at 104,143, there could have been no tolling of the CDA appeal
deadline in Pixl.  Again, the discussion of the finality of the ninety-day appeal deadline there
was unnecessary to the result.

CBCA 3871, 3912 22
two “final” decisions:  one from which the time runs for appeal to the boards (the original
decision), and a later one from which the time runs for filing an action in the Court of Federal
Claims (the later reconsideration decision).  There is no language in the CDA or the FAR that
would support two different triggers for starting the appeal clock.
Given that we previously recognized that “the holdings of our predecessor boards
[are] binding as precedent in this Board,” Business Management Research Associates, Inc.
v. General Services Administration, CBCA 464, 07-1 BCA ¶ 33,486, at 165,989, we believe
it appropriate to follow the rationale of our predecessor board’s 1992 decision in May Ship
Repair Contracting here:  that the contracting officer retains authority to reconsider a
decision on a CDA claim until that decision is truly final and no longer appealable in any
forum.  Applying that rationale, the DOS contracting officer’s agreement to reevaluate the
Georgetown retainer and Yemen/Bahrain deobligation claims on December 4, 2012, or
February 1, 2013, vitiated the finality of his prior decisions, and the appeal deadline would
begin anew only when the truly “final” decision – the one denying reconsideration – was
issued.  That time for appeal, either to the boards or to the Court of Federal Claims, could not
begin until the contracting officer conveyed that “final” decision.
The request for reconsideration, and the contracting officer’s response indicating that
he would reconsider, were timely.
Decision
For the foregoing reasons, we deny the Government’s motion to dismiss Safe Haven’s
appeals as untimely.
_______________________________
HAROLD D. LESTER, JR.
Board Judge
We concur:
________________________________ ________________________________
JERI KAYLENE SOMERS PATRICIA J. SHERIDAN
Board Judge Board Judge