ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

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Haakenson Electric Company )

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APPEARANCES FOR THE APPELLANT: Raymond H. Royce III, Esq.

Taylor B. McMahon, Esq.

 Royce & Brain

 Anchorage, AK

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Carl F. Olson, Esq.

 Engineer Trial Attorney

 U.S. Army Engineer District, Alaska

OPINION BY ADMINISTRATIVE JUDGE SWEET

On August 20, 2020, the government filed a motion to dismiss, arguing that we do 

not possess jurisdiction over this appeal because it involves a direct subcontractor claim, 

and is untimely. Appellant Haakenson Electric Company (Haakenson or subcontractor) 

responds that the appeal involves a pass-through claim, and is timely because appellant

provided a timely, albeit misdirected, notice of appeal to the contracting officer (CO). As 

discussed in greater detail below, we do not decide whether this is a pass-through claim 

because, even assuming that it is, the appeal is untimely.1

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. On April 16, 2018, the Army Corps of Engineers (government) entered into 

Contract No. W911KB-18-C-0010 (0010 Contract) with ASRC Builders LLC (ASRC or 

prime contractor) to renovate an Aircraft Maintenance Unit and weather shelter (R4, tab 3 

at 25-26).

2. The prime contractor entered into a subcontract with Haakenson (app. resp. ex. B).

 1 We do not address appellant’s request that we re-caption this appeal to include the 

prime contractor’s name because we do not decide whether this appeal involves a 

pass-through claim.

ASBCA No. 62606

Under Contract No. W911KB-18-C-0010
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3. On January 29, 2020, the prime contractor submitted a claim to the CO on behalf 

of itself and the subcontractor (R4, tab 8 at 60-61). The prime contractor’s project manager 

signed the claim (id. at 60).

4. On April 14, 2020, the CO issued a final decision (COFD) denying the claim (R4, 

tab 2 at 3, 16-21). The prime contractor received the COFD on April 14, 2020 (R4, tab 9

at 174).

5. On May 29, 2020—less than 90 days after receiving the COFD—the prime 

contractor’s quality control manager emailed the government, requesting help finding a copy 

of the COFD on a file sharing system, stating that “[o]ur electrical subcontractor intends to 

appeal this decision” (app. resp., Chamberlain aff., ex. 1). There is no evidence that either 

the prime contractor or the subcontractor authorized the prime contractor’s quality control 

manager to pursue an appeal.

6. On July 14, 2020—91 days after the prime contractor received the COFD—

Raymond Royce of the Law Offices of Royce & Brain filed a notice of appeal with the 

Board.2

DECISION

Although we entertain serious doubts that this appeal constitutes a legitimate 

pass-through claim because (notwithstanding appellant’s attempt to implicitly re-caption 

the case) it was not brought in the name of the prime contractor, we will decide this

motion on the simpler matter of timeliness, finding that we do not possess jurisdiction 

because the appeal was brought too late. Under the Contract Disputes Act, 41 U.S.C. 

§ 7104(a), we only possess jurisdiction over an appeal if a contractor files the appeal 

within 90 days of its receipt of the COFD. Cosmic Constr. Co. v. United States, 697 F.2d 

1389, 1390-91 (Fed. Cir. 1982); Anaconda Constr. Co., ASBCA No. 60905, 17-1 BCA 

¶ 36,789 at 179,315. Because the 90 day deadline is part of a statute waiving sovereign 

immunity, it must be strictly construed, and may not be waived. Cosmic Constr., 697 

F.2d at 1390-91. Thus, even if an appellant files an appeal 91 days after its receipt of the 

COFD, we do not possess jurisdiction over that appeal. Quimba Software, Inc., ASBCA 

No. 57636, 12-1 BCA ¶ 34,910 at 171,652. 

A misdirected appeal filed with the CO instead of the Board may satisfy the timely 

notice of appeal requirement. Afghan Active Grp., ASBCA No. 60387, 16-1 BCA 

¶ 36,349 at 177,211. However, a person authorized to file an appeal must file any notice 

of appeal. Garrison Engineers Constr., Inc., ASBCA Nos. 29015, 29536, 85-1 BCA 

 2 The notice of appeal was captioned as being brought by Haakenson Electric Company, 

the subcontractor. Appellant has subsequently captioned its submissions to the 

Board as being brought by ASRC, without requesting us to re-caption it.
3

¶ 17,731; Universal Programming & Sys., Inc., ASBCA No. 15155, 71-1 BCA ¶ 8,900;

Board Rule 1(b). The burden of establishing the Board’s jurisdiction over an appeal 

arising from the denial of a contractor claim is on the appellant. JWK Int’l Corp., 04-1 

BCA ¶ 32,561 at 161,057.

Here, appellant has failed to meet its burden of establishing that it filed a timely 

appeal. Appellant did not file the July 14, 2020 notice of appeal with the Board until 

91 days after the prime contractor’s receipt of the COFD on April 14, 2020. (SOF ¶¶ 4, 

6) Therefore, the July 14, 2020 notice of appeal was untimely, and does not establish our 

jurisdiction. Quimba, 12-1 BCA ¶ 34,910, at 171,652. 

Instead of relying upon the July 14, 2020 notice of appeal, appellant argues that 

the May 29, 2020 email from the prime contractor’s quality control manager was a 

timely, albeit misdirected, notice of appeal. (App. resp. 2-3) However, by its own terms, 

that email appears to have been a request for help finding a document (the COFD) so that 

the subcontractor could pursue the appeal, not a notification of the appeal by that quality 

control manager on behalf of the prime contractor. Moreover, appellant has failed to 

show that either the prime contractor or the subcontractor authorized the prime 

contractor’s quality control manager to pursue an appeal (SOF ¶ 5). On the contrary, the 

fact that someone from the prime contractor besides the quality control manager signed 

the claim (SOF ¶¶ 3, 5), suggests that the quality control manager lacked such authority

(which is consistent with the apparent goal of the email – document gathering). Because 

appellant has failed to show that a person authorized to file an appeal submitted the 

May 29, 2020 email, that email does not constitute an authorized notice of appeal 

sufficient to establish our jurisdiction, even if that email could constitute a misdirected 

notice of appeal—which we seriously doubt. Garrison, 85-1 BCA ¶ 17,731; Universal 

Programming, 71-1 BCA ¶ 8,900.

CONCLUSION

We do not possess jurisdiction because appellant failed to file a timely notice of 

appeal. Therefore, we grant the government’s motion to dismiss, and dismiss this appeal 

with prejudice.

Dated: December 7, 2020

JAMES R. SWEET

Administrative Judge

Armed Services Board

of Contract Appeals

(Signatures continued)
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I concur I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

J. REID PROUTY

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 62606, Appeal of Haakenson 

Electric Company, rendered in conformance with the Board’s Charter.

Dated: December 8, 2020

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals