ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
HK&S Construction Holding Corp. ) 
) 
Under Contract No. W912WJ-14-C-0020 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60164 
John A. Dorsey, Esq. 
W. Mark Russo, Esq. 
Ferrucci Russo P.C. 
Providence, RI 
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. 
Id. at 175,435. 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. Id. 
It is 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. 
2 

I 
CONCLUSION 
For these reasons, the government's 
motion is denied. 
Dated: 25 March 2016 
I concur 
~~4¥ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrati Judge 
Armed Services Board 
of Contract Appeals 
I concur 
Administrative Judge 
Vice Chairman 
Armed Services Board 
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: 
3 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals