In ACC Construction Co., Inc., ASBCA Nos. 63528, 64067 (July 16, 2026), the Armed Services Board of Contract Appeals held that payment estimates withholding liquidated damages are not contracting officer final decisions — and do not start the Contract Disputes Act’s 90-day appeal clock — unless a properly authorized contracting officer signs them and clearly expresses intent for them to be final. A contracting officer’s representative’s signature never counts, no matter how many times it appears. The board denied the government’s motions to dismiss and for summary judgment in full.
This article summarizes this noteworthy decision and provides key takeaways for government contractors.
Background
ACC Construction Company held a design-build contract with the U.S. Army Corps of Engineers, Louisville District, for facilities at what is now Fort Anderson-Pinn-Hill (formerly Fort A.P. Hill), Virginia. During performance, the contract experienced COVID-19-related delays, and the government withheld $497,660 in liquidated damages across a series of 10 payment estimates.
ACC eventually filed two consolidated ASBCA appeals seeking a 486-day time extension, more than $1.8 million in COVID-19-impact costs, and the release of liquidated damages. The government moved to dismiss part of the case for lack of jurisdiction and moved for summary judgment on the rest.
- Holding 1: A COR’s Signature Does Not Create a Final Decision
The government argued that two payment estimates — signed by Cory Pugh — were contracting officer final decisions that ACC failed to appeal within 90 days, making the liquidated damages issue final and unreviewable. There was one problem: Pugh was the contracting officer’s representative (COR), not the contracting officer, and the government initially omitted that fact from its motion. It only surfaced after the board questioned his status.
Because a final decision under 41 U.S.C. § 7103(a) can only be issued by someone with contracting officer authority, and a COR is explicitly barred from actions affecting contract funds, none of the eight pay estimates signed only by Pugh qualified as final decisions. The board did not mince words, noting the government’s “baseless” position and reminding it of its “duty of candor.”
Two of the 10 pay estimates were signed by an actual administrative contracting officer with delegated authority to issue final decisions. Even so, the board found they were not final decisions either. The forms never described themselves as final decisions, never included the appeal-rights language the CDA requires, and were sandwiched within a series of otherwise routine, COR-signed withholding documents. Nothing about them would have signaled to ACC that the 90-day clock was running.
In other words, whether a document is a “claim” or “final decision” under the CDA turns on substance and context, not the presence of a signature block. Routine payment paperwork rarely qualifies — even from someone with the right authority — unless it clearly conveys finality and appeal rights.
- Holding 3: Good Faith and Fair Dealing Claims Travel with the Underlying Claim
The government also sought to dismiss ACC’s breach of the implied duty of good faith and fair dealing count, arguing ACC never presented it to the contracting officer. The board disagreed: ACC’s certified claim already alleged the government “failed to work with ACC on COVID issues, impacts, and delays” and “failed to partner to complete the work.” Because the complaint’s good-faith count rested on the same operative facts, sought the same relief, and advanced the same theory as the certified claim, no separate presentment was required.
- Holding 4: The Government Cannot “Spring” Final Payment on a Contractor
The government also argued all of ACC’s claims were barred because they came after final payment. The board rejected this on summary judgment, pointing to a genuinely disputed inference: The government told ACC it would issue final payment 30 days after declaring the contract complete, then paid the remaining $100 balance just one week later — without a payment request or release from ACC, and while ACC had already flagged unresolved COVID-19 and liquidated damages disputes. The board found this could reasonably be seen as the government “inappropriately foist[ing]” final payment on ACC to manufacture a finality defense, precluding summary judgment.
- Holding 5: Unilateral Modifications Do Not Create an Accord and Satisfaction
Finally, the government claimed a unilateral modification granting a two-day extension for COVID-19 delays constituted an accord and satisfaction barring all other delay claims for that period. Because ACC never agreed to that modification, there was no meeting of the minds — a required element — and the defense failed.
Key Takeaways for Government Contractors
Before treating any withholding, deduction, or payment document as final and appealable, confirm who actually signed it. A COR’s signature — regardless of title or form language — cannot start the CDA’s 90-day clock, and even an authorized contracting officer’s signature should not count unless the document clearly conveys that it is a final decision with appeal rights.
Contractors should also resist signing final payment vouchers or releases while disputes remain open, and should document that resistance in writing, as ACC did. If the government pays anyway without a proper request or release, that payment may not carry the finality the government assumes.
Finally, a certified claim that broadly describes the government’s lack of cooperation during a dispute can support a later good faith and fair dealing count without a separate submission to the contracting officer — but only if the facts and relief genuinely overlap.
FAQ
Does a pay estimate withholding liquidated damages count as a contracting officer’s final decision? Not automatically. It only qualifies if a person with actual contracting officer authority signs it and the document clearly expresses an intent to be a final decision, typically including CDA appeal-rights language.
Can a COR issue a final decision assessing liquidated damages? No. A COR lacks authority under 41 U.S.C. § 7103(a) to issue contracting officer final decisions, even if the COR signs a form in the “contracting officer approval” block.
What happens if the 90-day appeal deadline never started? If no valid final decision was ever issued, the 90-day appeal period under 41 U.S.C. § 7104(a) never begins to run, and the contractor’s later claim challenging the withholding isn’t time-barred.
Does accepting a small final payment bar a contractor’s other claims? Not necessarily. If the government pays without a request from the contractor or a signed release — particularly while disputes are pending — a fact question can arise over whether that payment was truly a “final payment” for purposes of barring later claims.
Can a unilateral contract modification create an accord and satisfaction? No, unless the contractor agrees to it. An accord and satisfaction requires a meeting of the minds and consideration; a modification the contractor never accepted cannot supply either element.
If you have any questions about the foregoing or require assistance, please do not hesitate to contact Aron Beezley or Elizabeth Brown.