CBCA 7107

DISMISSED FOR LACK OF JURISDICTION: July 8, 2021 CBCA 7107 CHEROKEE 8A GROUP, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. John Llewellyn, Project Executive of Cherokee 8A Group, Wharton, NJ, appearing for Appellant. David G. Fagan, Office of General Counsel, Department of Veterans Affairs, Bend, OR, counsel for Respondent. Before Board Judges DRUMMOND, SHERIDAN, and O’ROURKE. SHERIDAN, Board Judge. The Cherokee 8A Group (Cherokee) appeals a claim arising out of contract VA243- 14-C-0029 with the Department of Veterans Affairs (VA) for construction services at the VA Medical Center in East Orange, New Jersey. The VA moved to dismiss, asserting that the appeal did not meet the ninety-day statutory threshold of the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), for filing an appeal before the Civilian Board of Contract Appeals (CBCA). Id. § 7104(a). We agree and dismiss the appeal as untimely. CBCA 7107 2 Background Cherokee submitted an uncertified claim to the VA’s contracting officer on September 12, 2018, for the amount of $473,669.42. Cherokee certified this claim on September 25, 2018. The claim sought an outstanding balance, time extensions, and additional costs for work beyond the scope of the contract. The contracting officer, Ms. Sharon F. Pierce, approved the claim for the outstanding balance but denied the time extension and additional costs. She notified Cherokee’s President, Mr. John Hopka, of the final decision via a letter dated May 2, 2019. Neither party disputes this date. Cherokee’s receipt of the final decision marked the start of the ninety-day time limit for filing an appeal at the CBCA, which ended on July 31, 2019. See Rule 2(d)(1) (48 CFR 6101.2(d)(1) (2018)). In the contracting officer’s final decision letter, dated May 2, 2019, Ms. Pierce included appeal language mandated for a contracting officer’s final decision. She instructed Cherokee: Please Note that this is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference the decision, and identify the contract and project number. With regards to appeals to the agency board of contract appeals, you may, solely at your election proceed under the board’s–(1) small claim procedure for claims of $50,000 or less or, in the case of a small business concern (as defined in the Small Business Act and regulations under that Act), $150,000 or less; or (2) Accelerated procedures claims of $100,000 or less. Instead of appealing to the agency board of contract appeals, you may also bring an action directly in the United States Court of Federal Claims . . . within 12 months of the date you receive this decision. On May 9, 2019, one week after receiving the contracting officer’s final decision, Cherokee responded via letter to Ms. Christina M. Katz, the Veterans Integrated Service Network (VISN) 2, New York/New Jersey VA Healthcare Network Branch Chief of Construction, acknowledging receipt of the contacting officer’s decision dated May 2, 2019, and requesting that the VA reconsider its decision. The VA did not reply to Cherokee’s letter. CBCA 7107 3 On July 11, 2019, Cherokee sent an email to Ms. Katz and Ms. Pierce, asking if the VA’s Office of Construction and Facilities Management was the correct forum to appeal the contracting officer’s final decision. In a letter dated July 22, 2019, Cherokee notified the “Board of Appeals, Office of Construction & Facilities Management” of its intent to appeal the contracting officer’s final decision. This letter further stated, “We trust this is being sent to the proper authority.” On July 30, 2019, Cherokee sent another email to Ms. Katz and Ms. Pierce stating, “Given the fact that you did not respond to our request to confirm the delivery address we presume [the appeal] was sent to the proper address.” The next day, after receiving no response from the VA, Cherokee sent still another email to Ms.