North Arizona Construction Company
ASBCA No. 61028
A.S.B.C.A.Dec 11, 2017Background
- Contract (W5K9UR-12-P-7021) between North Arizona Construction and the Army for police station upgrades in Afghanistan (May 21, 2012). FAR disputes clause incorporated.
- Appellant alleged materials were stolen because it could not store them on site; submitted a "Memo for Record" and invoice initially on Oct 27, 2012, and later a formal claim (Nov 27, 2012) for 1,071,444 Afghani (~less than $100,000).
- Contracting Officer MSgt. Bastiani issued a final decision dated Feb 26, 2013 (digitally signed Mar 1, 2013) denying the claim for lack of support and including standard 90‑day appeal language.
- Government contends decision was sent/received on Mar 1, 2013; appellant engaged in email exchange thereafter but did not file an appeal until Jan 29, 2017.
- Board found the government proved receipt (CO declaration and post‑decision email threads), the decision contained adequate appeal instructions, and the 90‑day statutory appeal period was not tolled — appeal dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction because appellant timely appealed CO's final decision | Appellant says it lacked knowledge of ASBCA procedure and was not adequately informed; therefore delay excusable | Government says appellant received the Feb 26/Mar 1, 2013 final decision with proper appeal language and did not timely appeal within 90 days | Held: No jurisdiction — appeal untimely; receipt proven as Mar 1, 2013 and 90‑day CDA period not tolled |
| Whether the CO's final decision adequately informed appellant of appeal rights | Appellant contends inadequate notice / lack of understanding of rights justified late filing | Government points to verbatim FAR‑prescribed appeal language in the final decision | Held: Decision’s appeal language was adequate; no prejudice shown to justify tolling |
| Whether post‑decision communications tolled the 90‑day period | Appellant suggests government communications left uncertainty about process | Government notes CO repeatedly stated decision was final and requested releases — no indication of reconsideration | Held: No tolling — emails show CO maintained decision was final; Guardian Angels circumstances (reconsideration) not present |
| Burden of proof on receipt date | Appellant implicitly disputes actual receipt timing | Government must show objective indicia of receipt; here offers CO declaration and later references | Held: Government met its burden of proving receipt date (objective indicia and appellant’s later conduct consistent with receipt) |
Key Cases Cited
- Decker & Co. v. West, 76 F.3d 1573 (Fed. Cir. 1996) (prejudice or detrimental reliance required to excuse defective appeal notice)
- Riley & Ephriam Construction Co. v. United States, 408 F.3d 1369 (Fed. Cir. 2005) (government must provide objective indicia to prove contractor received final decision)
- Guardian Angels Medical Service Dogs, Inc. v. United States, 809 F.3d 1244 (Fed. Cir. 2016) (CO indication of willingness to reconsider can create tolling-like effect if it leads contractor to reasonably delay appeal)