How to Know If You Are in “Receipt” of a Contracting Officer’s Final Decision

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In this case, the contractor argued that it had not received the contracting officer’s decision until September 5. But the agency produced a FedEx receipt showing that the contractor’s receptionist had received the package on September 1, and because the contractor had not appealed within 60 days of September 1, its appeal was untimely. The contractor argued that it had not really received the package because the receptionist that signed for it was not responsible for distributing correspondence within the company. The board was not persuaded. The FedEx receipt was objective indicia of receipt. The contractor received the decision on September 1 regardless of its internal package handling policies. The board lacked jurisdiction over the untimely appeal.

Eagle Peak Rock & Paving, Inc. v. Department of Transportation, CBCA 5955

Eagle Peak Rock & Paving had a contract with the Federal Highway Administration for construction in Yellowstone National Park. Eagle submitted a claim contesting withheld payments. The government denied the claim. 

Eagle appealed the denial on December 1, 2017. Eagle alleged that it had received the contracting officer’s final decision on its claim on September 5, 2017, so its appeal had been timely filed within 60 days of that date.

The agency, however, produced a FedEx receipt showing that a package with the final decision had been delivered to and signed by Eagle’s receptionist on September 1, 2017. Under the CDA, an appeal must be filed within 60 days of receipt. If Eagle received the decision on September 1, then its appeal should have been filed on November 30, not December 1.

Eagle argued that its office was not open on September 1 due to the labor day weekend, and that the receptionist who received the package was not responsible for distributing correspondence within the company. But the board reasoned that objective indicia of receipt by the contractor established “receipt.” Here, the FedEx receipt showed that someone at Eagle’s office received the decision on September 1. That counted as receipt. The appeal should have been filed on November 30. The board dismissed the appeal as untimely.

Eagle is represented by Bennett J. Lee, Stephen L. Pessagno and David B. Wonderlick of Varela, Lee, Metz & Guarino, LLP.

CBCA - Eagle Peak Rock & Paving