Ra-Nav Laboratories, Inc. v. Widnall
| Decision Date | 04 March 1998 |
| Docket Number | RA-NAV,No. 97-1259,97-1259 |
| Citation | 137 F.3d 1344 |
| Parties | 42 Cont.Cas.Fed. (CCH) P 77,261 LABORATORIES, INC., Appellant, v. Sheila WIDNALL, Secretary of the Air Force, Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Theodore M. Bailey, San Antonio, TX, argued for appellant.
Robert Steinbuch, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, argued for appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Kirk T. Manhardt, Assistant Director. Of counsel was Rebecca E. Pearson, Department of the Air Force, Arlington, VA.
Before RICH, LOURIE, and GAJARSA, Circuit Judges.
Ra-Nav Laboratories, Inc. appeals from the final decision of the Armed Services Board of Contract Appeals dismissing its appeal for lack of jurisdiction. Ra-Nav Lab., Inc., ASBCA No. 49211, 96-2 BC p 28,514 (Aug. 26, 1996), reconsideration denied, 97-1 BC p 28,650 (Nov. 22, 1996). Because the Board did not err in determining that the appeal period of 41 U.S.C. § 606 (1994) had run before Ra-Nav filed its appeal, we affirm.
In 1985, Ra-Nav was awarded a government contract for the production of data tape cartridges. In early 1986, when Ra-Nav failed to timely deliver the first installment of tapes due under the contract (the "First Articles"), the government terminated the contract for default. The Default Notice stated that:
[t]his is the final decision of the termination contracting officer [TCO]. This decision Following the Default Notice, Ra-Nav sent a letter to the TCO requesting that the contract be reinstated with an extended delivery schedule. In response, the TCO sent Ra-Nav a letter on January 29, 1986 ("Cautionary Notice"), which stated in relevant part:
may be appealed to the Armed Services Board of Contract Appeals. If you decide to make such an appeal, you must mail or otherwise furnish written notice thereof to the [Board] ... within 90 days from the date you received this decision....
2. The contents of your letter did not reveal an excusable reason for your failure to deliver the First Articles....
2. [sic] This is to advise you:
a. The default remains in effect and the contract is not reinstated.
b. The Government is not encouraging you to continue performance.
c. Any continued performance will be voluntary on your part and at your own risk.
3. In order to mitigate your damages, the Government agrees to inspect completed First Articles provided:
a. They are submitted to the Government by 15 Mar 86....
b. The defaulted item is still required by the Government at the time you present them for inspection/testing....
c. A reprocurement contract has not been awarded by the time you present the First Articles for inspection/testing.
....
4. If the First Articles meet the contract requirements, you agree to a sufficient decrease in contract price to cover the administrative damages to issue the default, initiation, processing of the reprocurement to the point of cancellations, delivery schedule extension, rescision [sic] of the default, reinstatement of the contract.
5. The Default Notice and the appeal periods specified in the Default Notice are not changed as a result of the above comments.
(emphasis added). Following this letter, Ra-Nav continued to attempt to provide suitable First Articles until late 1986, during which period the parties sent several communications to each other. Most of the correspondence from the government made specific reference to the "conditions" specified in the Cautionary Notice, although the appeal period was not specifically mentioned.
In April 1987, the government notified Ra-Nav that its latest submission of First Articles had been rejected and indicated that it would accept no further resubmissions. The government awarded reprocurement contracts in March 1987 and August 1987 to two other data tape cartridge manufacturers.
Over six years later, in September 1993, the government notified Ra-Nav that it desired to recover progress payments paid to Ra-Nav during the performance of the contract. In November 1993, Ra-Nav expressed its intention to "[a]ppeal this termination for default and the demand for excess reprocurement charges as soon as a final determination of the termination contracting officer was issued" and noted that it had requested a final determination as far back as late 1987. Ra-Nav alternatively proposed a settlement in which the termination for default would be changed to one for convenience, which would have the effect of nullifying Ra-Nav's claim for its contract expenses and the government's claim to recoup the progress payments. The TCO expressed an interest in Ra-Nav's proposal and requested evidence supporting Ra-Nav's claim. However, in September 1994, Ra-Nav revoked its proposal because "it could not walk away from the over $100,000" difference between its contract expenses claim and the government's progress payments claim.
In May 1995, the government informed Ra-Nav that it would not seek to recoup the progress payments. Ra-Nav then submitted its claim for contract expenses to the TCO; it went unanswered. In October 1995, over eight years after the termination of its contract The Board dismissed Ra-Nav's appeal for lack of jurisdiction on the ground that Ra-Nav's appeal was not taken within ninety days of the termination for default. See 41 U.S.C. § 606 (1994) (). Ra-Nav appeals the dismissal to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10) (1994).
Ra-Nav appealed the "deemed denial" 1 of its claim to the Board.
The standard under which we review a decision of the Board is dictated by the Contract Disputes Act, which provides in relevant part:
the decision of the agency board on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence.
41 U.S.C. § 609(b) (1994). We review questions of law, including whether jurisdiction exists under section 606, de novo. See D.L. Braughler Co. v. West, 127 F.3d 1476, 1479-80 (Fed.Cir.1997) (citations omitted). Notwithstanding this lack of deference concerning questions of law, "legal interpretations by tribunals having expertise are helpful to us, even if not compelling." Erickson Air Crane Co. v. United States, 731 F.2d 810, 814 (Fed.Cir.1984).
Ra-Nav argues that its appeal to the Board was timely because the contract was still in effect. The cornerstone of Ra-Nav's argument is that it was reasonable in believing that the termination of the contract in January 1986 had been reconsidered or "vitiated" by the events subsequent to the termination.
The government responds that substantial record evidence supports the Board's finding that the government did not reconsider its decision to terminate the contract, and therefore that the appeal period had expired many years before. The government asserts that the Cautionary Notice clearly warned Ra-Nav that (1) the default termination would remain in effect even if Ra-Nav tried to continue performance, (2) the government did not encourage Ra-Nav to continue performance, (3) Ra-Nav proceeded at its own risk, and (4) the period during which Ra-Nav could appeal the termination would remain unchanged. The government also questions the reasonableness of Ra-Nav's belief that the termination had been vitiated, and points out that the interaction between the government and Ra-Nav subsequent to the termination of the contract was consistent with the stated purpose of the Cautionary Notice, viz., mitigation of Ra-Nav's damages for default.
We agree with the government's arguments. Specifically, we disagree with Ra-Nav that the TCO, through his actions subsequent to the default termination, reinstated the contract. Reinstatement of a contract terminated for default is provided for by regulation, which reads as follows:
Notwithstanding [other termination for default regulations], the contracting officer may, with the written consent of the contractor, reinstate the terminated contract by amending the notice of termination, after a written determination...
To continue reading
Request your trial
-
Sharp Elecs. Corp. v. McHugh
...41 U.S.C. §§ 7101–7109, we review the ASBCA's decisions on questions of law de novo. See41 U.S.C. § 7107(b)(1); Ra–Nav Labs. v. Widnall, 137 F.3d 1344, 1346 (Fed.Cir.1998). “Whether or not the Board has jurisdiction is a question of law.” Arnold M. Diamond, Inc. v. Dalton, 25 F.3d 1006, 101......
-
Gen. Dynamics Corp. v. Panetta
...§§ 7101–7109, this court reviews the ASBCA's decisions on questions of law de novo. See41 U.S.C. § 7107(b)(1); Ra–Nav Labs. v. Widnall, 137 F.3d 1344, 1346 (Fed.Cir.1998). We may set aside the ASBCA's determination on a question of fact only if it is “fraudulent, arbitrary, or capricious; .......
-
Gen. Dynamics Corp. v. Panetta, 2012-1249
...§§ 7101-7109, this court reviews the ASBCA's decisions on questions of law de novo. See 41 U.S.C. § 7107(b)(1); Ra-Nav Labs. v. Widnall, 137 F.3d 1344, 1346 (Fed. Cir. 1998). We may set aside the ASBCA's determination on a question of fact only if it is "fraudulent, arbitrary, or capricious......