Under the Contract Disputes Act (CDA), a contractor has 90 days to appeal a contracting officer's final decision. The 90-day period in which to appeal a contracting officer's decision to the Board is jurisdictional and may not be waived.
But what if the contracting officer did something to lead a contractor to believe that its final decision was not so "final", that there was an offer to negotiate a resolution? Can that 90-day calendar start over?
Yes, the 90-day calendar can start over, in some cases. Its called "vitiating the finality" of the final decision (or notice of termination, or some other form of contracting officer final action).
The test for vitiation of the finality of a contracting officer's determination is whether the contractor presented evidence showing it reasonably or objectively could have concluded the contracting officer's decision was being reconsidered. In one ASBCA case, a lack of finality was found where the contracting officer met with the contractor after the issuance of the termination notice, discussed the default termination at the meeting, and requested the contractor to submit settlement alternatives in writing that were proposed at the meeting. The focus is on whether any Government actions could have reasonably led a contractor to believe that the subject matter was not yet final, thereby making an appeal to the Board unnecessary.
In another more recent case (ASBCA 61026, Aerospace Facilities Group, Inc.), after the contracting officer issued a notice of termination for default, it expressed willingness to engage the contractor to discuss the facts surrounding the termination on three separate occasions and discuss whether the contractor would deliver equipment required by the contact. This served to keep the matter open and destroyed the finality of the termination notice. The contractor was lead to believe that the Army was reconsidering the decision based on their emails and phone conversations. Ultimately the contractor filed a claim, the Government tried to get it thrown out because it was received later than 90-days after the notice of termination, but the ASBCA turned down the Government's attempt.
The best course of action is to file timely claims when appropriate. Don't let the Government's actions lead you to believe that it has stayed its final decision. The next court might not be so contractor-friendly.