CBCA Lacks Jurisdiction Over Untimely Appeal
By: Lori Lange
Published Date: December 7, 2020
Disputes under government contracts are governed by the Contract Disputes Act (CDA). Generally speaking, under the CDA’s disputes process, the contractor files its claim with the Contracting Officer. The Contracting Officer issues a final decision on the claim, and the contractor can appeal that final decision to either the appropriate board of contract appeals or the Court of Federal Claims.
There are strict deadlines for filing appeals. The CDA states that appeals to the board must be filed within 90 days of the contractor’s receipt of the final decision. Appeals to the Court of Federal Claims must be filed within 12 months of the contractor’s receipt of the final decision. A contractor’s failure to comply with these deadlines usually is fatal to the contractor’s appeal.
Late Filing of Appeal
For example, in JAF Supply, Inc., CBCA No. 6934 (November 16, 2020), the Civilian Board of Contract Appeals (CBCA) dismissed a contractor’s appeal for lack of jurisdiction when the appeal was filed one day late. As the CBCA explained, the failure to timely file an appeal is a jurisdictional defect that precludes the board from entertaining the appeal. The fact that the Government was not prejudiced by the late filing is irrelevant.
The contractor, however, was not out of luck. As the CBCA noted, the contractor still had time to file an appeal with the Court of Federal Claims.
Contractors who receive a Contracting Officer’s final decision need to keep track of when the final decision was received and the deadline to file an appeal. A contractor who misses the deadline for filing an appeal with the board of contract appeals still may be able to file an appeal with the Court of Federal Claims if the time for filing at the Court has not passed. However, if the contractor misses the deadline for appealing to the Court, the contractor usually will have no ability to challenge the final decision.