Appeal of the CO’s partial termination of a contract for cause is dismissed for lack of jurisdiction, where the appeal was not file within 90 days of the action and where the CO’s suggestion that he would consider additional evidence related to the cause of performance issues did not restart the clock. The board noted that the CO’s communications occurred after the 90-day window closed, and found that none of the government’s actions during the 90-day appeal window had given the contractor reason to believe the matter was not final.
Godwin Corporation appealed the partial termination for cause of its contract to provide mental health professionals to a military base medical center. The government moved to dismiss for lack of jurisdiction, asserting that Godwin failed to file within the statutory deadline of 90 days of receipt of a notice of partial termination of its contract.
The Air Force awarded Godwin a contract to supply mental health professionals to a base medical center. On September 19, 2016, the CO issued a final decision partially terminating the contract for cause due to the appellant’s failure to provide a child psychiatrist. Between February 13 and March 7, 2017, Godwin contacted the government to obtain relief from the partial termination. According to Godwin, during a March 9 conference, the CO represented that he would review any additional evidence submitted by counsel for appellant.
However, on November 8, the CO finalized his evaluation in CPARS, giving Godwin marginal ratings for quality, schedule, and cost control, and a satisfactory rating for regulatory compliance. On November 16, Godwin appealed the CO’s final decision.
Although Godwin’s notice of appeal stated that it appealed the denial of its claim for a conversion to a termination for convenience, the board found the appeal actually concerned the government’s decision to partially terminate the contract for cause.
In moving to dismiss for lack of jurisdiction, the government argued that Godwin’s appeal was not timely, because it was not filed within 90 days of the September 19, 2016, final decision partially terminating the contract for cause. In response, Godwin argued that the partial termination decision was vitiated of finality when the CO agreed to accept appellant’s additional evidence and reconsider the termination decision. Godwin maintained that the 90-day clock started to run when the government published the CPARS on November 8, 2017.
The board explained that it has repeatedly found the test for vitiation of finality is whether the contractor presented evidence showing it reasonably or objectively could have concluded the CO’s decision was being reconsidered. In this regard, the focus is on the action of the government during the 90-day appeal period, and whether any action could have reasonably led Godwin to believe the matter was not final, rendering an appeal unnecessary. According to the board, the CO’s later willingness to consider a settlement – communicated well after the 90-day appeal period – did not vitiate the finality of the final decision.
While Godwin argued that the CO vitiated the finality of the decision on March 9 when he agreed to consider additional evidence, the board noted that the 90-day appeal window had already expired by that date, and therefore any action by the CO could not have affected Godwin’s understanding of the finality of the final decision.
Godwin argued that because the CO’s agreement to review additional evidence occurred within the 12-month period in which appellant could bring an action in the Court of Federal Claims, it served to vitiate the decision until the CPARS was published on November 8, 2017. However, the court found this argument inapplicable to the 90-day appeal period to ASBCA.
Godwin Corporation is represented by A. Jeff Ifrah of Ifrah Law. The government is represented by Jeffrey P. Hildebrant, Air Force Deputy Chief Trial Attorney, and by Christopher S. Cole and Colonel C. Taylor Smith, USAF, Trial Attorneys.
