Filing Notice of Appeal at the Boards: Simple

Despite the government’s frequent attempts to have appeals dismissed on procedural grounds, filing an effective notice of appeal that will withstand dismissal is quite easy, as demonstrated in Archer Western Aviation Partners, ASBCA No. 62035 et. al, August 27, 2020.  All that is necessary is a proper claim, plus a writing that expresses the contractor’s dissatisfaction and a statement of intent to appeal.  No “Complaint” is necessary at the initial stage. Archer was awarded a contract for construction of hangars and parking aprons at McConnell Air Force Base. In 2017, Archer submitted a request for equitable adjustment because the Air Force required it to install an insulated metal panel between column lines 4 and 5 (the “4/5 Line REA”). Archer also submitted a supplemental 4/5 Line REA.   In April 2018, the Contracting Officer (“CO”) issued a final decision denying the supplemental 4/5 Line REA, and Archer filed a notice of appeal with the Armed Services Board of Contract Appeals (“Board”).  Upon motion, Archer was permitted to submit a certified 4/5 Line Claim to the CO in July 2019.  In August 2019, the CO denied the certified 4/5 Line Claim. Less than 90 days after Archer received the CO’s final decision on the certified 4/5 Line Claim, Archer filed a status report to the Board in September 2019.  In its status report Archer expressed dissatisfaction with the Certified 4/5 Line Claim CO’s final decision, and indicated an intention to appeal that final decision to the Board (The report stated that Archer “intends to appeal the Contracting Officer’s Final Decision related to ASBCA No. 62035.”) The Air Force raised the question of whether the Board possessed jurisdiction to rule on the Line Claims.  The Board concluded that it possessed jurisdiction because Archer had filed an effective timely notice of appeal of the certified 4/5 Line Claim CO final decision.  That is, Archer had (1) filed a proper (and certified) claim; (2) the CO had denied the claim; (3) Archer filed a notice of appeal within the required time (within 90 days after CO decision); (4) in that notice of appeal, Archer expressed dissatisfaction with the CO’s decision, and (5) in the notice of appeal Archer expressed an intention to appeal the decision.  Archer had met all of the requirements, and the Board concluded it had jurisdiction. The case stands for the Board’s liberal reading of contractors’ communications in finding effective appeal notices. Takeaway:  Nothing elaborate is required to get your appeal properly docketed at a Board of Contract Appeals.  Here is what you must have:

• A proper claim (certified if over $100,000) submitted to the CO. This blog has frequently discussed the requirements for a proper claim, most recently in a blog “Not A Claim” on Oct. 27, 2020.  The blog explains that:

A proper Contract Disputes Act claim must include the following elements:

1. A demand for payment;
2. Be submitted in writing;
3. Be submitted to the Contracting Officer (not to a representative such as the Contracting Officer Representative (COR) or Contracting Officer Technical Representative (COTR) or Contract Specialist);
4. A statement that it seeks as a matter of right–
5. the payment of money in a sum certain (a definite amount) or the adjustment or interpretation of contractterms, or other relief arising under or relating to the contract;
6. A statement that it requests a final decision from the Contracting Officer.
7. In addition to the procedural formalities listed above, a claim to the government must also include sufficient detail to allow the contracting officer to know what is being claimed and why.

The CDA also requires that claimants certify any claim demanding payment in excess of $100,000. The claimant must certify that the claim is submitted in good faith and there is sufficient data in support. Failure to provide a proper certification can lead to the dismissal of a claim.

• A CO’s final decision on the claim (or a “deemed denial” by law if the CO won’t issue a decision).
• A short letter addressed to the proper Board within 90 days of the final decision (or deemed denial) that expresses dissatisfaction with the denial (or partial denial) and also states your intention to appeal, or states “we are dissatisfied with the decision and we hereby appeal it to the Board.”

Note that while you will need to submit a detailed Complaint to the Board, that is not required until 30 days after the appeal is Docketed.  ASBCA Rule 6(a) and Civilian Board of Contract Appeals (“CBCA”) Rule 6(a) For other helpful suggestions on government contracting, visit: Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

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