CBCA 4963

DISMISSED FOR LACK OF JURISDICTION: November 17, 2015 CBCA 4963 ESTES BROTHERS CONSTRUCTION, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Philip E. Beck of Smith, Currie & Hancock LLP, Atlanta, GA, counsel for Appellant. Milton Hsieh, Office of Counsel, Federal Highway Administration, Department of Transportation, Sterling, VA, counsel for Respondent. Before Board Judges DANIELS (Chairman), POLLACK, and ZISCHKAU. DANIELS, Board Judge. We hold here, on motion of respondent, that our rules regarding filing of appeals of contracting officer decisions mean what they say and are to be construed strictly. A notice of appeal which was filed later than the ninetieth day after the contractor’s receipt of a contracting officer decision, as that date is construed by the rules, must be dismissed for lack of jurisdiction. Background In 2013, the Department of Transportation’s Federal Highway Administration (FHWA) awarded to Estes Brothers Construction, Inc. (Estes) a contract for rehabilitation CBCA 4963 2 of portions of Newfound Gap Road in Tennessee. On January 29, 2015, Estes submitted to FHWA a claim in the amount of $868,489 under this contract. By decision dated June 10, 2015, a FHWA contracting officer denied the claim and notified Estes of its “right to appeal this Decision within 90 days from the date of receipt . . . . to the Civilian Board of Contract Appeals” or to “bring an action directly in the United States Court of Federal Claims within 12 months of the date you receive this Decision.” Estes received the decision at 1:27 p.m. on June 11, 2015. The contractor submitted a notice of appeal to this Board by electronic mail at 4:35 p.m. on Wednesday, September 9, 2015. The Board accepted the notice on Thursday, September 10, 2015. Discussion The Contract Disputes Act provides that a contractor may appeal a contracting officer’s decision to an agency board of contract appeals “within 90 days from the date of receipt of [that] decision.” 41 U.S.C. § 7104(a) (2012). The ninetieth day after Estes received the contracting officer’s decision at issue was September 9, 2015. Estes transmitted its notice of appeal to the Board at 4:35 p.m. Eastern Time on that day. Was that filing timely? We have held that the Act’s deadline for appealing a decision has “been strictly construed by the Court of Appeals for the Federal Circuit because the authorization to make the filing is a waiver of sovereign immunity. Failure to file an appeal within the ninety-day deadline divests the Board of jurisdiction to consider the case on its merits.” Treasure Valley Forest Products v. Department of Agriculture, CBCA 3604, 14-1 BCA ¶ 35,549, at 174,207 (citing Systems Development Corp. v. McHugh, 658 F.3d 1341 (Fed. Cir. 2011); Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); and several Board decisions); see also DekaTron Corp. v. Department of Labor, CBCA 4444, 15-1 BCA ¶ 36,045, at 176,061. We recognize that within the past year, in Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315, 1320-22 (Fed. Cir. 2014), the Court of Appeals held that another deadline imposed by the Contract Disputes Act – for submitting a claim to the contracting officer – is not jurisdictional. The Court did not address in that decision whether established case law as to the deadline for filing an appeal with a board of contract appeals should be revisited. In the absence of a Court ruling on that matter, we continue to follow prior Court decisions that consider this deadline jurisdictional. The Board’s Rules of Procedure explain the requirements for filing an appeal with the Board. Rule 1(b), 48 CFR 6101.1(b) (2014), includes the following provisions: CBCA 4963 3 (5) Filing. (i) . . . A notice of appeal . . . is filed upon the earlier of its receipt by the Office of the Clerk of the Board or if mailed, the date on which it is mailed to the Board. . . . A United States Postal Service postmark shall be prima facie evidence that the document with which it is associated was mailed on the date of the postmark. .... (iii) Filings submitted by electronic mail (e-mail) are permitted, with [exceptions not relevant here]. . . . The filing of a document by e-mail occurs upon receipt by the Board on a working day, as defined in . . .