ASBCA 58645

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) FRASSON LODOVICO S.r.l. ) ASBCA No. 58645 ) Under Contract No. W912PF-10-C-0028 ) APPEARANCE FOR THE APPELLANT: Mr. Mauro Frasson Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Nancy J. Lewis, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The government moves to dismiss this appeal for lack of jurisdiction asserting that because the appeal was filed more than 90 days after the contracting officer's (CO's) final decision was emailed to a person assisting appellant, it is untimely. Appellant opposed the motion, arguing its appeal was timely filed within 90 days of receipt of the CO's final decision sent to appellant by registered mail. We conclude the appeal was timely filed. The motion is denied. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 27 September 2010, the 409th Contracting Support Brigade, Regional Contracting Office, Vicenza, Italy (government) awarded Contract No. W912PF-10-C-0028 (contract), a design-build construction contract in the amount ofEUR 369.688,20 ($477,818.54), to FRASSON LODOVICO S.r.l. (Frasson or appellant) (R4, tab 1). 2. In unilateral Modification No. P00005, dated 17 February 2012, the government deleted work it alleged Frasson had failed to perform, and reduced the contract amount by EUR 7.800,00. The government also assessed liquidated damages in the amount ofEUR 28.557,80. (R4, tab 20) 3. Appellant, in a 22 March 2012 letter, contested the government's assessment of liquidated damages and requested an equitable adjustment for its installation of two heat recovery units, along with additional work performed on the heating, ventilation, and air conditioning system (R4, tab 22).  4. In a 26 April2012letter, appellant submitted a certified claim for 1 EUR 56.363,44 seeking an equitable adjustment for the purchase and installation of the two heat-recovery units and the repair of the existing heating, ventilation and air conditioning system (R4, tab 24). 5. Frasson filed a petition with the Board on 3 December 2012, seeking an order under Board Rule 1(e) compelling the CO to issue a final decision (R4, tab 27). The Board docketed the request on 4 December 2012 (gov't mot., ex. G-1) and thereafter was advised by the government a final decision would be forthcoming by 25 January 2013. Deeming this date reasonable, on 8 January 2013, the Board issued an Order directing the CO to make a final decision no later than 25 January 2013. The Order also stated that if the CO failed to comply with the Order, such failure would be deemed a decision denying the claim and the contractor could appeal it as such. (Gov't mot., ex. G-2) 6. The CO, Mr. Jeffrey Neill, issued a final decision in a letter dated 22 January 2013, addressed to appellant to the attention of Mr. Frasson (R4, tab 32). It was sent via email on 25 January 2013, to Mr. Rodolfo Prischich (gov't mot., ex. G-3, encl. 8). Mr. Neill stated in a declaration that he believed Mr. Prischich was representing Mr. Frasson, appellant's owner. Mr. Prischich was a former employee of the Regional Contracting Office-Italy (RCO) and was a consultant/advisor to companies doing business with the RCO. He and Mr. Neill had had conversations about the project in question and Mr. Prischich had attended meetings between Mr. Frasson and Mr. Neill, translating for Mr. Frasson. (Gov't mot., ex. G-3) 7. Mr. Neill also had a copy of the final decision sent by certified mail to appellant (gov't mot., ex. G-.3, encl. 8). The decision, addressed to "Frasson Lodovico S.R.L.[,] ATTN: Mr. Frasson," was received by appellant 5 February 2013 (app. resp. at 7, encls. 3, 7). The decision stated, inter alia: "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" (R4, tab 32 at 8). 8. Mr. Neill issued a correction to his final decision in a letter dated 25 February 20 13, stating: The Contracting Officer's Decision letter dated 22 Jan 20 13 contains some errors that might cause some confusion. This letter will clarify the decision.