Appeal of a contracting officer’s final decision seeking overpayment of wrongly paid invoices is dismissed for lack of jurisdiction, where the appeal was not filed within the 90-day statutory deadline, and where the absence of some data supporting the government’s claim did not render the COFD legally defective.
B&F Distributors LLC appealed a contracting officer’s final decision more than seven years after it was issued. The agency filed a motion to dismiss the appeal for lack of jurisdiction. B&F opposed the motion, arguing that the COFD was legally defective because it was sent to B&F without a referenced attachment that identified which work orders were disapproved.
Between 2006 and 2007, B&F performed work under a task order issued by the Federal Emergency Management Agency for services related to blocking, leveling and/or anchoring travel trailers in Mississippi. Two years after B&F completed performance under the contract, B&F received a notification of overpayment from FEMA in the amount of $180,554, due to unsubstantiated invoices associated with 157 work orders.
On March 4, 2010, B&F disputed the overpayment in what it referred to as “a claim” to the contracting officer, and FEMA and B&F met to review the claim. Eventually, the CO determined that, of the original 157 work orders in dispute, 132 were correctly approved for payment, and twenty-five were incorrectly approved for payment. The overpayment was reduced from $180,554 to $35,087. The CO issued a final decision asserting that B&F had been overpaid in that amount and informing the company of its appeal rights.
The COFD referenced an “attached spreadsheet” that listed the twenty-five work orders that were disapproved and should not have been paid. However, the spreadsheet was not attached to the COFD. Repeated requests to the agency for a copy of the spreadsheet went unanswered and, in the meantime, the ninety-day appeal period lapsed. During that time, B&F did not file an appeal but did begin making payments on the debt.
In October 2013, when $14,600 had been paid back to FEMA, and B&F had still not received a copy of the spreadsheet, B&F stopped making the payments. The appellant eventually received a spreadsheet reflecting an overpayment in the amount of $33,016 related to invoices 14, 15, and 16—not the $35,087 amount associated with invoices 14 and 15, as referenced in the COFD issued five years earlier. After reviewing the document, B&F calculated that the overpayment should have been further reduced to $7442. Since B&F had repaid $14,600, it asserted that its debt had not only been repaid in full, but that it had now overpaid FEMA by $7158. Despite these observations in 2015, B&F did not request reconsideration from the CO or attempt to appeal the COFD.
On December 19, 2017, B&F received a letter from the Department of the Treasury informing B&F of a $45,699.05 debt to the government. On January 10, 2018—nearly eight years after the COFD was issued—B&F appealed the decision. FEMA moved to dismiss, arguing the appeal was untimely.
In response, B&F argued that the contracting officer’s failure to provide the spreadsheet made the initial COFD legally defective. FEMA acknowledged that the spreadsheet had not been sent by mail or email and that it contained additional information to support the government’s claim. However, FEMA maintained that the COFD was legally sufficient without this spreadsheet. Alternatively, FEMA argued that even if B&F’s appeal rights were tolled when the appellant received the spreadsheet, the appeal was still untimely, as more than 2 years had passed between B&F’s receipt of the spreadsheet and the appeal.
CBCA found the COFD met the legal requirements for a final decision because it included (i) a description of the claim or dispute; (ii) a reference to the pertinent contract terms; (iii) a statement of the factual areas of agreement and disagreement; (iv) a statement of the contracting officer’s decision, with supporting rationale; and (v) a statement informing the contractor of its appeal rights. While the spreadsheet provided information supporting the government’s claim, the COFD explained that B&F had failed to provide supporting documentation for 25 work orders related to Invoices 14 and 15.
CBCA found this legally sufficient, explaining that the CDA requires a contracting officer to state the reasons for the decision reached and expressly informs contracting officers and contractors alike that “specific findings of fact are not required.” In this case, the COFD referenced B&F’s claim and the invoice numbers at issue. It also acknowledged a meeting between B&F and FEMA where B&F’s claim was reviewed and discussed. The COFD also explained the final overpayment amount.
Further, B&F admitted that once it received the spreadsheet, it determined that the twenty-five disapproved units were among the original list of 157 work orders it received in 2010 and had an opportunity to respond to with pictures and other documentation. The final list contained no new information. According to the board, while a more focused list of work orders/units may have been helpful to B&F, the CO was not required to include specific findings with the decision.
Because the COFD was proper, and B&F was made aware of its right to appeal the decision upon receipt of the same, its failure to do so within the ninety-day statutory period deprived the board of jurisdiction to consider the appeal. The board also noted that even if it held that the appeal period did not start to run until B&F had a complete copy of the COFD, B&F received the attachment on June 29, 2015, rendering delivery of the entire COFD complete by that date. Yet B&F did not appeal the COFD for another two-and-a-half years, which was well beyond the ninety-day limit.
While finding that B&F cannot appeal the COFD, the board acknowledged that some evidence in the record suggested the overpayment amount in the COFD was overstated. Although the board had no authority to order FEMA to fix discrepancies between the spreadsheet and COFD, it encouraged the agency to consider whether errors had been made and whether any steps can be taken to remedy the situation.
B&F Distributors LLC is represented by Dessie Minor, President. The government is represented by Samantha S. Ahrendt, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security.
