Raymond F. Monroe

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Raymond F. Monroe is a partner in the Washington, D.C. office of Crowell & Moring. Ray represents multi-national and national corporations on a broad range of government contract matters including: bid protests; claims; compliance programs; construction; Energy Savings Performance Contracts; False Claims Act and qui tam litigation; Homeland Security; indemnification (including Public Law No. 85-804 indemnification); investigations; and prime contractor-subcontractor disputes. In particular, Ray has over 25 years of experience preparing, resolving, and/or litigating complex government contract claims in a wide variety of industries including aerospace, avionics, construction, power generation, and transportation. For example, Ray is currently litigating on behalf of a major defense contractor one of the largest sponsored claims ever presented before the Armed Services Board of Contract Appeals. The case involves complex issues of first impression concerning government contract indemnification, insurance, and recovery of environmental remediation costs and toxic tort litigation expenses. Ray litigates on behalf of and counsels interstate compacts, such as the Metropolitan Washington Airports Authority, on issues related to procurement, including representing such public entities in protest litigation in federal and state trial and appellate courts. Ray assists both private and public clients in designing procurement policies and procedures and alternative dispute resolution mechanisms. He represents clients in alternative dispute resolution proceedings and in arbitrations and has participated in arbitrations as a party arbitrator. Ray counsels clients relating to the implementation of policy and procurement initiatives at the federal, state, and local levels. In particular, he is involved with disaster response, green technology, High Speed Rail, infrastructure improvement, public private partnerships, and renewable energy initiatives. Ray received his law degree with distinction from Duke University Law School where he served as Executive Editor of the Duke Law Journal. Following law school graduation, Ray clerked for Justice Stewart G. Pollock of the New Jersey Supreme Court.


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Last Day Filings at the CBCA: Time is Not on Your Side

Posted on February 6, 2013 by Raymond F. Monroe
Raymond F. Monroe

Both Ray Monroe and Jonathan Baker contributed to this post.

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). 

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