You Can Ask the Agency to Reconsider a Final Decision, But that Doesn’t Stop the Appeal Clock from Running

The agency alleged the contractor’s claims appeal was untimely. The contractor argued the appeal clock had been tolled when the agency indicated it was reconsidering the final decision. The ASBCA rejected the contractor’s argument. The contractor asked the agency to reconsider. The agency spoke to the contractor as a courtesy but never meaningfully indicated it was reconsidering the final decision. 

Appeal of Woolpert, Inc., ASBCA No. 63515 

• Claim – The contractor submitted a claim challenging its CPARS ratings. On October 22, 2022, the agency issued a final decision denying the claim. 
• Request for Reconsideration – The contractor asked the agency for a meeting to reconsider the decision. The parties held a meeting on December 8, 2002. The agency refused to change the decision. The contractor continued to press. The contracting officer said they would discuss the matter further. But on December 16, 2022, the agency notified the contractor the decision remained final. 
• Appeal – On January 20, 2021, 91 days after receiving the October final decision, the contractor appealed to ASBCA. The government asked the board to dismiss, arguing the contractor had not appealed within the CDA’s 90-day window. The contractor argued the agency’s conduct concerning the request for reconsideration had vitiated the final decision and stalled the appeal clock. Thus, the contractor reasoned, the appeal was timely. 
• No Vitiation – An agency vitiates a final decision when there is objective evidence that the agency was reconsidering a final decision. Here, the board found the contractor did not have a reasonable basis to believe the agency was reconsidering. Rather, the contractor simply refused to accept the agency’s decision. The agency held a meeting with the contractor as a courtesy. But during that meeting, agency officials informed the contractor at least four times that they were not going to reconsider. Indeed, the contracting officer only said she would continue to discuss reconsideration after the contractor continued to badger her. 

The contractor is represented by Suzanne Sumner and Brandon E. Dobyns of Taft Stettinius & Hollister LLP. The government is represented by Michael P. Goodman, Thomas M. Barrett, and James M. Inman of the Army Corps of Engineers. 

–Case summary by Craig LaChance, Senior Editor