CBCA 5955

DISMISSED FOR LACK OF JURISDICTION: April 8, 2022 CBCA 5955 EAGLE PEAK ROCK & PAVING, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Bennett J. Lee and Stephen L. Pessagno of Varela, Lee, Metz & Guarino, LLP, San Francisco, CA; and David B. Wonderlick of Varela, Lee, Metz & Guarino, LLP, Tysons Corner, VA, counsel for Appellant. Rayann L. Speakman, Office of the Chief Counsel, Federal Highway Administration, Department of Transportation, Vancouver, WA; and Milton Hsieh, Office of the Chief Counsel, Federal Highway Administration, Department of Transportation, Sterling, VA, counsel for Respondent. Before Board Judges RUSSELL, KULLBERG, and SULLIVAN. RUSSELL, Board Judge. This appeal arises from a contract entered into between Eagle Peak Rock & Paving, Inc. (Eagle Peak) and the Department of Transportation’s Federal Highway Administration (FHWA) for construction work in Yellowstone National Park. Eagle Peak challenges FHWA’s withholding of payments for the company’s alleged failure to timely submit a work schedule pursuant to 48 CFR 52.236-15 (2016). Although FHWA did not contest the Board’s jurisdiction to entertain this appeal, the Board raised the issue, sua sponte, and asked CBCA 5955 2 the parties to brief the issue of jurisdiction. Based on the briefing and evidence produced by the parties, we find that we lack jurisdiction to consider this appeal.1 Background Eagle Peak filed its notice of appeal with the Board on December 1, 2017. In its notice of appeal and in its complaint, Eagle Peak stated that it received the contracting officer’s decision serving as the basis for this appeal on September 5, 2017. FHWA, in its answer to appellant’s complaint, however, stated that the contracting officer’s decision was delivered to Eagle Peak via Federal Express (FedEx) on September 1, 2017. FHWA produced a FedEx receipt with a timestamp indicating that the package containing the contracting officer’s final decision was delivered at 2:35 p.m. on September 1, 2017, to the address identified in the contract as the location of Eagle Peak’s offices. The receipt was signed by an individual identified by Eagle Peak as a receptionist in its office. Anthony Cruse, Eagle Peak’s president, provided two declarations. Mr. Cruse asserted that Eagle Peak received the contracting officer’s decision on September 5, 2017, which was the Tuesday after the Labor Day holiday. Declaration of Anthony Cruse ¶ 3 (Dec. 29, 2020). He explained that, “[i]n September 2017, Eagle Peak employed . . . a receptionist” whose “regular duties did not include the receipt or distribution of correspondence or packages addressed to Eagle Peak.” Supplemental Declaration of Anthony Cruse ¶ 2 (April 27, 2021). Mr. Cruse noted that Eagle Peak’s general manager at the time handled such duties. Id. ¶ 3. Specifically, the general manager received, signed for, and distributed packages at Eagle Peak’s physical office. Id. Mr. Cruse further stated: [T]he Eagle Peak office to which the [contracting officer’s] letter was addressed was closed September 4, 2017 in observance of Labor Day. That office likely was closed the preceding workday, September 1, 2017, as the California Department of Transportation projects which Eagle Peak managed from that office during that time typically prohibited project work both on Labor Day and the workday preceding Labor Day. Thus, [the receptionist] 1 In December 2018, the Board conducted a ten-day hearing in CBCA 5692, in which Eagle Peak challenged FHWA’s termination of their construction contract for default. While the parties presented evidence in this appeal (CBCA 5955) at the hearing, the Board deferred a determination on the merits in this appeal and requested that the parties brief the issue of the Board’s jurisdiction. By decision dated December 7, 2020, the Board granted Eagle Peak’s appeal in CBCA 5692. See Eagle Peak Rock & Paving, Inc. v. Department of Transportation, CBCA 5692, 21-1 BCA ¶ 37,752 (2020), appeal docketed, No. 21-1837 (Fed. Cir. April 8, 2021). CBCA 5955 3 likely was the only Eagle Peak employee physically present at that office on September 1, 2017 for the purpose of answering calls. Id.