ASBCA Finds that Request to Extend Appeal Deadline Qualified as a Notice of Appeal; Appeal of Left Hand Design Corporation, ASBCA No. 62458

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Government’s motion to dismiss appeal us untimely is denied. The contractor did not file formal notice of appeal within the 90-day deadline prescribed by the CDA. Instead, the contractor submitted a request to extend the deadline. The government argued that the request did not constitute a timely notice of appeal. But the board determined the request was effectively a notice of appeal. The request expressed an intent to appeal, identified the decisions being appealed, expressed dissatisfaction with the decisions, and was submitted by a someone who qualified as the contractor.

Left Hand Design Corporation had contracts with the Air Force and the Navy. Following a DCAA audit, the Defense Contract Management Agency issued final decisions asserting a government claims against Left Hand for unallowable costs. The decisions were emailed to Left Hand on January 17, 2020.

On April 16, 2020, exactly 90 days after the final decision was issued, Left Hand’s administrative assistant emailed the ASBCA requesting an extension of the appeal deadline. The board issued a notice docketing the appeal. The board also issued an order directing Left Hand to show that it was represented by someone who met the criteria under ASBCA Rule 15(a).

Left Hand’s President emailed the board stating that he represented the company. He also indicated that the administrative assistant was acting on his behalf when they requested the extension of the appeal deadline.

The government moved to dismiss the appeal as untimely. Under the CDA, a final decision must be appealed within 90 days of its receipt. The only document that Left Hand submitted within the 90 day window was the request to extend the appeal deadline. But that request, the government contended, did not itself constitute an appeal.

The board noted that for a document to qualify as an appeal under the CDA it must (1) express a present intent to appeal, (2) identify which decision is being appealed, (3) express dissatisfaction with the final decision, and (4) be submitted by a person who qualifies as the contractor.

Applying these criteria, the board found that the request for an extension qualified as an appeal. As an initial matter, the request indicated an intent to appeal. Indeed, the request stated, “[a]n appeal is intended regarding the final decision made by our Contracting Officer.”

The government argued that the request to extend the deadline was not a present intent to appeal because it was unclear from the request whether Left Hand would actually take the appeal. But the board reasoned that notice of intent to appeal is enough. What’s more, the board continued, given Left Hand’s pro se status, the company was afforded some leeway in its filings.

Next, the board found that the request for an extension identified the final decisions that were being appealed. The request included a list of contracts implicated in the appeal. When read together with the language stating “an appeal is intended” and the request’s reference to the appeal deadline, the board reasoned there was no uncertainty as to which decisions Left Hand was appealing.

Additionally, the board found that the request expressed dissatisfaction with the contracting officer’s decision. Again, the request stated that Left Hand intended to appeal a decisions “made by our Contracting Officer.”

Finally, the email was submitted by a person meeting the definition of a contractor. Under ASBCA rules, an administrative assistant does not qualify as a person that can appear before the board on behalf of a company. Nevertheless, the email from Left Hand’s President responding the board’s order served as implied ratification of the administrative assistant’s request and was evidence that the assistant had acted on authority of the President.

Left Hand is represented by its President Lawrence M. Germann. The government is represented by Arthur M. Taylor and Michael T. Patterson of the Defense Contract Management Agency.

ASBCA - Left Hand Design Corporation