ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Aerospace Facilities Group, Inc. ) ) Under Contract No. W912NW-12-C-0035 )
APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61026

WojciechZ. Kornacki, Esq. Theodore P. Watson, Esq.

Watson & Associates, LLC Aurora, CO Raymond M. Saunders, Esq.

Army ChiefTrial Attorney ChristinaLynn E. McCoy, Esq.

Trial Attorney
OPINION BYADMINISTRATIVE JUDGE SHACKLEFORD ON THE GOVERNMENT'SMOTION TO DISMISS FORLACK OF JURISDICTION
The Board, 

### sua sponte, questioned whetherthe Boardhasjurisdiction overthis appeal. The government subsequently moved to dismiss for lack of jurisdiction, asserting that, because the appeal was filed more than 90 days afterthe contracting officer's (CO's)contracttermination for cause was emailedto and received by appellant, it is untimely. Appellant opposes the motion. We conclude that the government engaged in actions to vitiate the finality ofthe termination decision and deny the government's motion.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION
1. The Department ofthe Army, Corpus Christi Army Depot (CCAD) (Army or government), awarded ContractNo. W912NW-12-C-0035 (contract) to Aerospace Facilities Group, Inc. (AFG or appellant) on September27, 2012, for the provision and installation ofhelicopter paint-booth equipment, booth monitoring systems, and a personnel protection systemto the Aircraft Corrosion Control Facility (ACCF) (R4, tab 1).
2. AFG's representative, Dennis R. Robinson, Director ofEngineering & Maintenance Services, exchanged emails and letters related to the contract with the government from September 6, 2012 through July 27, 2016, consistently utilizing the same mailing address on Paradise Road in Las Vegas, Nevada (Las Vegas address) (R4, tabs 2-152, 157).3. The CO issued ModificationNo. P00008 (Mod. 8) datedAugust 4, 2016, to terminate the contract for cause (R4, tab 158). Mod. 8 states that acceptance of delinquent goods would be solely for mitigation ofdamages (R4, tab 158 at 3 of 10). Mod. 8 further states that this was the final decision ofthe CO and providedthe appeal rights required by FAR 33.21 l(a)(4)(v) (id.). Appellant received Mod. 8 on August 4, 2016, via email (compl. ,i 35; R4, tab 157 at 1-2; app. resp. at 3, ,i 14).
4. In an email dated August 4, 2016, and received by the CO on the same day, AFG wrote the CO concerningthe termination notice stating, in relevant part: Attached is the letter in response to the Show [C]ause Letter dated 19 July 2016.
This letter was sentto you back on 27 July 2016, and I'm not sμre whathappen[ed] to it orwhyyou did notreceive it.
Please let meknow ifthere are any changes to cancelled contract. (R4, tab 157 at 1-2)
5. The CO mailed a copy ofMod. 8 to appellant viaU.S. Postal Service (USPS) certified mail with return receipt to the attention ofMr. Robinson at the Las Vegas address (R4, tab 159 at 3). The return receipt was unsigned; however, the USPS website entry for the certifiedmail tracking number indicates that the package was "Delivered, Left with Individual" onAugust 8, 2016 (gov't mot., ex. G-6). Appellant asserts thatthe mailed copy ofMod. 8 was not received by AFG (app. resp. at3,116).
6. By letter dated August 11, 2016, the CO invited AFG to deliverthe items underthe contract and to contactthe Army to discuss reasonable proposals concerning the termination notice, as follows:
The Government is willingto accept delivery of items underthe contractto mitigate AFG's liability under the contract and appreciates your willingness to seek a solution to completethis effort and effect delivery under contract W912NW-12-C-0035. However, until suchtime as delivery is accomplished, the Termination for Cause will stand. You should contactthis office no later than

224 August 2016 to discuss questions orreasonable proposals concerning the Termination for Cause. (R4, tab 160 at 2)
7. By email dated August 24, 2016, appellant replied to the CO as follows:

(R4, tab 162) Aerospace Facilities Group, Inc. has received and reviewed the governmentresponse to my letter for the Notice to Show Cause.
I [sic] orderto rectify this problem without going through the legal process ofappeals, the easy solution is to release the last two payments agreed to in the contract for the amount still due to the equipment supplier. Oncethis is paidthe equipment can start to be delivered to Corpus Christi.
At no time did Aerospace Facilities Group delay this contract or the delivery ofthis equipment. The delay and position we are in today falls back on the government holding back contractual payments as hostage for another contract at Corpus Christi. Aerospace Facilities Group will be [filing] a formal protest for the Noticeto Show Cause and contract cancellation. I hope we can work work [sic] through this so that this does not cometofurther legal issues. We will notify CCAD contracting ofournotice ofappeal once it is filed.
I will betraveling for the next few days but [I] am available on my cell phone and through email.

8. By email dated August 25, 2016, Army division chieffor the reach-back contract support (Army division chief) wrote appellant as follows: My name is Ben Henson.... I am following up the voicemail I left onyour cell phone. Ifyou are available I would love to speakwith you concerning contract W912NW-12-C-0035. I am very optimistic that we can worktogetherto develop a solution thatbenefits all parties

3and best supports_the war fighter. Please let me know whenyou are available. I look forward to speaking with you. (App. resp., ex. A-3)
9. By affidavit, appellant's representative, Dennis R. Robinson, described three telephone conferences between AFG and the government held onAugust 25, August 29, and August 31, 2016, stating, in relevantpart:
21. OnAugust 25, 2016, Ireceived a phone call from Mr. BenA. Henson, Division Chief, Army Aviation Logistics. AFG also received an email from him indicating he would like to discuss contract W912NW-12-C-0035. The email and phone conversation indicatedthat the Army and AFG could work togetherto develop a solutionthat wouldbenefit all parties' concerns in this matter. I believedthatthis conversation indicated that the Government was working with us to achieve a resolution to the issue that was not a termination.
22. OnAugust 29, 2016, I contacted Mr. Henson by phone and had a phone conference with him and otherpeople in his office. We discussed the complexity ofthe equipment.

... 23. Onthatcall, we also discussed the issue ofdelivering the equipmentto CCAD, whereas I indicated that the last contractual payments neededto be made so we couldpay our suppliers so the equipment couldbe released and delivered. I indicatedto Mr. Henson that AFG was able and willingto proceed with the contract andthat cancelling it wasjust a vindictive move on the part ofthe CCAD contracting and Ms. Ramirez. Mr. Henson said they would discuss the matter and get backto me for further discussions.
24. OnAugust 31, 2016, AFGreceived a call from Mr. Ben Henson's office. In that call, Mr. Hensonwas not present, and it was instead handled by an Army Attorney and two otherpeople in the room. During that call, AFG was told thatthe ACCF facility was not completed and the installation was notpossible, butthe Government could

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# I 

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# I take possession ofthe paint booth equipment. I again explainedto the Government that once the last payments were made for the equipment, it would all be shippedto CCAD.
25. On that call, I again explained that theirreasoning for cancelling the contract was vindictive and had nothing to do with the buildingnot being completed

.... The phone conference was ended at that point and I sent Mr. Henson an email indicatingthat AFG would be keeping the lines of communication open and that we were willing to come to an agreement that would benefit all parties.
26. Given that the Government subsequently contacted me and discussed options to resolve the matter, AFG concluded that the Government had not yet made a definitive determination on whetherto terminate the contract for default. AFGrelied on the Government's actions, which made it seem as though it was reconsidering the termination. (App. resp., ex. A-1 at 3-4)
10. By letter dated September 13, 2016, the CO issued a final decision demanding AFG repay $7,809,984.15 for unliquidated government installment payments (R4, tab 164). Among otherthings, the letter summarized conversations with appellant afterthe termination to discuss reasonable proposals, negotiations, and possible delivery ofthe paint-booth equipment. The CO stated, in relevant part: Afterthe Government issued the Termination for Cause, AFG reached outto the Governmentto open settlement negotiations. The Government indicated its willingness to discuss negotiations withAFG and invited AFG to discuss any reasonable proposals concerningthe Termination.
The Government spoke with you, as Director Engineering & Maintenance Services, Aerospace Facilities Group, on two occasions. Duringthe last call on August 31, 2016, the Government confirmed to youthat the Aircraft Corrosion Control Facility

...at CCADwas not completed and installation was not possible but that the Government was able to take possession ofthe paint booths and had adequate storage. The Government

5

### provided a POC for you to call to schedule delivery so as to start the delivery process and mitigate liability for the installmentpayments AFG received under the contract. When the Government asked you ifAFG was going to deliver any paint booths, you responded that AFG would not make any deliveries.
As ofthe date ofthe Termination for Cause, AFG has received $7,809,984.15 in Government installment payments, which AFG failed to liquidate by delivery of goods as specified by the contract. In accordance with the Federal Acquisition Regulation (FAR) Clause, 52.232-30, Installment Payments for Commercial Items, paragraph g, "If

### the contract is terminated for cause, the Contractor shall, on demand, repay to the Governmentthe amount of unliquidated installmentpaymentsJ"l
As a result, demand is hereby made upon AFGto repay the Governmentthe sum of$7,809,984.15, which is the amount ofunliquidated Government installment payments made to AFG

.... (Id. 

### at 1-2) The letter advised appellant ofits right to appeal, but appellant did not appeal to the Board from the government's demand for payment. 11. By email onNovember 3, 2016, appellant sent a notice ofappeal to the Government Accountability Office (GAO) with a copy to the CO (app. resp. at 6,130; gov't mot., ex. G-10). The CO received appellant's appeal notice on that same day (gov't mot., ex. G-11, 112). 

### The email stated, in relevant part: Dear CAB, Aerospace Facilities Group, Inc[.] is formally filling [sic] an appeal on the termination ofcause for contract W912NW-I2-C-0035. The Department ofthe Army, Corpus Christi Army Depot Contracting office letter for termination modification for the subject contract and modification are attached to this appeal letter. (Gov't mot., ex. G-10)

6

### 12. In an email dated and received by the Board on November 8, 2016, AFG stated it was formally filing an appeal ofthe August4, 2016 Mod. 8termination for cause. This was 91 days after receipt ofsaid termination CO's final decision (COFD).
DECISION
The government contends that we do not havejurisdiction overthis appeal because the appeal was not filed within 90 days ofappellant's receipt ofthe emailed CO'stermination notice (gov'tmot. at 9-11). Appellant counters that the CO sending the termination through email violates FAR3 3.211(b) (app. resp. at 14). Appellant also asserts thatthe CO sending multiple copies ofthe termination caused confusion concerning the appeal deadline and the last termination sent shouldbegin the appeal deadline (id. 

### at 17-18). Appellant also argues that its written communication to the CO requesting reconsideration ofthe termination tolled the appeal deadline (id. 

### at 12-13). In addition, appellant asserts that the government engaged in actions after the termination notice was received which vitiated the finality ofthe termination and, thus, the appeal is timely (id. 

### at 7-11). Underthe Contract Disputes Act (CDA), 41 U.S.C. 

### §7104(a), the 90-day period in which to appeal a CO's decision to the Board isjurisdictional and may not be waived. 

### See Cosmic Construction Co. v. UnitedStates, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982); 

### Maria Lochbrunner, ASBCA Nos. 57235, 57236, 11-2 BCA 

### ,i 34,783. Appellant argues that the CO should have sentthe termination only through certified mail and that sending itthrough both email and certified mail violates FAR 33.21 l(b), which "states that, '[t]he contracting officershallfurnish a copy ofthe decision to the contractorby certified mail, return receipt requested, or

### by any other method thatprovides evidence ofreceipt"' (app. resp. at 14) (emphasis in app. resp.). Specifically, appellant argues:

(Id.) 

### The "or" language expresslyrefers to the method of proving receipt ofthe certified mail. The FARdoes not give the CO discretion to substitute issuing a decision by certifiedmail with issuance ofthe COFD through email.

This Board has consistently held that the government may transmit a final decision to the contractorthrough fax, hand delivery, or email with evidence of receipt. 

### See Tyger Construction Co., ASBCA Nos. 36100, 36101, 88-3 BCA 

### ,i 21,149 (fax transmission ofthe final decision was adequate to prove receipt where the CO's agent confirmed receipt by telephone immediately upon completion ofthe transmission); 

### MilitaryAircraftParts, ASBCA No. 60308, 17-1 BCA

### ,i 36,680 (email

7sufficient for transmitting the COFD; however, the government failed to meet its burden to showthe contractorreceivedthe COFD); Singleton Enterprises, ASBCA No. 58235, 14-1 BCA,i 35,554 (the 90-day clock startedto run when the contractor received the COFD through email because the evidence showed no COFD was sent viacertified mail as contendedby appellant).
Contractors may request favored forms ofcommunication with the government and in those situations, it may beprudent for the government to adhere to the contractor's request. See Mid-Eastern Industries, Inc., ASBCA No. 51287, 98-2 BCA 

### ,i 29,907. However, in this appeal, appellanthas not shown that it requested that communications from the governmentbe delivered only by certified mail. In addition, therecord is replete with email communications from September 6, 2012 through July 27, 2016 between appellant and the government. (SOF ,i 2)
The government bears the burden to establish the contractor's date ofreceipt of the final decision. See Singleton, 14-1 BCA,i 35,554 at 174,227. The government has met its burden. It is undisputedthat appellant received the CO's termination via email on August 4, 2016 (SOF 

### ,i,i 3, 4). Yet, appellant filed its notice ofappeal withthis Board on November 8, 2016, 91 days after appellantreceivedthe emailedtermination (SOF 

### ,i 12). Appellantnext argues that sending multiple copies ofthe termination caused confusion concerningthe appeal deadline (app. resp. at 17-18). However, appellant has statedthat it did not receive the papercopy ofthe termination and has not explained how the second copy ofthe termination, which it did notreceive, caused confusion as to the appeal deadline (SOF 

### ,i 5). Next, we consider whether appellant's emails to the CO or GAO afforded propernotice ofappeal to this Board. Filing an appeal withthe CO may satisfy the Board's notice requirement. See Hellenic Express, ASBCA No. 47129, 94-3 BCA 

### ,i 27,189 at 135,503 ("filing an appeal with the [CO] is tantamountto filing with the Board"). Adequate noticeto the CO shall be in writing, express dissatisfaction with the CO's decision, and, manifest an intentto appeal the decision to a higher authority. See, e.g., McNamara-Lunz Vans & Warehouses, Inc., ASBCA No. 38057, 89-2 BCA ,i 21,636 at I08,856 (concluding that a letter statingthat "wewill appeal your decision through the various avenues open to us" adequately expressed the contractor's intent to appeal as a contractorcan only "appeal"to the Board); cfStewart-Thomas Indus., Inc., ASBCANo. 38773, 90-1 BCA 

### ,i 22,481 at 112,836 (stating that the contractor's letter indicating they would appeal to eitherthe Board orthe Claims Courtwas not a notice ofappeal because the CDArequires a notice ofappeal to express an election of the forum in which it will seek relief). To meetthe requirement that notice has been furnished, the Boardhas historically taken a liberal reading ofcontractor's

8

### communications to the CO in finding effective appeals. See ThompsonAerospace, Inc., 

### ASBCA Nos. 51548, 51904, 99-1BCA130,232 at 149,570. Appellant contends that its August 24, 2016 email to the CO meets the established requirements ofthe Board for giving notice ofappeal: (i) 

### the email is within 90 days ofreceipt ofthe August 4 termination notice; (ii) it is provided in writing; (iii) expressed dissatisfaction with the termination; and (iv) the email appealed to a higher authority (app. resp. at 24-25). Appellant's August 24, 2016 email satisfies three ofthe four requirements to provide notice ofappeal: it was timely, it is in writing, and it expresses a dissatisfaction with the August 4 termination notice. However, the email does not satisfy the final requirement ofmanifesting an intent to appeal the decision to ahigher authority. The email states that appellant would like to rectify the termination "without going through the legal process ofappeals." Appellant's email requested reconsideration oftermination by the governmentthrough releasing the last two payments which the contractor would then deliverto Corpus Christi. Appellant's email indicates in the future tense that they will be filing a "formal protest" and appellantwill notify the government once an "appeal notice" is filed. (SOF 17) Appellant unequivocally statedthat it wishes to avoid litigation and would notify the government once the appeal is filed. There is nothing in appellant's email that manifests an intent to appeal the termination as ofthe date ofthe email. We conclude that appellant's August 24, 2016 email to the CO does not satisfy the requirements ofa notice ofappeal to the Board. Next, we considerAFG'sNovember 3, 2016 appeal notice to the GAO. The Board does not possessjurisdiction over appeals filed at othertribunals. See Carter Safety Consultants, Inc., 

### ASBCA No. 60779, 17-1 BCA 136,669at 178,552 (no jurisdiction over appeals filed with the GAO); Waterstone EnvironmentalHydrology andEngineering, Inc., 

### ASBCANo. 57557, 12-1BCA135,028 at 172,142-43 (late appeal to ASBCA dismissed after wrongful appeal to the Civilian Board ofContract Appeals). In any event it was 91 days after receipt ofthe notice oftermination and thus untimely. Next, we consider AFG's November 3, 2016 appeal notice sent to the CO. Although it is possible that an appeal filed with the CO could be sufficient for jurisdiction, we need not decide that issue becausethe email was untimely at 91 days after AFG received the notice oftermination. (SOF 

## 113, 4, 11) See A.IA. Costruzioni Sp.A., 

### ASBCA No. 43584, 92-3 BCA 125,204 at 125,582. Next, we consider whether AFG's request for reconsideration ofthe termination vitiated the deadline for a timely appeal to this Board. Appellant argues that its August 24, 2016 letterrequests reconsideration; thus, the request vitiated the August 4

9termination notice (app. resp. at 12). We conclude that appellant's request to the CO to reconsider her final decision is not in itselfsufficientto vitiate the termination decision. 

### See Propulsion Controls Engineering, ASBCANo. 53307, 01-2 BCA 

## ,r 31,494 at 155,508 (holding that "it is unreasonable to conclude that a [CO] is reconsidering a final decision simply as a result ofa request to do so"). Finally, we consider whether actions by the government vitiated the finality of the final decision.
While receiptby the [CO] ofa request for reconsideration ofa decision in itselfdoes not serve to vacate a decision or the period in which to appeal, reconsideration ofa decision by the [CO] orcreation ofa reasonable appearance that the decision is being reconsidered both serve to vacate the earlier decision along with the accompanying appeal period

.... 

### RoyalInt'!Builders Co., ASBCA No. 42637, 92-1 BCA

## ,r 24,684 at 123,135.
The test for vitiation ofthe finality ofa CO's determination "is whetherthe contractorpresented evidence showing it reasonably or objectively could have concludedthe CO's decision was being reconsidered." 

### Sach Sinha andAssociates, Inc., ASBCA No. 46916, 95-1 BCA

## ,r 27,499 at 137,042 (a lack offinality is found where the CO met with the contractor after the issuance ofthe termination notice; discussed the default termination at the meeting; and requested the contractorto submit settlement alternatives in writing that were proposed at the meeting). The focus is on whether any government action couldhave reasonably led a contractor to believethat the subjectmatterwas not yet final, thereby making an appeal to the Board unnecessary. However, a demand letter sentby a CO does not vitiate finality ofan earlier final decision. 

### See Communicology, Inc., ASBCANo. 47934, 95-2 BCA 

## ,r 27,640 at 137,787-88. Appellant argues that the finality ofthe termination notice was vitiated because the Army held telephonic conferences with AFG, invited AFG to discuss reasonable proposals to resolve the situation, discussed future delivery ofthe paint-booth equipment, and led AFG to believe that the termination could be reversed (app. resp. at 8-10). The government counters that written communications with appellant were to mitigate AFG's liability and notto reconsiderthe termination notice and that the government also made clearthat the termination notice was the final decision ofthe CO (gov'treply br. at 6).
The fact that the record does not reveal that the CO ever used the word "reconsider" does not mean thatthe government's actions did not lead AFG to believe

10the government was reconsidering the decision. See CP of Bozeman, Inc., dba Maintenance Patrol, ASBCANo. 58533, 13 BCA

### ,i 35,452 at 173,855. Subsequent written and oral communications with the government created a cloud ofuncertainty as to the status ofthe August4 termination. The CO's email dated August 11, 2016, stated that "[t]he Government is willingto accept delivery ofitems underthe contract..

.. You should contactthis office

...to discuss questions orreasonable proposals concerningthe Termination for Cause." (SOF, 6)
It was the government who reached out to AFG in an email dated August 25, 2016, stating, "I am very optimistic that we canworktogether to develop a solution that benefits all parties'' (SOF ,I 8). Responding to the government's invitation, appellant heldthree telephonic conferences with the government discussing possible delivery of the terminated paint-booth equipment (SOF , 9). The government repeatedly attempted to discuss "reasonableproposals" concerning delivery with appellant (SOF

# ii, 6, 8-10). Appellant's affidavit reciting the three teleconferences held on August 25, August 29, and August 31, 2016, is consistent with the telephonic characterizations recited in the CO's demand letter dated September 13, 2016. The CO's September 13, 2016 demand letter acknowledges that the government was willing to enter negotiations. The CO's demand letter states that the government invited AFG to contactthe Army to schedule delivery and discuss the same. (SOF ,i 10)
The evidence shows that the merits ofthe termination were discussed during the August 25, August 29, and August 31, 2016 teleconferences; in addition, the teleconferences were held to discuss reasonable delivery proposals. At issue for delivery was whetherthe government would release the final payments to AFG. (SOF ,i 9) "[I]fa contracting officerwishes to avoid a determination that a decision has beenreconsidered he or she 'shouldrefrain from any discussions, negotiations, review ofdocuments orother actions which couldbe consideredto be a defacto reconsideration."' GuardianAngelsMed. Serv. Dogs, Inc. v. UnitedStates, 809 F.3d 1244, 1251 (Fed. Cir. 2016). There is substantial evidence thatthe government's actions were either in fact areconsideration or at least reasonably lead AFG to believe the Army was reconsidering the decision based on their emails and telephonic conversations. See Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA,i 16,915 at 84,170.
The Army's willingness to engage AFG, discuss the facts surrounding the termination on three separate occasions and discuss whetherAFGwould deliverthe paint-booth equipment servedto keep the matter open and destroyed the finality ofthe termination notice. See GuardianAngels, 809 F.3d at 1249-50.
The government's inclusion ofthe term "mitigation" in the August 11 and September 13, 2016 emails do not advance the government's position. The government has not shown that it provided clear cautionary notice to AFG priorto

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# I each ofthe three teleconferences that the August 4 termination remained in effect and the discussions were for mitigationpurposes only. See Ra-NavLaboratories, Inc., ASBCANo. 49211, 96-2 BCA,28,514 at 142,397. The record reflects, and we find, that government actions and statements caused AFG to reasonably believethat the CO was reconsidering her decision.
We find appellant's notice ofappeal dated November 8, 2016, and received by the Board on November 8, 2016, was timely.
CONCLUSION
The government's motion to dismiss for lack of jurisdiction is denied.
Dated: July 19, 2018

Iconcur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

12 RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals

'-sTEJ5HANIE CATES-1HARMAN

Administrative Judge Armed Services Board ofContract AppealsI certify that the foregoing is atrue copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 61026, Appeal of Aerospace Facilities Group, Inc., rendered in conformancewith the Board's Charter.
Dated:

13 JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals