                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                )
                                             )
ABS Development Corporation                  )      ASBCA Nos. 61042, 61043, 61044
                                             )                 61045, 61046
                                             )
Under Contract No. W912GB-10-C-0047          )

APPEARANCES FOR THE APPELLANT:                      Thomas R. Krider, Esq.
                                                    Howard W. Roth III, Esq.
                                                    Ashley J. Sherwood, Esq.
                                                     Oles Morrison Rinker & Baker, LLP
                                                     Seattle, WA

APPEARANCES FOR THE GOVERNMENT:                     Thomas H. Gourlay, Jr., Esq.
                                                     Engineer Chief Trial Attorney
                                                    Brett R. Howard, Esq.
                                                    Paul 0. Cheverie, Esq.
                                                     Engineer Trial Attorneys
                                                     U.S. Army Engineer District, Europe

         OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
                 GOVERNMENT'S MOTION TO DISMISS

        The government moves to dismiss these consolidated appeals for lack of
jurisdiction because, the government says, the appeals are premature having been filed
prior to a contracting officer's final decision or the expiration of the time for the
contracting officer to render a decision (gov't mot. at 11). With respect to each of the
five, 4 December 2016 certified claims (for sum-certain claims ranging from $129,622 to
$1,654,387) that underlie the appeals, the contracting officer informed appellant on
3 February 2017 that she "intend[ed] to issue a final decision by 5 May 2017" (gov't
mot., tab 3D at 1). Appellant filed these appeals on the same day, 3 February 2017. The
government filed its motion to dismiss, or, in the alternative, to stay proceedings, on
24 February 2017. On 20 April 2017, we stayed proceedings until 5 May 2017. The
contracting officer has still not issued final decisions, and no follow-up communication
from the contracting officer to appellant regarding when final decisions may be expected
is presented in support of the motion.

       We need not decide whether the appeals are premature. For certified claims in
excess of $100,000, the contracting officer must issue a decision within 60 days or else
"notify the contractor of the time within which a decision will be issued." Metag
Jnsaat Ticaret A.S., ASBCA No. 58616, 13 BCA ii 35,454 at 173,862 (citing Contract
Disputes Act, 41 U.S.C. § 7103(t)(2)(B)). However, the contracting officer's decision
must be issued within a reasonable amount of time from receipt of the claim, "taking
into account such factors as the size and complexity of the claim and the adequacy of
information in support of the claim provided by the contractor." Id. (citing 41 U.S.C.
§ 7103(f)(3)). When, at the time we consider a motion to dismiss on the ground that
an appeal is premature, an unreasonable period of time has elapsed without the
issuance of a final contracting officer's decision, no useful purpose would be served by
dismissing an appeal and requiring appellant to refile. See id.

        It is long past 4 December 2016, and past 5 May 2017, without the contracting
officer having issued final decisions on the claims underlying these appeals. Regardless
of whether the appeals were filed prematurely, based upon the contracting officer's
3 February 201 7 representation that she intended to issue final decisions by 5 May 2017,
and in the absence of any follow-up communication from the contracting officer
suggesting, for example, that the size and complexity of the claims, and the adequacy of
information provided in support of the claims, require more time to issue final decisions,
we find that an unreasonable period of time has elapsed, and that no useful purpose
would be served by dismissing these appeals and requiring appellant to refile them.

       The motion to dismiss is denied.

       Dated: 14 June 2017



                                                  T~
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


 I concur                                         I concur




 RICHARD SHACKLEFORD
 Administrative Judge                             Administrative Judge
 Acting Chairman                                  Acting Vice Chairman
 Armed Services Board                             Armed Services Board
 of Contract Appeals                              of Contract Appeals




                                           2
       I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 61042, 61043, 61044,
61045, 61046, Appeals of ABS Development Corporation, rendered in conformance
with the Board's Charter.

      Dated:



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




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