Not To Be Heard: CBCA Dismisses a Contractor's Appeal of a Termination for Convenience for Lack of Jurisdiction

At a time when government agencies are terminating contracts for convenience at an increasingly high rate, a recent decision by the U.S. Civilian Board of Contract Appeals in Blankson v. Agency for International Development, CBCA 8256, reinforces the requirements necessary to establish Board jurisdiction over terminations under the Contract Disputes Act.

The Blankson Case

In Blankson, the U.S. Agency for International Development ("USAID") awarded a personal services contract to Mr. John Blankson ("Mr. Blankson") for development outreach and communications at the USAID regional executive office in Accra, Ghana, in July 2024. The contract included a base period, as well as three option periods to follow thereafter. The contract further stated that USAID could terminate the contract for the convenience of the government "by giving not less than 15 calendar days advance written notice to the contractor."

Roughly three months after contract award, the Contracting Officer responsible for the administration of Mr. Blankson's contract terminated the contract for convenience. The termination letter expressly indicated that it was "the final decision of the Contracting Officer." The termination letter notified Mr. Blankson of his right to appeal the termination with the agency's board of contract appeals, and indicated that Mr. Blankson could request an expedited appeal for a claim of less than $50,000.

Appeal

Mr. Blankson subsequently filed an appeal of the termination with the U.S. Civilian Board of Contract Appeals (the "Board"). In response, USAID filed a motion to dismiss for lack of jurisdiction. USAID asserted that Mr. Blankson did not submit a certified claim with the Contracting Officer for a final decision regarding the termination prior to filing an appeal with the Board. As such, Mr. Blankson had failed to satisfy a necessary prerequisite for Board jurisdiction under the Contract Disputes Act ("CDA"). Mr. Blankson opposed the motion, and noted that the appeal was in accordance with the termination letter issued by the Contracting Officer, as the letter indicated that it was a Contracting Officer's Final Decision ("COFD").

The Board determined the overriding issue on the motion to be whether the Contracting Officer's termination of Mr. Blankson's contract was subject to immediate appeal with the Board. In its analysis, the Board looked to the CDA for guidance. The Board noted that under the CDA, for the Board to exercise jurisdiction over an appeal, a contractor must first submit a claim to the relevant Contracting Officer for a final decision. Once a final decision is rendered, the contractor may appeal the decision to the Board.

The Board further looked to the Federal Acquisition Regulation ("FAR") for the definitional requirements of a certified claim. The Board noted that under FAR 52.233-1, a claim requires "a written demand … by one of the contracting parties, seeking, as a matter of right, the payment of money in a sum certain …." The Board reasoned that the termination of Mr. Blankson's contract, standing alone, was not subject to direct appeal to the Board. Rather, prior to filing an appeal, Mr. Blankson was required to submit to the Contracting Officer, a claim for entitlement to a monetary amount arising from the termination. Because no claim had been filed, no justification existed for the appeal.

Moreover, the Contracting Officer's characterization of the termination letter did not otherwise trigger Board jurisdiction. The Board found that despite the letter's designation as a COFD, it was nothing more than a written notice of termination. As a result, the Board dismissed the appeal.

Takeaway

It is imperative that federal contractors understand the appeals process. This is particularly true as it pertains to the jurisdictional requirements of the respective boards of contract appeals, as well as the U.S. Court of Federal Claims. Should a government agency terminate a contract for convenience, a contractor must still submit a claim to the contracting officer for final decision to trigger Board jurisdiction. Failure to do so is likely not fatal to the underlying claim. However, it can result in the expense of unnecessary financial resources, and significantly extend the timeline for recovery of costs to which a contractor may be entitled.