CBCA 8185

DISMISSED FOR LACK OF JURISDICTION: December 4, 2024 CBCA 8185 ACABAY INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Frank J. Motter, President of Acabay Inc., Colchester, VT, appearing for Appellant. Brett A. Pisciotta, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Judges BEARDSLEY (Chair), SHERIDAN, and KULLBERG. BEARDSLEY, Board Judge. The respondent, the General Services Administration (GSA), moved to dismiss this appeal for lack of jurisdiction asserting that the appellant, Acabay Inc. (Acabay), filed its appeal more than ninety days after it received the contracting officer’s final decision. Acabay argues that it timely filed its appeal via the United States Postal Service (USPS) within the ninety-day period. For the reasons set forth below, we find that Acabay did not timely file its appeal and dismiss this appeal for lack of jurisdiction. CBCA 8185 2 Statement of Facts This appeal arises from a lease between Acabay and GSA for office and related space that included design and construction of certain tenant improvements. Appellant’s Notice of Appeal at 6. Acabay submitted a certified claim to recover “lost rent revenue” and “additional fees for Acabay’s construction/design team[,] including opportunity cost[s]” for alleged delays caused by GSA in issuing the notice to proceed. Id. On May 20, 2024, Acabay received the lease contracting officer’s (LCO) final decision denying Acabay’s claim. Appellant’s Response to Respondent’s Motion to Dismiss for Lack of Jurisdiction (Appellant’s Response) at 2. The LCO’s final decision notified Acabay of its appeal rights and provided the mailing address for the Civilian Board of Contract Appeals (CBCA or Board). Id.; Appellant’s Notice of Appeal at 14. On August 21, 2024, Acabay electronically filed (efiled) its notice of appeal with the CBCA. Appellant’s Response at 3; Appellant’s Notice of Appeal at 1. The electronic filing made no mention of an earlier USPS mailing, but it did contain a letter dated July 17, 2024, which was titled “Notice of Appeal.” Appellant’s Notice of Appeal at 3. This July letter, addressed to the CBCA and signed by Acabay’s President, Frank J. Motter, indicated that it was to be sent “[v]ia email” and that the contracting officer was to be copied. Id. at 3-4. GSA moved to dismiss Acabay’s appeal for lack of jurisdiction, arguing that Acabay failed to submit its appeal to the CBCA within the ninety-day deadline required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018). In its response to GSA’s motion to dismiss, Acabay claimed that Mr. Motter mailed Acabay’s notice of appeal to the Board at 1800 M Street, N.W., 6th Floor, Washington, DC 20036 via the USPS on August 5, 2024. Appellant’s Response at 2. Acabay noted that the Board’s website identified USPS mailing as a proper method for filing documents with the Board. Id. at 4-5. Acabay also pointed to a photograph of the mailbox into which Mr. Motter allegedly dispatched the notice of appeal on August 5, 2024. Appellant’s Comments in Response to the Respondent’s Reply to the Appellant’s Response to the Motion to Dismiss for Lack of Jurisdiction at 2-3, 5. Mr. Motter stated, “I can only provide the mailbox from which I mailed the letter[;] it is less than 100 feet away from the office door of our office.” Id. at 2. He further indicated, “I regretfully tell the court I cannot prove [the mailing] beyond the photograph and telling the court I have done so.” Id. at 5. Acabay also explained that it efiled the notice of appeal on August 21, 2024, to provide additional information that was not included in the earlier mailing, including the LCO’s final decision and other exhibits. Id. at 4. The Clerk of the Board has confirmed that there is no record of the CBCA receiving a notice of appeal from Mr. Motter or Acabay by mail. CBCA 8185 3 Discussion Standard of Review In response to [a motion to dismiss], appellant[], even though appearing pro se, bear[s] “the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” Selrico Services, Inc. v. Department of Justice, CBCA 3084, 13 BCA ¶ 35,268, at 173,132 (quoting Ron Anderson Construction, Inc. v.