DISMISSED FOR LACK OF JURISDICTION:  November 16, 2020
CBCA 6934
JAF SUPPLY, INC.,
                                                                       Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS
                                                                          Respondent.
Jorge A. Flores, President of JAF Supply, Inc., Boca Raton, FL, appearing for
Appellant.
Natica Chapman Neely, District Contracting National Practice Group, Department of
Veterans Affairs, Jackson, MS, counsel for Respondent.
Before Board Judges BEARDSLEY, RUSSELL, and O’ROURKE.
RUSSELL, Board Judge.
JAF Supply, Inc. (JAF) appealed the Department of Veterans Affairs’ (VA) decision
to deny its claim for payment.  JAF does not dispute that it failed to file its appeal within the
time constraints set forth in the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109
(2012).  Due to the untimely filing, we dismiss the appeal for lack of jurisdiction.
Background
On April 27, 2020, JAF submitted a claim to the VA for payments associated with the
parties’ contract for the rental of mobile medical equipment used by a VA facility in Puerto
Rico.  In a response dated June 30, 2020, the VA denied JAF’s claim for payments, noting
that this was the final decision of the contracting officer.  The contracting officer’s final
decision contained the following language concerning JAF’s appeal rights:

CBCA 6934 2
You may appeal this decision to the agency board of contract appeals. If you
decide to appeal, you must, within 90 days from the date you receive this
decision, mail or otherwise furnish written notice to the agency board of
contract appeals and provide a copy to the Contracting Officer from whose
decision this appeal is taken.
JAF had ninety days from the date that it received the contracting officer’s final decision,
June 30, 2020, to file its notice of appeal with the Board.  Accordingly, JAF’s notice of
appeal had to be filed with the Board no later than September 28, 2020. JAF’s notice of
appeal was received by electronic mail on September 29, 2020, at 11:52 p.m. Eastern
Standard Time.
Discussion
“The CDA, under which the Board reviews [contracting officer] decisions, requires
that an appeal of such a decision to a board of contract appeals be filed ‘[w]ithin ninety days
from the date of receipt of [the] decision.”’  Treasure Valley Forest Prods. v. Department
of Agriculture, CBCA 3604, 14-1 BCA ¶35,549 (citing 41 U.S.C. § 7104(a)).  An appellant’s
failure to timely file an appeal following receipt of a contracting officer’s final decision “is
a jurisdictional defect that precludes [a board] from entertaining the appeal.”  Raks Fire
Sprinkler, LLC v. General Services Administration, CBCA 6095, 18-1 BCA ¶ 37,122 (citing
Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982)).  “Appeals
that are not sent by mail through the United States Postal Service. . .are deemed filed when
received by the Board.”  Alaska Excavating, LLC v. Department of Transportation, CBCA
5342, 16-1 BCA ¶ 36,465.  The Board, through its Clerk, accepts electronic filings (efilings),
including notices of appeal, through the Board’s email system.  Board Rule 1(b) (48 CFR
6101.1(b) (2018)).  An efiling occurs upon receipt by the Board’s email system.  Id.  
JAF received the contracting officer’s final decision on June 30, 2020.  For JAF’s
appeal to be timely in accordance with the CDA and the Board’s rules, the Board must have
received JAF’s emailed appeal by September 28, 2020.  However, the Board did not receive
JAF’s appeal until September 29, 2020, ninety-one days after JAF received the contracting
officer’s final decision.  Moreover, JAF does not dispute that its filing was untimely,
explaining that its “missing of the deadline by one (1) day was not a planned neglect . . . and
that the Respondent has not been prejudiced in any way.”  However, these points cannot cure
the jurisdictional defect.  “The Court [of Appeals for the Federal Circuit] has repeatedly held
that, because the authorization to make [a] filing [under the CDA] is a waiver of the
Government’s sovereign immunity, failure to file an appeal within the ninety-day deadline
divests the Board of jurisdiction to consider the case on its merits.”  Safe Haven Enterprises,

CBCA 6934 3
LLC v. Department of State, CBCA 3871, 15-1 BCA ¶ 35,928.  Accordingly, because JAF
failed to file its notice of appeal within ninety days of receipt of the contracting officer’s
final decision, we lack jurisdiction to review the merits of this appeal.
Although the untimely filing precludes the Board’s jurisdiction, an untimely appeal
to the Board does not preclude JAF from filing a timely suit in the U.S. Court of Federal
Claims.  Tasunke Witco Owayawa (Crazy Horse School) v. Department of the Interior,
CBCA 2381-ISDA, 11-2 BCA ¶ 34,810 (citing GEO-Imaging Consulting, Inc. v.
Environmental Protection Agency, CBCA 1712, 10-1 BCA ¶ 34,318 (2009)).
Decision
The appeal is untimely and therefore is DISMISSED FOR LACK OF
JURISDICTION.
   Beverly M. Russell           
BEVERLY M. RUSSELL
Board Judge
We concur:
    Erica S. Beardsley             Kathleen J. O’Rourke     
ERICA S. BEARDSLEY KATHLEEN J. O’ROURKE
Board Judge Board Judge