In Hof Construction, Inc. v. General Services Administration, CBCA No. 6306 (Dec. 12, 2018), the contractor was appealing a termination for default and the assessment of liquidated damages. When the agency terminated the contract in December 2017, it sent the contractor a letter that concluded: “This notice constitutes the final decision of the Contracting Officer. You may have the right to appeal under the Disputes clause.” The letter also stated that the agency would be assessing liquidated damages. Several months later, the agency issued a unilateral modification assessing liquidated damages.
The contractor did not file an appeal with the CBCA or the COFC at this time. Instead, in August 2018, the contractor submitted a claim to the contracting officer, seeking to convert the termination to a termination for convenience and a withdrawal of the unilateral modification. When the contracting officer did not respond to the claim, the contractor filed an appeal with the CBCA in November 2018. The CBCA then asked the contractor to show why its appeal was not untimely given that it was filed almost a year after the contracting officer had sent the letter terminating the contract.
The contractor argued that the letter terminating the contract was not a final decision, triggering the right to appeal, because it did not contain the type of language contemplated by the FAR, such as:
Where does the CBCA’s decision leave a contractor that recently received a final decision from a contracting officer? If the decision advises the contractor of its right to appeal, the deadline to appeal has likely begun. If the adequacy of the notice is unclear, it would be prudent to seek advice from counsel. If you need assistance with CDA claims or appeals, please contact PilieroMazza’s government contracts group.
About the author: Michelle Litteken is an associate with PilieroMazza in the Government Contracting and Litigation law groups. She may be reached at firstname.lastname@example.org.