CBCA 6095

DISMISSED FOR LACK OF JURISDICTION: August 23, 2018 CBCA 6095 RAKS FIRE SPRINKLER, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Rashad N. Ali, President of RAKS Fire Sprinkler, LLC, Hattiesburg, MS, appearing for Appellant. Catherine Crow, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges SOMERS, HYATT, and GOODMAN. SOMERS, Board Judge (Chair). RAKS Fire Sprinkler, LLC (RAKS) appealed the General Services Administration’s (GSA) decision to terminate its contract for default. GSA filed a motion to dismiss the appeal for lack of jurisdiction. We grant the motion and dismiss the appeal because it was not timely filed. Background By letter dated November 28, 2017, the contracting officer informed RAKS, by email to W.R. Hayes, RAK’s authorized representative, that GSA had terminated its contract for CBCA 6095 2 default. The notice advised the contractor that it “constitutes the final decision of the contracting officer . . . and that you have the right to appeal under the Disputes clause.” On January 10, 2018, the contracting officer sent RAKS a second email, stating, in part: I neglected to include the following information from the letter by which I terminated the contract for default. You may appeal this decision to the agency board of contract appeals. If you 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 of contract 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 contract by number. With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the board’s small claim procedure for claims of $50,000 or less or its accelerated procedure for claims of $100,000 or less. The contracting officer appended the initial November 28, 2017, termination notice and the modification terminating the contract to this email. The contracting officer sent the January 10, 2018, notice to Mr. Hayes and to another RAK representative, Romero Ali. RAKS filed its appeal to the Board on April 12, 2018. In its initial filing, RAKS claims that “[w]e were afforded an extension to respond by April 13, 2018.”1 In its complaint, filed in conjunction with the notice of appeal, RAKS contends that the agency’s decision is wrongful because RAKS never received a complete copy of the contract, nor did it receive a notice to proceed from the contractor. GSA moves to dismiss the claim for lack of jurisdiction because RAKS filed its appeal with the board late, either 135 days from the notice of termination or 92 days from the contracting officer’s final decision. GSA notes that the contracting officer initially issued a notice of termination for default on November 28, 2017. GSA acknowledges that the contracting officer’s notice did not include the appeal rights language required by the Federal Acquisition Regulation (FAR). GSA asserts that the failure to include the appeal rights is not fatal to its argument. Alternatively, even if the time to appeal did not begin to run until 1 As we noted in our July 2, 2018, order, RAKS provided no details about this alleged extension, nor did it address this issue in its surreply. CBCA 6095 3 the second notice to the contractor that it had been terminated for default, RAKS failed to meet the ninety-day deadline. In response to the motion to dismiss, RAK submitted a document (addressed to GSA’s counsel) rebutting the arguments set forth by the GSA. In the document, RAKS contends that (1) the ninety-day filing process is ambiguous because it is unclear whether ninety-days refers to calendar days or business days; (2) the termination for default is invalid in the absence of having received a notice to proceed; (3) the termination for default should be converted to a termination for convenience; and (4) GSA’s procedural policies in the Detroit office as relates to service-disabled veteran-owned businesses (SDVOB) should be examined.