               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.




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      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. The same
                modification, which MAP elected to rely upon, alternately
                states MAP could file an action before the COFC [U.S.
                Court of Federal Claims], approximately between 2 April
                2013 and 2 April 2014.

                22. On 14 January 2014 while developing another COFC
                complaint challenging a DLA termination for
                default...MAP unexpectedly determined COFC Rule
                83.l(a)(3) prohibited MAP from proceedingpro se before
                the COFC; prose litigation was the only option MAP
                could practically afford. Thus MAP had allowed the
                90-day period for appeal before the ASBCA to expire
                while actively researching and engaging in appeal
                litigation intended for the COFC.

(Compl. at 4)

                                       DECISION

        DLA moves to dismiss, arguing that as the COFD was issued on 2 April 2013 and
MAP did not file its appeal with the Board until 15 August 2016, the appeal is well
beyond the 90-day appeal period and must be dismissed for lack of jurisdiction as
untimely (gov't mot. at 1). MAP replied that the motion should be denied because the
CO provided defective appeal rights, specifically that the CO did not advise appellant that
it could not file a pro se action at the Court of Federal Claims and that it relied on said
defective appeal rights to its detriment (app. reply at 1; comp I. at 4 ). The government
replies that detrimental reliance is not relevant because MAP was properly advised of its
appeal rights. The government contends that appellant is asking the Board to impose an
additional requirement, that the CO advise appellant of the procedural rules of the Court
of Federal Claims, something neither the CDA nor FAR 33.211 requires. (Gov't reply
at 1-2) We agree.

       The Contract Disputes Act of 1978 requires a contractor wishing to appeal a
COFD to the Board to do so within 90 days from the date of receipt of the final decision.
41 U.S.C. § 7104(a). It is well-settled that the Board lacks jurisdiction over any appeal
filed outside of this 90-day period, which is statutory and cannot be waived by the Board.
TTF, LLC, ASBCA No. 59511 et al., 15-1 BCA ~ 35,883 at 175,434 (citing Frasson
Lodovico S.r.l., ASBCA No. 58645, 14-1BCA~35,525 at 174,114; AST Anlagen-und

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SanierungstechnikGmbH, ASBCA No. 51854, 04-2 BCA ~ 32,712 at 161,836;
Mid-Eastern Industries, Inc., ASBCA No. 51287, 98-2 BCA ~ 29,907 at 148,065; Cosmic
Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982)).

       Here, appellant admits that it filed its appeal well beyond the 90-day filing
period (SOF ~ 6). The appeal language provided by the CO in the termination
modification was neither incomplete nor misleading (SOF ~ 5). Accordingly, its
argument regarding detrimental reliance is not persuasive. Thus, the appeal is
untimely and we lack jurisdiction over it. TTF, LLC, 15-1BCA~35,883 at 175,434.

                                   CONCLUSION

       The appeal is dismissed with prejudice.

       Dated: 12 October 2016



                                                 OWEN C. WILSON
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals


 4lt5;. . ·
 I concur



 RICHARD SHACKLEFORD
 Administrative Judge
 Vice Chairman
 Armed Services Board
 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. 60739, Appeal of Military
Aircraft Parts, rendered in conformance with the Board's Charter.

      Dated:


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


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