CBCA 3044

Executive Personnel Services, INC

Mar 25, 2013Judge ZischkauSMALL BUSINESS ADMINISTRATION
Not published in the listingDismissed for lack of jurisdiction

Key Facts

Appellant
Executive Personnel Services, INC
Respondent agency
SMALL BUSINESS ADMINISTRATION
Judge
Zischkau
Case number
CBCA 3044
Decided
Mar 25, 2013The decision states Mar 25, 2013 on its own face, which agrees with the listing.
Decision type
Not published in the listingThe Board's year tables for 2007 through 2014 carry no Type column, so no disposition was published for this decision. It is not missing data and nothing is inferred from the document.
Law firm for the appellant
The Law Offices of C. Gregory Stewart
Outcome
Dismissed for lack of jurisdiction
Accordingly, the appeal is DISMISSED FOR LACK OF JURISDICTION.
Read from the shouted disposition line the Board prints above this decision's own date, and quoted from its operative sentence above. No model is involved.

Topics

Jurisdiction and timelinessProcedure and sanctions

Topics are derived from each decision's own text by keyword rules, not a classification by the Board. A decision matching several topics carries all of them, so topic counts sum above the number of decisions. They are ordered strongest first.

Appearances

For the appellant
Gary T. Williams
The Law Offices of C. Gregory Stewart
Washington, DC
For the respondent
Meagan K. Guerzon
Office of General Counsel, Small Business Administration
Washington, DC
Decision PDF (cbca.gov) Civilian Board of Contract Appeals, Contract Disputes Act casesThe Board's year listing this row was read fromThe decision document is hosted by the Board itself, so it is an official copy, and the Board's own Contract Disputes Act case listing is the citable source. The topics, the disposition and the appearances above are read deterministically from the decision's own words; no model is involved.

Research This Decision

Create a free account to open this decision in the CBCA workspace: a grounded decision brief drafted from the Board's own words, the Insights dashboard over the whole corpus, and the filtered browser.

CBCA Decision Brief

A Workflows Hub brief on this decision, drafted from the captured text with every quote and authority checked against it.

Insights

Who prevails before the Board, by topic and by judge, with every denominator visible: merits rulings, not decisions.

Browse with Filters

The whole corpus by year, decision type, topic, judge and disposition, searchable across the decisions' own text.

Full Decision

Full text of the decision3 pages, 3,797 characters, read from the Board's own documentDecided Mar 25, 2013 on its own faceRespondent SMALL BUSINESS ADMINISTRATION Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Authorities cited

2 authorities read from this decision's own text, grouped by the body of law each comes from. Select one to read it at its publisher.

Read from the decision's own words with no model involved. Statutes, regulations, the acts these forums argue by name, and cases at the board, this office or the Comptroller General are recognized; any other citation form is left out rather than guessed at, so this is a floor on what the decision cites.

Cases cited

1 case this decision cites, in the order it first names it. 1 of them opens at a publisher.

Read from the decision's own words with no model involved: the party names and the citation are as the decision prints them. A case cited to a reporter is not held here, so where it opens was confirmed one citation at a time against an outside database and is labelled as leaving this app; a citation that database could not place, or matched to more than one case, is shown without a link rather than guessed at. A case named without a citation of any kind carries nothing to read, so it is left out rather than guessed at, and this is a floor on what the decision cites.

DISMISSED FOR LACK OF JURISDICTION: March 25, 2013

CBCA 3044

EXECUTIVE PERSONNEL SERVICES, INC.,

Appellant,

v.

SMALL BUSINESS ADMINISTRATION,

Respondent.

Gary T. Williams of The Law Offices of C. Gregory Stewart, Washington, DC,

counsel for Appellant.

The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.

Meagan K. Guerzon, Office of General Counsel, Small Business Administration, Washington, DC, counsel for Respondent.

Before Board Judges McCANN, DRUMMOND, and ZISCHKAU.

ZISCHKAU, Board Judge.

Respondent, the Small Business Administration (SBA), moves to dismiss this appeal on the ground that appellant, Executive Personnel Services, Inc. (EPSI), failed to file timely its notice of appeal. EPSI filed its notice of appeal with us ninety-two days after receipt of the final decision. Because the Contract Disputes Act requires a contractor to file its notice of appeal within ninety days of receipt of the contracting officer’s final decision, we dismiss the appeal as untimely filed.

Background

EPSI performed under a task order contract, SBAHQ-04-F-0043, entered into on December 31, 2003, with the SBA to provide temporary clerical and administrative support services for the SBA’s Office of Disaster Assistance. Performance ended in approximately April 2009. On July 14, 2011, the Department of Labor notified EPSI that EPSI owed $93,778.83 in back wages to its employees. On November 16, 2011, the Department of Labor notified the SBA contracting officer that EPSI had defaulted on paying the back wages and requested SBA to withhold the amount owed from any contract payments to be made by SBA.

On April 26, 2012, EPSI submitted a certified claim to the SBA contracting officer seeking $135,013.27 from the SBA for increases in the minimum wages during EPSI’s period of performance from October 1, 2007, through April 19, 2009. The contracting officer issued a final decision denying the claim on July 5, 2012. There is no dispute in the record that EPSI received the final decision on July 5, 2012. EPSI filed its notice of appeal by fax with the Board on October 5, 2012 (a Friday), which is ninety-two days after receipt of the final decision. On October 19, 2012, the respondent filed a motion to dismiss, arguing the notice of appeal was untimely. In response to a show cause order, EPSI responded to the motion, arguing that the notice of appeal should be considered timely in light of “the extent of the activity and delays by SBA for three (3) years after performance of the contract” and “the existence of reasonable excuses for the one (1) day delay.”

Discussion

The Contract Disputes Act provides that a contractor may appeal a contracting officer’s final decision to the Board within ninety days from the date of receipt of the contracting officer’s decision, or may bring an action directly in the United States Court of Federal Claims within twelve months from the date of receipt of the contracting officer’s decision. 41 U.S.C. § 7104(a), (b) (Supp. IV 2011); Systems Development Corp. v. McHugh, 658 F.3d 1341, 1344 (Fed. Cir. 2011). Failure to file an appeal with the Board within the ninety-day deadline divests the Board of jurisdiction to consider the case on its merits. E.g., FM Diaz Construction, Inc. v. Department of Agriculture, CBCA 1870, 12-1 BCA ¶ 35,049 (2010) (filed ninety-three days after receipt of the final decision); Pixl, Inc. v. Department of Agriculture, CBCA 1203, 09-2 BCA ¶ 34,187. Here, EPSI concedes that the notice of appeal was filed beyond the ninety-day deadline for appeal to the Board. Thus, we do not have jurisdiction to consider EPSI’s appeal.

Decision

Accordingly, the appeal is DISMISSED FOR LACK OF JURISDICTION. _________________________________ JONATHAN D. ZISCHKAU

Board Judge

We concur:

R. ANTHONY McCANN

Board Judge

JEROME M. DRUMMOND

Board Judge

This is a verbatim capture of the text layer of the Board's own document in Executive Personnel Services, INC, CBCA 3044. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.

Related Decisions

Same Judge

Same Topic

Same Year

Newsletter

New decisions every Monday

GovConDash Weekly lists the decisions GAO, the boards, the courts and SBA OHA released that week, alongside the FAR Overhaul deviations and proposed rules that reach every contractor. Free.

Free, weekly, and one click to unsubscribe. We send a confirmation email first. See our Privacy Policy.