ASBCA 59446

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Tessada & Associates, Inc. ) ASBCA No. 59446 ) Under Contract No. NNA09DB40C ) APPEARANCE FOR THE APPELLANT: Tami J. Howie, Esq. Executive Vice President & General Counsel APPEARANCES FOR THE GOVERNMENT: Scott W. Barber, Esq. NASA Chief Trial Attorney Colleen Burt, Esq. Kevin F. Kouba, Esq. Trial Attorneys NASA Ames Research Center Moffett Field, CA OPINION BY ADMINISTRATIVE JUDGE DELMAN ON JURISDICTION The Board, sua sponte, raised the issue of its jurisdiction over this appeal under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, questioning whether Tessada & Associates, Inc. (Tessada or appellant), has filed a timely notice of appeal. The government declined to take a position on whether appellant's notice of appeal was timely. We find that the Board has jurisdiction for reasons stated below. FINDINGS OF FACT 1. On 30 April 2009, NASA Ames Research Center (NASA) awarded Contract No. NNA09DB40C to Tessada (R4, tab 4). 2. By letter dated 31 July 2013, appellant submitted a certified claim to the contracting officer (CO) via email, sent by appellant's contract manager, Ms. Tammy Smith (R4, tab 2 at 9, 11; app. br., ex. C, Smith aff. {Smith aff.) ~ 3). 3. On 25 April 2014, the CO emailed to Tessada a contracting officer's final decision (COFD) denying the claim. The COFD was directed to Tessada's address in Springfield, Virginia. (R4, tab 1 at 2) The COFD was sent as an attachment to three persons with "@tessada.com" email addresses, including Ms. Smith (R4, tab 1 at 1). The CO received a "read" receipt from her account, stating that the "Final Decision" message was read on "Friday, April 25, 2014 5:51:45 PM (UTC-06:00) Central Time (US & Canada)" (R4, tab 1 at 7). Ms. Smith's affidavit does not address this "read" receipt. Ms. Smith avers that she did not read the email's attachment until Monday, 28 April 2014 (Smith aff. ~ 8). 4. On 25 July 2014, the Board received a notice of appeal dated 22 July 2014 from Tessada. The notice of appeal was delivered by FedEx. (Bd. corr. file) 5. Appellant alleges that it also sent the notice of appeal to the Board by regular United States Postal Service (USPS) mail on 24 July 2014 (app. br. ~ 18). Appellant provided a photocopy of the envelope it alleges was used to submit this notice of appeal. The envelope was properly addressed to the Board with the correct address and zip code. The envelope bears a 24 July 2014 postage meter stamp with a "PITNEY BOWES" designation but obviously bears no USPS postmark. (App. br., ex. E) The Board did not receive a notice of appeal by USPS mail. 6. Mr. Hale is the CO who issued the COFD. His email signature block shows his address to be: NASA Ames Research Center Mail Stop 241-l(Bldg N241, Room 232) Moffett Field, CA 94035 (R4, tab 1) 7. Tessada also sent a copy of the 22 July 2014 notice of appeal to the CO on 24 July 2014 via USPS mail, with sufficient postage, addressed to: William E. Hale National Aeronautics and Space Administration Moffett Field, CA 94035-1000 (App. br., ex. F) 8. The envelope mailed by Tessada to the CO, containing the notice of appeal, was received by the CO on 26 August 2014 at 8:00 AM and had the following machine-generated marking: NOVA VA220 24JUL'14 PM 4 [unreadable character] 2 Absent evidence otherwise, we find that this marking was generated by a U.S. Post Office in Northern Virginia, and that it indicates that the envelope was postmarked on 24 July 2014. (Bd. corr. ltr. dtd. 11February2015 and attached copy of envelope) 9. The government admits that the CO received this mailing on 26 August 2014 (Bd. corr. ltr. dtd. 11 February 2015 and attached copy of envelope).