Military Aircraft Parts
ASBCA No. 60308
| A.S.B.C.A. | Mar 1, 2017Background
- DLA awarded Contract No. SPM4A7-08-M-4911 (contract 4911) to MAP in Jan 2008 for F‑15 fairings; a unilateral Purchase Order SPM4A7-10-M-B971 (B971) was issued May 3, 2010 for related parts.
- CO issued a final decision terminating contract 4911 for default on Jan 10, 2013; MAP received that COFD by certified mail on Jan 14, 2013.
- MAP submitted a claim (covering both contract 4911 and purchase order B971) on June 1, 2015 alleging the CO impeded first‑article testing and abused discretion in terminating for default.
- The CO declined to issue a final decision on the contract 4911 claim (saying it was properly terminated over two years earlier) but issued a final decision denying the purchase order B971 claim on July 31, 2015.
- The government emailed the July 31, 2015 COFD to MAP (no proof of receipt); a certified mail copy arrived at the local post office Aug 7, 2015 but was undeliverable and returned Sep 8, 2015.
- MAP filed this appeal on Nov 2, 2015 from the 2015 COFD and a deemed denial of the contract claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction over MAP's contract 4911 claim (timeliness of appeal from 2013 COFD) | MAP argued limitations may not be jurisdictional (invoking Sikorsky) and challenged termination on merits | DLA argued MAP received the 2013 COFD Jan 14, 2013 and did not appeal within 90 days, depriving the Board of jurisdiction | Board held the 90‑day appeal period under 41 U.S.C. § 7104 is jurisdictional here; MAP's contract 4911 appeal is untimely and dismissed |
| Whether the Board has jurisdiction over MAP's purchase order B971 claim (timeliness of appeal from 2015 COFD) | MAP argued it timely appealed because the government failed to show when MAP actually received the July 31, 2015 COFD | DLA argued MAP received the COFD by email on July 31, 2015 (and mailed copy was handled Aug 7), so appeal was untimely | Board held government failed to prove date of receipt; insufficient evidence to find appeal untimely, so DLA's motion denied as to B971 |
Key Cases Cited
- Cosmic Constr. Co. v. United States, 697 F.2d 1389 (Fed. Cir.) (90‑day appeal period under CDA treated as jurisdictional)
- Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir.) (statute of limitations to file claim with CO not jurisdictional — distinguished)
- Guardian Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d 1244 (Fed. Cir.) (declining to decide whether 12‑month COFC limitations are jurisdictional)
- Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369 (Fed. Cir.) (government must provide objective evidence of receipt of COFD; transmission alone may be insufficient)