DISMISSED FOR LACK OF JURISDICTION: June 16, 2020
CBCA 6704
MAHAVIR OVERSEAS,
Appellant,1
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT,
Respondent.
Avinash Jain, Owner of Mahavir Overseas, New Delhi, India; and Vivek Aggarwal
of A&A Lawcorp LLP, New Delhi, India, appearing for Appellant.
John B. Alumbaugh, Office of the General Counsel, Agency for International
Development, Washington, DC, counsel for Respondent.
1 When preparing this decision, the Board discovered that the individual who the
appellant identified as its counsel, Vivek Aggarwal, never provided the Board with a bar
number for a state in which he is licensed to practice law, as required by Board Rule 5(b),
48 CFR 6101.5(b) (2019). Under the Board’s rules, only an attorney who is “licensed to
practice law in a State, commonwealth, or territory of the United States or in the District of
Columbia” may represent a party before the Board.Id. 6101.1. Although Mr. Aggarwal’s
status is unclear, the appellant’s original notice of appeal was filed jointly by Mr. Aggarwal
and the appellant’s owner, Avinash Jain. Because our rules permit a corporation to “appear
by one of its officers,”id. 6101.5(a)(1), we designate Mr. Jain as the appellant’s
representative in this appeal and need not at this time resolve Mr. Aggarwal’s status.
Nevertheless, to the extent that Mr. Aggarwal files future appeals with the Board, he will
need to indicate that he is licensed to practice in the manner required by the Board’s rules.

CBCA 6704 2
Before Board Judges SULLIVAN, LESTER, and RUSSELL.
LESTER, Board Judge.
On February 12, 2020, respondent, the Agency for International Development
(USAID), filed a motion to dismiss this appeal for lack of jurisdiction, arguing that the
USAID contracting officer had withdrawn the final decision asserting a government claim
against appellant, Mahavir Overseas (Mahavir), and that, absent an outstanding final
decision, the Board lacks jurisdiction over the appeal. Alternatively, USAID argued that the
contracting officer’s decision asserting the government claim was never valid under the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018), because the dollar amount
that USAID demanded Mahavir pay, although stated in a “sum certain,” was inconsistent
with the written explanation supporting that demand.
Although we question the merits of USAID’s jurisdictional arguments,2 we need not
resolve them. During the Board’s review of the parties’ submissions, the Board discovered
that Mahavir’s notice of appeal was filed more than ninety days after Mahavir received the
contracting officer’s decision. That untimeliness bars us from considering the merits of
Mahavir’s appeal, although, because USAID has now withdrawn its contracting officer’s
decision, Mahavir will not be time-barred from returning to the Board if, at a later date,
USAID restarts a new appeal deadline by reissuing it. Unless and until the USAID
contracting officer issues a new decision reasserting USAID’s claim, however, we cannot
entertain Mahavir’s challenge to it and therefore dismiss this appeal for lack of jurisdiction.
Background
On October 4, 2019, the USAID contracting officer issued a final decision, captioned
a “Final Measure Notice,” alleging that USAID had to destroy 30,989 hygiene kits provided
by Mahavir under Blanket Purchase Agreement (BPA) call award numbers AID-OAA-BC-
2 We note that, once a contractor establishes jurisdiction through its timely appeal
of a contracting officer’s decision asserting a government claim, it is not (as USAID argues)
the subsequent withdrawal of the contracting officer’s decision that moots the action,
creating a jurisdictional deficiency. It is the elimination of the dispute between the parties
that was embodied within the decision that causes a case to become moot.See AT&T Corp.,
GSBCA 13931-TD, 98-2 BCA ¶ 29,897 (the contracting officer’s act of withdrawing a
decision, “in and of itself, does not necessarily deprive us of our jurisdiction”);Security
Services, Inc., GSBCA 11052, 92-1 BCA ¶ 24,704 (1991) (“[E]ven though the final decision
has been withdrawn by the contracting officer, the dispute remains.”).

CBCA 6704 3
17-00019 and AID-OAA-BC-17-00033 because of mold growth and demanding that
Mahavir repay $1,023,204 to USAID. Mahavir, which is located in India, received that
decision by email on October 5, 2019.
Consistent with Federal Acquisition Regulation (FAR) 33.211 (48 CFR 33.211
(2019)), the decision notified Mahavir that it could “appeal this decision to the agency board
of contract appeals” within ninety days from the date of the decision’s receipt or,
alternatively, could file an action in the Court of Federal Claims within twelve months of
receipt. The decision did not specifically name the Civilian Board of Contract Appeals as
the relevant board or provide an address or contact information for the Board.
By email dated December 4, 2019, Mahavir notified the USAID contracting officer
of its intention to “file a review petition with the Agency Board of Contract Appeals within
the prescribed time limit as per law” and that “[w]e hereby seek the intervention for review
by the deemed Agency Of Board.” By email dated December 11, 2019, Mahavir asked the
USAID contracting officer “to kindly provide us with the contact details and email of
‘Agency Board of Contract Appeals’ in order to proceed further.” On January 6, 2020,
ninety-three days after issuing the final decision asserting the government claim, the USAID
contracting officer provided Mahavir with the name of the Civilian Board of Contract
Appeals and its mailing address.
The next day, on January 7, 2020, Mahavir efiled a notice of appeal with the Board.
In its notice, Mahavir represented that it had previously mailed a copy of its appeal notice to
the USAID contracting officer on January 4, 2020; that it did not know either the name of
the Board or its address until the contracting officer’s communication on January 6, 2020;
and that it found the Board’s email address from an Internet search after learning the Board’s
name. The Board docketed the appeal as CBCA 6704.
On February 12, 2020, USAID filed a motion to dismiss the appeal for lack of
jurisdiction. Attached to its motion was a letter from the USAID contracting officer to
Mahavir dated February 11, 2020, with the subject line “Withdrawal of Formal Measure
Notice: AID-OAA-E-00002 of October 4, 2019,” formally rescinding the previously issued
final decision, but reserving the right to reissue it:
USAID rescinds the Formal Measure Notice: AID-OAA-E-17-00002 of
October 4, 2019 in its entirety, without prejudice. Among the reasons for the
withdrawal, the Agency acknowledges the discrepancy in the sums certain
demanded in the Formal Measure Notice. The Agency also intends to
reconsider its positions in light of the Appeal filed by Mahavir Overseas.

CBCA 6704 4
. . . .
This withdrawal does not affect USAID’s right to file a bill of collection and
final decision regarding BPA Call award numbers AID-OAA-17-00019 and
AID-OAA-BC-17-00033 in the future.
Exhibit B to Respondent’s Motion to Dismiss. USAID provided no further explanation about
why it had withdrawn the decision or whether, or when, it intended to reissue it. In its
motion to dismiss, USAID argued that, as a matter of law, the Board loses jurisdiction to
continue an appeal involving a government claim whenever the contracting officer withdraws
the final decision upon which the appeal is based.
Mahavir filed an opposition to USAID’s motion, arguing that dismissal without
prejudice “would leave the appellant vulnerable to the whims and wishes of the respondent”
and “to passing of another decision by the respondent regarding the same issue in the same
Contract” on the same dispute that is pending before the Board now. Response ¶ 24.
Subsequently, the Board asked the parties to brief the issue of the timeliness of
Mahavir’s notice of appeal. In reviewing the parties’ briefs, the Board recognized that, if
Mahavir had received the contracting officer’s decision on October 5, 2019 (as it appeared
from the record), Mahavir’s notice of appeal, filed on January 7, 2020, was filed more than
ninety days after Mahavir’s receipt of the decision. In response to the Board’s inquiry,
Mahavir confirmed its receipt of the decision on October 5, 2019, and USAID argued that,
because the appeal was untimely, the Board lacked jurisdiction to entertain it.
Discussion
Mahavir received the USAID contracting officer’s final decision by email on
Saturday, October 5, 2019, but did not submit its notice of appeal to the Board until
ninety-four days later on Tuesday, January 7, 2020. The CDA provides that a contractor may
appeal a contracting officer’s decision to an agency board of contract appeals “within 90 days
from the date of receipt of [that] decision.” 41 U.S.C. § 7104(a). “Failure to file an appeal
within the ninety-day deadline divests the Board of jurisdiction to consider the case on its
merits.”Treasure Valley Forest Products v. Department of Agriculture, CBCA 3604, 14-1
BCA ¶ 35,549.3 Even if we viewed Mahavir’s official receipt of the emailed decision as
3 USAID notes that its contracting officer sent the decision to Mahavir at 6:39 p.m.
Eastern Standard Time (EST) on Friday, October 4, 2019, and suggests that the appeal
deadline started to run on October 4. When the USAID contracting officer emailed the

CBCA 6704 5
occurring on Monday, October 7, 2019 (Mahavir’s first official business day after receipt),
see Supreme Edgelight Devices, Inc., B-295574, 2005 CPD ¶ 58 (Mar. 4, 2005) (holding in
the bid protest context that, unless a contractor actually opens a contract award decision
received by email on a non-business day, the time for filing a challenge to the decision does
not commence until the contractor’s first business day after receipt), Mahavir would have to
have filed its appeal notice by Monday, January 6, 2020, to be timely. Because Mahavir filed
its notice of appeal beyond the ninety-day window from its receipt, we must dismiss this
appeal.
Mahavir asks us to excuse its tardy filing because, in the final decision, the USAID
contracting officer indicated that Mahavir could appeal to “the agency board of contract
appeals” and did not specifically identify the Civilian Board of Contract Appeals by name
or provide the Board’s address. Yet, the prescribed notice of appeal rights, as set forth at
FAR 33.211, does not require the contracting officer to identify the Board’s address, or even
the board’s specific name, in the decision.Soto Construction Co. v. Department of
Agriculture, CBCA 3210, 13 BCA ¶ 35,301;Grand Service, Inc., ASBCA 42448, 91-3 BCA
¶ 24,164. Further, the USAID supplement to the FAR publicly designates the Civilian Board
of Contract Appeals as USAID’s board for hearing and deciding appeals of contracting
officer decisions. 48 CFR 733.270. Both that supplement and the Board rules identifying
the Board’s mailing and efile addresses (48 CFR 733.270, 6101.1(b)) are contained in the
Code of Federal Regulations (CFR), and contractors are charged with legal notice of that
information. United International Investigative Services , DOT BCA 3076, 00-1 BCA
¶ 30,598 (1999);Tom Shaw, Inc., DOT BCA 2110, 90-2 BCA ¶ 22,775 (citingFederal Crop
Insurance Co. v. Merrill, 332 U.S. 380, 384-85 (1947)).
That being said, we recognize that Mahavir asked the USAID contracting officer in
mid-December 2019 to provide it with the name and contact information of the Board and
that the contracting officer did not respond until January 6, 2020, after the time to appeal to
the Board had passed. Although that delay in providing the requested information may
appear somewhat unseemly, the jurisdictional nature of the filing deadline precludes us from
accepting Mahavir’s untimely appeal.Cosmic Construction, Inc. v. United States, 697 F.2d
decision, it was already Saturday, October 5, 2019, at Mahavir’s location in India. The
appeal deadline runs from the date of the contractor’s actual receipt of the decision, not when
the contracting officer sent it. 41 U.S.C. § 7104(a). Nothing in the FAR requires the
contractor to calculate its appeal deadline by reference to wherever the contracting officer
was when he or she sent the decision by email.

CBCA 6704 6
1389, 1391 (Fed. Cir. 1982). 4 Although the Federal Circuit in Guardian Angels Medical
Service Dogs, Inc. v. United States, 809 F.3d 1244 (Fed. Cir. 2016), questioned whether, in
light of the rationale underlying the Supreme Court’s decision inSebelius v. Auburn Regional
Medical Center, 568 U.S. 145 (2013), compliance with the CDA’s filing deadlines should
still be viewed as a jurisdictional requirement,Guardian Angels, 809 F.3d at 1252, it did not
disturb its prior precedential decision inCosmic Construction, 697 F.2d at 1390, holding that
the ninety-day appeal deadline is, in fact, jurisdictional. Unless and until the Federal Circuit
modifies its precedential determination in Cosmic Construction, we must continue to view
the ninety-day appeal deadline as jurisdictional.Shonto Governing Board of Education, Inc.
v. Department of the Interior, CBCA 6043-ISDA, 18-1 BCA ¶ 37,038, at n.1. In any event,
because the information that Mahavir requested from the contracting officer was publicly
available in the CFR, there was no legal prejudice to Mahavir in the circumstances here.5
Mahavir also asserts that it sent a notice of appeal to the contracting officer and other
USAID employees in early January 2020, before the appeal deadline had passed, hoping that
those individuals would forward it to the appropriate board of contract appeals, and that we
should consider that submission to constitute a timely appeal. Under the Board’s rules,
however, “[a] notice of appeal . . . is filed upon the earlier of its receipt by the Clerk [of the
Board] or, if mailed through the United States Postal Service (USPS), the date it is mailed
to the Board.” 48 CFR 6101.1. Although other boards may view contracting officers for the
agencies that they serve as “agents” for the purpose of accepting appeal notices on those
boards’ behalf,see Auburn Flying Service , PSBCA 1509, 86-3 BCA ¶ 19,273;
Contraves-Goerz Corp. , ASBCA 26317, 83-1 BCA ¶ 16,309, the unique independent
position of the Civilian Board of Contract Appeals, which hears disputes involving numerous
agencies of which the Board is neither an affiliated department nor an organization, precludes
us from doing so. Soto Construction Co. v. Department of Agriculture , CBCA 3210,
13 BCA ¶ 35,301; Charles T. Owen v. Agency for International Development, CBCA 694,
07-2 BCA ¶ 33,638. Mahavir’s submission of its notice of appeal to the contracting officer
did not suspend the filing deadline.
4 We do not have here a situation in which the contracting officer affirmatively
responded to an inquiry with incorrect appeal information that misdirected the appellant, a
situation that might require a different analysis. See P&L Management & Consulting, Inc.,
DOT BCA 4086, 00-1 BCA ¶ 30,759 (discussing effect of misleading information provided
by the contracting officer).
5 Mahavir also represents that the Board’s website does not work in India, which
made it impossible, Mahavir says, for it to find the Board’s address before the contracting
officer provided it. Assuming that Mahavir’s representation is true, that information was still
available in the CFR.

CBCA 6704 7
Finally, Mahavir asks for leeway because it is a foreign citizen, and it asks that we
retroactively grant it a four-day extension of time for the filing of its notice of appeal.
Because the ninety-day period for filing is jurisdictional, it “may not be waived,”Mattress
Makers, Inc. v. General Services Administration, CBCA 2176, 11-1 BCA ¶ 34,645, and we
lack authority to extend the filing deadline. Tyger Construction Co., GSBCA 8652, 87-2
BCA ¶ 19,783.
Notwithstanding our current lack of jurisdiction to entertain this appeal, USAID has
now withdrawn the contracting officer’s decision upon which this appeal is based. If and
when the USAID contracting officer reissues a new decision reasserting the government
claim at issue here, Mahavir’s time to appeal will start anew, and Mahavir will be able to file
a new appeal with the Board within ninety days after receiving any new decision. See Safe
Haven Enterprises, LLC v. Department of State , CBCA 3871, et al., 15-1 BCA ¶ 36,117
(contractor’s appeal time starts anew when a contracting officer’s final decision is effectively
withdrawn within the one-year period before it became fully final and then reissued).
Because we lack jurisdiction because Mahavir did not timely file its appeal, we need
not address the bases for dismissal that the Government raised.
Decision
Because Mahavir filed its appeal more than ninety days after receiving the contracting
officer’s final decision, this appeal isDISMISSED FOR LACK OF JURISDICTION.
Harold D. Lester, Jr.
HAROLD D. LESTER, JR.
Board Judge
We concur:
Marian E. Sullivan Beverly M. Russell
MARIAN E. SULLIVAN BEVERLY M. RUSSELL
Board Judge Board Judge