CBCA 4444

CBCA 4444 1 DISMISSED FOR LACK OF JURISDICTION: July 23, 2015 CBCA 4444 DEKATRON CORPORATION, Appellant, v. DEPARTMENT OF LABOR, Respondent. Ralph C. Thomas III of Barton Baker Thomas & Tolle LLP, McLean, VA, counsel for Appellant. David R. Koeppel and Colin W. O’Sullivan, Office of the Solicitor, Department of Labor, Washington, DC, counsel for Respondent. Before Board Judges SOMERS, DRUMMOND, and SHERIDAN. SHERIDAN, Board Judge. The Department of Labor (DOL) requests that we dismiss the appeal filed by DekaTron Corporation (DekaTron) for lack of jurisdiction. DOL argues that, among other grounds, dismissal is warranted because DekaTron failed to file a timely appeal to the Board. DekaTron opposes the dismissal. For the reasons discussed below, we dismiss the appeal for lack of jurisdiction. Background DekaTron submitted its second certified claim to the DOL contracting officer on September 24, 2013, and its revised second certified claim on July 11, 2014. The claim sought lost profits and lease expenses incurred when DOL refused to exercise the option to CBCA 4444 2 renew DekaTron’s contract DOLJ109630970 (contract), and task orders DOJB129633991 (DOL task order) and DOJB129634128 (VA task order). The contracting officer denied the claim in its entirety, and furnished her final decision to DekaTron via email message and certified mail.1 The contracting officer transmitted the final decision by email on October 10, 2014, to the following DekaTron representatives: president and CEO, Steve Silva, at his DekaTron email address; executive vice-president, Rick Brunner, at his DekaTron email address as well as a second email address; and DekaTron’s counsel, Ralph C. Thomas III, at his business email address. The October 10 email message read, in part: Attached please find the Contracting Officer’s Final Decision on [DekaTron’s] Second (Revised) Claim. A hard copy is being sent via United States Postal Service, First Class, Certified Mail. DOL’s Microsoft Outlook program immediately confirmed that “delivery to these recipients or groups is complete.” The contracting officer sent a hard copy of the final decision by certified mail on October 10, 2014, addressed to DekaTron’s president at its corporate offices. That same day, the contracting officer received two email non-delivery notices, which read in pertinent part: Delivery has failed to these recipients or groups: [President and CEO’s DekaTron email address] .... [Executive Vice-President’s DekaTron email address] A problem occurred while delivering this message to this email address. Try sending this message again. If the problem continues, please contact your help desk. The contracting officer contacted DekaTron’s counsel by email on October 16, 2014, regarding the email non-delivery notices: Please be advised that I received a non-delivery notice when sending [the October 10 email message] to [DekaTron’s president]. Similarly, when sent 1 On October 10, 2014, by separate email message, the contracting officer also sent her final decision regarding DekaTron’s first claim. DekaTron appealed this decision, too, and the Board docketed the appeal as CBCA 4428. DOL’s request that we dismiss CBCA 4444 does not affect CBCA 4428. CBCA 4444 3 by [certified mail] on 10/10/2014, we received a notice that the package is being held at the post office and delivery has not been made. Do you have another email address or delivery address for [DekaTron’s president]? As I will be out of the office starting tomorrow, I am arranging to have copies of both CO Final Decisions sent to your office by [certified mail]. DekaTron’s counsel responded that day: I received everything. I can’t understand why that happened with [DekaTron’s president]. I was just talking with him a few days ago. I’ll check it out. Thank you for the alert. DekaTron received the final decision by certified mail on October 20, 2014, and filed its notice of appeal from the contracting officer’s final decision by email on January 13, 2015. The Board docketed the appeal as CBCA 4444. Discussion Parties’ Arguments DOL argues that DekaTron’s appeal must be dismissed because it is untimely.