ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Mansoor International Development )

Services ) ) Under ContractNo. W91B4N-11-D-7011 )
APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 58423

Terry 

### L. Elling, Esq. Thomas M. Brownell, Esq.

Holland & KnightLLP McLean, VA Raymond M. Saunders, Esq.

Army ChiefTrial Attorney Erica S. Beardsley, Esq. MAJ RaymondAdams, JA

Trial Attorneys
OPINION BYADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION Appellant, Mansoor International Development Services (MIDS), had a contract for trucking services in Afghanistan. In March 2012, the government issued a letter indicating the termination ofthe contract for cause, withoutproviding the complete notification ofrights required by FAR 33.21 l(a)(4)(v). In September 2012, the government issued modifications to the contract, terminating the contract for cause and including an explanation ofappeal rights. MIDS filed a notice ofappeal within 90 days ofthe modifications, but more than 90 days after the March letter. The government moves to dismiss the appeal as time barred. We deny the motion.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THEMOTION
1. On 16 August 2011, the Bagram Regional Contracting Center awarded ContractNo. W91B4N-11-D-7011 to MIDS, effective 12 August 2011 (R4, tab 2). The contract was for trucking services in Afghanistan (R4, tab 2 at 159; compl.**~** 3). It incorporated FAR 52.212-4, CONTRACT TERMS AND CONDITIONS

- COMMERCIAL ITEMS (JUN 2010) (R4, tab 2 at 168).
2. On 31March2012, the contracting officer issued NAT 0234, a "NOTICE OF TERMINATIONFORCAUSE OF CONTRACT W91B4N-11-D-7011; AND TASK

### ORDERW91B4N-11-D-7011-0002; AND TASK ORDERW91B4N-11-D-7011-0002-0003" (R4, tab 245; compl. 

### ilil 4, 21). The document states that: 1. The purpose ofthis letter is to notify your company that [the identified contract and task orders] will be terminated in their entirety in accordance with contract clause 52.212-4(m). The termination is effective immediately upon completion of the final outstanding mission, currently being pe[r]formed underthe contract. (R4, tab 245 at 2774) The document provides grounds for the termination, followed by the following statements: 3. No further missions will be issued to your company under the referenced task orders or contract. Your company is responsible for completing all transportation missions that are currently in progress. Those missions shall be completed within the terms and conditions ofthe contract. Upon completion ofthe final outstanding mission, your company's right to proceed under this contract is terminated. 4. A final invoice shall be provided to the governmentwithin thirty days after completion ofthe final mission. The final invoice shall include all outstanding missions which have not beenpreviously invoiced and shall be suitable for final payment.

6. This termination constitutes the Contracting Officer's final decision. Your company has the right to appeal such decision underthe Disputes clause.

8. This notice constitutes a decision that your company is in default as specified. Your company has the right to appeal under the disputes clause. (R4, tab 245 at 2776-77) MIDS acknowledged receiving the letter on 31 March 2012 (R4, tab 246).

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# IAfterthe contracting officer issued the 31 March letter to MIDS, various correspondence followed between the parties, including emails from 28 July and 1August, where MIDS explainedthat it understood the contract had been terminated in March but indicated it believedthat it had 90 days from final invoice to close out the contract and was trying to do so. Onthe same date, the contract specialistreferred to an "impendingFinal termination for the MIDS contract." (R4, tabs 284-85)
3. On 1 September 2012, the contracting officer executed Modification No. 

### POOOlO ofthe contract. In its "SUMMARYOF CHANGES,"the modification included the following language:
1. Yourright to proceed further under this contract is hereby terminated pursuant to the authority ofFAR 52.2124(m) [sic] effective 31 March 2012. As a result ofthis termination, the Government shall not be liable to [MIDS] for any amount for supplies or services not accepted, and the Government is not liable for any costs incurred by this termination. Your company was notified ofthis termination on 31 March 2012.

3. This is the final decision ofthe Contracting Officer. You may appeal this decision to the agency board ofcontract appeals. Ifyou decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board ofcontract appeals andprovide a copy to the Contracting Officer from whose decision this appeal is taken. The modification also described what should be contained in the notice ofappeal, providednotice ofthe Board's small claims and acceleratedprocedures, and ofMIDS' right to electthe alternative forum providedby the United States Court ofFederal Claims within 12 months ofreceipt. (R4, tab 293) Similarmodifications were issued for Task Orders 0001through0003 (R4, tabs 294-96). 4. On 29 November 2012, the Boardreceived a notice ofappeal from MIDS. The notice stated: This letter gives formal notice that MIDS pursuantto the Contract Disputes Act.

..is appealing the final decision to terminate for default ofthe Contracting Officer

...dated 31 March 2012, and ofthe September 1, 2012 modification and correction ofthat final decision which included required

3clauses absent in the initial letter and extended the time for appeal with an additional 90 days

.... The notice ofappeal, and complaint filed the same day, requested conversion ofthe termination for causeto a termination for convenience.
5. On 17 September 2013, the Board issued an orderto the parties seeking commentary about whetherthis appeal was timely filed within 90 days ofMIDS' receipt ofthe 31 March letter under 41 U.S.C. § 7104(a). The government responded with a motion to dismiss the appeal for lack of jurisdiction. MIDS opposed, contending that the 31 March letter was not apropertermination because it did not contain the explanation of MIDS' appeal rights required by FAR 33.21 l(a)(4)(v).
6. After considering the parties' positions, the Board issued another order on 22 May 2014, seeking briefing about whetherthe contracting officer's 31 March letter constituted a notification ofintention to terminate ratherthan an actual termination. The Board also sought briefing about the effect ofsecond decisions upon the time period for appeal and whether any ofthe communications between the parties constituted reconsideration ofa decision by the contracting officer. That briefing is now complete.
DECISION Underthe Contract Disputes Act (CDA), 41 U.S.C §§ 7101-7109, the Board may only exercisejurisdiction over an appeal filed "within 90 days from the date ofreceipt ofa contracting officer's decision." 41 U.S.C. § 7104(a); 

### see Medina Contracting Co., ASBCA No. 53783, 02-2 BCA

## ii 31,979 at 158,020. The government contends that the contracting officer's 31 March 2012 letterwas a proper contracting officer's decision terminating the contract for cause. Accordingly, it contends MIDS' 29 November 2012 appeal from that decision is untimely and should be dismissed. MIDS counters that the 31 March 2012 letterwas merely a notice ofintent to terminate and therefore not a propertermination for cause. Additionally, it was an incomplete final decision because it did not contain the language notifying MIDS ofits appeal rights required by FAR33.21 l(a)(4)(v) and appellant was prejudicedthereby. MIDS argues that only the 1 September 2012 contract modifications contain the required notices and that its 29 November 2012 notice ofappeal was filed within 90 days ofreceiving them.
There is a significant question as to whetherthe 31 March 2012 letter was intended to immediately terminate the contract for cause or merely notify MIDS ofan intention to do so in the future. Favoring notification offuture intent is the fact that the letter informed MIDS that it would be terminated upon completion ofits final mission and that it "is responsible for completing all transportation missions that are currently in progress." Also, the government subsequently referred to an impending final termination. Favoring immediate termination is the letter's statementthat MIDS is in

4default, that "[t]his termination constitutes the Contracting Officer's final decision" and that MIDS "hasthe right to appeal under the disputes clause." There is also MIDS' admission thatthe contractwas terminated in March 2012. (SOF**~** 2) However, even assuming 

### arguendo thatthe 31 March 2012 letter otherwise constituted a valid final decision, because it lackedthe required language notifyingMIDS ofits appeal rights, and prejudiced MIDS ability toprosecute a timely appeal, the 90-day period for appealing to this Board was suspended until the contracting officer cured itby issuing the 1 September 2012 decision.
Underthe CDA, a "contracting officer's decision shall

...informthe contractor of the contractor's rights as provided inthis chapter." 41 U.S.C. § 7103(e). FAR 33.21l(a)(4)(v) governs the notifications to beplaced in contracting officer final decisions, andrequires language substantially as follows:
This is the final decision ofthe Contracting Officer. You may appeal this decision to the agency board ofcontract appeals. Ifyou decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board ofcontract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contractby number.
With regard to appeals to the agency board ofcontract appeals, you may, solely at your election, proceedunder the board's

- (1) Small claimprocedure for claims of$50,000 or less or, inthe case ofa small business concern (as defined in the Small Business Act and regulations underthatAct), $150,000 orless; or (2) Accelerated procedure for claims of$100,000 or less.
Instead ofappealing to the agency board ofcontract appeals, you may bring an action directly in the United States Court ofFederal Claims (except as provided in the Contract Disputes Act of 1978, 41 U.S.C. 603, regarding Maritime Contracts) within 12 months ofthe date you receive this decision

....

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### The 31 March 2012 letter did not in any manner describe those appeal andjudicial review rights and the time limits for pursuing them. The United States Court ofAppeals for the Federal Circuit addressed the implications ofa defective termination notice inDecker & Co. 

### v. West, 

### 76 F.3d 1573 (Fed. Cir. 1996). There, the contracting officer's decision terminating a contract for default incorrectly informedthe contractorthat it could challenge the termination in the United States Court ofFederal Claims within 12 months when in fact, at that time, the Court ofFederal Claims had nojurisdiction overpure default terminations. This Board ruled that because the notice was defective it did not triggerthe 90-day filing requirement, regardless ofwhether the contractor had relied upon it. The court ofappeals reversed. It 

### stated that nothing in the CDA "prevents the Board

...from requiring contractors seeking to avoid an otherwise proper time bar on the basis ofa defect in the notice ofappeal rights to demonstrate detrimental reliance on that defect." Id. 

### at 1579. Thus, ifthe contractor's actions are unaffected by the defect, "[t]he notice

...continues to be an effective Contracting Officer's decision under [the CDA] with respect to triggering the limitationperiod." Id. 

### at 1579-80. It

### is the contractor's burden to demonstrate that the defective notice "prejudiced its ability to prosecute its timely appeal before the limitation period will be held notto have begun." Id. 

### at 1580. SinceDecker, 

### when confronted with contracting officer decisions that only advise the contractorthat it may appeal underthe Disputes clause, omitting additional details ofits rights, the Boardhas required the contractorto prove it was actually prejudiced bythe omission, orthat the contractor detrimentally relied upon it, to avoid the 90-day limitation period. Am. Renovation & Construction Co., 

### ASBCA No. 54039, 03-2 BCA**~** 

### 32,296 at 159,804; Medina Contracting, 

### 02-2 BCA**~** 

### 31,979 at 158,020-21.
In its filing responding to the Board's 17 September2013 order, and the government's motion to dismiss, MIDS essentially ignoredDecker

### by suggesting that a defect inthe notice required by the FARwas categorically prejudicial. In a surreply, MIDS (by prior counsel) suggested for the first time that it was not familiar with the appeal process, but failed to present any affidavits or declarations supporting that assertion. Mere argumentby MIDS' counsel is not evidence. Stewart & Stevenson Servs., Inc., 

### ASBCA No. 43631, 98-1 BCA**~** 

### 29,653 at 146,926. Only after MIDS retained its current counsel and it filed its response to the Board's 22 May 2014 order did it file an affidavit from its CEO, YousufMansoor. Mr. Mansoor testified that MIDS understood the 31 March 2012 letter to mean no more missions wouldbe awarded, MIDS was to complete existing missions, and it was to complete its billings. He explained that atthe time ofthe terminationMIDS had no personnel experienced in administration of government contracts and stated that "MiDS had neither specific nor general knowledge ofthe time limits imposed upon it for appealing to this Board as ofthe time it received the Notice ofTermination, or for many months thereafter." Instead, MIDS "understood and believed that any time limits flowed from the completion ofthe contract close out process, including the completing ofoutstanding missions and submission offinal



### 6invoices and claims." He closed by reiterating that "[w]e did not understand our appeal rights and obligations and MiDs was prejudiced by the failure ofthe Contracting Officer in Marchto explicitly recite them." (App. hr. dtd. 22 July 2014, Mansoor aff.**~~** 5, 8, 9, 15, 16)
The government contends that Mr. Mansoor's affidavit is too late because MIDS filed it afterthe parties completed briefing the government's motion to dismiss the appeal and while responding tothe Board's 22 May 2014 order about the nature ofthe 31 March 2012 letter. We reject that suggestion. No inflexible rules bar us from receiving Mr. Mansoor's affidavit after a certain date. Indeed, we commenced this inquiry ourselves with the intent to find the truth. Itis clearthat MIDS' new counsel thoughtto obtain the affidavit from Mr. Mansoorto address MIDS' knowledge ofits appeal rights. Itis relevant and we accept it.
The government also contends that MIDS was notprejudiced by the absence of information in the 31 March 2012 decision about the extent ofits appeal rights because the decision notedMIDS could appeal it. The government says that reference should have prompted MIDS to seek clarification about the rest ofits rights. However, Decker does notpermitthe contracting officerto shift to the contractorresponsibility to determine all ofits appeal rights so long as the final decision mentions that the contractor can appeal. Ifthatwas the case, then FAR 33.21 l(a)(4)(v)'s requirement for extensive explanation aboutthe time and place for appeal or suitwouldbe reduced to "youmay appeal this decision." Here, MIDS did not understand its appeal rights, orknow ofthe time limits for appealing to the Board, when it received the 31March2012 letter. Instead, it believed that time limits flowed from the completion ofthe contract close out process, which it was still attempting to pursue as late as August 2012. The government says these facts are inadequate to conclude MIDS was prejudiced by the government's omissions in the 31 March letterbecause MIDS has not said itwouldhave filed an appeal within 90 days had it been given a full explanation ofits rights. However, MIDS shouldhave been given that information to allow it to make a timely, informed choice about an appeal. Where it lacked the knowledge itself, the government's failure to provide it prejudicedMIDS. MIDS' interest in appealing is revealed by the fact that itdidjustthat within 90 days of receiving the 1 Septembertermination notice containing its full appeal rights. 1

1 Giventhis ruling, we do not address the other issues raised in our 22 May 2014 order.

7CONCLUSION
The government's motionto dismiss is denied.
Dated: 4 September 2014

I concur

# ~~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

# ~t.£2.L/ MARKA. MELNICK Administrative Judge Armed Services Board ofContractAppeals
I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 58423, Appeal ofMansoor International Development Services, rendered in conformance with the Board's Charter.
Dated:

8 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals 

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