Email Notification vs. Hard-Copy Notification

Here's something to tuck into the back of your mind should you ever find yourself in a situation where a few days one way or another matters when filing an appeal.

The Army Corps of Engineers awarded a contract to HK&S Construction to perform repairs to a jetty at Block Island, Rhode Island in September 2014. On June 5, 2015, the contracting officer terminated the contract for default. We don't know why the contract was terminated for default but ultimately it doesn't matter for purposes of this discussion. What does matter is the date that the contractor was notified of the termination for default (TforD).

As stated, the Government notified the contractor that it was terminating the contract on June 5, 2015. The notification was sent via email on the same date as an attachment. The email advised that a hardcopy of the attached letter had been mailed overnight via Federal Express. The mailed notice of termination was received by HK&S on June 8, 2015, three days after the emailed copy.

Once a contract has been terminated for default, the contractor has only 90 days to appeal the contracting officer's decision. HK&S filed its appeal with the ASBCA (Armed Services Board of Contract Appeals) on September 4, 2015 - 91 days after the email notification but only 88 days after receipt of the hard copy notice. The Government then moved to dismiss the contractor's ASBCA appeal because it was one day late. The ASBCA denied the Government's motion on the basis that the date the contractor received the hard copy notification applied for determining the 90 day period, not the date that the email copy was sent and received.

The Board ruled:

Sending multiple copies of a contracting officer's final decision without indicating which of them is intended to begin the running of the appeal period entitles the contractor to compute the date from receipt of the last copy. However, where an appellant has previously requested to receive correspondence by means of a particular medium, an earlier copy of the decision received through that medium may start the 90-day appeal clock.

Since the Government's email did not specify which of the two notifications was intended to begin the running of the appeal period. Consequently HK&S was entitled to compute the commencement of the appeal period from its receipt of the hard-copy notification.

Its probably not a good idea to wait until the last minute when filing an appeal. The contractor got lucky in this case.