               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                   )
                                              )
Singleton Enterprises                         )      ASBCA No. 58235
                                              )
Under Contract No. W912HN-09-C-0035           )

APPEARANCE FOR THE APPELLANT:                        Mr. Wayne Singleton
                                                      President

APPEARANCES FOR THE GOVERNMENT:                      Thomas H. Gourlay, Jr., Esq.
                                                      Engineer Chief Trial Attorney
                                                     Justin P. McCorcle, Esq.
                                                      Engineer Trial Attorney
                                                      U.S. Army Engineer District,
                                                       Wilmington

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

       The government moves for dismissal for lack of jurisdiction under the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, arguing that appellant filed its
appeal beyond the statutory 90-day appeal period. Appellant contends that the email
attaching the final decision was ineffective to start the appeal period running and that it
received the written final decision on 27 April2012 making its appeal timely. We grant
the government's motion and dismiss the appeal.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. On 30 July 2009, the government awarded Contract No. W912HN-09-C-0035 to
Singleton Enterprises (appellant) for the Philpott Reservoir Sewer Improvements Project
(R4, tab 4c ).

       2. By letter dated 10 November 2011, appellant requested a contracting officer's
(CO's) final decision concerning claims for "differing site condition and additional
requirement directed by the Government" (R4, tab 3a).

       3. On 19 March 2012, CO John P. Mayo issued a final decision denying
appellant's differing site condition claim in a letter addressed to appellant (R4, tab 2).
The final decision included a complete statement of appeal rights (id. ). The final decision
was returned as undeliverable on 27 March 2012 (gov't mot., attach. 2, Cliff decl. ~ 3).
Between 27 March 2012 and 11 April2012 the government attempted to deliver the final
decision to appellant by both electronic and written means but was unsuccessful 1 (gov't
mot., attach. 1, Mayo dec I. ~~ 4-7, attach. 2, Cliff decI. ~~ 4-8).

       4. On 11 April2012 at 5:35pm, CO Mayo sent appellant a copy of the 19 March
2012 final decision via email (gov't mot., attach. 1, Mayo decl. ~ 8, ex. A) stating in part:

                Attached is a copy of the Contracting Officer[']s Decision
                concerning your request for the equitable adjustment of
                Contract W912HN-09-C-0035. The decision was sent to you
                via US Mail on March 19 20 12 and then again by registered
                mail on 3 April 20 12 but both attempts were returned to our
                office due to the address being incorrect.

                Please verify your correct address, phone number, and your
                receipt of this email, as we have had difficulty contacting
                you.

(Gov't mot., attach. 1, Mayo decl.   ~   8, ex. A)

         5. On 12 April2012 at 8:28am, appellant responded by email stating:

                I have received your e-mail and attached Contracting Officer's
                Decision and Government Estimate Methodology. Our correct
                address is P.O. Box 129, Luthersville, GA 30259. Our correct
                phone number is 770-927-1618. The correct phone number for our
                project manager, AI Fox, is 404-964-2775.

(Gov't mot., attach. 1, Mayo decl.   ~   9, ex. B)

     6. On 27 April 2012, Mr. A.C. Fox, appellant's project manager, sent a letter to
CO Mayo referring to the 11 April2012 email:

                       The Government's email of April 11, 2012 included
                the Contracting Officer's Decision dated March 19, 20 12, as
                an attachment, and a settlement offer of$65,273.74, plus
                $2,043.16 previously denied, which would increase the
                referenced contract value to $1,400,478.90 after modification.

1
    The government does not contend that these attempts commenced the appeal period so
         we need not delve into the details of the transmissions as the government does in
         its motion.



                                                 2
              In addition, that communication stated a revised contract
              completion date of December 13, 2012 with assessed
              liquidated damages of$69,300.00 currently withheld. In
              consideration of the offer we have thoroughly reviewed and
              analyzed the history of each delay, design defect and differing
              site condition, including cause, circumstances, corrective
              action and costs. For the record, we will discuss the facts
              before stating our position.

(App. supp. R4, tab 3 at 10)

       7. By letter dated 12 July 2012, appellant filed an appeal ofthe CO's 19 March
2012 final decision with the Board (R4, tab 1). The envelope is postal meter stamped on
"07/12/2012" and postmarked "13 JUL 2012" (gov't mot., attach. 5 at 1-3).

      8. The government included a declaration by CO Mayo with its motion;
paragraph 10 reads: "(h]aving received Mr. Singleton's confirmation that he received the
COD, I did not make further attempts to mail a paper copy of the decision to Singleton
Enterprises" (gov't mot., attach. 1).

        9. In its "Position Regarding Timeliness ofthe Appeal," (opposition) appellant
asserts that the copy of the final decision attached to the 11 April 20 12 email was
"corrupted" and could not be opened (app. opp'n at 6). Appellant also asserted that it
received "the original COFD ... on or about April27, 2012" (app. opp'n at 7). Neither of
these assertions is supported by evidence. On 5 February 2014 the Board ordered the
parties to supplement the record with "all documentary or testimonial evidence
supporting the parties' versions of the facts surrounding appellant's two assertions cited
above" no later than 13 February 2014 (Bd. corr. file). The government responded on
13 February 2014 stating that it had no further evidence to submit (Bd. corr. file).
Appellant did not respond to the Board's order.

                                       DECISION

        The burden of proof is on appellant to establish that its appeal was timely filed;
however, the government has the burden of proving the date the final decision was
received. John J. Kuqali General Contractor, ASBCA No. 53979, 03-1 BCA ~ 32,204 at
159,264. Mr. Singleton acknowledged receiving the 11 April2012 email with the
19 March 2012 final decision attached, on 12 April2012 (SOF ~ 5). Such an
acknowledgement of receipt serves to commence the running of the appeal time. Kuqali,
03-1 BCA ~ 32,204 at 159,264. The government has met its burden. The CDA requires
that an appeal of a CO's final decision be filed with the Board within 90 days after
receipt. 41 U.S.C. § 7104(a). Under normal circumstances the 90-day period would



                                             3
commence on the day after receipt or 13 April2012 (Board Rule 33(b)). The 90-day
period would therefore end on Wednesday, 11 July 2012. The appeal letter was metered
12 July 2012 and postmarked on 13 July 2012 (SOF ,-r 7). Under normal circumstances,
the appeal would be late based on either date. Appellant, however, alleges two
circumstances that are not "normal" and could change this result if proven. First
appellant contends that the attachment to the 11 April 20 12 email containing the final
decision could not be opened (SOF ,-r 9). If proven, we might not consider
acknowledgement of receipt of the email with final decision attached on 12 April2012 to
effectively commence the running of the 90-day appeal time. Second, appellant alleges
that it received a written version of the final decision by letter on or about 27 April2012
(id.). If this were proven, we would start the running of the 90-day appeal period on
28 April2012 and the appeal would be timely. AST Anlagen-und Sanierungstechnik
GmbH, ASBCA No. 51854,04-2 BCA ,-r 32,712 at 161,836 (Where multiple copies of a
final decision are received, absent some indication that an earlier version is intended to
start the appeal period, the date of receipt ofthe last copy commences the appeal period.).
Therefore, we must decide if appellant has proven either of these contentions by credible
evidence.

       Appellant failed to respond to the Board's' order to supplement the record with
evidence supporting its contentions (SOF ,-r 9). There is no mention of a "corrupted file"
in either Mr. Singleton's 12 April2012 acknowledgement of receipt (SOF ~ 5) or
Mr. Fox's 27 April2012letter (SOF ~ 6). We would expect the inability to read the final
decision to be mentioned. We cannot square the contemporaneous documents with
appellant's unsupported contentions almost two years after the fact. We conclude that
appellant has not provided the Board with any evidence that the file containing the final
decision was corrupted and could not be opened.

         Appellant did not produce credible evidence that the final decision was received
on or about 27 April2012. We are confronted with appellant's unsupported contention
that it received a copy on or about 27 April2012 and CO Mayo's testimony that after he
received confirmation of receipt on 12 April2012, he did not mail another copy to
appellant (SOF ~ 8). Appellant having failed to produce any evidence regarding receipt
on 27 April2012, we must fully credit CO Mayo's testimony.




                                             4
                                      CONCLUSION

        Appellant having failed to meet its burden of proof as to its two contentions, we
find that the appeal is untimely. The appeal is dismissed with prejudice for lack of
jurisdiction.

       Dated: 24 March 20 14




                                                  Administr tive Judge
                                                  Armed Services Board
                                                  of Contract Appeals

I concur



~~-A#-
Administrative Judge
                                                 ruCHARDSHACKLEFORD
                                                 Administrative Judge
Acting Chairman                                  Acting 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. 58235, Appeal of Singleton
Enterprises, rendered in conformance with the Board's Charter.

       Dated:



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




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