CBCA 4204

Government Services Corp

Nov 19, 2014Judge VergilioDEPARTMENT OF HOMELAND SECURITY
Not published in the listingDismissed for lack of jurisdiction

Key Facts

Appellant
Government Services Corp
Respondent agency
DEPARTMENT OF HOMELAND SECURITY
Judge
Vergilio
Case number
CBCA 4204
Decided
Nov 19, 2014The decision states Nov 19, 2014 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
Magyar, Rauch & Thie, PLLC
Outcome
Dismissed for lack of jurisdiction
Because the appeal was filed beyond the time permitted by statute, the Board DISMISSES FOR LACK OF JURISDICTION the appeal.
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 timeliness

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.

Appearances

For the appellant
Gregory R. Rauch
Magyar, Rauch & Thie, PLLC
Moscow, ID
For the respondent
Melanie T. Dasher
Office of Assistant Chief Counsel, Customs and Border Protection, Department of Homeland Security
Indianapolis, IN
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 decision4 pages, 6,706 characters, read from the Board's own documentDecided Nov 19, 2014 on its own faceRespondent DEPARTMENT OF HOMELAND SECURITY Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Authorities cited

6 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.

Federal Acquisition Regulation1
Other regulations1

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: November 19, 2014

CBCA 4204

GOVERNMENT SERVICES CORP,

Appellant,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

Gregory R. Rauch of Magyar, Rauch & Thie, PLLC, Moscow, ID, 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.

Melanie T. Dasher, Office of Assistant Chief Counsel, Customs and Border Protection, Department of Homeland Security, Indianapolis, IN, counsel for Respondent.

Before Board Judges VERGILIO, McCANN, and WALTERS.

VERGILIO, Board Judge.

On October 16, 2014, Government Services Corp (contractor) filed its appeal at this Board from a contracting officer’s decision concerning a contract, 20074623, with Customs and Border Protection of the Department of Homeland Security (agency). The contractor received the contracting officer’s decision on July 17, 2014, at 4:48 p.m. local time. The appeal was filed at this Board ninety-one days thereafter, which is beyond the statutory time permitted for filing an appeal at the Board. The agency has moved to dismiss for lack of jurisdiction. The contractor opposes the motion. It contends that its date of receipt was July 18, because it received the decision after normal business hours.

The contractor received the contracting officer’s decision on July 17. Statute, Board rules, and precedent do not support counting days as the contractor proposes. Because the contractor untimely filed its appeal, the Board grants the agency’s motion, without reaching the merits of the underlying claim. This case is dismissed for lack of jurisdiction.

Findings of Fact

The material facts are not disputed. The contractor received the contracting officer’s decision underlying this appeal on Thursday, July 17, 2014, at 4:48 pm local time for the contractor (or 6:48 pm local time for the agency’s office). The contractor filed its appeal to this Board on Thursday, October 16, 2014. This filing occurred on the ninety-first day after the contractor received the disputed decision of the contracting officer.

Discussion

Statute specifies that a contracting officer shall issue a decision in writing and shall mail or otherwise furnish a copy of the decision to the contractor. 41 U.S.C. § 7103(d) (2012). This contracting officer furnished a copy of the decision to the contractor by email on July 17, 2014. That day the contractor received the decision by email message at 4:48 p.m. local time for the contractor.

Statute dictates that within ninety days from the date of receipt of a contracting officer’s decision, a contractor may appeal a decision to an agency board. 41 U.S.C.

§ 7104(a). In keeping with this requirement, the Board’s rules state that an appeal from a decision of a contracting officer shall be filed no later than ninety calendar days after the date the contractor receives that decision. Rule 2(b)(1) (48 CFR 6101.2(b)(1) (2013)). The date of receipt is not tied to the time of receipt or the business hours of a contractor and is not based upon work days. Rather, filing must occur no later than ninety calendar days after the date of receipt of the contracting officer’s decision. Such a statutorily established waiver of sovereign immunity is to be strictly construed. Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982).

The contractor attempts to construct a date of receipt based upon the normal business day at the Board for filing submissions and an agency work day. The statute and Board rules make no provision for such a construct. In any event, the Board would conclude, if deemed material, that the contractor has failed to establish that its receipt of the contracting officer’s decision occurred after its actual work day on July 17, 2014.

The contractor concludes that the 4:48 p.m. receipt was after the close of business pursuant to Government regulations. The contractor references, and argues to be controlling, provisions of the Federal Acquisition Regulation (FAR) dealing with (1) protests, which define filing to be the complete receipt of a document, state that documents received after the close of business are considered filed the next business day, and specify that the presumed close of business for an agency is 4:30 p.m., unless otherwise stated; (2) commercial item instructions to offerors, stating that the time for receipt of submissions to an agency is 4:30 p.m., local time, if no time is specified in the solicitation; and (3) bid submissions, which require receipt at an agency office by 4:30 p.m., local time, if no time is specified. 48 CFR 33.101, 52.212-1(f), 52.214-7(a). Also, the contractor references regulatory provisions dealing with prompt payment standards which state that invoices to an agency, if electronically transmitted, are considered received on the date received by the agency, or the next business day if received after normal working hours. 5 CFR 1315.4(b) (2013). These all deal with an agency’s receipt of material, and a constructive work day for the agency--a situation here not relevant.

The normal business day of the agency is no more relevant here than the filing times for submissions at the Board or the normal business day of the Board, Rule 1(b)(5)(iii), (10) (48 CFR 6101.1(b)(5)(iii), (10)), for purposes of determining the date of receipt by a contractor of the contracting officer’s decision. CWI Consultants & Services v. General Services Administration, GSBCA 13889-R, 98-1 BCA ¶ 29,476 (the contractor’s receipt of the contracting officer’s decision after 4:30 p.m. local time on Friday constituted the date of receipt, such that the first day of the ninety-day period began on Saturday). These various references are not keyed to the normal business day of a contractor; no provision defines receipt by a contractor to occur only during particular hours. In construing the ninety-day period for filing an appeal, the Board rejects the contractor’s definition of the word “receipt” to reflect receipt during the Board’s, an agency’s, or the contractor’s normal work hours. Receipt occurred on the day the contractor received the email message.

It is undisputed that the contractor received the contracting officer’s decision on July 17, 2014. Consistent with statute, Board rules, and the CWI decision, that date of receipt started the running of the ninety-day period for filing an appeal at this Board. The first day of that period was July 18, the final day was October 15. The filing was untimely to invoke Board jurisdiction.

Decision

Because the appeal was filed beyond the time permitted by statute, the Board DISMISSES FOR LACK OF JURISDICTION the appeal.

______________________________

JOSEPH A. VERGILIO

Board Judge

We concur:

R. ANTHONY McCANN

Board Judge

RICHARD C. WALTERS

Board Judge

This is a verbatim capture of the text layer of the Board's own document in Government Services Corp, CBCA 4204. 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.