MOTION TO DISMISS DENIED:  November 16, 2007 
CBCA 917 
PINNELL BROWN CONSTRUCTION, INC., 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Gregory G.T. Ervanian of Graham & Ervanian P.C., Des Moines, IA, counsel for 
Appellant. 
Tony A. Ross, Charlma J. Quarles, and Phillipa L. Anderson, Office of the General 
Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. 
Before Board Judges DeGRAFF , STEEL , and SHERIDAN . 
DeGRAFF , Board Judge. 
The agency moves to dismiss this appeal for lack of jurisdiction upon the ground that 
it was not timely filed. Because we conclude the appeal was timely filed, we deny the 
motion. 
Findings of Fact 
Pinnell Brown Construction, Inc. (Pinnell or appellant) and the Department of 
Veterans Affairs (VA or agency) entered into a construction contract.  On June 7, 2007, 
Pinnell received by telefacsimile a letter of the same date from the agency’s contracting 

    
 
 
  
  
      
  
   
  
 
   
     
    
 
   
 
  
   
2 CBCA 917 
officer which explained that Pinnell’s response to the agency’s cure notice was unacceptable 
for five reasons and, therefore, VA was terminating Pinnell’s contract for default.  The letter 
said it was the contracting officer’s final decision and told Pinnell it could appeal the 
decision to either the United States Court of Federal Claims within twelve months, or the 
Department of Veterans Affairs Board of Contract Appeals “within 90 days from the date 
you receive this decision.”  Motion to Dismiss, Exhibit 1.  
On June 22, 2007, Pinnell received by telefacsimile a second letter from the agency’s 
contracting officer.  In the letter, dated June 21, the contracting officer explained that 
Pinnell’s response to the agency’s cure notice was unacceptable for four reasons and, 
therefore, the agency was terminating Pinnell’s contract for default.  The first three reasons 
set out in the June 21 letter were the same as the first three reasons set out in the June 7 letter. 
The fourth reason set out in the June 21 letter was not quite the same as the fourth reason set 
out in the June 7 letter. The fifth reason contained in the June 7 letter was not contained in 
the June 21 letter. The June 21 letter said it was the contracting officer’s final decision and 
told Pinnell it could appeal the decision to either the United States Court of Federal Claims 
within twelve months, or the Civilian Board of Contract Appeals “within 90 days from the 
date you receive this decision.”  The June 21 letter did not mention the June 7 letter.  Motion 
to Dismiss, Exhibit 2.  
On September 14, 2007, Pinnell mailed its notice of appeal to this Board.  The notice 
said Pinnell was appealing from the June 21 decision.  On October 23, 2007, VA filed a 
motion to dismiss for lack of jurisdiction.  VA filed an amended motion on October 30.  In 
its amended motion, VA argues that Pinnell’s appeal was not timely filed because it was filed 
more than ninety days after Pinnell received the June 7 contracting officer’s decision.  Pinnell 
opposes the motion.  
Discussion 
We have jurisdiction only if Pinnell appealed within ninety days from the date it 
received the contracting officer’s decision.  41 U.S.C. 
§ 606 (2000).   According to our rules 
of procedure, Pinnell appealed on September 14, when it mailed its notice of appeal to the 
Board.  Charles T. Owen v. Agency for International Development , CBCA 694, 07-2 BCA 
¶ 33,638.  If the ninety days began to run on June 22, when Pinnell received the June 21 
decision, the appeal is timely.  If the ninety days began to run on June 7, when Pinnell 
received the June 7 decision, the appeal is untimely.  
In its motion, VA relies upon Tyger Construction Company, Inc. , ASBCA 36100, 
88-3 BCA ¶ 21,149.  In Tyger , the contractor received a contracting officer’s decision by 
telefacsimile and received the identical decision one week later in hard copy.  Tyger’s appeal 

    
 
 
  
    
  
    
 
 
 
  
  
 
    
  
    
 
  
       
3 CBCA 917 
to the board was timely if the ninety-day appeal period began to run when Tyger received the 
hard copy of the contracting officer’s decision, but not if the period began to run when it 
received the telefacsimile copy of the decision.  Tyger stated in its appeal to the board that 
it was appealing from the decision it received by telefacsimile.  The issue presented to the 
board was whether the ninety-day appeal period began to run when Tyger received the 
contracting officer’s decision by telefacsimile.  The board held Tyger’s receipt of the 
decision sent by telefacsimile started the appeal period running because the decision did not 
suggest the telefacsimile copy was anything other than the contracting officer’s final 
decision. 
Pinnell refers us to Eastern Computers, Inc. , ASBCA 49185, 96-2 BCA ¶ 28,343, in 
which the board was faced with different facts and reached a different result from the one it 
reached in Tyger .  In Eastern Computers , the contractor received a contracting officer’s 
decision by telefacsimile and received the identical decision five days later in hard copy.  The 
contractor’s appeal to the board was timely if the ninety-day appeal period began to run when 
it received the hard copy of the contracting officer’s decision, but not if the period began to 
run when it received the telefacsimile copy of the decision.  The contractor stated in its 
appeal to the board that it was appealing from the decision it received in hard copy.  The 
issue presented to the board was, once again, whether the ninety-day appeal period began to 
run when the contractor received the contracting officer’s decision by telefacsimile.  
In Eastern Computers , the board held the contractor’s receipt of the hard copy of the 
contracting officer’s decision started the appeal period running.  The board decided the 
agency’s actions were confusing because the decision said the ninety-day appeal period 
began to run upon receipt of the contracting officer’s decision, but did not say whether the 
period began to run upon receipt of the telefacsimile copy or receipt of the hard copy of the 
decision.  As a result of the unclear direction provided by the agency regarding when the 
ninety days began to run, the contractor was entitled to rely upon the appeal language 
contained in the hard copy of the decision it received and to begin counting the ninety days 
from its receipt of the hard copy.  The board noted that Tyger  warranted a different result 
because Tyger appealed to the board from the copy of the decision it received by 
telefacsimile which showed it considered the telefacsimile copy to be the contracting 
officer’s final, appealable decision.  
Instead of sending the same contracting officer’s decision by two different means as 
the agencies did in Tyger  and Eastern Computers , VA used the same means to send Pinnell 
two different versions of a decision. Although both versions notified Pinnell that its contract 
was being terminated for default, the second version of the decision stated somewhat 
different reasons for the termination action than did the first version of the decision.  Both 
versions of VA’s decision said Pinnell’s time to appeal began to run when it received “this 

     
         
 
   
 
      
    
         
 
  
   
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4 CBCA 917 
decision” and did not make clear whether the time began to run when Pinnell received the 
first version or the second version of the decision.  Pinnell stated in its appeal to the Board 
that it is appealing from the second version of the decision it received, which shows Pinnell 
did not consider the first version of the decision to be the contracting officer’s final, 
appealable decision.  
Agencies control the content and distribution of contracting officers’ decisions, and 
statute requires the decisions to provide sufficiently clear information to enable contractors 
to make informed choices concerning their appeal rights.  41 U.S.C. 
§ 605(a); Eastern 
Computers . “The focus of this requirement is the protection of the contractor.”  Decker  & 
Co. v. West , 76 F.3d 1573, 1579 (Fed. Cir. 1996). Here, the agency provided the contractor 
with two versions of a decision, both of which expressly provided that the ninety-day time 
to appeal began to run “from the date you receive this decision” and neither of which made 
clear which version was legally effective to begin the running of the ninety-day appeal 
period.  The agency’s actions created understandable confusion as to when the time to appeal 
began to run and, as a result, Pinnell was entitled to rely upon the appeal language contained 
in the second version of the decision, which it did.   AST Anlagen-und Sanierungstechnik 
GmbH , ASBCA 51854, 04-2 BCA ¶ 32,712.  Pinnell’s appeal is timely because it was filed 
within ninety days from June 22, 2007, when Pinnell received the second version of the 
contracting officer’s decision. 
Decision 
The motion to dismiss is DENIED . 
MARTHA H. DeGRAFF 
Board Judge 
We concur: 
CANDIDA S. STEEL PATRICIA J. SHERIDAN 
Board Judge Board Judge