DISMISSED FOR LACK OF JURISDICTION:  March 25, 2013
CBCA 3044
EXECUTIVE PERSONNEL SERVICES, INC.,
Appellant,
v.
SMALL BUSINESS ADMINISTRATION,
Respondent.
Gary T. Williams of The Law Offices of C. Gregory Stewart, Washington, DC,
counsel for Appellant.
Meagan K. Guerzon, Office of General Counsel, Small Business Administration,
Washington, DC, counsel for Respondent.
Before Board Judges McCANN, DRUMMOND, and ZISCHKAU.
ZISCHKAU, Board Judge.
Respondent, the Small Business Administration (SBA), moves to dismiss this appeal
on the ground that appellant, Executive Personnel Services, Inc. (EPSI), failed to file timely
its notice of appeal.  EPSI filed its notice of appeal with us ninety-two days after receipt of
the final decision.  Because the Contract Disputes Act requires a contractor to file its notice
of appeal within ninety days of receipt of the contracting officer’s final decision, we dismiss
the appeal as untimely filed.


CBCA 3044                                                                                                                            2
Background
EPSI performed under a task order contract, SBAHQ-04-F-0043, entered into on
December 31, 2003, with the SBA to provide temporary clerical and administrative support
services for the SBA’s Office of Disaster Assistance.  Performance ended in approximately
April 2009.  On July 14, 2011, the Department of Labor notified EPSI that EPSI owed
$93,778.83 in back wages to its employees.  On November 16, 2011, the Department of
Labor notified the SBA contracting officer that EPSI had defaulted on paying the back wages
and requested SBA to withhold the amount owed from any contract payments to be made by
SBA.
On April 26, 2012, EPSI submitted a certified claim to the SBA contracting officer
seeking $135,013.27 from the SBA for increases in the minimum wages during EPSI’s
period of performance from October 1, 2007, through April 19, 2009.  The contracting
officer issued a final decision denying the claim on July 5, 2012.  There is no dispute in the
record that EPSI received the final decision on July 5, 2012.  EPSI filed its notice of appeal
by fax with the Board on October 5, 2012 (a Friday), which is ninety-two days after receipt
of the final decision.  On October 19, 2012, the respondent filed a motion to dismiss, arguing
the notice of appeal was untimely.  In response to a show cause order, EPSI responded to the
motion, arguing that the notice of appeal should be considered timely in light of “the extent
of the activity and delays by SBA for three (3) years after performance of the contract” and
“the existence of reasonable excuses for the one (1) day delay.” 
Discussion
The Contract Disputes Act provides that a contractor may appeal a contracting
officer’s final decision to the Board within ninety days from the date of receipt of the
contracting officer’s decision, or may bring an action directly in the United States Court of
Federal Claims within twelve months from the date of receipt of the contracting officer’s
decision.  41 U.S.C. § 7104(a), (b) (Supp. IV 2011); Systems Development Corp. v. McHugh,
658 F.3d 1341, 1344 (Fed. Cir. 2011).  Failure to file an appeal with the Board within the
ninety-day deadline divests the Board of jurisdiction to consider the case on its merits.  E.g.,
FM Diaz Construction, Inc. v. Department of Agriculture, CBCA 1870, 12-1 BCA ¶ 35,049
(2010) (filed ninety-three days after receipt of the final decision); Pixl, Inc. v. Department
of Agriculture, CBCA 1203, 09-2 BCA ¶ 34,187.  Here, EPSI concedes that the notice of
appeal was filed beyond the ninety-day deadline for appeal to the Board.  Thus, we do not
have jurisdiction to consider EPSI’s appeal.

CBCA 3044                                                                                                                            3
Decision
Accordingly, the appeal is DISMISSED FOR LACK OF JURISDICTION.
_________________________________
JONATHAN D. ZISCHKAU
Board Judge
We concur:
________________________________ _________________________________
R. ANTHONY McCANN JEROME M. DRUMMOND
Board Judge Board Judge