ASBCA 61404

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Godwin Corporation ) ASBCA No. 61410 ) Under Contract No. F A301 O-l 5-C-0024 ) APPEARANCE FOR THE APPELLANT: A. Jeff Ifrah, Esq. Ifrah Law Washington, DC APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Christopher S. Cole, Esq. Col C. Taylor Smith, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The government moves to dismiss this appeal for lack of jurisdiction, asserting that appellant failed to file its appeal within 90 days of receipt of a notice of partial termination of its contract. We grant the government's motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. The Department of the Air Force (government) awarded this contract to Godwin Corporation (appellant) on 24 September 2015, to supply a mental health technician, a clinical child psychologist, and a child psychiatrist to perform services at Keesler Medical Center, Keesler Air Force Base, Mississippi (R4, tab 1). 2. The contract incorporated by reference FAR 52.212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (MAY 2015), which stated in relevant part that "[f]ailure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes" (R4, tab 1 at 22). FAR 52.233-l(t), DISPUTES (MAY 2014), stated that "[t]he Contracting Officer's decision shall be final unless the Contractor appeals or files a suit as provided in 41 U.S.C. chapter 71." 3. By letter dated 19 September 2016, the contracting officer (CO) issued a contracting officer's final decision (COFD) to appellant partially terminating the contract for cause due to appellant's failure to fill the child psychiatrist position. The final decision stated that appellant had the right to appeal under the contract's disputes clause. (Compl. 142; R4, tab 29) Appellant does not deny that it received the decision by 22 September 2016 (app. opp'n at 9). 4. The government issued Modification No. P00003 (the modification) on 22 September 20'16. The modification terminated the contract line item numbers relating to the child psychiatrist position and referenced the COFD. (R4, tab 4) The government sent a copy of the modification to appellant via email on 22 September 2016 (R4, tab 30 at 1). 5. In a series of emails dated between 13 February 2017 and 7 March 2017, counsel for appellant contacted the government in an attempt to obtain relief from the partial termination for default (R4, tab 47). Appellant alleges that during a 9 March 2017 teleconference, the CO represented that he would review any additional evidence submitted by counsel for appellant (compl. 1 4 7). On 20 and 21 March 2017, counsel for appellant submitted additional evidence to the CO (R4, tabs 48-54). 6. On 8 November 2017, the contract assessing official finalized his evaluation of appellant using the Contractor Performance Assessment Reporting System (CPARS).* He gave appellant marginal ratings for quality, schedule, and cost control, and a satisfactory rating for regulatory compliance. (R4, tab 79 at 4-6) 7. On 8 November 2017, the contract reviewing official concurred with the assessing official's evaluation (R4, tab 79 at 6-7). 8. On 16 November 2017, appellant filed a notice of appeal with this Board, appealing ''the decision ofthe contracting officer dated November 8, 2017 ... denying its claim for a conversion to a termination for convenience" (R4, tab 79 at 2). DECISION Although appellant's notice of appeal states that it is appealing the denial of its claim for a conversion to a termination for convenience, this appeal actually concerns the government's decision to partially terminate the contract for cause. In moving to dismiss for lack of jurisdiction, the government argues that appellant's 16 November 2017 appeal was not timely because appellant failed to file it within 90 days of the 19 September 2016 COFD, which partially terminated the contract for cause (gov't mot. at 1).