               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Aetna Government Health Plans                 )       ASBCA No. 60207
                                              )
Under Contract No. H94002-09-C-0008           )

APPEARANCES FOR THE APPELLANT:                        Karen L. Manos, Esq.
                                                      Erin N. Rankin, Esq.
                                                       Gibson, Dunn & Crutcher LLP
                                                       Washington, DC

APPEARANCES FOR THE GOVERNMENT:                       Laurel C. Gillespie, Esq.
                                                       Chief Trial Attorney
                                                       TRICARE Management Agency
                                                      Jam es A. Douglas, Esq.
                                                       Trial Attorney
                                                       Defense Health Agency

       OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
    GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

                                   INTRODUCTION

       The government requests dismissal of the appeal for lack of jurisdiction, or a
stay and remand to the contracting officer for the issuance of a final decision.
Appellant opposes. We deny both requests.

           STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        On 13 July 2015, appellant, Aetna Government Health Plans (Aetna), submitted
to the contracting officer a certified claim in the amount of $17 ,066,351, in response to
the termination for the government's convenience of Contract No. H94002-09-C-0008,
a TRI CARE contract (notice of appeal, ex. 1). The claim followed an impasse in
negotiations over Aetna's termination proposal. The contracting officer received the
claim on 20 July 2015 (id., ex. 2). On 11 September 2015, the contracting officer
notified Aetna that additional documentation was required to evaluate the claim, and
that he anticipated issuing a decision upon the claim "within 90 days of receipt" of the
documentation (id., ex. 3). On 21 September 2015, Aetna filed this appeal, contending
that it was appealing from the "deemed denial" of its claim (notice of appeal at 1). On
22 October 2015, the government moved to dismiss the appeal for lack of jurisdiction,
contending that "consideration of the requested materials was reasonably necessary
and would require 90 days to perform" (gov't mot. at 8). In the alternative, the
government requested that the Board stay the appeal and remand to the contracting
officer for the issuance of a final decision.

       Aetna opposed both requests. The government did not file a reply, but, on
27 November 2015, answered Aetna's complaint, admitting that the Board possessed
jurisdiction to entertain the appeal pursuant to the Contract Disputes Act (CDA)
41 U.S.C. §§ 7101-7109 (gov't answer at 3, ~ 7).

                                        DECISION

        The CDA requires the contracting officer to issue a decision within 60 days of
the receipt of a certified claim over $100,000 (41 U.S.C. § 7103(t)(2)(A)), or notify
the contractor of the time within which the decision will be issued (41 U.S.C.
§ 7103(t)(2)(B)). Northrop Grumman Corp., ASBCA No. 52263, 00-1BCA~30,676
at 151,504 (citing former 41 U.S.C. § 605(c)(2)(A), (B)). The contracting officer's
notice under 41 U.S.C. § 7103(t)(2)(B) when a decision will be issued must "pinpoint"
a particular date. Id. It is not enough to state that a final decision will be issued within
a specified number of days of the occurrence of some future event. Id. Failure to
comply with those requirements is a "deemed denial," authorizing the commencement
of an appeal. Id.

       Here, the contracting officer neither issued a decision within 60 days of
receiving Aetna' s claim, nor did he pinpoint a particular date by which he would issue
a decision. Rather, he identified a time for the issuance of a final decision that was
dependent upon the occurrence of a future event: the provision by Aetna of additional
documentation. In doing so, the contracting officer failed to comply with 41 U.S.C.
§ 7103(t)(2)(B). Consequently, Aetna was authorized to file the appeal on a deemed
denial basis, and the Board possesses jurisdiction to entertain the appeal.

       For these reasons, we deny the motion to dismiss.

       In the alternative, the government requests a stay and remand to the contracting
officer for the issuance of a final decision. Pursuant to 41U.S.C§7103(t)(5), the
Board may stay these proceedings to obtain a decision by the contracting officer.
However, the government has not supported its request with any rationale. In these
circumstances, we deny the request for a stay and remand.




                                             2
                                   CONCLUSION

       The motion to dismiss is denied. The request for a stay and remand to the
contracting officer is denied.

      Dated: 10 February 2016



                                               ~Z;1,&<
                                                Administrative Judge
                                                Armed Services Board
                                                of Contract Appeals

I concur                                        I concur


 /~~$/;                                              ~-
-N~R~
Administrative Judge
                                                ruJJ:i:n    SHACKLEFORD
                                                Administrative Judge
Acting Chairman                                 Vice Chairman
Armed Services Board                            Armed Services Board
of Contract Appeals                             of Contract Appeals


      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60207, Appeal of Aetna
Government Health Plans, rendered in conformance with the Board's Charter.



      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




                                           3
