Negotiation Prevented Finality of CO's Decision

A motion to dismiss a claim as untimely was denied by the Civilian Board of Contract Appeals because the contractor reasonably believed the contracting officer was reconsidering the final decision. The government moved to dismiss, for lack of jurisdiction, a claim for additional costs arising from a lease on grounds the contractor filed its notice of appeal after the expiration of the 90-day statute of limitations prescribed by the Contract Disputes Act. The CO's decision set forth the contractor's appeal rights and specifically instructed the contractor that if it chose to appeal, it had to do so "within 90 days from the date" it received the decision. However, the decision also stated the government was "willing to continue a meaningful and productive dialogue with a view to reach a fair and equitable final settlement." Despite the expiration of the 90-day period, the contractor argued the appeal period was suspended while the parties continued negotiations and attempted to settle the dispute.
Willing to Negotiate

Although a board of contract appeals cannot waive the statutory appeal period, a CO's decision is not truly "final" if it is being reconsidered, as reconsideration keeps the matter open and vitiates any finality the decision had. In the instant appeal, the record supported the contractor's position that it reasonably believed the decision was being reconsidered. The CO's decision clearly indicated he was willing to continue negotiating to reach a settlement and the parties engaged in multiple communications and meetings during the appeal period in an effort to resolve the dispute. Also, the CO did not inform the contractor that the original decision spelled out the contractor's appeal rights until two months after the contractor received the decision. Such a statement does not indicate the original appeal period is continuing to run, or that the CO has not reconsidered his decision since that time. Accordingly, the finality of the decision was vitiated until at least that time, which made the contractor's appeal timely. (Devi Plaza, LLC, CBCA, ś92,467)

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