               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Pros Cleaners                                )      ASBCA No. 59067
                                             )
Under Contract No. W9124E-12-A-0005          )

APPEARANCE FOR THE APPELLANT:                       Mr. Bruce Webber
                                                     President

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    Erica S. Beardsley, Esq.
                                                    CPT Ahsan M. Nasar, JA
                                                     Trial Attorneys

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

       Pros Cleaners (appellant) appeals the contracting officer's final decision
(COFD) terminating appellant's contract for failing to perform laundry services at Fort
Polk, Louisiana.

          STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        1. On 7 March 2012, the Army (government) entered into Blanket Purchase
Agreement (BPA) No. W9124E-12-A-0005-P00001 with Pros Cleaners for rotational
laundry services at Fort Polk, Louisiana. The BPA incorporated by reference the
FAR 52.233-1, DISPUTES (JUL 2002) clause. (R4, tab 1at1, 22) On 2 August 2012,
the government issued BPA Call No. 0001 to Pros Cleaners for $83,400 to provide
rotational laundry services at several locations at Fort Polk (R4, tab 2).

        2. On 8 August 2012, the contracting officer issued a COFD terminating Call
No. 0001 for cause based on Pros Cleaners failure to perform the required laundry
services, citing "paragraph (m), 'Termination for Cause' of FAR clause 52.212-4,
Contract Terms and Conditions - Commercial Items, of the contract" (R4, tab 6). In
fact, such clause was not incorporated into the contract.

       3. Also on 8 August 2012, the contracting officer issued BPA Call
Modification No. 000101, which terminated Call No. 0001 and authorized payment for
4,800 lbs. of laundry services by Pros Cleaners prior to termination (R4, tab 7). On
10 August 2012, Pros Cleaners provided signed acknowledgement of receipt of a
signed copy of the COFD (R4, tab 6).
      4. An appeal from the COFD terminating the call was filed with the Board on
13 December 2013 (R4, tab 8).

                                        DECISION

       The Disputes clause of the contact provides that a COFD shall be final unless
the contractor appeals in according with the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101-7109. Section 7104(a) of the CDA requires the contractor to file an appeal to
an agency board of contract appeals within 90 days from the date of receipt of the
decision of a contracting officer or within 12 months to the U.S. Court of Federal
Claims. 41 U.S.C. § 7104(b)(3). Appellant acknowledged receipt of a signed copy of
the COFD on 10 August 2012, but did not file this appeal until 13 December 2013,
490 days later (R4, tabs 6, 8). The government moves to dismiss the appeal as
untimely (gov't mot. at 2-3). Pros Cleaners responds to the government's motion to
dismiss by citing its inexperience with government contracts and problems it allegedly
had interacting with the contracting officer (app. mot. at 1). Pros Cleaners also
contends that BPA Call Modification No. 000101 ''was premature, not contractual and
[was] a breach" of the contract because there are no provisions in the contract
authorizing terminations of this nature (compl. at 1).

         It is factually undisputed Pros Cleaners filed its appeal well beyond 90 days
after it received the COFD. The 90-day appeal period is statutory and may not be
waived. Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982).
Therefore, the appeal is untimely. 1

                                      CONCLUSION

         The government's motion to dismiss for lack of jurisdiction is granted.

         Dated: 6 August 2014



                                                   CRANE L. LOPES
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals

(Signatures continued)

1
    In light of our decision that the appeal is untimely, we do not consider the argument
          that there was no termination provision contained in the contract.

                                              2
I concur                                         I concur



L~~
Administrative Judge
                                                 RICHARD 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. 59067, Appeal of Pros
Cleaners, rendered in conformance with the Board's Charter.

       Dated:



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




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