The government’s motion to dismiss an appeal for lack of jurisdiction is denied, where the agency could not provide proof that the contractor ever received the CO’s final decision. While the CO transmitted the final decision to an attorney who had previously represented the appellant, there was no evidence in the record the contractor asked the government to provide such notice solely to the attorney. Further, the CO did not send the decision via certified mail, did not attach a read receipt to her email, and did not confirm that the attorney still represented the appellant. The board noted the attorney had ceased representing the appellant some time before the final decision was issued.
The government moved to dismiss Rohulhameed Construction Company’s appeal of the denial of its claim for lack of jurisdiction, arguing the appeal was untimely because it was filed more than 90 days after the contracting officer emailed her final decision to an attorney who had been assisting appellant, a construction company located in Afghanistan.
The Army awarded RCC a construction contract for performance in Afghanistan. RCC received its notice to proceed on April 30, 2009, with a contact completion date of July 2, 2009. On April 15, 2010, the Army terminated the contract for convenience. The notice stated that the termination was a no-cost settlement and that RCC agreed to waive any and all charges against the government arising from the termination of the contract and to release the government from all obligations under the contract. In a final decision issued on April 19, 2010, the CO deobligated all remaining funds from the contract, except for the DBA insurance amount. However, the court found no evidence of the date RCC allegedly was sent or received this notice.
On March 12, 2014, an Army contract specialist sent RCC an email stating he was closing out RCC’s contract and requesting confirmation that there were no outstanding claims, disputes, or other contractual issues. In response, RCC stated that it had been paid for two projects under the contract, but not for a third, which had been completed prior to the contract termination date. The contract specialist explained that he could help with the DBA insurance only and forwarded a copy of the contract modification terminating the contract.
On October 25, 2016, an American attorney retained by RCC submitted a certified claim for $135,720 for CLIN 3. An affidavit by RCC’s business operations manager stated that RCC told the CO that all work was complete and asked the CO to review and approve its completed work in order for it to send its final invoice, but that the CO did not perform the requested review. Instead, the CO terminated the contract. According to the business manager RCC never agreed to a no-cost settlement with the CO; and RCC never signed the Army’s notice of convenience termination. The business manager also stated he authorized the CO to discuss this issue with the company’s American attorney, but did not authorize or request the CO’ s final decision be sent or transmitted only to attorney Pennington, rather than RCC.
After receiving no response, RCC’s attorney filed a petition with ASBCA to direct the CO to issue a decision, which the board granted. The agency denied the claim, stating that the third project to which RCC claimed payment was completed by another contractor and therefore the no-cost termination was issued. The agency argued RCC did not timely appeal the original final decision terminating the contract for convenience and did not timely file its claim within six years of accrual.
The CO stated she sent her final decision by email to the attorney who had represented RCC before ASBCA in its attempt to obtain issuance of a decision. She did not send a copy of the final decision by registered mail or use a “read receipt” on the email she sent to the attorney. According to the CO, the attorney eventually replied that he had received the final decision on March 7, 2017, and forwarded the notice to RCC on that date. The attorney stated he was no longer representing RCC, but did not state when this change occurred.
The Army argued the appeal was not timely filed, because it was filed more than 90 days after the CO sent her final decision to RCC’s attorney by email. The Army argued that the receipt of the final decision by the attorney was sufficient to trigger running of the 90-day filing deadline.
However, the board explained that the burden was on the government to demonstrate when the contractor or its counsel received the final decision. The 90-day appeal period does not commence until the CO decision is received at the location designated by the contractor for receipt of project-related correspondence.
In this case, the board found no evidence indicating the contractor ever requested that the CO’s final decision be sent to an address other than its address of record. While an RCC official executed an affidavit expressly authorizing the CO to discuss RCC’s claim with RCC’s attorney, he did not authorize or request the CO to send or transmit her final decision only to the attorney, in lieu of sending and/or transmitting a copy of that decision to RCC.
The board acknowledged difficulty communicating with companies located in Afghanistan, but noted that the contract specialist who tried to close out RCC’s contract was located in the United States and had communicated successfully with the appellant using email addresses the Army had on file. Further, the attorney who represented RCC regarding the issuance of the final decision itself had ceased to represented RCC after that time, and therefore transmitting the final decision to that attorney did not satisfy the requirement to transmit the decision to the appellant. Because the Army could not establish the date on which RCC had received the final decision, the court denied the motion to dismiss.
Rohulhameed Construction Company is represented by Mr. Rohul A. Afzaly, President. The government is represented by Raymond M. Saunders, Army Chief Trial Attorney, and Captain Jeremy D. Burkhart, J A, Trial Attorney.
