Appeal Not Untimely When Agency only Gave Contractor Correct Appeal Information Six Hours Before Appeal Deadline; Knight’s Construction v. Department of Agriculture, CBCA 6658

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Motion to dismiss contractor’s appeal as untimely is denied. The government terminated a contract for cause. In the termination letter the government told the contractor it could appeal the decision to Department of Agriculture’s Board of Contract Appeals, a board that no longer exists. The contractor sent a timely appeal to the non-existent board, which was returned as undeliverable. The government only gave the contractor the correct information—i.e., that it had to appeal to the CBCA—six hours before the appeal deadline. Despite its mistake, the government had the gall to then argue that the contractor’s appeal was untimely. The board rejected the motion, reasoning that the contractor had been prejudiced by the government providing defective information.

Knight’s Construction had contracts with the Forest Service to provide brush and tree removal services. The Forest Service terminated the contracts for default due to concerns that Knight would not complete the work on time. The Forest Service sent Knight a termination letter on August 19, 2019. The letter informed Knight that it could appeal the termination to the Board of Contract Appeals for the U.S. Department of Agriculture.

On November 13, 2019, Knight sent an appeal to the Department Agriculture’s Contract Appeals Board. The appeal was returned as undeliverable. Following a phone call with the Forest Service Knight attempted again to send its appeal to the Department of Agriculture’s Board of Contract Appeals. That appeal was also returned.

On November 19, 2019, the Forest Service emailed Knight stating that Department of Agriculture’s Board of Contract Appeals functions had been transferred to the Civilian Board of Contract Appeals. This email gave the correct address for the CBCA. Knight then sent its appeal to the CBCA via UPS, which was then docketed on November 22, 2019.

The government moved to dismiss for lack of jurisdiction. The government argued that the Contract Disputes Act requires a contractor to appeal a final decision within 90 days. The government argued that it had terminated the contract on August 19, but Knight’s appeal with the with the CBCA was not docketed until November 22, which was more than 90 days after the termination.

The board noted that the appeal clock will not begin to run when a final decision contains defective appeal rights. The government conceded that it provided Knight with incorrect appeal information. Nevertheless, the government argued that it had provided the correct information to Knight on November 19, the 90th day at 5:25 p.m. The government claimed that Knight could have e-filed its appeal before midnight on that day and it would been timely. Instead, Knight had decided to send it appeal using UPS, which resulted in a late filing.

The board rejected the government’s position. The Forest Service provided incorrect appeal information to Knight on three occasions and did not provide correct information until the last day for Knight to timely appeal. Had the Forest Service provided the correct information in the initial August 19 decision, the company’s original appeal mailed on November 13, would have been timely. Under the circumstances, the board found that the Knight had been prejudiced by the erroneous information. The board declined to dismiss the appeal us untimely.

Knight’s is represented by Andrew Dutkanych III and Devan A. Dannelly of Biesecker Dutkanych & Macer LLC. The government is represented by Vincent Vukelich of the Department of Agriculture.

CBCA - Knight's Construction