Five minutes in the grand scheme of things does not sound like a long time. It’s not enough time to get a haircut, run to the store, or even wash the dishes. Five minutes is .000038ths of 90 days. But when it comes to deadlines for timely appeals, five minutes becomes very important.
On November 17, 2015, the Civilian Board of Contract Appeals (CBCA) dismissed the appeal of Estes Brothers Construction (Estes Brothers) for lack of jurisdiction because the appeal was filed too late. Five minutes too late.
Estes Brothers had submitted to the Department of Transportation’s Federal Highway Administration (FHWA) a claim for $868,489 under a contract for rehabilitation of certain highways in Tennessee. On June 10, 2015, an FHWA contracting officer denied the claim and notified Estes Brothers of its “right to appeal this Decision within 90 days from the date of receipt.” Estes Brothers received the decision at 1:27 p.m. on June 11, 2015, thus starting the 90-day time limit and making the deadline for appeal September 9, 2015. Estes Brothers emailed its notice of appeal to the CBCA on September 9th…at 4:35 p.m. But because the CBCA closed at 4:30 pm, it did not accept the notice until September 10, 2015 and rejected the appeal as untimely.
Estes Brothers argued that the CBCA should have treated the appeal as if it was “mailed”. Under the mailing rule, an appeal would have been timely had it been “placed into the custody of the United States Postal Service” up until 11:59 pm on the 90th day after receipt of the Contracting Officer’s Final Decision. A filing that is e-mailed is not mailed. In his opinion, Judge Daniels wrote that “[a] filing which is submitted by e-mail is received on the day of its transmission only if it is received by 4:30 p.m., Eastern Time, on that day. If the filing is received after that time, it is considered to be filed on the next working day.”
Judge Daniels indicated that “our rules regarding filing of appeals of contracting officer decisions mean what they say and are to be construed strictly. A notice of appeal which was filed later than the ninetieth day after the contractor’s receipt of a contracting officer decision … must be dismissed for lack of jurisdiction.” That is true whether the filing is one minute late, five minutes late or one month late.
Now the bad news. And the good news. Estes Brothers did not have to file at the CBCA. Instead, it could have filed a Complaint at the US Court of Federal Claims. And, it still can file a lawsuit with the court provided that it does so by June 11, 2016 – within 12 months of the receipt of the Contracting Officer’s Final Decision.