Raymond F. Monroe

The Civilian Board of Contract Appeals reminded us last week how unforgiving the Board’s timeliness rules can be for unsuspecting contractors.  In Schunck v. General Services Administration, January 31, 2013, CBCA No. 3079, the Board dismissed the appellant’s case because it was not timely filed under the Contract Disputes Act (CDA), 41 U.S.C. § 7101, et seq.  The CDA states that an appeal of a final contracting officer’s decision must be filed “[w]ithin ninety days from the date of receipt of [the] decision.”  41 U.S.C. § 7104(a).  The Board’s Rules then define when a notice of appeal is considered “filed.”  Specifically, Board Rule 1(b)(5)(i) states that the 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.”

In Schunck, the appellant sent his notice of appeal to the Board on the last possible day – the 90th day after receipt of the contracting officer’s decision – and the Board received the package the following day.  The problem for the appellant, however, was that he shipped the package via Federal Express overnight delivery instead of using the United States Postal Service.  Thus, because the notice of appeal was not “mailed” or received by the Board within 90 days, it was not timely filed and the Board lacked jurisdiction to hear the appeal.  Even though the Board likely received the notice of appeal via Federal Express sooner than it would have received it had it been sent using regular U.S. mail, the rules are the rules, and the appellant in Schunck did not comply with them.

The obvious lesson from Schunck is that it is never wise to wait until the last day to file.  But what about those instances where a 90th-day filing simply cannot be avoided?  Are you then stuck with U.S. mail?  This is where knowing the Board’s rules is critical.  The Board not only permits U.S. mail, but it also accepts filings by hand delivery, facsimile, and email, subject to certain limitations.  Rule 1(b)(5).