ASBCA 61422

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Precision Metals Corp. ) ASBCA No. 61422 ) Under Contract No. SPE7Ll-15-M-2140 ) APPEARANCE FOR THE APPELLANT: Mr. Tony Figlozzi Vice President APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Matthew 0. Geary, Esq. Trial Attorney DLA Land and Maritime Columbus, OH OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE 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 Contract Disputes Act, 41 U.S.C. § 7104(a). Appellant opposes the motion. We grant the government's motion and dismiss the appeal for lack of jurisdiction. STA TEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On 16 July 2015, the government awarded Contract No. SPE7Ll-15-M-2140 to Precision for the purchase of "leg, machine gun bipod, left hand" parts. The total award amount of the 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, FIRST ARTICLE APPROVAL - CONTRACTOR TESTING (SEP 1989), which provided, in paragraph (b ), that the contractor "shall submit the first article test report within 280 calendar days from the date of this 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 1 at 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't mot., 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 indicated that it would deliver the materials by 10 May 2017 (gov't mot., ex. 5 at 2). 6. In a letter to Precision dated 3 April 2017, the contracting officer stated that he would forbear from terminating the contract until IO May 2017, to allow delivery of the first article test report (gov't mot., ex. 6 at 2). The contracting officer warned, however, that if the 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 officer terminated the contract for default following Precision's failure to deliver the first article test report by IO May 2017 (gov't mot., ex. 8 at 3-4). The final decision included an advice of rights (id. at 4). The contracting officer emailed 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 of the final decision (gov't mot., ex. 10 at 1-2). We find no evidence of any subsequent communication between the parties until Precision filed its notice of appeal. 9. Precision filed a notice of appeal with the Board by email dated 21 November 2017, and the Board thereafter docketed the appeal as ASBCA No. 61422. DECISION The government's core argument in its motion to dismiss is that the Board lacks jurisdiction over this appeal because Precision did not file its notice of appeal within the 90-day statutory period from receipt of the 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).