DISMISSED FOR LACK OF JURISDICTION: December 3, 2015

DISMISSED FOR LACK OF JURISDICTION: December 3, 2015

CBCA 4735

BOB L. WALKER,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Bob L. Walker, pro se, Hamilton, MT.

Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,

Missoula, MT, counsel for Respondent.

Before Board Judges HYATT, WALTERS, and SULLIVAN.

SULLIVAN, Board Judge.

Appellant, Bob L. Walker, appeals the termination of a supplemental project

agreement (SPA) to Timber Sale contract #01-03-02-023891, which he entered into with

respondent, the Department of Agriculture, Forest Service (Forest Service). The Forest

Service moves to dismiss the appeal for lack of jurisdiction on the ground that Mr. Walker’s

appeal is untimely. For the reasons set forth below, we grant the Forest Service’s motion.

CBCA 4735

2

Findings of Fact

Award, Performance, and Termination of the Contract

On February 1, 2006, the Forest Service awarded to Mr. Walker a contract to cut

timber in the Darby Ranger District of Montana’s Bitterroot National Forest.1 Following

award, the parties disagreed regarding the requirements for acceptable winter logging

conditions. The record contains several requests by Mr. Walker for contract adjustments and

time extensions because of poor weather conditions. While the Forest Service apparently

granted several of Mr. Walker’s requests, in January 2013, the Forest Service denied Mr.

Walker’s requests for a further extension of the time to perform and to delete work from the

sale contract.

The Forest Service terminated the timber sale contract as uncompleted on February

8, 2013, but granted Mr. Walker additional time, until July 31, 2013, to complete erosion

control work required under the contract. The Forest Service re-advertised the remaining

timber under the sale on September 19, 2013, but there were no bidders. On

December 6, 2013, Mr. Walker was notified that the timber sale “terminated with unresolved

Purchaser obligations.”

Contracting Officer’s Final Decision Assessing Damages and Reprocurement Costs

In a contracting officer’s final decision dated February 20, 2014, the Forest Service

assessed damages arising from the termination for default of Mr. Walker’s contract. The

final decision set forth the calculation of the Forest Service’s damages arising from the

termination of Mr. Walker’s contract:

1. Contract Value

2. Other Damages

a. Cost of resale or reoffering

b. Interest to midpoint of the contract resale period

3. Total Potential Damages (Sum of 1 and 2)

4. Appraised and Resale Value at Termination

5. Total Damages

$3,350.08

$ 24.90

$ 76.62

$3,451.60

- $1,259.89

$2,191.71

The contracting officer notified Mr. Walker that the amount would be deducted from his

performance bond on the contract.

1

The agency filed its motion to dismiss before the appeal file was submitted.

The facts are taken from the parties’ submissions.

CBCA 4735

3

At the end of the decision, the contracting officer advised Mr. Walker of his appeal

rights and deadlines for filing any appeal:

This is the final decision of the Contracting Officer. This decision may be

appealed to the Civilian Board of Contract Appeals (CBCA). . . . If you decide

to make such an appeal, you must mail or otherwise furnish written notice

thereof to the [Board] within 90 days from the date you receive this decision.

. . . In lieu of appealing to the [Board], you may bring an action directly in the

Court of Federal Claims within 12 months of the date you receive this

decision.

With his notice of appeal, Mr. Walker provided a United States Postal Service (USPS)

certified mail receipt, for a letter postmarked February 20, 2014, sent to Mr. Walker’s

address. Mr. Walker also provided a USPS tracking printout that the certified letter was

delivered to Mr. Walker’s address in Hamilton, Montana, on February 21, 2014.

Appellant’s Response to Contracting Officer’s Final Decision

In a letter to the contracting officer dated May 9, 2014, Mr. Walker challenged the

termination of the contract, arguing that it was improper due to the persistent issues related

to winter logging requirements. Mr. Walker also asserted that, as a result of the termination,

he was injured in the amount of $21,060, which he calculated as the remaining volume of

timber under the sale at termination (1620 tons) multiplied by the value per haul ($13 per

ton).

By letter dated July 10, 2014, the contracting officer informed Mr. Walker she had

reviewed his May 9, 2014, letter, which the Forest Service viewed as an appeal of the

February 20, 2014, final decision. The contracting officer stated that she would not issue a

final decision in response to this letter and referred to paragraph 5 of the February 20, 2014,

decision, which set forth Mr. Walker’s appeal rights.

SPA Contract Closure Letter

By certified letter dated January 13, 2014, the contracting officer notified Mr. Walker

that the contract requirements were completed and that the contract was closed. Mr. Walker

refers to this correspondence in his appeal as the “SPA closure letter.” Mr. Walker avers that

this closure letter, whether by inadvertence or “intentional pre-dating,” bears an incorrect

date. He asserts the letter should bear the date January 13, 2015, as he received the letter by

hand in January 2015. This letter appears to be administrative in nature and does not state

CBCA 4735

4

that it is a final decision in response to a claim submitted by Mr. Walker or advise Mr.

Walker of any appeal rights.

On February 12, 2015, Mr. Walker submitted another claim to the Forest Service,

again asserting that closure of the timber sale contract was improper. The letter was similar

in substance to Mr. Walker’s May 9, 2014, letter. The Forest Service replied by letter dated

March 13, 2015. The response acknowledged receipt of Mr. Walker’s February 12, 2015,

letter and stated that his correspondence appeared to be an appeal of the February 20, 2014,

final decision. As in its previous letter, the Forest Service’s reply referenced paragraph 5 of

the decision outlining his appeal rights and advised that a contracting officer’s final decision

would not be issued in response to his most recent correspondence.

On May 4, 2015, Mr. Walker filed a notice of appeal with the Board, to which he

attached the SPA closure letter and alleged he received the letter in January 2015. However,

in the notice of appeal, in addition to the $21,060 he sought in his May 2014 letter, Mr.

Walker also sought $2191.71, the amount the Forest Service had retained from his

performance bond, for a total of $23,251.71. The Forest Service moved to dismiss Mr.

Walker’s appeal as untimely because the contracting officer had issued a final decision more

than a year before Mr. Walker filed his notice of appeal.

In its July 6, 2015, Order on Further Proceedings, the Board requested that Mr. Walker

identify the final decision that he was appealing, provide evidence of the date he received the

final decision, and respond to the agency’s motion to dismiss. In response to this order, Mr.

Walker identified the SPA closure letter and provided a USPS tracking report confirming that

the SPA closure letter was received in Hamilton, Montana, on January 14, 2015. Mr. Walker

also adduced an affidavit that was signed by three witnesses, who attested that they were

present with Mr. Walker when he received the SPA closure letter “[i]n February 2015.”

Discussion

I.

Jurisdictional Limits for Appeal of a Contracting Officer’s Final Decision

Pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7107-7109 (2012), the

Board hears appeals of contracting officers’ final decisions. A contractor who wishes to

appeal such a decision to a board of contract appeals must do so “within ninety days from the

date of receipt of [the] decision.” 41 U.S.C. § 7104(a). Alternatively, within twelve months

from the date of the contractor’s receipt of the contracting officer’s final decision, a

contractor may bring an action on the matter to the United States Court of Federal Claims.

41 U.S.C. § 7104(b). If a contractor elects to file an appeal with the Board, the contractor

must submit its appeal to the Board. “[A]n appeal sent only to the contracting officer or

CBCA 4735

5

within the agency itself is not considered properly filed with the Board.” Soto Construction

Co. v. Department of Agriculture, CBCA 3210, 13 BCA ¶ 35,301, at 173,286 (citation

omitted). A contractor’s untimely submission divests the Board of jurisdiction to hear its

appeal. Id.

The United States Court of Appeals for the Federal Circuit has strictly construed this

filing deadline because the authorization to make the filing is a waiver of sovereign

immunity. Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982).

“A board of contract appeals cannot waive the statutory appeal period.” Devi Plaza, LLC v.

Department of Agriculture, CBCA 1239, 09-1 BCA ¶ 34,033, at 168,338 (2008) (citing

Cosmic); see DekaTron Corp. v. Department of Labor, CBCA 4444, 15-1 BCA ¶ 36,045, at

176,060 (citing cases) (“The ninety-day filing deadline is strictly construed and may not be

waived by the Board.”). “The strict limits of the CDA constitute jurisdictional prerequisites

to any appeal.” Safe Haven Enterprises, LLC v. Department of State, CBCA 3871, et al., 151 BCA ¶ 35,928, at 175,603 (quoting England v. Swanson Group, Inc., 353 F.3d 1375, 1379

(Fed. Cir. 2004)) (internal quotation marks omitted). “If jurisdiction is found to be lacking,

the Board must dismiss the case.” Id. (citing Universal Canvas, Inc. v. Stone, 975 F.2d. 847,

850 (Fed. Cir. 1992). Absent a contractor’s timely appeal of a contracting officer’s final

decision or the timely filing of an action on the matter in the Court of Federal Claims, the

“decision on a claim is final and conclusive and is not subject to review by any forum,

tribunal, or Federal government agency.” 41 U.S.C. § 7103(g).

The party seeking to invoke the Board’s jurisdiction must establish jurisdiction by a

preponderance of the evidence. Safe Haven, 15-1 BCA at 175,603 (quoting Reynolds v.

Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988)). The Board looks

to an appellant’s notice of appeal in determining its jurisdiction, as “it is generally ‘the notice

of appeal, not the complaint, that establishes the bounds of [the Board’s] jurisdiction.’” Id.

“Pursuant to CBCA Rule 2(a)(1), [48 CFR 6101.2(a)(1) (2014),] an appellant is expressly

required to identify the basis of the Board’s jurisdiction in its notice of appeal by describing

the contracting officer’s final decision being appealed ‘in enough detail to enable the Board

to differentiate that decision from any other.’” Safe Haven, 15-1 BCA at 175,604 (quoting

Rule 2(a)(1)(I)). Thus, before the Board, the appellant bears the “burden to plead ‘facts

sufficient to establish the Board’s jurisdiction.’” Id. at 175,603 (quoting Integrated Systems

Analysts, Inc., GSBCA 10750-P, 91-1 BCA ¶ 23,477, at 117,776 (1990)).

“‘Receipt’ of a contracting officer’s decision, as that term is used in the [CDA], means

actual physical receipt of the decision by the contractor or its representative.” Robert T.

Rafferty v. General Services Administration, CBCA 617, 07-1 BCA ¶ 33,577, at 166,340

(citing Riley & Ephriam Construction Co. v. United States, 408 F.3d 1369, 1372 (Fed. Cir.

2005); Borough of Alpine v. United States, 923 F.2d 170, 172-73 (Fed. Cir. 1991)) (emphasis

CBCA 4735

6

added); see also Pathman Construction Co. v. United States, 817 F.2d 1573, 1578 (Fed. Cir.

1987) (discussing receipt of the contracting officer’s final decision as the triggering event

for filing a suit in the United States Claims Court (now the Court of Federal Claims)).

II.

The Board is Without Jurisdiction to Consider Mr. Walker’s Appeal

A.

Mr. Walker is Out of Time to Challenge the Final Decisions Terminating the

Contract or Assessing Reprocurement Costs

The contracting officer rendered her final decision terminating the SPA timber sale

contract for default and assessing damages on February 20, 2014.2 The evidence in the

record provided by Mr. Walker confirms that the contracting officer’s final decision was

delivered to Mr. Walker on February 21, 2014. To comply with the strict limits of the CDA,

Mr. Walker was required, within ninety days of his receipt of that decision, to submit a notice

of appeal to the Board. Accordingly, Mr. Walker’s appeal had to be filed with the Board

within ninety days of his receipt, i.e., May 22, 2014. On the record before us, we find Mr.

Walker did not satisfy this jurisdictional prerequisite.

Mr. Walker appealed the Forest Service’s final decision to the agency itself on

May 9, 2014, and February 12, 2015, respectively. However, those appeals were improperly

directed to the Forest Service. See Soto Construction Co., 13 BCA at 173,286. On each of

those occasions, the Forest Service’s response referenced paragraph 5 of its February 20,

2014, letter, which advised Mr. Walker that an appeal should be made to the Board.

Moreover, although Mr. Walker described each of these submissions to the agency as claims

and included monetary claims, both were challenges to the final decision terminating his

contract. Mr. Walker’s claim submissions to the agency cannot be considered by the Board

unless and until the underlying termination for default is overturned. See Almeda Industries,

Inc., ENG BCA 5148, 87-1 BCA ¶ 19,401, at 98,105 (1986) (“contractor had no right to any

dollar recovery until a termination for convenience has been declared either by the

contracting officer or by the board of contract appeals when it found that the contracting

officer had acted invalidly in asserting a default termination”).

2

Mr. Walker had two opportunities to challenge the default termination of his

contract. First, Mr. Walker could have challenged the original decision terminating the

contract in 2013. Second, Mr. Walker could have challenged the underlying termination

when the Forest Service rendered its final decision assessing reprocurement costs. See

Hearthstone, Inc. v. Department of Agriculture, CBCA 3725, 15-1 BCA ¶ 35,895, at

175,482-83 n. 2 (noting the practice of allowing the contractor to challenge the underlying

default termination after the Government has assessed reprocurement costs, arising from the

decision Fulford Manufacturing Co., ASBCA 2143, et al., 1955 WL 808 (May 20, 1955)).

CBCA 4735

7

Mr. Walker did not file a notice of appeal with this Board until May 4, 2015 – more

than one year after he received the final decision on February 21, 2014. Mr. Walker’s failure

to appeal within the required statutory period renders his filing untimely and leaves the Board

without jurisdiction to hear the case on the merits. Soto Construction Co., 13 BCA at

173,286; EHR Doctors, Inc. v. Social Security Administration, 14-1 BCA ¶ 35,773, at

175,006 (noting a contractor’s appeal of a final decision must be made on a “timely basis

(i.e., within ninety days of receipt of the decision if appealed to a board and one year if a

claim is filed at the Court of Federal Claims) if it wishes to challenge the decision.”).

B.

The SPA Closure Letter Is Not a Final Decision

From Mr. Walker’s notice of appeal and his response to the motion to dismiss, it

appears that Mr. Walker seeks to appeal the SPA closure letter. In this letter, the Forest

Service indicated that it was closing the contract files and that a final statement of account

would be sent at a later date. However, this letter is not a contracting officer’s final decision

on a claim from which an appeal can be taken. The letter, although signed by the contracting

officer, does not state that it is a final decision and does not provide Mr. Walker notice of any

appeal rights. Cf. Frank Bonner v. Department of Homeland Security, CBCA 605, et al., 072 BCA ¶ 33,592, at 166,387 (citing Armentrout Construction, Inc., ASBCA 29118, 84-2

BCA ¶ 17,263, at 85,962, and rejecting appellants’ argument that a letter from the contracting

officer terminating the contract constituted a final decision because it neither decided a claim

nor stated a claim against the appellants).

For purposes of the Board’s jurisdiction under the CDA, it is not the receipt of the

closure letter that is relevant. See 41 U.S.C. § 7104(a). Instead, it is the date Mr. Walker

received the contracting officer’s final decision – and only the contracting officer’s final

decision – that “start[s] the clock on the statutorily mandated ninety days during which

appellant could file an appeal with the Board.” Soto Construction Co., 13 BCA at 173,285;

see also Pathman Construction Co., 817 F.2d at 1578 (“The legislative history [of the CDA]

also indicates that Congress intended the ‘receipt’ of the contracting officer’s decision by the

contractor to be the sole event that triggers the running of the limitations period.” (emphasis

added)). Although Mr. Walker has gone to great lengths to prove the date he received the

SPA closure letter, our jurisdiction is founded only upon appeals of contracting officers’ final

decisions. See Robert T. Rafferty, 07-1 BCA at 166,340.

CBCA 4735

8

Decision

Respondent’s motion is granted. The appeal is DISMISSED FOR LACK OF

JURISDICTION.

___________________________

MARIAN E. SULLIVAN

Board Judge

We concur:

_____________________

CATHERINE B. HYATT

Board Judge

_____________________

RICHARD C. WALTERS

Board Judge