ASBCA 60739

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Military Aircraft Parts ) ASBCA No. 60739 ) Under Contract No. SPM4A7-11-M-T117 ) APPEARANCE FOR THE APPELLANT: Mr. Robert E. Marin President APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Edward R. Murray, Esq. Trial Attorney DLA Aviation Richmond, VA OPINION BY ADMINISTRATIVE JUDGE WILSON ON THE GOVERNMENT'S MOTION TO DISMISS The Defense Logistics Agency (DLA or government) moves to dismiss the appeal for lack of jurisdiction alleging that Military Aircraft Parts (MAP or appellant) did not file its notice of appeal with the Board within the 90-day appeal period from the date of receipt of the contracting officer's final decision (COFD). MAP counters that appeal language in the COFD was defective, and thus the 90-day time limit was tolled. We grant the motion and dismiss the appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 9 August 2011, DLA awarded Contract No. SPM4A7-11-M-Tl 17 to MAP for aircraft parts for a total price of $8,950.00 (comp I. if 6; gov't mot., ex. 1). The contract included FAR 59.209-4, FIRST ARTICLE APPROVAL -GOVERNMENT TESTING (SEP 1989), which provided in pertinent part: (a) The Contractor shall deliver 1 unit (s) of Lot/Item ... within 180 calendar days from the date of this contract to the Government .... (b) Within 120 calendar days after the Government receives the first article, the Contracting Officer shall notify the Contractor, in writing, of the conditional approval, approval, or disapproval of the first article. (Gov't mot., ex. 1 at 15)  2. By letter dated 2 October 2012, the contracting officer (CO) notified appellant that its first article submission was disapproved. Appellant was given the opportunity to resubmit another first article sample for testing. The CO further advised that "[t]he failure to resubmit may result in the termination of this contract for default." (Compl., ex. D) 3. There is nothing in the record which indicates that MAP provided a schedule for resubmittal or delivered the required item as requested. 4. By letter dated 21February2013, the CO issued a ten-day cure notice requiring appellant, inter alia, to propose a new delivery date, identify which work still needed to be accomplished, and "[p ]ropose appropriate consideration for your delinquency" (comp I., ex. H). Appellant responded via email dated 22 March 2013 stating "We would prefer to cancel this contract if possible, but if a [sic] urgent requirement still exists we can provide a new first article sample within 60 days of notification" (comp I., ex. I). 5. On 2 April 2013 the CO issued Modification No. POOOOl, partially terminating the contract for default. The modification included the following language: THIS IS THE FINAL DECISION OF THE CONTRACTING OFFICER. YOU MAY APPEAL THIS DECISION TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS. IF YOU DECIDE TO MAKE SUCH AN APPEAL, YOU MUST MAIL OR OTHERWISE FURNISH WRITTEN NOTICE THEREOF TO THE BOARD WITHIN NINETY DAYS FROM THE DATE YOU RECEIVE THIS DECISION . ... IN LIEU OF APPEALING TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS YOU MAY BRING AN ACTION DIRECTLY IN THE U.S. COURT OF FEDERAL CLAIMS WITHIN TWELVE MONTHS OF THE DATE YOU RECEIVE THIS DECISION. (Compl., ex. J) We find that this language complies with FAR 33.211 which requires essentially the language used by the CO. 2  6. On 15 August 2016, MAP filed an appeal with the Board, more than 3 years beyond the 90-day appeal period (which appellant concedes was I July 2013) and was docketed as ASBCA No. 60739. In its complaint, MAP alleges the following: 21. As defined in the termination modification, the 90-day period for timely submission of appeal before the ASBCA was approximately 2 April 2013 to 1 July 2013.