By Government Contracts Editorial Staff
An appeal from a termination for cause was timely, according to the Armed Services Board of Contract Appeals, because the record showed the contracting officer reconsidered, or gave the appearance of reconsidering, the termination decision. The dispute arose from a contract to install helicopter paint-booth equipment, booth monitoring systems, and a personnel protection system at an aircraft corrosion control facility. The government moved to dismiss for lack of jurisdiction on the basis the contractor did not file its appeal within 90 days of receiving the final decision. The contractor argued its request for reconsideration of the termination vitiated the deadline for a timely appeal to the board. While the CO’s receipt of a request for reconsideration in itself does not vacate a decision or the period in which to appeal, the CO’s reconsideration of a decision or creation of a reasonable appearance that the decision is being reconsidered vacates the decision along with the accompanying appeal period (92-1 BCA ¶24,684). The test for vitiation of the finality of a CO’s determination “is whether the contractor presented evidence showing it reasonably or objectively could have concluded the CO’s decision was being reconsidered” (95-1 BCA ¶27,499). The focus of the inquiry is on whether any government action could have reasonably led a contractor to believe that the subject matter was not yet final, thereby making an appeal to the board unnecessary.
Cloud of Uncertainty. Here, written and oral communications with the government created a “cloud of uncertainty” as to the status of the termination. A CO email stated that the government “is willing to accept delivery of items under the contract …. You should contact this office … to discuss questions or reasonable proposals concerning the [t]ermination for [c]ause.” Also, the government repeatedly attempted to discuss with the contractor “reasonable proposals” concerning delivery, and the parties discussed the merits of the termination during three teleconferences. Thus, there was substantial evidence that the government’s actions were either in fact a reconsideration or at least reasonably led the contractor to believe the government was reconsidering the decision. (Aerospace Facilities Group, Inc., ASBCA, ¶95,539).
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