A decision by the U.S. Civilian Board of Contract Appeals (the "Board" or "CBCA") in BES Design/Build, LLC v. General Services Administration, CBCA 7587 (April 6, 2023), further defines what it means to submit a "timely" appeal and reflects the importance of following appeal deadlines as laid out in the Contract Disputes Act ("CDA").

Background

The General Services Administration (the "Government") entered into a general construction, indefinite-delivery, indefinite-quantity ("ID/IQ") contract with BES Design/Build, LLC ("BES"). Under the contract, BES was to replace two exterior stairs at a courthouse in North Carolina.

On February 24, 2021, BES submitted a certified claim to the Contracting Officer for $37,817. BES alleged that despite having completed the contract work, the Government refused to pay the outstanding balance. On April 23, 2021, the Contracting Officer issued a final decision denying the claim. However, BES did not appeal the final decision.

Over one year later, BES submitted another claim to the Contracting Officer that was almost identical to the claim submitted by BES in February 2021. The Contracting Officer responded to the claim, asserting that a final decision had previously been issued on the matter in the year prior. Roughly one week later, BES filed a notice of appeal at the Board. Following the appeal, the Government filed a motion to dismiss for lack of jurisdiction, alleging that BES failed to file its appeal within ninety days of the Government's final decision on the claim issued in April 2021.

Decision

The Board granted the motion to dismiss. As part of its reasoning, the Board noted that the February 2021 claim submitted by BES was a valid claim under the CDA. Moreover, the Board determined that the April 23, 2021, letter issued to BES by the Government constituted a final decision on the claim. As a result, BES had ninety days after the Government's issuance of the final decision to appeal the decision to the Board, which BES failed to do. Although BES submitted a subsequent claim over a year after the Government issued its final decision, the Board rejected BES's contention that the second claim was distinct from the first. The Board noted that both claims asserted that the Government failed to render final payment to BES after completion of the project. As a result, the Board reasoned that both claims arose from "the same set of operative facts, the same contract, and the same work." Because the Board determined that the second claim was not separate from the first, the Board found the BES appeal of the final decision to be untimely.

Takeaway

The BES decision is a reminder of the ninety-day window that Contractors have to submit an appeal of a Contracting Officer's final decision to the Board of Contract Appeals. Failure to do so may result in the dismissal of an otherwise valid claim, and additional costs associated with re-filing the appeal at another tribunal, such as the U.S. Court of Federal Claims. Further, it is important to recognize the distinction between a second submission of the same claim and a legitimate additional claim that arises from a separate set of facts. The BES decision demonstrates the CBCA's approach to distinguish between the second submission of a single claim and an additional claim to prevent the bypass of jurisdictional restraints imposed by the Contract Disputes Act.

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