DISMISSED FOR LACK OF JURISDICTION: December 4, 2024

DISMISSED FOR LACK OF JURISDICTION: December 4, 2024

CBCA 8185

ACABAY INC.,

Appellant,

v.

GENERAL SERVICES ADMINISTRATION,

Respondent.

Frank J. Motter, President of Acabay Inc., Colchester, VT, appearing for Appellant.

Brett A. Pisciotta, Office of General Counsel, General Services Administration,

Washington, DC, counsel for Respondent.

Before Judges BEARDSLEY (Chair), SHERIDAN, and KULLBERG.

BEARDSLEY, Board Judge.

The respondent, the General Services Administration (GSA), moved to dismiss this

appeal for lack of jurisdiction asserting that the appellant, Acabay Inc. (Acabay), filed its

appeal more than ninety days after it received the contracting officer’s final decision.

Acabay argues that it timely filed its appeal via the United States Postal Service (USPS)

within the ninety-day period. For the reasons set forth below, we find that Acabay did not

timely file its appeal and dismiss this appeal for lack of jurisdiction.

CBCA 8185

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Statement of Facts

This appeal arises from a lease between Acabay and GSA for office and related space

that included design and construction of certain tenant improvements. Appellant’s Notice

of Appeal at 6. Acabay submitted a certified claim to recover “lost rent revenue” and

“additional fees for Acabay’s construction/design team[,] including opportunity cost[s]” for

alleged delays caused by GSA in issuing the notice to proceed. Id.

On May 20, 2024, Acabay received the lease contracting officer’s (LCO) final

decision denying Acabay’s claim. Appellant’s Response to Respondent’s Motion to Dismiss

for Lack of Jurisdiction (Appellant’s Response) at 2. The LCO’s final decision notified

Acabay of its appeal rights and provided the mailing address for the Civilian Board of

Contract Appeals (CBCA or Board). Id.; Appellant’s Notice of Appeal at 14. On August 21,

2024, Acabay electronically filed (efiled) its notice of appeal with the CBCA. Appellant’s

Response at 3; Appellant’s Notice of Appeal at 1. The electronic filing made no mention of

an earlier USPS mailing, but it did contain a letter dated July 17, 2024, which was titled

“Notice of Appeal.” Appellant’s Notice of Appeal at 3. This July letter, addressed to the

CBCA and signed by Acabay’s President, Frank J. Motter, indicated that it was to be sent

“[v]ia email” and that the contracting officer was to be copied. Id. at 3-4.

GSA moved to dismiss Acabay’s appeal for lack of jurisdiction, arguing that Acabay

failed to submit its appeal to the CBCA within the ninety-day deadline required by the

Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018). In its response to GSA’s

motion to dismiss, Acabay claimed that Mr. Motter mailed Acabay’s notice of appeal to the

Board at 1800 M Street, N.W., 6th Floor, Washington, DC 20036 via the USPS on August 5,

2024. Appellant’s Response at 2. Acabay noted that the Board’s website identified USPS

mailing as a proper method for filing documents with the Board. Id. at 4-5. Acabay also

pointed to a photograph of the mailbox into which Mr. Motter allegedly dispatched the notice

of appeal on August 5, 2024. Appellant’s Comments in Response to the Respondent’s Reply

to the Appellant’s Response to the Motion to Dismiss for Lack of Jurisdiction at 2-3, 5.

Mr. Motter stated, “I can only provide the mailbox from which I mailed the letter[;] it is less

than 100 feet away from the office door of our office.” Id. at 2. He further indicated, “I

regretfully tell the court I cannot prove [the mailing] beyond the photograph and telling the

court I have done so.” Id. at 5. Acabay also explained that it efiled the notice of appeal on

August 21, 2024, to provide additional information that was not included in the earlier

mailing, including the LCO’s final decision and other exhibits. Id. at 4. The Clerk of the

Board has confirmed that there is no record of the CBCA receiving a notice of appeal from

Mr. Motter or Acabay by mail.

CBCA 8185

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Discussion

Standard of Review

In response to [a motion to dismiss], appellant[], even though appearing pro

se, bear[s] “the burden of establishing subject matter jurisdiction by a

preponderance of the evidence.” Selrico Services, Inc. v. Department of

Justice, CBCA 3084, 13 BCA ¶ 35,268, at 173,132 (quoting Ron Anderson

Construction, Inc. v. Department of Veterans Affairs, CBCA 1884, et al., 10-2

BCA ¶ 34,485, at 170,070). Typically, in considering a motion to dismiss for

lack of jurisdiction, we look to the allegations contained in the complaint,

construed favorably to the pleader, and we look beyond the complaint only if

the respondent challenges the alleged jurisdictional facts. Innovative (PBX)

Telephone Services, Inc. v. Department of Veterans Affairs, CBCA 12, et al.,

07-2 BCA ¶ 33,685, at 166,758. Here, because we have not required the

submission of a formal complaint, we have properly “looked to the documents

submitted with the motions,” and the documents contained in the appeal file

and elsewhere in the record, “to evaluate the jurisdictional issues presented by

th[is] appeal[].” Id.; see Cedars-Sinai Medical Center v. Watkins, 11 F.3d

1573, 1584 (Fed. Cir. 1993) (“In establishing the predicate jurisdictional facts,

a court is not restricted to the face of the pleadings, but may review evidence

extrinsic to the pleadings, including affidavits and deposition testimony.”).

Brent Packer v. Social Security Administration, CBCA 5038, et al., 16-1 BCA ¶ 36,260, at

176,896.

Jurisdiction

Per the CDA, a contractor has the right to appeal a contracting officer’s final decision

“within 90 days from the date of receipt” of the decision. 41 U.S.C. § 7104(a) (2018). The

Court of Appeals for the Federal Circuit “has repeatedly held that, because the authorization

to make the filing is a waiver of the Government’s sovereign immunity, failure to file an

appeal within the ninety-day deadline divests the Board of jurisdiction to consider the case

on its merits.” Safe Haven Enterprises, LLC v. Department of State, CBCA 3871, et al., 15-1

BCA ¶ 35,928, at 175,605 (citing D.L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir.

1997); West Coast General Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994); Cosmic

Construction Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982)).

Our previous decisions, relying on binding precedent from the Court of

Appeals for the Federal Circuit, have held that the ninety-day requirement may

CBCA 8185

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not be waived as it is strictly construed and failure to comply creates a

“jurisdictional defect” which precludes the appeal from consideration.

MINACT, Inc v. Department of Labor, CBCA 7575, 23-1 BCA ¶ 38,243, at

185,701 (2022) (citing Treasure Valley Forest Products v. Department of

Agriculture, CBCA 3604, 14-1 BCA ¶ 35,549, at 174,207, and quoting Duke

University v. Department of Health & Human Services, CBCA 5992, 18-1

BCA ¶ 37,023, at 180,291); Shonto Governing Board of Education[, Inc. v.

Department of the Interior], [CBCA 6043-ISDA,] 18-1 [BCA ¶ 37,038,] at

180,319[-20] (citing [Cosmic Construction, 697 F.2d at 1390]; Dekatron Corp.

v. Department of Labor, CBCA 4444, 15-1 BCA ¶ 36,045, at 176,059).

Yerington Paiute Tribe v. Department of the Interior, CBCA 7818-ISDA, 24-1 BCA

¶ 38,508, at 187,161-62; see also Mahavir Overseas v. Agency for International

Development, CBCA 6704, 20-1 BCA ¶ 37,619, at 182,641 (citing Mattress Makers, Inc. v.

General Services Administration, CBCA 2176, 11-1 BCA ¶ 34,645, at 170,733). The

contractor bears the burden of properly filing its appeal with the Board within the ninety-day

deadline. Cherokee 8A Group v. Department of Veterans Affairs, CBCA 7107, 21-1 BCA

¶ 37,894, at 184,035 (citing Mahavir Overseas and Soto Construction Co. v. Department of

Agriculture, CBCA 3210, 13 BCA ¶ 35,301).

It is undisputed that Acabay received the contracting officer’s final decision on May

20, 2024. Accordingly, Acabay’s notice of appeal was due to the CBCA by August 19,

2024.1 Because the CBCA only received Acabay’s efiled notice of appeal on August 21,

2024 — two days after the ninety-day deadline — and Acabay has failed to carry its burden

of showing that its notice of appeal was properly mailed, the Board must dismiss Acabay’s

appeal for lack of jurisdiction.

Board Rule 1(b) provides that “[a] notice of appeal or application is filed upon the

earlier of its receipt by the Clerk or, if mailed through the United States Postal Service

(USPS), the date it is mailed to the Board.” 48 CFR 6101.1(b) (2023). In computing the

ninety-day CDA deadline, a notice of appeal is “mailed” when it is placed into the “custody

of the USPS.” FM Diaz Construction, Inc. v. Department of Agriculture, CBCA 1870, 12-1

BCA ¶ 35,049, at 172,178 (2010) (“Only notices of appeal placed in the custody of the USPS

1

According to Board Rule 3(a), “[i]f a computed period would otherwise end

on a nonbusiness day, it ends on the next business day.” 48 CFR 6101.3(a) (2023). Here,

ninety days from the date Acabay received the contracting officer’s final decision fell on

Sunday, August 18, 2024. Thus, the deadline shifted to the next business day, Monday,

August 19, 2024.

CBCA 8185

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are ‘mailed.’”) (footnote omitted); see also Premier Group, ASBCA 58263, 13 BCA

¶ 35,349, at 173,500-01 (“The term ‘mailed’ requires a proper address, sufficient postage,

and transfer of the notice of appeal into the custody of the USPS.”). Board Rule 1(b)

explains that a “USPS postmark is prima facie evidence of a mailing date.” However, here,

there is no postmarked envelope, so the burden of proof is on the appellant to show by a

preponderance of evidence that the appeal was timely and properly mailed. Micrographic

Technology, Inc., ASBCA 25577, 81-2 BCA ¶ 15,357, at 76,070; see Visutron, Inc., Security

Electronics, GSBCA 7139, 84-1 BCA ¶ 17,022, at 84,771 (“If the Government discharges

its burden to make a prima facie showing that the appeal is late, the burden of going forward

shifts to the contractor to establish that a timely notice of appeal was in fact mailed, even

though not received.” (citing Astro Industries Inc., ASBCA 19082, 74-2 BCA ¶ 10,921, at

51,970)). Thus, in the absence of a USPS postmark, the Board is left to weigh the evidence.

See Micrographic, 81-2 BCA at 76,069-70 (finding that the appellant properly mailed its

notice of appeal, despite the Armed Services Board of Contract Appeals not having received

it, because “the witnesses and their testimony as to the preparation of the letter, the

circumstances surrounding its preparation and the normal follow through procedures for

handling the mail, [demonstrated] that it is more probable than not that the appeal was

mailed.”); see also Geo-Imaging Consulting, Inc. v. Environmental Protection Agency,

CBCA 1712, 10-1 BCA ¶ 34,318, at 169,513 (2009) (finding that the appeal was untimely

filed with the CBCA, despite several affidavits in which witnesses attested to mailing the

notice, because evidence indicated that the appellant sent both copies of its appeal to the

contracting officer).

As proof that it mailed the appeal to the CBCA, Acabay offers only Mr. Motter’s

statement that he mailed the appeal and a photograph of the mailbox from which he

purportedly mailed it. The statement and photograph, however, do not carry Acabay’s

burden to show that its appeal was properly mailed. Unlike the witness testimony in

Micrographic, which offered detailed accounts of the circumstances surrounding the

preparation and mailing of the letter, Acabay offers little to recount the mailing of the notice

of appeal on August 5, 2024. Mr. Motter does not provide any information about the

preparation of the notice of appeal, does not explain his or Acabay’s typical process for

mailing important, time-sensitive documents, and does not describe any efforts to follow up

on the mailing to ensure that the Board received it. Moreover, Acabay does not assert that

it also mailed a notice of appeal to the agency contracting officer, and there is no evidence

in the record that the agency contracting officer, instead of the CBCA, received a notice of

appeal mailed by Acabay in August 2024. Instead, Acabay’s August 21, 2024, electronic

filing indicates that Acabay did not mail its notice of appeal on August 5, 2024. Acabay

claims that it sent the electronic filing to provide additional information that was missing

from its earlier mailed notice of appeal; however, Acabay fails to explain why its electronic

filing did not reference this earlier notice of appeal. Moreover, the letter that Acabay

CBCA 8185

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electronically submitted as its notice of appeal on August 21 is dated July 17, 2024, titled

“Notice of Appeal,” addressed to the CBCA, copied to the contracting officer, and signed by

Mr. Motter. Acabay fails to explain this earlier, different date on the notice of appeal or the

fact that this notice of appeal indicates that it was to be sent “[v]ia email,” not USPS, to the

CBCA and the contracting officer. In addition to the fact that the CBCA never received the

mailed notice of appeal, these indicia undercut Mr. Motter’s statement that he mailed the

notice of appeal on August 5, 2024. Weighing the evidence in the record before the Board,

we cannot find that Acabay meets its burden to prove by a preponderance of the evidence that

it placed its notice of appeal into the custody of USPS on August 5, 2024.

Acabay filed its notice of appeal with the Board on August 21, 2024, ninety-three days

after Acabay received the contracting officer’s final decision. Since the ninety-day deadline

cannot be waived, Acabay’s appeal is untimely, and we must dismiss for lack of jurisdiction.

This decision does not, however, preclude Acabay from challenging the contracting officer’s

decision in another forum. Acabay may initiate an action in the United States Court of

Federal Claims within twelve months of the date it received the contracting officer’s final

decision. See 41 U.S.C. §§ 7104(b)(1), (3).

Decision

The appeal is DISMISSED FOR LACK OF JURISDICTION.

Erica S. Beardsley

ERICA S. BEARDSLEY

Board Judge

We concur:

Patricia J. Sheridan

PATRICIA J. SHERIDAN

Board Judge

H. Chuck Kullberg

H. CHUCK KULLBERG

Board Judge