ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
HK&S Construction Holding Corp.                )      ASBCA No. 60164
                                               )
Under Contract No. W912WJ-14-C-0020            )

APPEARANCES FOR THE APPELLANT:                        John A. Dorsey, Esq.
                                                      W. Mark Russo, Esq.
                                                       Ferrucci Russo P.C.
                                                       Providence, RI

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      Theresa A. Negron, Esq.
                                                       Engineer Trial Attorney
                                                       U.S. Army Engineer District, New England

       OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
    GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

                                    INTRODUCTION

         The government moves to dismiss the appeal for lack of jurisdiction because, it
contends, the appeal is untimely. Appellant contends that the appeal is timely because
it filed the appeal within 90 days of receiving the hard copy of the decision that the
government sent by Federal Express. The government has not replied to appellant's
response. The motion is denied.

           STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        The parties entered into the contract in September 2014 (R4, tab 5 at 1), for
appellant, Hugo Key & Son Construction Holding Corp. (HK&S) to perform repairs to
a jetty at Block Island, Rhode Island (R4, tab 2 at 1). On 5 June 2015, the contracting
officer terminated the contract for default (app. resp., ex. A). At 2:35 p.m. on the same
day, the contracting officer sent HK&S an email with the following message:

               Please see the attached letter, notifying you that the subject
               contract has been terminated for default. A hardcopy of this
               letter has been sent to you overnight via [Federal Express].

(Gov't mot., ex. 1)
        Although the email listed as an attachment a "Notice of Termination for
Default.pdf' (gov't mot., ex. 1), the record does not include the email attachment
itself. Additionally, the email does not indicate which of the notices (that is, the
emailed notice or the notice sent by Federal Express) was intended to begin the
running of the 90-day appeal period pursuant to the Contract Disputes Act (CDA), 41
U.S.C. § 7104(a) (id.).

       HK&S received the hard copy of the notice of termination for default on 8 June 2015
(app. resp., ex. B ~ 4), and filed its appeal on 4 September 2015, 91 days after 5 June 2015,
but only 88 days after 8 June 2015.

                                       DECISION

        The Board lacks jurisdiction over any appeal filed outside of the appeal period
set forth in 41 U.S.C. § 7104(a) of the CDA, which requires a contractor wishing to
appeal a contracting officer's final decision to the Board to do so within 90 days from
the date of receipt of the final decision. TTF, LLC, ASBCA No. 59511 et al., 15-1
BCA ~ 35,883 at 175,434. Sending multiple copies of a contracting officer's final
decision without indicating which of them is intended to begin the running of the
appeal period entitles the contractor to compute the date from receipt of the last copy.

However, where an appellant has previously requested to receive
correspondence by means of a particular medium, an earlier copy of the decision
received through that medium may start the 90-day appeal clock. 

the government's burden to establish the date the final decision was received,
but the burden of proof is on appellant to establish that its appeal was timely filed. TTF,
LLC, 15-1 BCA ~ 35,883 at 175,434. Although it appears that the contracting officer
sent HK&S the notice of termination by email on 5 June 2015 (the record contains the
email listing the notice of termination as an attachment, but not the attachment itself),
HK&S received a hard copy of the notice of termination on 8 June 2015. The
government points to no evidence that HK&S had previously requested to receive
correspondence by email, and the 5 June 2015 email does not indicate whether the email
or the hard copy was intended to begin the running of the appeal period. Consequently,
HK&S was entitled to compute the commencement of the appeal period from its receipt
of the hard-copy notice of termination on 8 June 2015. Because the notice of appeal was
filed within 90 days of 8 June 2015, the appeal is timely, and we possess jurisdiction to
entertain it.




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                                       CONCLUSION

           For these reasons, the government's motion is denied.

           Dated: 25 March 2016




                                                    Administrati Judge
                                                    Armed Services Board
                                                    of Contract Appeals



    I concur                                        I concur




    ~~4¥
    Administrative Judge                            Administrative Judge
    Acting Chairman                                 Vice Chairman
    Armed Services Board                            Armed Services Board
    of Contract Appeals                             of Contract Appeals



          I certify that the foregoing is a true copy of the Opinion and Decision of the
    Armed Services Board of Contract Appeals in ASBCA No. 60164, Appeal ofHK&S
    Construction Holding Corp., rendered in conformance with the Board's Charter.

          Dated:



                                                   JEFFREY D. GARDIN
                                                   Recorder, Armed Services
                                                   Board of Contract Appeals




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