ASBCA Affirms Liberal Construction of Notice of Appeal Requirements, Finds Parties’ Joint Status Report Was Effective Notice of Appeal of Contractor Claim; Appeals of Archer Western Aviation Partners, ASBCA Nos. 62035 et al.

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The contractor filed a formal notice appeal after the 90-day deadline for filing an appeal with the ASBCA. Despite this, the board determined it had jurisdiction over an appeal. If, within the 90-day time for an appeal, a contractor files a document with the board that expresses dissatisfaction with a contracting officer’s decision and indicates an intent to appeal, the board will treat that document as a notice of appeal. Here, the contractor had submitted a joint status report that expressed dissatisfaction with a final decision and indicated an intent to appeal. The report was an effective and timely notice of appeal.

The Army Corps of Engineers awarded a contract for the construction of airline hangars to Archer Western Aviation Partners. Archer submitted a request for an equitable adjustment alleging the Corps had changed the contract by requiring installation of a metal wall panel. The request did not contain a claim certification. The Corps denied the request. Archer filed an appeal with the ASBCA.

About a month after Archer filed the notice of appeal, however, it moved for a stay the appeal so it could submit a certified claim to the Corps for the wall panel. The board granted the stay and ordered the parties to file periodic joint status reports. Archer then submitted a certified claim for the wall panel change. The Corps denied the claim.

Less than 90 days after the Corps denied the wall panel claim, Archer and the Corps filed a joint status report with the board. In the report, Archer expressed dissatisfaction with the Corps’ final decision on the wall panel claim and stated that it intended to appeal. Nevertheless, Archer asked the board to continue the stay so that Archer could cure a certification defect with another claim that had been consolidated with the wall panel claim. The board continued the stay.

After it had cured the defect on the other consolidated claim, Archer filed a formal notice of appeal for the wall claim. The notice of appeal for the wall claim, however, was filed more than 90 days after the contracting officer had issued a final decision on the claim. The board order the parties to submit briefs on whether the board had jurisdiction over the wall panel claim.

For the board to possess jurisdiction over an appeal, a contractor must file a notice of appeal with the board 90 days after the receipt of the contracting officer’s final decision on the claim. Nonetheless, the board liberally reads contractors’ communications in finding effective appeal notices. Any document filed within the requisite time for appeal that expresses dissatisfaction with the contractor’s officer decision and indicates an intent to appeal will constitute a notice of appeal.

Here, Archer did not file a formal notice of appeal under after the 90 day deadline. But Archer filed a joint status report within the 90 day period that expressed dissatisfaction with the final decision and an intent to appeal. That joint status report was an effective notice of appeal.

Archer is represented by Steven D. Meacham of Peel Brimley LLP. The government is represented by Michael P. Goodman and Virginia S. Murray of the Army Corps of Engineers.

ASBCA - Archer Western Aviation Partners