And it's too late, baby now, it's too late
Though we really did try to make it
Somethin' inside has died, and I can't hide
And I just can't fake it, oh, no, no

--Carole King

               In a recent case  decided by the Court of Appeals for the Federal Circuit, the court rejected an appeal related to an alleged delay in payroll review under the Davis-Bacon Act.  The case is Parsons Evergreene, LLC v. Secretary of the Air Force, Case nos . 2019-1931 and 2019-1975 (Fed. Cir. Aug. 7, 2020). The court found that it  had Contract Disputes Act jurisdiction to hear the claim. And it rejected the Government’s so-called NAFI Doctrine defense, finding that the real contracting party was the Air Force and not a non-appropriated fund instrumentality. But when it turned to the Davis-Bacon Act  related portion of Parsons’ appeal, it found the appeal was untimely.

               It is not uncommon for the Boards of Contract Appeals to docket  multiple  counts or claims with different case numbers. That is what happened here. For reasons of judicial efficiency and clarity, and perhaps (a cynic might say)  to bolster their case count for budgeting purposes, the Armed Services Board of Contract Appeals (“ASBCA”) had divided Parsons’ claims into two case numbersand issued two different opinions. One opinion addressed Parsons’ Davis-Bacon Act claim that the Air Force delayed in conducting a payroll review. Parsons did not seek any reconsideration of that decision. However, Parsons moved the ASBCA  for reconsideration of the other opinion that addressed its second set of claims. After sitting on its hands for 255 days after the issuance of the ASBCA  separate final decision in the payroll portion of the case, and after the Board denied reconsideration of the other claim, Parsons then appealed both decisions to the Federal Circuit.

               The Federal Circuit noted that an appeal of a board decision must be filed within 120 days of the decision. Of course, a motion for reconsideration can toll the appeal deadline. But here Parsons did not move for reconsideration of the payroll decision. Its only request for reconsideration was related to its other claim, which was separately decided.  

               The Federal Circuit  held as follows:

Under FAR § 22.406–8, the government was authorized to ensure Davis-Bacon Act compliance by “[c]onduct[ing] labor standards investigations when available information indicates such action is warranted.” Parsons asserts that it is entitled to compensation because the Air Force unreasonably delayed initiating and conducting such a review. We do not reach the merits of Parsons’ payroll claim because we lack jurisdiction to consider it.

Slip Op. at 10.

               Accordingly, the Federal Circuit  found that the request for reconsideration of the other separately issued decision did not toll the appeal deadline for the payroll decision. Since more than the  120 day deadline had passed since the ASBCA decided the payroll case, the court proceeded to dismiss Parsons’ untimely appeal of the payroll decision for lack of jurisdiction.

               It is hard to know what the plaintiff was thinking when it delayed more than 120 days in filing its appeal. It could have filed a timely appeal and then sought to consolidate it with the subsequent second appeal into one case. Perhaps the underlying claim was deemed to be too weak to support its own appeal. But Parsons was willing to try to join it to its other more meritorious appeal later. However, the idea that the Air Force had breached some duty by failing to conduct a timely wage and hour investigation was likely always on thin ice, even on the merits, and it became untenable after Parsons missed the deadline to appeal.

Those interested in the full story can read the court’s opinion at  http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1931.OPINION.8-7-2020_1632822.pdf