Contractor filed an appeal electronically (via email) at 4:35 p.m. Eastern Time on the 90th day following receipt of a contracting officer’s decision. The Board dismissed the appeal, concluding that it lacked jurisdiction because the appeal was filed five (5) minutes late. According to the Board’s rules, an appeal can be filed by U.S. mail up until 11:59 p.m. on the 90th day but must be filed no later than 4:30 p.m. if filed electronically. The lesson learned from this decision is that if you or your attorney are filing an appeal at the last minute, it may be prudent to use the good old fashioned U.S. Mail. Estes Brothers Construction, Inc. v. Department of Transportation, 15-1 BCA P 36166 (Civilian B.C.A.).
Under the rules of the Civilian Board of Contract Appeals (CBCA) the notice of appeal that is not “mailed” in the U.S. Mail is deemed filed when it is actually received by the Office of the Clerk of the Board. Mail and email are treated much differently, so a notice of appeal that is emailed is not “mailed.” A filing that is submitted by email is received on the day it is transmitted only if it is received by 4:30 p.m., Eastern Time, on that day. If the filing is received after that time, it is considered filed on the next working day. In this case, it was deemed received on September 10, and that was the ninety-first day after the contractor received the contracting officer’s decision – which made the notice too late to meet the Contract Disputes Act’s ninety-day limitation on filing. That is considered a jurisdictional requirement and the Board thus found it lacked jurisdiction. Although this decision might appear somewhat draconian it actually just demonstrates that the rules will be strictly enforced and contractors must beware of the requirements and carefully follow them to the absolute letter. The Board pointed out that the contractor is not deprived of all opportunity for relief from the contractor’s decision since the contractor still had time remaining to file a timely appeal from the contracting officer’s decision to the United States Court of Federal Claims where claims may be filed within twelve months of the date the contracting officer’s decision is received.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 18, No. 4 (April 2016).
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