                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                    )
                                               )
Langdon Engineering & Mgt.                     )      ASBCA No. 61959
                                               )
Under Contract No. N00244- l 5-P-0294          )

APPEARANCE FOR THE APPELLANT:                         Mr. Albert L. Swank Jr.
                                                       Owner/Principal

APPEARANCES FOR THE GOVERNMENT:                       Craig D. Jensen, Esq.
                                                       Navy Chief Trial Attorney
                                                      Russell A. Shultis, Esq.
                                                       Trial Attorney

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

        The Navy moves to dismiss this appeal for lack of jurisdiction. The Navy relies
on a September 27, 2018 email transmitting the final decision as the start of the 90-day
appeal period. Langdon Engineering & Mgt. (Langdon) opposes, contending that a
second certified mail transmitting the final decision, received on November 5, 2018,
started the 90-day appeal period and since his appeal was at 88 days, it was timely.
We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C.
§§ 7101-7109. Accordingly, we deny the Navy's motion.

       STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTION

        1. On May 22, 2015, the Navy awarded Langdon Contract No. N00244-15-P-0294
in the amount of $77,295.28, to refurbish bow thruster nozzles for Navy landing craft (R4,
tab 1 at 1, 3). 1

      2. Throughout the contract performance period Langdon and the Navy routinely
communicated via email (R4, tabs 4, 6-7) and mail (R4, tabs 5, 8). According to
Contracting Officer (CO) Brian O'Donnell, email was the "primary means of
communication" (R4, tab 16 at 1).

       3. CO O'Donnell terminated Contract No. N00244-15-P-0294 for cause on
September 27, 2018 (R4, tab 9). In the Notice of Termination letter, CO O'Donnell
notified Langdon of its appeal rights, including the 90-day appeal period from the date

1
    In this decision the Board cites to PDF page numbers.
Langdon received the decision (id.). Contract Modification No. P00003 terminating
the contract was also signed by CO O'Donnell on September 27, 2018 (R4, tab 10).
CO O'Donnell emailed the Notice of Termination letter and Modification No. P00003
to Langdon on September 27, 2018 (R4, tabs 11-12). CO O'Donnell also sent the
Notice of Termination letter and Modification No. P00003 to Langdon by certified
mail (R4, tab 12 at 1).

        4. On October 29, 2018, Langdon's owner, Mr. Albert Swank, emailed
CO O'Donnell confirming that on October 13, 2018, the U.S. Postal Service left a
notice of certified mail in Langdon' s mailbox. Mr. Swank stated that he was unable to
retrieve the certified mailed documents from the post office because he was traveling
at the time:

              I have been traveling on other business matters and not in
              the State of Alaska. No other party is allowed to legally
              sign for any legal or certified documents in my absence's
              [sic]. A certified notice (paper slip) was received/placed in
              our business mail box on 10-13-18 by the US Postal Service
              with a mail back to the sending address of 10-20-18. The
              document has been returned to your address as I have
              checked with the Post Office. You will need to resend/mail
              the documents again so that I can receive and legally sign
              for receipt appropriately as required.

(R4, tab 13 at 2)

        5. CO O'Donnell responded to Langdon's October 29, 2018 email on October 30,
2018:

              Mr. Swank, good afternoon. As a courtesy, we will resend
              a copy of the attached modification P00003 dated 9/27
              2018 and Notice of Termination dated 9/27 2018 through
              certified mail as requested. I have also attached copies of
              both documents to this email. Both documents were sent
              via email on 9/27/2018 as well. Based on your below
              10/29/2018 reply email, these documents have already
              been successfully received.

(R4, tab 13 at 1)

       6. Langdon received the second certified mail delivery of the September 27,
2018, Notice of Termination and Modification No. P00003 on November 5, 2018 (R4,
tab 14).

                                           2
       7. By email dated December 7, 2018, Langdon informed CO O'Donnell that
the legal receipt date of the Notice of Termination and Modification No. P00003 was
November 5, 2018, when it received the second certified mailing (app. opp'n,
ex. AE 0002). Mr. Swank then wrote:

                 As required by law and the Contract Disputes Act and my
                 legal right to dispute your actions I will be filing an appeal
                 to your "Termination for cause/commercial" notification as
                 received on 11/05/2018 and will follow as necessary by
                 federal court proceedings if necessary and other actions as
                 allowed with the Naval system. 2

(Id.)

        8. By email to the Armed Services Board of Contract Appeals (ASBCA) dated
February 1, 2019, Langdon appealed CO O'Donnell's Termination for Cause (R4, tab 15
at 1). Mr. Swank stated, "This letter/document (Letter 1, Ammend 1 [sic], Cert 1) was
not received/read by myself until 11/5/2018 this being my signature date for the US
postal mailed certified document received" (id.). This email was set 88 days after receipt
of the second certified mail delivery.

         9. The ASBCA docketed Langdon's appeal as ASBCA No. 61959 on February 5,
2019.

                                         DECISION

Relevant Legal Precedents

       It is well settled that a contractor must file a notice of appeal within 90 days of
receipt of a final decision in order to vest the Board with jurisdiction under the CDA.
AST Anlagen-und Sanierungstechnik GmbH, ASBCA No. 51854, 04-2 BCA ,r 32,712
at 161,836. Notice of an appeal may be by email ifit meets four criteria: (1) the email
is within 90 days of receipt of the termination notice; (2) his provided in writing; (3)
expressed dissatisfaction with the termination; and (4) the email appealed to a higher
authority. Aerospace Facilities Group, Inc., ASBCA No. 61026, 18-1 BCA ,r 37,105
at 180,604. The government's sending multiple copies of the contracting officer's final

2
    Exhibit AE 0001 to Langdon' s opposition is a draft version of the December 7, 2018
         email that was not sent to the Navy (app. opp'n at 1). In this draft Langdon
         stated, "I have not currently filed a claim" and the Government contract claims
         are subject to the Contract Disputes Act, which requires the claim to be
         presented first to the Contracting Officer" (app. opp 'n, ex. AE 0001 at 1). This
         language was not included in the email that was sent (app. opp'n, ex. AE 0002).
                                              3
decision without stating which copy begins the 90-day appeal period creates confusion
as to the date to appeal; this, the decision, the contractor is entitled to compute the date
for appeal from receipt of the last copy. TTF, LLC, ASBCA No. 59511 et al., 15-1
BCA 135,883 at 175,434. An exception exists when appellant specifically asks that the
government send correspondence in a particular way such as email. Quimba Software,
Inc., ASBCA No. 57636, 12-1BCA134,910 at 171,651.

Contentions of the Parties

       The Navy contends that the 90-day appeal period began on September 27, 2018,
when Langdon received the Notice of Termination and Modification No. P00003 by
email (gov't mot. at 4; SOF ,r 3). According to the Navy, the February 1, 2019 appeal
was 127 days from Langdon's receipt of the Notice of Termination/final decision and
modification terminating the contract on September 27, 2018, and, therefore, the
notice of appeal is late depriving the ASBCA of jurisdiction (id. at 4 ).

        Langdon asserts several theories supporting our jurisdiction. First, ninety days
from September 27, 2018, is December 26, 2018. Langdon contends that its December 7,
2018 email to CO O'Donnell constituted a notice of appeal within the 90-day appeal
period. (App. opp'n at 2; SOF 17) Second, the September 27, 2018 date should not be
the start date for the 90-days because Langdon's owner, Mr. Swank, "neither opened [n]
or read this email or a re-mailed US postal certified copy until much later" (app. opp'n
at 2, 6-10). Langdon contends, "The pt certified mailing of the documents, Notice of
Contract Termination for cause/commercial, final decision and contract termination
modification prepared by the CO was not received by Langdon" (app. opp'n at 10).
Langdon argues, "Both the 2nd US certified mailed documents and the email sent
September 27, 2018 by the CO were first contractual legally received, opened and read
by Langdon the same day November 5, 2018" (id. at 10). Langdon contends his
February 1, 2019 appeal was 87 days from the start of the 90-day appeal period on
November 5, 2018 (id. at 11). Langdon points out that it has only one employee and
owner, Mr. Swank (id. at 12).

Discussion

        The first notice to Langdon of the termination was by email on September 27,
2018 (SOF 13). Although the Navy included a declaration by CO O'Donnell in the
Rule 4 stating that email was the "primary means of communication" with Langdon, he
does not state and there is no evidence in the record that Langdon specifically requested
that all communication be by email (SOF ,r 2). Our case precedent that affords a
preference to email is based on such a request from an appellant to use a particular
method, a fact that is not present in this case. Quimba, 12-1 BCA 1 34,910 at 171,651.



                                            4
        The Navy is correct that Langdon cannot avoid the running of the 90-day appeal
period on September 27, 2018, by not reading the email containing the Notice of
Termination and Modification No. P00003 received on that date (gov't reply br. at 1).
The Navy is correct that the February 1, 2019 appeal was 127 days from Langdon's
receipt by email of the Notice of Termination/final decision and Modification
No. P00003 terminating the contract on September 27, 2018. The certified mail
containing the Notice of Termination and Modification No. P00003 was received at
Langdon's post office on October 13, 2018, was not opened by Langdon, and returned
to the Navy on October 20, 2018. (SOF 14) Langdon's appeal was filed 111 days
from receipt of the certified mail package by Langdon's post office which is also late.
By either measure, the email or certified mail, Langdon' s appeal is late. That would
deprive the Board of jurisdiction if there were not more for us to consider.

        Langdon contends its December 7, 2018 email to CO O'Donnell (SOF ,i 7) was a
timely notice of appeal (app. opp 'n at 1). Ninety days from September 27, 2018, is
December 26, 2018, so the email could be a timely appeal. We apply the four criteria
stated above to this email. The first three are clearly met: it is timely, it is in writing,
and by expressing his right to dispute the termination it articulates dissatisfaction with
the September 27, 2018 action. However, we interpret the fourth criteria as expressing a
present intent to appeal. Afghan Active Group (AAG), ASBCA No. 60387, 16-1 BCA
,i 36,349 at 177,212. By stating, "I will be filing an appeal," (SOF ,i 7) Langdon is
expressing an intent to appeal in the future. Therefore, Langdon fails to meet the fourth
criteria necessary for the Board to hold that the December 7, 2018 email was a timely
appeal. The Navy is correct again.

        The Navy, however, is not correct in its analysis of the second certified mail
submission of the Notice of Termination and Modification No. P00003 on November 5,
2018 (SOF ,i 6). The Navy confuses the record by misinterpreting Langdon's October 29,
2018 email. The Navy argues that Langdon asked that the documents be sent certified
mail, "When Langdon requested that the contracting officer resend his final decision by
certified mail in an email dated 29 October 2018 .... " (Gov't reply br. at 2) (Emphasis
added) Langdon's email however reads, "You will need to resend/mail the documents
again so that I can receive and legally sign for receipt appropriately as required" (SOF
14). We decline to infer from this language that the use of certified mail was at
Mr. Swank's request. This language does not unambiguously support the Navy's
argument that Langdon requested that the November 5, 2018 mail be sent certified mail.
It was CO O'Donnell's reply that refers unambiguously to certified mail: "As a courtesy,
we will resend a copy of the attached modification P00003 dated 9/27 2018 and Notice of
Termination dated 9/27 2018 through certified mail as requested." 3 (SOF 5) (Emphasis
added)

3
    It is understandable that the language "as requested" might cause confusion, but after
         comparing Mr. Swank's October 29, 2018 email (SOF 14) with CO O'Donnell's
                                              5
        The central concept of our case law in this area is confusion. TTF, 15-1 BCA
 135,883 at 175,434. When the government sends multiple copies of a final decision
 without making the appeal start date clear there is confusion on the part of the
 contractor and the last delivery date of the final decision starts the 90-day appeal period.
Id. We conclude that there is ample evidence of confusion on the part of Langdon.
 CO O'Donnell knew Mr. Swank apparently did not understand that the September 27,
2018 email and October 13, 2018 certified mail was effective delivery to Langdon even if
Mr. Swank was out of town and did not see the certified mailing. (SOF 114-5) On
October 30, 2018, when CO O'Donnell emailed Mr. Swank agreeing to send a "courtesy''
copy of the final decision (SOF 5) there was still time to timely file an appeal because
only 33 days had elapsed since September 27, 2018. CO O'Donnell could have easily
added language to his email informing Mr. Swank that the courtesy copy would not
change the September 2 7, 2018, 90-day start date. Nowhere in the record is there any
evidence that CO O'Donnell told Mr. Swank that the second certified mailing did not
change the fact that the 90-day appeal period started on September 27, 2018. It would
have been so easy for CO O'Donnell to avoid this confusion and our decision finding
jurisdiction had he done so. CO O'Donnell resent the final decision and Modification
No. P00003 by certified mail. (SOF 1 6) Using certified mail for the second submission
of the final decision creates confusion over the start of the 90-day appeal period.
Therefore, the 90-day appeal period started on November 5, 2018, when the second
certified mailing was delivered to Langdon. Langdon's February 1, 2019 appeal email to
the Board was 88 days from the start of the 90-day period and is timely.

                                    CONCLUSION

       For the reasons stated above, we deny the Navy's motion.

       Dated: August 22, 2019



                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals

(Signatures continued)




      October 30, 2018 email (SOF 15) we conclude that the decision to use certified
      mail was CO O'Donnell's.
                                            6
 I concur                                       I concur

     / -·· ~\;---tr---
 ~~                                             OWEN C. WILSON
RICHARD SHACKLEFORD
Administrative Judge                            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. 61959, Appeal of Langdon
Engineering & Mgt., rendered in conformance with the Board's Charter.

      Dated:



                                                PAULLA K. GATES-LEWIS
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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