ASBCA 61026

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Aerospace Facilities Group, Inc. ) ASBCA No. 61026 ) Under Contract No. W912NW-12-C-0035 ) APPEARANCES FOR THE APPELLANT: Wojciech Z. Kornacki, Esq. Theodore P. Watson, Esq. Watson & Associates, LLC Aurora, CO APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney ChristinaLynn E. McCoy, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The Board, sua sponte, questioned whether the Board has jurisdiction over this appeal. The government subsequently moved to dismiss for lack of jurisdiction, asserting that, because the appeal was filed more than 90 days after the contracting officer's (CO's) contract termination for cause was emailed to and received by appellant, it is untimely. Appellant opposes the motion. We conclude that the government engaged in actions to vitiate the finality of the termination decision and deny the government's motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The Department of the Army, Corpus Christi Army Depot (CCAD) (Army or government), awarded Contract No. W912NW-12-C-0035 (contract) to Aerospace Facilities Group, Inc. (AFG or appellant) on September 27, 2012, for the provision and installation of helicopter paint-booth equipment, booth monitoring systems, and a personnel protection system to the Aircraft Corrosion Control Facility (ACCF) (R4, tab 1). 2. AFG's representative, Dennis R. Robinson, Director of Engineering & Maintenance Services, exchanged emails and letters related to the contract with the government from September 6, 2012 through July 27, 2016, consistently utilizing the same mailing address on Paradise Road in Las Vegas, Nevada (Las Vegas address) (R4, tabs 2-152, 157).  3. The CO issued Modification No. P00008 (Mod. 8) dated August 4, 2016, to terminate the contract for cause (R4, tab 158). Mod. 8 states that acceptance of delinquent goods would be solely for mitigation of damages (R4, tab 158 at 3 of 10). Mod. 8 further states that this was the final decision of the CO and provided the appeal rights required by FAR 33.21 l(a)(4)(v) (id.). Appellant received Mod. 8 on August 4, 2016, via email (compl. ,i 35; R4, tab 157 at 1-2; app. resp. at 3, ,i 14). 4. In an email dated August 4, 2016, and received by the CO on the same day, AFG wrote the CO concerning the termination notice stating, in relevant part: Attached is the letter in response to the Show [C]ause Letter dated 19 July 2016. This letter was sent to you back on 27 July 2016, and I'm not sµre what happen[ ed] to it or why you did not receive it. Please let me know if there are any changes to cancelled contract. (R4, tab 157 at 1-2) 5. The CO mailed a copy of Mod. 8 to appellant via U.S. Postal Service (USPS) certified mail with return receipt to the attention of Mr. Robinson at the Las Vegas address (R4, tab 159 at 3). The return receipt was unsigned; however, the USPS website entry for the certified mail tracking number indicates that the package was "Delivered, Left with Individual" on August 8, 2016 (gov't mot., ex. G-6). Appellant asserts that the mailed copy of Mod. 8 was not received by AFG (app. resp. at3,116). 6. By letter dated August 11, 2016, the CO invited AFG to deliver the items under the contract and to contact the Army to discuss reasonable proposals concerning the termination notice, as follows: The Government is willing to accept delivery of items under the contract to mitigate AFG's liability under the contract and appreciates your willingness to seek a solution to complete this effort and effect delivery under contract W912NW-12-C-0035. However, until such time as delivery is accomplished, the Termination for Cause will stand. You should contact this office no later than 2  24 August 2016 to discuss questions or reasonable proposals concerning the Termination for Cause. (R4, tab 160 at 2) 7. By email dated August 24, 2016, appellant replied to the CO as follows: Aerospace Facilities Group, Inc.