Agency Said It Needed More Time for a Final Decision. The Contractor Appealed Anyway. Was the Appeal Premature?

The agency did not issue a final decision within 60 days of the claim. Instead, the agency said it needed more time. The contractor appealed. The agency said the appeal was premature because it hadn’t issued a final decision. The board found the failure to issue a decision within 60 days was deemed a denial from which the contractor could appeal. 

Appeals of Gilbane Federal, ASBCA Nos. 63674 et al. 

• Claim and Appeals – The contractor submitted a claim for additional costs and extra calendar days. Sixty days after submission, the agency told the contractor it needed another six months to review the claim. The contractor appealed the claim to ASBCA. Shortly after the appeal, the agency issued a decision on the claim. The contractor appealed the new final decision. 
• Premature Appeal – The government asked the board to dismiss the first appeal as premature. The government argued the contractor filed an appeal before the agency issued a decision. The board rejected the argument. Under the CDA, an agency has 60- days to issue a final decision on a claim. Here, the agency did not issue a final decision within 60 days. Indeed, the agency asked for another six months. The claim was deemed denied. The contractor was entitled to appeal. 
• Appeal Was Moot – The board did, however, find the initial appeal was moot. The agency issued a final decision after the contractor appealed from the deemed denial. The contractor filed a second appeal from the final decision. The final decision and the appeal from the final decision were now the operative proceedings. There was no need to continue with the initial appeal of the deemed denial. 

The contractor is represented by Tyler P. Scarbrough and Christopher J. Olsen of Henner & Scarbrough LLP. The government is represented by Michael P. Goodman, Allie E. Vandivier, and Orson D. Ray of the Army Corps of Engineers. 

–Case summary by Craig LaChance, Senior Editor