ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Aerospace Facilities Group, Inc. ) 

) 

Under Contract No. W912NW-12-C-0035 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61026 

Wojciech Z. Kornacki, Esq. 

Theodore P. Watson, Esq. 

Watson & Associates, LLC 

Aurora, CO 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

ChristinaLynn E. McCoy, Esq. 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD 

ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

The Board, sua sponte, questioned whether the Board has jurisdiction over this 

appeal. The government subsequently moved to dismiss for lack of jurisdiction, 

asserting that, because the appeal was filed more than 90 days after the contracting 

officer's (CO's) contract termination for cause was emailed to and received by 

appellant, it is untimely. Appellant opposes the motion. We conclude that the 

government engaged in actions to vitiate the finality of the termination decision and 

deny the government's motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. The Department of the Army, Corpus Christi Army Depot (CCAD) (Army 

or government), awarded Contract No. W912NW-12-C-0035 (contract) to Aerospace 

Facilities Group, Inc. (AFG or appellant) on September 27, 2012, for the provision and 

installation of helicopter paint-booth equipment, booth monitoring systems, and a 

personnel protection system to the Aircraft Corrosion Control Facility (ACCF) (R4, 

tab 1). 

2. AFG's representative, Dennis R. Robinson, Director of Engineering & 

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 Modification No. P00008 (Mod. 8) dated August 4, 2016, to 

terminate the contract for cause (R4, tab 158). Mod. 8 states that acceptance of 

delinquent goods would be solely for mitigation of damages (R4, tab 158 at 3 of 10). 

Mod. 8 further states that this was the final decision of the CO and provided the 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 concerning the 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 sent to you back on 27 July 2016, and I'm 

not sμre what happen[ ed] to it or why you did not receive 

it. 

Please let me know if there are any changes to cancelled 

contract. 

(R4, tab 157 at 1-2) 

5. The CO mailed a copy of Mod. 8 to appellant via U.S. Postal Service 

(USPS) certified mail with return receipt to the attention of Mr. Robinson at the 

Las Vegas address (R4, tab 159 at 3). The return receipt was unsigned; however, the 

USPS website entry for the certified mail tracking number indicates that the package 

was "Delivered, Left with Individual" on August 8, 2016 (gov't mot., ex. G-6). 

Appellant asserts that the mailed copy of Mod. 8 was not received by AFG (app. resp. 

at3,116). 

6. By letter dated August 11, 2016, the CO invited AFG to deliver the items 

under the contract and to contact the Army to discuss reasonable proposals concerning 

the termination notice, as follows: 

The Government is willing to accept delivery of 

items under the contract to mitigate AFG's liability under 

the contract and appreciates your willingness to seek a 

solution to complete this effort and effect delivery under 

contract W912NW-12-C-0035. However, until such time 

as delivery is accomplished, the Termination for Cause 

will stand. You should contact this office no later than 

2 
24 August 2016 to discuss questions or reasonable 

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 government response to my letter for the Notice to 

Show Cause. 

I [sic] order to rectify this problem without going through 

the legal process of appeals, the easy solution is to release 

the last two payments agreed to in the contract for the 

amount still due to the equipment supplier. Once this is 

paid the equipment can start to be delivered to Corpus 

Christi. 

At no time did Aerospace Facilities Group delay this 

contract or the delivery of this 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 Notice to Show Cause and contract cancellation. I 

hope we can work work [sic] through this so that this does 

not come to further legal issues. We will notify CCAD 

contracting of our notice of appeal once it is filed. 

I will be traveling 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 chief for 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 on your cell phone. If you are available I 

would love to speak with you concerning contract 

W912NW-12-C-0035. I am very optimistic that we can 

work together to develop a solution that benefits all parties 

3 
and best supports_the war fighter. Please let me know 

when you 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 on August 25, 

August 29, and August 31, 2016, stating, in relevant part: 

21. On August 25, 2016, I received a phone call from 

Mr. Ben A. 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 

indicated that the Army and AFG could work together to 

develop a solution that would benefit all parties' concerns 

in this matter. I believed that this conversation indicated 

that the Government was working with us to achieve a 

resolution to the issue that was not a termination. 

22. On August 29, 2016, I contacted Mr. Henson by phone 

and had a phone conference with him and other people in 

his office. We discussed the complexity of the 

equipment. ... 

23. On that call, we also discussed the issue of delivering 

the equipment to CCAD, whereas I indicated that the last 

contractual payments needed to be made so we could pay 

our suppliers so the equipment could be released and 

delivered. I indicated to Mr. Henson that AFG was able 

and willing to proceed with the contract and that cancelling 

it was just a vindictive move on the part of the CCAD 

contracting and Ms. Ramirez. Mr. Henson said they would 

discuss the matter and get back to me for further 

discussions. 

24. On August 31, 2016, AFG received a call from 

Mr. Ben Henson's office. In that call, Mr. Henson was not 

present, and it was instead handled by an Army Attorney 

and two other people in the room. During that call, AFG 

was told that the ACCF facility was not completed and the 

installation was not possible, but the Government could 

4 
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take possession of the paint booth equipment. I again 

explained to the Government that once the last payments 

were made for the equipment, it would all be shipped to 

CCAD. 

25. On that call, I again explained that their reasoning for 

cancelling the contract was vindictive and had nothing to 

do with the building not being completed .... The phone 

conference was ended at that point and I sent Mr. Henson 

an email indicating that 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 whether to terminate the 

contract for default. AFG relied 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 other things, the letter summarized conversations 

with appellant after the termination to discuss reasonable proposals, negotiations, and 

possible delivery of the paint-booth equipment. The CO stated, in relevant part: 

After the Government issued the Termination for Cause, 

AFG reached out to the Government to open settlement 

negotiations. The Government indicated its willingness to 

discuss negotiations with AFG and invited AFG to discuss 

any reasonable proposals concerning the Termination. 

The Government spoke with you, as Director 

Engineering & Maintenance Services, Aerospace Facilities 

Group, on two occasions. During the last call on 

August 31, 2016, the Government confirmed to you that 

the Aircraft Corrosion Control Facility ... at CCAD was not 

completed and installation was not possible but that the 

Government was able to take possession of the 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 

installment payments AFG received under the contract. 

When the Government asked you if AFG was going to 

deliver any paint booths, you responded that AFG would 

not make any deliveries. 

As of the date of the 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 Government the amount of 

unliquidated installment paymentsJ"l 

As a result, demand is hereby made upon AFG to 

repay the Government the sum of$7,809,984.15, which is 

the amount of unliquidated Government installment 

payments made to AFG .... 

(Id. at 1-2) The letter advised appellant of its right to appeal, but appellant did not 

appeal to the Board from the government's demand for payment. 

11. By email on November 3, 2016, appellant sent a notice of appeal 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 of cause for contract 

W912NW-I2-C-0035. 

The Department of the 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 of the August 4, 2016 Mod. 8 termination for 

cause. This was 91 days after receipt of said termination CO's final decision (COFD). 

DECISION 

The government contends that we do not have jurisdiction over this appeal 

because the appeal was not filed within 90 days of appellant's receipt of the emailed 

CO's termination notice (gov't mot. at 9-11). Appellant counters that the CO sending 

the termination through email violates FAR 3 3 .211 (b) ( app. resp. at 14 ). Appellant 

also asserts that the CO sending multiple copies of the termination caused confusion 

concerning the appeal deadline and the last termination sent should begin the appeal 

deadline (id. at 17-18). Appellant also argues that its written communication to the CO 

requesting reconsideration of the 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 of the termination and, thus, 

the appeal is timely (id. at 7-11). 

Under the 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 is jurisdictional and may not be 

waived. See Cosmic Construction Co. v. United States, 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 sent the termination only through 

certified mail and that sending it through both email and certified mail violates 

FAR 33.21 l(b), which "states that, '[t]he contracting officer shall furnish a copy of the 

decision to the contractor by certified mail, return receipt requested, or by any other 

method that provides evidence of receipt"' (app. resp. at 14) (emphasis in app. resp.). 

Specifically, appellant argues: 

(Id.) 

The "or" language expressly refers to the method of 

proving receipt of the certified mail. The FAR does not 

give the CO discretion to substitute issuing a decision by 

certified mail with issuance of the COFD through email. 

This Board has consistently held that the government may transmit a final 

decision to the contractor through 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 of the final decision was adequate to prove receipt where the CO's 

agent confirmed receipt by telephone immediately upon completion of the 

transmission); Military Aircraft Parts, ASBCA No. 60308, 17-1 BCA ,i 36,680 (email 

7 
sufficient for transmitting the COFD; however, the government failed to meet its 

burden to show the contractor received the COFD); Singleton Enterprises, ASBCA 

No. 58235, 14-1 BCA ,i 35,554 (the 90-day clock started to run when the contractor 

received the COFD through email because the evidence showed no COFD was sent 

via certified mail as contended by appellant). 

Contractors may request favored forms of communication with the government 

and in those situations, it may be prudent 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, appellant has not shown that it requested that 

communications from the government be delivered only by certified mail. In addition, 

the record 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 of receipt of 

the final decision. See Singleton, 14-1 BCA ,i 35,554 at 174,227. The government has 

met its burden. It is undisputed that appellant received the CO's termination via email 

on August 4, 2016 (SOF ,i,i 3, 4). Yet, appellant filed its notice of appeal with this 

Board on November 8, 2016, 91 days after appellant received the emailed termination 

(SOF ,i 12). 

Appellant next argues that sending multiple copies of the termination caused 

confusion concerning the appeal deadline (app. resp. at 17-18). However, appellant 

has stated that it did not receive the paper copy of the termination and has not 

explained how the second copy of the termination, which it did not receive, caused 

confusion as to the appeal deadline (SOF ,i 5). 

Next, we consider whether appellant's emails to the CO or GAO afforded 

proper notice of appeal to this Board. Filing an appeal with the 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 tantamount to filing with the 

Board"). Adequate notice to the CO shall be in writing, express dissatisfaction with 

the CO's decision, and, manifest an intent to 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 I 08,856 ( concluding that a letter stating that "we will appeal your decision 

through the various avenues open to us" adequately expressed the contractor's intent to 

appeal as a contractor can only "appeal" to the Board); cf Stewart-Thomas Indus., 

Inc., ASBCA No. 38773, 90-1 BCA ,i 22,481 at 112,836 (stating that the contractor's 

letter indicating they would appeal to either the Board or the Claims Court was not a 

notice of appeal because the CDA requires a notice of appeal to express an election of 

the forum in which it will seek relief). To meet the requirement that notice has been 

furnished, the Board has historically taken a liberal reading of contractor's 

8 
communications to the CO in finding effective appeals. See Thompson Aerospace, 

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 of the Board for giving notice of appeal: (i) the email is 

within 90 days of receipt of the 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 of the four requirements to 

provide notice of appeal: 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 of manifesting an intent to appeal the decision to a higher 

authority. The email states that appellant would like to rectify the termination 

"without going through the legal process of appeals." Appellant's email requested 

reconsideration of termination by the government through releasing the last two 

payments which the contractor would then deliver to Corpus Christi. Appellant's 

email indicates in the future tense that they will be filing a "formal protest" and 

appellant will notify the government once an "appeal notice" is filed. (SOF 17) 

Appellant unequivocally stated that 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 of the date of the email. We conclude 

that appellant's August 24, 2016 email to the CO does not satisfy the requirements of a 

notice of appeal to the Board. 

Next, we consider AFG's November 3, 2016 appeal notice to the GAO. The 

Board does not possess jurisdiction over appeals filed at other tribunals. See Carter 

Safety Consultants, Inc., ASBCA No. 60779, 17-1 BCA 136,669 at 178,552 (no 

jurisdiction over appeals filed with the GAO); Waterstone Environmental Hydrology 

and Engineering, Inc., ASBCA No. 57557, 12-1BCA135,028 at 172,142-43 (late 

appeal to ASBCA dismissed after wrongful appeal to the Civilian Board of Contract 

Appeals). In any event it was 91 days after receipt of the notice of termination 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 because the email was untimely at 91 days 

after AFG received the notice of termination. (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 of the termination 

vitiated the deadline for a timely appeal to this Board. Appellant argues that its 

August 24, 2016 letter requests reconsideration; thus, the request vitiated the August 4 

9 
termination notice (app. resp. at 12). We conclude that appellant's request to the CO 

to reconsider her final decision is not in itself sufficient to vitiate the termination 

decision. See Propulsion Controls Engineering, ASBCA No. 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 of a request to do so"). 

Finally, we consider whether actions by the government vitiated the finality of 

the final decision. 

While receipt by the [CO] of a request for reconsideration 

of a decision in itself does not serve to vacate a decision or 

the period in which to appeal, reconsideration of a decision 

by the [CO] or creation of a reasonable appearance that the 

decision is being reconsidered both serve to vacate the 

earlier decision along with the accompanying appeal 

period .... 

Royal Int'! Builders Co., ASBCA No. 42637, 92-1 BCA ,r 24,684 at 123,135. 

The test for vitiation of the finality of a CO's determination "is whether the 

contractor presented evidence showing it reasonably or objectively could have 

concluded the CO's decision was being reconsidered." Sach Sinha and Associates, 

Inc., ASBCA No. 46916, 95-1 BCA ,r 27,499 at 137,042 (a lack of finality is found 

where the CO met with the contractor after the issuance of the termination notice; 

discussed the default termination at the meeting; and requested the contractor to 

submit settlement alternatives in writing that were proposed at the meeting). The 

focus is on whether any government action could have reasonably led a contractor to 

believe that the subject matter was not yet final, thereby making an appeal to the Board 

unnecessary. However, a demand letter sent by a CO does not vitiate finality of an 

earlier final decision. See Communicology, Inc., ASBCA No. 47934, 95-2 BCA 

,r 27,640 at 137,787-88. 

Appellant argues that the finality of the 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 of the 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 not to reconsider the termination notice and that the 

government also made clear that the termination notice was the final decision of the 

CO (gov't reply br. at 6). 

The fact that the record does not reveal that the CO ever used the word 

"reconsider" does not mean that the government's actions did not lead AFG to believe 

10 
the government was reconsidering the decision. See CP of Bozeman, Inc., dba 

Maintenance Patrol, ASBCA No. 58533, 13 BCA ,i 35,452 at 173,855. Subsequent 

written and oral communications with the government created a cloud of uncertainty 

as to the status of the August 4 termination. The CO' s email dated August 11, 2016, 

stated that "[t]he Government is willing to accept delivery of items under the 

contract.. .. You should contact this office ... to discuss questions or reasonable 

proposals concerning the 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 can work together to develop a solution that 

benefits all parties'' (SOF ,I 8). Responding to the government's invitation, appellant 

held three telephonic conferences with the government discussing possible delivery of 

the terminated paint-booth equipment (SOF , 9). The government repeatedly attempted 

to discuss "reasonable proposals" 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 contact the Army to schedule 

delivery and discuss the same. (SOF ,i 10) 

The evidence shows that the merits of the 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 whether the government would release the final payments to AFG. 

(SOF ,i 9) "[I]f a contracting officer wishes to avoid a determination that a decision 

has been reconsidered he or she 'should refrain from any discussions, negotiations, 

review of documents or other actions which could be considered to be a de facto 

reconsideration."' Guardian Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d 

1244, 1251 (Fed. Cir. 2016). There is substantial evidence that the government's 

actions were either in fact a reconsideration 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 whether AFG would deliver the 

paint-booth equipment served to keep the matter open and destroyed the finality of the 

termination notice. See Guardian Angels, 809 F.3d at 1249-50. 

The government's inclusion of the 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 prior to 

11 
I 

each of the three teleconferences that the August 4 termination remained in effect and 

the discussions were for mitigation purposes only. See Ra-Nav Laboratories, Inc., 

ASBCA No. 49211, 96-2 BCA, 28,514 at 142,397. The record reflects, and we find, 

that government actions and statements caused AFG to reasonably believe that the CO 

was reconsidering her decision. 

We find appellant's notice of appeal 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 

I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

12 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

'-sTEJ5HANIE CATES-1HARMAN 

Administrative Judge 

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. 61026, Appeal of 

Aerospace Facilities Group, Inc., rendered in conformance with the Board's Charter. 

Dated: 

13 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals