A contractor must appeal a board decision to the Federal Circuit within 120 days. Here, the contractor missed the 120-day window. But the Federal Circuit let it slide because the contractor’s email system was down, and the contractor had not received notice of the board decision for several months.
Jemison & Partners, Inc. v. Secretary of the Army, Fed. Cir., 2023-1773
- Claim – The contract required the contractor to provide topsoil. The contractor and the government got into a dispute over whether the contractor was entitled to a payment for the amount of topsoil estimated in the contract or the amount used. The contractor submitted a claim asserting it was entitled to be paid for the amount estimated. The agency denied the claim.
- Appeal – The contractor appealed to the ASBCA. The board denied the appeal. The board emailed the contractor a decision on December 7, 2022. The contractor appealed the decision to the Federal Circuit on April 14, 2023.
- Timeliness of Appeal – The government argued the board lacked jurisdiction over the appeal. An appeal of a board decision must be filed in 120 days. The contractor's appeal in this case was filed more than 120 days after the decision was sent.
- Federal Circuit Has Jurisdiction - The Federal Circuit rejected the government's argument. The Contract Disputes Act states an appeal must be filed “within 120 days of when the contractor receives a copy of the decision.” Thus, the date a contractor receives a decision is not necessarily the same as the date the decision was issued. Here, the contractor submitted an affidavit showing that its email server had been down in December 2022 when the decision was sent. It only received notice of the decision on April 7, 2023. This was good enough for the court. The appeal was timely.
- Merits – While the court had jurisdiction, it denied the merits of the appeal. Contrary to the contractor’s interpretation, the contract required a per-unit payment for topsoil. Indeed, the contract’s line items differentiated between items paid for in lump sum and items paid per unit. The topsoil item was measured in cubic yards, clearing indicating the government intended to pay for per unit of soil used, not the amount estimated.
The contractor is represented by William Lee Kohler of Kohler Construction Law. The government is represented by Anne Delmare, Brian M. Boynton, William James Grimaldi, and Patricia M. McCarthy of the Department of Justice.
--Case summary by Craig LaChance, Editor in Chief