ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) Shafi Nasimi Construction and Logistics Company) ASBCANo. 59916 ) Under ContractNo. W91B4N-09-C-8l50 ) APPEARANCE FORTHE APPELLANT: Mr. Mohammad Shafi Nasimi CEO APPEARANCES FORTHE GOVERNMENT: Raymond M. Saunders, Esq. Army ChiefTrial Attorney Erica S. Beardsley, Esq.

Trial Attorney OPINION BYADMINISTRATIVE JUDGE DELMAN ONTHE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION The Board, 

### sua sponte, questioned whetherthe Boardhadjurisdiction overthis appeal. BoardRule 7(b). In response, the government moved to dismiss the appeal for lack of jurisdiction. Forreasons stated below, we grant the government's motion. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. The Department ofArmy, Bagram Regional Contracting Center (government) awarded this contractto Shafi Nasimi Construction and Logistics Company (appellant) on 19 July 2009 for the construction ofthe Warrior Office Facility at Bagram Airfield, Afghanistan (R4, tab 3). 2. The government issued a Notice to Proceed (NTP) to appellant on 9 September 2009. Appellant was to begin performance within seven calendar days of issuance ofthe NTP, and to complete performance within 120 days ofthis notice. (R4, tab 23)3. The government issued a Stop WorkNotice on 14 September 2009 as a result ofdesign issues (R4, tabs 24, 26). The government issued a secondNTP on 7 June 2010 (R4, tab 37). 4. By memorandum to appellant dated 2 December 2011, the contracting officer (CO) terminatedthe contract for default as a result ofappellant's failure to make progress onthe project, the completion date ofwhich had been extended to 12 October 2011. The termination notice provided: "This notice also constitutes a decision that youare in default ofthe contract as specified. You have the right to dispute that decision under the Disputes clause ofthe contract." (R4, tab 62) The termination notice did not advise appellant ofits appeal rights, nor did the Disputes clause provide this information. Appellant acknowledged receipt ofthe termination notice on 4 December 2011 (gov'tmot., ex. 2). 5. Overthe next 90 days, the parties exchanged emails related to the project, but in none ofthese did the CO entertain or offer to entertain a reconsideration ofthe default termination. During this period, there was some email discussion about the extent ofthe work that appellant had performed and extentto which it could be paid for the same. For example, by email to appellant dated 21December2011, the CO advised in part as follows: I have been in discussion with ourbase engineers, and have learned thatthey might be able to use some ofthe RLB units that you delivered, aftertermination ofthe contract. Ifthat is the case, then we would pay you for some, but certainly not all, ofthe cost you incurred onthe contract. (Notice ofappeal (NOA), attach.) Also, by email to appellant dated 16 February 2012, the CO advised in part as follows: I would like to propose that wepay you some amount for the workthatyou have completed. I can tell that there was still a lot ofwork remaining to be done. Pleaseprovide me a detailed proposal.... 

### I also would like to keep the contract open, ifyou would be interested in coming back inthe future to dismantle the containers and move them to a new location for us. Please let me know ifthatwould be ofinterestto you. That would then allow you to eventually getpaidup to the full contract amount, ifyour costs to move the containers is [sic] reasonable. [Emphasis added] (NOA, attach.) There is nothing in the record showing that the government made any such payments to appellant afterthe termination ofthe contract for any work performed. 6. The 90-day appeal periodto the Board, 41 U.S.C. 

### § 7104(a), expired on 3 March 2012. Appellant did not file an appeal from the termination notice by this date.

27. Thereafter, it appears that the CO for this project was replaced, and a MAJ Michael W. Washington, Construction Flight Chief, was charged with the responsibility for this contract. By email from appellant to MAJ Washington dated 30 July 2012, more than seven months after issuance ofthe termination notice, appellant requested an opportunity "toprove that it was not my fault" (NOA, attach.). Presumably, appellant referred to the default termination. Washington replied by email the same day, stating: Send me your documents. After I have my specialist review we will set up a meeting for final determination. Right now we have issues getting people on base regardless. · (NOA, attach.) 8. Appellant replied to MAJ Washington by email dated 3 August 2012, stating that approximately 85% ofthe project work was done, and that the termination was attributable in partto the government. Appellant forwarded various documents. (NOA, attach.) 9. By email to appellant dated 3 August 2012, MAJ Washington stated inpart as follows (NOA, attach.): I have all ofthis documentation. Thankyou. I can make you no promises.... Despite Mr. Rounds opening the door for a possible settlement[,] this contract was set up for a Termination for Default. We do notpay on T4D contracts.

I promise you a full review and decision. This may take some time but I will see this through. 10. By email to appellant dated 5 August 2012, MAJ Washington stated in part as follows (NOA, attach.): I am now leaning toward some settlement with your company as my investigation has revealed several miscues by the U.S. Government. Our current steps are to replace the money that was de-obligated from the contract back onto the contract. We then need an estimate from the government (Mr. Dold's 3

### team) as to the value ofthe buildings as they were when you were told to stop working on the project..

.. After I getthose issues resolved we will sit down with you and negotiate a settlement. (NOA, attach.) The record does not indicate that the parties ever met orreached such a settlement. 11. Overtwo years later, by email dated 25 November 2014, the government forwarded a release on this contractto appellant and requested that appellant sign it. It appears that appellant did not sign the release. (R4, tab 65) 12. Appellant filed an undated notice ofappeal disputing the default termination, received by the Board on 7 April 2015, more than three years after the default termination notice was issued.DECISION The government contends that we have nojurisdiction overthis appeal because the appeal was not timely filed from the CO'stermination notice/decision. As a threshold matter, we must address whether this termination notice was in fact a final decision that set into motion the 90-day appeal period to this Board. The CO's termination notice of2 December 2011 stated that the contractor may appeal under the Disputes clause ofthe contract, but it did not advise the contractor of its appeal rights. InMansoorInternationalDevelopmentServices, 

### ASBCA No. 58423,**14-1BCA~35,742** 

### at 174,926 we recently explored what a contractormust prove to avoid the 90-day filing requirement under such circumstances: [W]hen confronted with contracting officer decisions that only advise the contractorthat it may appeal underthe Disputes clause, omitting additional details ofits rights, the Board has required the contractorto prove itwas actually prejudiced by the omission, orthatthe contractor detrimentally relied upon it, to avoid the 90-day limitation period. [Citations omitted] See also Decker & 

### Co. v. West, 

### 76 F.3d 1573 (Fed. Cir. 1996). Appellant has not asserted any actual prejudice, or detrimental reliance upon the omission ofits appeal rights in the CO decision. We will notpresume such prejudice or reliance by virtue ofthe late filing alone. See Medina Contracting Company, 

### ASBCA 4No. 53783, 02-2 BCA**~** 31,979. Accordingly, we believe thatthe CO's termination notice of2 December 2011 was a CO decision that set into motion the 90-day appeal periodto this Board. Next, we must explore whetherthis CO decision was reconsidered by the government, such that it was no longer a "final decision" for purposes ofappeal. In 

### Sach Sinha andAssociates, Inc., ASBCANo. 46916,**95-1~27,499** at 137,041 

### (SSA), we stated as follows: It is well-established that, ifa CO's decision is not truly "final," butbeing reconsidered, a "failureto appeal from the decision within the prescribedperiodwill not defeat.

..[a] contractor's opportunity tobe heard on the merits." E.g., 

### Johnson Controls, Inc., ASBCA No. 28340,**83-2BCA~16,915** at 84,170

.... Accordingly, to ascertain ifthis appeal is timely, we must determine whetherthe "finality" ofthe CO's decision was vitiated. We further explained in

### SSA that the test for vitiation offinality "is whether the contractorpresented evidence showing it reasonably or objectively could have concluded the CO's decision was being reconsidered." 

### Id. at 137,042. The focus is upon the action ofthe government during the appeal period, i.e., whether any government action could have reasonably led a contractorto believe that the subject matterwas not yet final, thereby making an appeal to the board unnecessary. Thus, in 

### SSA we found a lack offinality 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 writingthat were proposed at the meeting. Appellant has provided no evidence ofany such government conduct during the 90-day appeal periodto this Board. Afterthe CO issuedthe termination notice on 2 December 2011, the CO did not meet with or otherwise engage appellant on the merits ofthe default termination during the appeal period, nor did he promise to do so. In an email to appellant on 16 February 2012, the CO did propose to keep the contract "open" (SOF**~** 5), but from the context ofthis email it is clearthat the purpose ofthis proposal was to use the contract as a vehicle to pay appellant to move certain containers from the site and notto reconsider the default termination. Months later, MAJ Washington issued a number ofemails to appellant that reflected his willingness to consider a "settlement" with appellant, but it is unclear whether he referred to a monetary settlement for workperformed, consistent withthe default termination, orto a settlement in which the default would be rescinded and converted to a convenience termination (SOF**~~** 7-10). In any event, these emails 

### 5were issued over four months after expiration ofthe appeal period to the Board, and perforce could not have had any effect on appellant's understanding ofthe finality of the government's 2 December 2011 termination decision during the appeal period. Based upon the foregoing, we conclude that the government did not reconsider the CO's notice ofdefault termination of2 December 2011 during the appeal period, and hence it was a final CO decision for purposes ofappeal to this Board. Appellant failed to file an appeal to this Board within 90 days ofits receipt ofthis decision (SOF**~** 6), as required bythe Contract Disputes Act, 41 U.S.C. 

### § 7104(a). Accordingly, we are withoutjurisdiction overthis appeal. CONCLUSION Forreasons stated above, we conclude that appellant's April, 2015 appeal to this Board from the government's December, 2011 termination decision was untimely. The government's motionto dismiss is granted. The appeal is dismissed for lack of jurisdiction. Dated: 6 January 2016

I concur 

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## -4( ,/ / //:; /f/ / 7 L / l ,., / ,; -- /'/ /**~//** r 

## /;t/u;:i'.f< MARKN. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

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# JA~:;r~~ Administrative Judge Armed Services Board ofContractAppeals

I concur

# ~~ REBA

# PA~ Administrative Judge Acting Vice Chairman Armed Services Board ofContractAppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 59916, Appeal ofShafi Nasimi Construction and Logistics Company, rendered in conformance with the Board's Charter. Dated:

7 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals