On April 6, 2023, the Civilian Board of Contract Appeals (CBCA), in BES Design/Build, LLC, CBCA 7585, dismissed a contractor’s appeal for lack of jurisdiction, finding the appeal untimely, and underscoring that a contractor cannot reset the 90-day appeal window by resubmitting its original claim.
On February 24, 2021, BES Design/Build, LLC (BES) submitted a certified claim for non-payment under a task order to replace two exterior stairs at a courthouse. The contracting officer denied the claim in a final decision (COFD) on April 23, 2021. BES did not appeal that denial. More than a year later, on June 8, 2022, BES submitted a nearly identical certified claim. The contracting officer responded on August 22, 2022, stating that a COFD had already been issued on the matter. On November 18, 2022, BES appealed what it cited as the August 22, 2022 COFD to the CBCA. The GSA then filed a motion to dismiss for lack of jurisdiction, citing BES’s appeal as untimely.
The CBCA granted the GSA’s motion to dismiss, noting that there are three jurisdictional prerequisites for it to hear a contractor’s claim under the Contract Disputes Act (CDA): (1) the contractor’s submission of a claim to the contracting officer; (2) the issuance of a COFD or occurrence of a deemed denial; and (3) a timely appeal. Under the CDA, a contractor has 90 days from the date of receiving a COFD to appeal the decision to the relevant agency board. BES argued that, because the agency responded to its second claim on August 22, 2022, it should be entitled to 90 days from that date to appeal the agency’s denial. The CBCA disagreed, explaining that claims based on a common or related set of operative facts will be considered the same claim for the purposes of an appeal if “a court will have to review the same or related evidence to make its decision.” Here, because the contractor’s allegations and the relief sought in each claim were substantially the same, the CBCA found both of BES’s submissions were for the same claim, and the relevant date for calculating the 90-day appeal window was the issuance of the first COFD, on April 23, 2021.
This decision underscores the importance of timely appealing a claim upon the receipt of a COFD, as a contractor cannot revive its appeal rights by simply re-submitting an old claim it failed to timely appeal.
For further information, please contact:
Stephen J. McBrady, Partner, Crowell & Moring
smcbrady@crowell.com
