The agency denied the contractor’s claim in 2020. The contractor didn’t appeal until 2023. The contractor argued it had been led to believe the agency was reconsidering the decision. But the ASBCA dismissed the appeal as untimely. Nothing in the record indicated the agency ever planned to reconsider.
Appeal of The Sithe Group, LLC, dba TSG Industries, ASBCA No. 63605
- Claim – The contractor submitted a claim in 2019, alleging defective specifications and delay. Over the next few months, the contractor revised the claim. The last revision was in April 2020. The agency denied the claim in July 2020.
- Appeal – For the next three years not much happened. But in May 2023, the contractor appealed the claim to the ASBCA. The government moved to dismiss for lack of jurisdiction.
- Rule – Under the CDA, a contractor must appeal a contracting officer’s final decision within 90 days. But the 90-day clock will not run if the decision is not truly final—that is, if the contracting officer indicates they are reconsidering the decision.
- Decision Was Final – The contractor argued its appeal was not late because it had been misled into believing the agency would revisit the decision. But the board noted this belief was based on one conversation with a regional contracting official. The official denied having the conversation. Moreover, only the contracting officer, not a regional contracting official, can reconsider the final decision. Aside from this call, there was nothing else in the record to indicate the contracting officer was reconsidering, or even that the contractor had asked for reconsideration.
- Modification – The agency modified the final decision in 2023 to effectuate an assignment of funds to the contractor’s assignee. The contractor argued this modification was superseding the 2020 decision, and because the appeal was filed within three months of the modification, it was timely. But the board did not think the modification superseded the 2020 final decision. The modification referenced the 2020 decision, and it did not make any new demands or seek relief related to the contract.
The contractor is represented by Thomas Dunlap and Alexander Jonathan Brittin of Dunlap Bennett & Ludwig PLLC. The government is represented by Michael P. Goodman and Erin Zetterstrom of the Army Corps of Engineers.
–Case summary by Craig LaChance, Editor in Chief
