ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Precision Metals Corp. ) 

) 

Under Contract No. SPE7Ll-15-M-2140 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61422 

Mr. Tony Figlozzi 

Vice President 

Daniel K. Poling, Esq. 

DLA Chief Trial Attorney 

Matthew 0. Geary, Esq. 

Trial Attorney 

DLA Land and Maritime 

Columbus, OH 

OPINION BY ADMINISTRATIVE JUDGE YOUNGER 

ON THE GOVERNMENT'S MOTION TO DISMISS 

DLA Land and Maritime Land Supply Chain (the government) moves to dismiss 

this appeal, arguing that appellant, Precision Metals Corp. (Precision or appellant), failed 

to submit a timely appeal as required by the Contract Disputes Act, 41 U.S.C. § 7104(a). 

Appellant opposes the motion. We grant the government's motion and dismiss the appeal 

for lack of jurisdiction. 

ST A TEMENT OF FACTS FOR PURPOSES OF THE MOTION 

1. On 16 July 2015, the government awarded Contract No. SPE7Ll-15-M-2140 to 

Precision for the purchase of "leg, machine gun bipod, left hand" parts. The total award 

amount of the contract was $22,440.00. (Gov't mot., ex. 1) 

2. The contract contained various standard clauses, including Federal Acquisition 

Regulation (FAR) 52.209-3, FIRST ARTICLE APPROVAL - CONTRACTOR TESTING 

(SEP 1989), which provided, in paragraph (b ), that the contractor "shall submit the first 

article test report within 280 calendar days from the date of this contract," a date elsewhere 

specified as 21 April 2016; FAR 52.233-1, DISPUTES (MAY 2014); and FAR 52.249-8, 

DEFAULT(FIXED-PRICE SUPPLY AND SERVICE) (APR 1984) (R4, tab 1 at 11, 17, 20-21). 
3. The contract was modified twice during performance, including once by 

Modification No. POOOO 1, dated 12 May 2016, to extend the first article test delivery date 

to 12 August 2016 (gov't mot., exs. 2-3). 

4. By letter dated 13 March 2017, the government issued a show cause notice to 

Precision, asserting that the first article test had not been delivered by the modified 

delivery date (incorrectly stated to be 2 August 2016), and Precision had not requested a 

new delivery date (gov't mot., ex. 4). 

5. By letter dated 22 March 2017, Precision indicated that it would deliver the 

materials by 10 May 2017 (gov't mot., ex. 5 at 2). 

6. In a letter to Precision dated 3 April 2017, the contracting officer stated that he 

would forbear from terminating the contract until IO May 2017, to allow delivery of the 

first article test report (gov't mot., ex. 6 at 2). The contracting officer warned, however, 

that if the first article test report were not delivered by that date, "the [contract] may be 

terminated in accordance with the default clause" (id.). 

7. By final decision dated 12 May 2017, the contracting officer terminated the 

contract for default following Precision's failure to deliver the first article test report by 

IO May 2017 (gov't mot., ex. 8 at 3-4). The final decision included an advice of rights (id. 

at 4 ). The contracting officer emailed the final decision to Amy Pitarra, contracts 

administrator at Precision, the same day, and included a read receipt. The read receipt stated 

that the email was read by Ms. Pitarra on 12 May 2017 at 3:24 pm. (Gov't mot., exs. 8-9) 

8. By email dated 15 May 2017, Precision requested reconsideration of the final 

decision (gov't mot., ex. 10 at 1-2). We find no evidence of any subsequent 

communication between the parties until Precision filed its notice of appeal. 

9. Precision filed a notice of appeal with the Board by email dated 21 November 

2017, and the Board thereafter docketed the appeal as ASBCA No. 61422. 

DECISION 

The government's core argument in its motion to dismiss is that the Board lacks 

jurisdiction over this appeal because Precision did not file its notice of appeal within the 

90-day statutory period from receipt of the termination notification (Respondent's Motion 

to Dismiss (motion) at 2-3). For its part, Precision asserts that the government terminated 

the contract despite the fact that the parts were ready for inspection (Bd. corr. ltrs. dtd. 

12 December 2017, 22 January 2018). Precision also requests a no-cost cancellation in 

lieu of the termination for default at issue here and marshals equitable considerations in 

support of its position (id.). 

2 
We conclude that we lack jurisdiction over this appeal. It is familiar that, under the 

Contract Disputes Act (Act), a contracting officer's final decision "is not subject to review 

by any ... tribunal...unless an appeal...is timely commenced." 41 U.S.C. § 7103(g). In tum, 

the Act defines timely commencement to be bringing an appeal to the Board "within 90 

days from the date of receipt of a contracting officer's decision." 41 U.S.C. § 7104(a). 

Numerous decisions give effect to this time limitation, treating it as jurisdictional. E.g., 

Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982) 

(holding that the 90-day deadline "is thus part of a statute waiving sovereign immunity, 

which must be strictly construed" and "which defines the jurisdiction" of the Board); 

Decker & Co. v. West, 76 F.3d 1573, 1578 (Fed. Cir. 1996) (citing Cosmic where appeal 

was filed almost two years after the notice of termination for default and holding that the 

"90-day appeal deadline is jurisdictional and cannot be waived"); Bushra Co., ASBCA 

No. 59918, 16-1 BCA, 36,355 at 177,238 (holding that timeliness of appeal "is a matter 

of the Board's jurisdiction" and "must be brought before the Board within 90 days of that 

decision being received by the contractor"); Mansoor International Development Services, 

ASBCA No. 58423, 14-1 BCA, 35,742 at 174,925 (reciting that Board "may only 

exercise jurisdiction over an appeal filed 'within 90 days from the date of receipt of a 

contracting officer's decision"' under 41 U.S.C. § 7104(a)). 

The evidence shows that the contracting officer sent Precision the termination 

notice by email on 12 May 2017, and the evidence also shows that Ms. Pitarra opened the 

email the same day (statement 7). Taking 12 May 2017 as the receipt date, Precision 

would have been required to file a timely appeal 90 days later, or by 10 August 2017. 

Appellant did not file this appeal until 21 November 2017, well outside the 90-day 

statutory period set forth in the Act for appeals to the Board. 

We also conclude that the contracting officer did not reconsider the decision. It is 

familiar that the finality of a contracting officer's decision may be vitiated by subsequent 

action that lead the contractor reasonably to conclude that the decision was being 

reconsidered. E.g., Sach Sinha and Associates, Inc., ASBCA No. 46916, 95-1 BCA 

, 27,499 at 137,041-42 (holding finality of default termination was vitiated where, after 

issuing decision, contracting officer met with contractor, discussed termination, and 

requested written settlement alternatives). The test is "whether the contractor has 

presented evidence showing it reasonably or objectively could have concluded that the 

[contracting officer's] decision was being reconsidered." Id. at 137,042. As we have 

found, there is no evidence of communication, much less discussion of reconsideration, 

after Precision submitted its 15 May 2017 request ( statement 8). That leaves only the 

request itself, but a request is not tantamount to reconsideration tolling the 90-day 

deadline. E.g., Propulsion Controls Engineering, ASBCA No. 53307, 01-2 BCA 

, 31,494 at 155,508 (holding it "unreasonable to conclude that a contracting officer is 

reconsidering a final decision simply as a result of a request to do so"). 

3 
In opposing the motion, Precision stresses equitable considerations relating chiefly to 

family difficulties and other considerations to justify setting aside the default. But the 

Federal Circuit has held that such considerations are irrelevant to compliance with the 

90-day deadline for appealing to the Board. Cosmic, 697 F.2d 1390-91. The government's 

motion is granted and the appeal is dismissed for lack of jurisdiction. Appellant's attention 

is directed to the deadline for filing appeals in the Court of Federal Claims. 

CONCLUSION 

The government's motion is granted and the appeal is dismissed for lack of 

jurisdiction. 

Dated: 16 April 2018 

I concur 

J\J>s_ 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

4 

ALEXANDER YOUNGER 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

J. REifi 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. 61422, Appeal of Precision 

Metals Corp., rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals