ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Precision Metals Corp. ) ) Under ContractNo. SPE7Ll-15-M-2140 ) APPEARANCE FORTHE APPELLANT:
APPEARANCES FORTHE GOVERNMENT: ASBCANo. 61422

Mr. Tony Figlozzi

Vice President Daniel K. Poling, Esq.

DLA ChiefTrial Attorney Matthew 

### 0. Geary, Esq.

Trial Attorney DLA Land and Maritime Columbus, OH OPINION BYADMINISTRATIVE JUDGE YOUNGER

ONTHE 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 ContractDisputes Act, 41 U.S.C. 

### §7104(a). Appellant opposes the motion. We grantthe government's motion and dismiss the appeal for lack of jurisdiction.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On 16 July 2015, the government awarded Contract No. SPE7Ll-15-M-2140to Precision for the purchase of"leg, machine gun bipod, left hand" parts. Thetotal award amount ofthe 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, FIRSTARTICLE APPROVAL

- CONTRACTOR TESTING (SEP 1989), which provided, in paragraph (b), thatthe contractor "shall submit the first article test report within 280 calendardays from the date ofthis 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 1at 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'tmot., 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 indicatedthat it would deliverthe materials by 10 May 2017 (gov't mot., ex. 5 at 2). 6. In a letterto Precision dated 3 April 2017, the contracting officer stated that he would forbear from terminating the contract until IO May 2017, to allow delivery ofthe first article test report (gov'tmot., ex. 6 at 2). The contracting officerwarned, however, that ifthe 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 officerterminated the contract for default following Precision's failure to deliverthe first article test report by IO May 2017 (gov'tmot., ex. 8 at 3-4). The final decision included an advice ofrights (id. at 4). The contracting officeremailed 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 ofthe final decision (gov't mot., ex. 10 at 1-2). We find no evidence ofany subsequent communication between the parties until Precision filed its notice ofappeal. 9. Precision filed a notice ofappeal withthe Boardby email dated 21 November 2017, and the Boardthereafter docketed the appeal as ASBCA No. 61422. DECISION The government's core argument in its motion to dismiss is that the Board lacks jurisdiction overthis appeal because Precision did not file its notice ofappeal within the 90-day statutory period from receipt ofthe 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 ofthe termination for default at issue here and marshals equitable considerations in support ofits position (id.).

2We conclude that we lackjurisdiction overthis appeal. Itis familiar that, under the Contract Disputes Act (Act), a contracting officer's final decision "is not subjectto review by any...tribunal...unless an appeal...is timely commenced." 41 U.S.C. 

### § 7103(g). In tum, the Act defines timely commencementto be bringing an appeal to the Board "within 90 days from the date ofreceipt ofa contracting officer's decision." 41 U.S.C. § 7104(a). Numerous decisions give effect to this time limitation, treating it asjurisdictional. E.g., Cosmic Construction Co. v. UnitedStates, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982) (holding that the 90-day deadline "is thus part ofa statute waiving sovereign immunity, which must be strictly construed" and "which defines thejurisdiction" ofthe Board); Decker & Co. v. West, 76 F.3d 1573, 1578 (Fed. Cir. 1996) (citing Cosmic where appeal was filed almost two years afterthe notice oftermination for default and holdingthat the "90-day appeal deadline isjurisdictional and cannotbe waived"); Bushra Co., ASBCA No. 59918, 16-1 BCA,36,355 at 177,238 (holding that timeliness ofappeal "is a matter ofthe Board'sjurisdiction" and "mustbe broughtbefore the Board within 90 days ofthat decision being received by the contractor"); MansoorInternationalDevelopmentServices, ASBCA No. 58423, 14-1 BCA,35,742 at 174,925 (reciting that Board "mayonly exercisejurisdiction over an appeal filed 'within 90 days from the date ofreceipt ofa contracting officer's decision"' under41 U.S.C. § 7104(a)). The evidence shows thatthe 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 atimely appeal 90 days later, orby 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 reconsiderthe decision. Itis familiar that the finality ofa contracting officer's decision may be vitiated by subsequent action that lead the contractorreasonably to concludethat the decision was being reconsidered. E.g., Sach Sinha andAssociates, Inc., ASBCANo. 46916, 95-1 BCA

, 27,499 at 137,041-42 (holding finality ofdefault termination was vitiated where, after issuing decision, contracting officermet with contractor, discussed termination, and requested written settlement alternatives). Thetest is "whetherthe contractorhas presented evidence showing it reasonably or objectively could have concludedthatthe [contracting officer's] decision was being reconsidered." Id. at 137,042. As wehave found, there is no evidence ofcommunication, much less discussion ofreconsideration, 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, ASBCANo. 53307, 01-2 BCA

, 31,494 at 155,508 (holding it "unreasonable to concludethat a contracting officer is reconsidering a final decision simply as a result ofa requestto do so").

3In opposing the motion, Precision stresses equitable considerations relating chiefly to family difficulties and other considerations tojustify 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 ofFederal Claims. CONCLUSION The government's motion is granted andthe 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 ofContract Appeals

4 ALEXANDERYOUNGER AdministrativeJudge Armed Services Board ofContract Appeals
I concur

J. 

### REifi PROUTY Administrative Judge Vice Chairman Armed Services Board ofContractAppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 61422, Appeal ofPrecision Metals Corp., rendered in conformance with the Board's Charter. Dated:

5 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals