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We work in an environment when sending a letter by U.S. Mail seems old fashioned to some.  "Next Day Air" by one of the leading private delivery services seems more certain, more modern, and more fool proof.  However, when it comes to filing an appeal from a final decision of a contracting officer on a federal government contract, the old fashioned way may be the better way.

The Tortoise and the Hare

  Section 33.211 of the Federal Acquisition Regulations ("FAR") contains the basic requirements or elements of a final decision.  One of those elements is a statement of the contractor's appeal rights and options.  FAR § 33.211(a)(4)(v) requires the inclusion of a paragraph, which reads substantially as follows:

This is the final decision of the Contracting Officer.  You may appeal this decision to the agency board of contract appeals.  If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken.  The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number.  With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the board's small claim procedure for claims of $50,000 or less or its accelerated procedure for claims of $100,000 or less.  Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States Court of Federal Claims (except as provided in the Contract Disputes Act of 1978, 41 U.S.C. 603, regarding Maritime Contracts) within 12 months of the date you receive this decision. . .

(emphasis added)

  The words "mail or otherwise furnish" proved to be a disaster for the contractor in Tiger Natural Gas, Inc., GSBCA No. 16039, 03-2 BCA ¶ 32,321 (hereinafter "Tiger").

  In Tiger, the contracting officer issued a final decision claiming that the contractor owed the government $39,783.17.  The contracting officer sent the September 19, 2002 final decision to the legal counsel for the contractor via a commercial courier service (one of the nation's leading firms in that business).  The decision was received by counsel on September 23, 2002.  Ninety days from the date of receipt was December 22, 2002.  Since that date fell on a Sunday, the General Services Administration Board of Contract Appeals ("GSBCA" or "Board") rules operate to extend the filing deadline to the next business day.  In this case December 23, 2002. 

  On December 19, 2002, Tiger's counsel gave a notice of appeal to the same leading commercial carrier for delivery by next day air.  The airbill affixed to the package contained the street address for the General Services Administration Board of Contract Appeals, but did not contain the Board's room number or telephone number, although the airbill contained space for that information. 

According to the evidence before the Board, the courier attempted to make delivery on December 20^th, December 23^rd, December 24^th, December 26^th and December 27^th.  In all cases the courier was in the offices of the GSBCA, but no one would accept the package because the address label did not name a specific person.  Finally, on December 30, 2002, the courier was able to locate a person who was willing to accept the package and delivery was completed.  The Board also noted that before the "courier had completed her peregrinations" (wanderings), the contractor filed an appeal with the Board on December 27, 2002 by facsimile transmission. 

  Thereafter, the government moved to dismiss the appeal and the GSBCA held a hearing approximately six moths after the appeal was actually filed.  Much of the testimony focused on the futile efforts to make delivery of the notice of appeal.  There was no question that the courier was within the correct building on multiple days seeking to effect delivery to the GSBCA.

Board's Decision

  Section 606 of the Contract Disputes Act provides that a contractor may appeal a final decision to a board of contract appeals [w]ithin ninety days from the date of receipt of a contracting officer's decision. . . ."  Citing multiple decisions of the Court of Appeals for the Federal Circuit, the Board confirmed that compliance with the ninety day requirement was jurisdictional.  That is, if the appeal is not timely, the Board has no jurisdiction to hear the claim as the filing deadline requirement is strictly enforced. 

  All of the boards have rules which define "filing".  The GSBCA's Rules of Procedure provide as follows:

(A notice of appeal) is filed upon the earlier of (A) its receipt by the Office of the Clerk of the Board or (B) if mailed, the date on which it was mailed.

  The GSBCA held that Tiger's notice of appeal was not mailed.  Rather it was sent by both a commercial service and a facsimile transmission.  Both were received several days after the last day (December 23^rd) for a timely filing.  The GSBCA rejected the argument that it should take notice of the fact that the courier unsuccessfully attempted to give the package to someone in the Board's offices on both December 20^th and December 23^rd.  In the view of the Board "receipt" means "taking possession or delivery".  Since delivery was not achieved for whatever reason, receipt did not occur.  Describing counsel's argument as analogous to the "neighborhood play" when a double play is turned in baseball, the Board rejected the concept that delivery meant anything less than actual possession.  Similarly, the Board rejected the assertion that the actions or inactions of its employees contributed to the late receipt of the appeal or should operate to excuse the late receipt of the appeal.  Basically, the risk of the late delivery by the commercial courier service rested with the contractor.

  The Board also noted that counsel's decision on the means of filing was a contributing factor to late filing.  The GSBCA's rules contemplate three alternative means of filing - by mail, facsimile transmission, or hand delivery.  A mailed appeal is deemed to be filed on the date of mailing with the postmark being prima facie evidence of the date of mailing.  A facsimile transmission of an appeal is filed upon the Board's "receipt of the entire printed submission."  Rule 101(b)(5)(ii).  The use of a private agent (commercial delivery service) placed the risk of the misadventure on the contractor.

Comment

  Remember the fable of the tortoise and the hare.  Even if a private delivery service is faster, in the case of "filing" an appeal to a board of contract appeals, the U.S. Postal Service is actually quicker because of the differing definitions of "filing".  If you use the Postal Service, the postmark date equals filing.

  Mailing a notice of appeal is a good practice whenever filing an appeal to a board.  The GSBCA's rule on "receipt" of facsimile transmissions requires receipt of the "entire printed submission".  Rather than risk an equipment failure, it is often prudent to back up a facsimile transmission with a mailing via the U.S. Postal Service. 

  There is something of a silver lining for the contractor in this case.  The Board's ruling, which dismissed the appeal for lack of jurisdiction, was dated July 16, 2003.  This allowed approximately two more months for the contractor to file a suit in the U.S. Court of Federal Claims before the one-year period expired.  The futile attempt to invoke the Board's jurisdiction did not preclude a filing at that court within the 12 months window of time.

Thomas J. Kelleher, Jr.

582-8016

tjkelleher@smithcurrie.com

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