DISMISSED FOR LACK OF JURISDICTION:  July 11, 2025
CBCA 8335
OUTSIDE THE BOX, LLC,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Mary Catherine D’Arcy and David A. Rose of Rose Consulting Law Firm, Valdosta,
GA, counsel for Appellant.
Justin S. Hawkins, Office of General Counsel, General Services Administration,
Washington, DC; and Alexis Nash, Office of Assistant Regional Counsel, General Services
Administration, Philadelphia, PA, counsel for Respondent.
Before Board Judges KULLBERG, SULLIVAN, and NEWSOM.
KULLBERG, Board Judge.
Appellant, Outside the Box, LLC (OTB), has requested that the Board dismiss this
appeal without prejudice.  OTB acknowledges that it filed its appeal more than ninety days
after receipt of the contracting officer’s final decision (COFD) and, consequently, seeks to
file an appeal of the COFD before the Court of Federal Claims (COFC).  The General
Services Administration (GSA) does not dispute that OTB filed its appeal more than ninety
days after receipt of the COFD, but GSA contends that this appeal should be dismissed for
lack of jurisdiction.  For the reasons stated below, the Board dismisses this appeal for lack
of jurisdiction.


CBCA 8335 2
Background
On June 13, 2024, OTB submitted to the contracting officer (CO) its certified claim
in the amount of $573,775.08.  The CO denied the claim, and on November 1, 2024, the CO
sent his COFD to OTB and its legal counsel by email.  OTB filed its appeal of the COFD
with the Board on January 31, 2025, which was ninety-one days after OTB’s receipt of the
COFD.
On June 13, 2025, OTB submitted to the Board its request for a dismissal of this
appeal without prejudice.  OTB acknowledged that it had submitted its appeal more than
ninety days after receipt of the COFD, but it could still submit a timely appeal to the United
States Court of Federal Claims (COFC) provided the Board does not dismiss this appeal with
prejudice.  GSA’s response, which was dated June 26, 2025, raised no objection to OTB’s
voluntary withdrawal of its appeal.  However, GSA did object to a dismissal without
prejudice and argued that an untimely appeal required a dismissal for lack of jurisdiction.
Discussion
At issue is whether the Board can dismiss this appeal without prejudice if OTB failed
to bring a timely appeal of the COFD.  The Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101-7109 (2018), provides that “[a] contractor, within 90 days from the date of receipt
of a contracting officer’s decision . . . may appeal the decision to an agency board.”  Id.
§ 7104(a).  In the alternative, a contractor may appeal a COFD to COFC within twelve
months of receipt.  Id. § 7104(b).
There is no dispute in the record that OTB filed its appeal at the Board ninety-one
days after receipt of the COFD.  This Board has recognized that an “appellant’s failure to file
its notice of appeal within ninety days following its receipt of the contracting officer’s final
decision is a jurisdictional defect that precludes us from entertaining the appeal.”  RAKS Fire
Sprinkler, LLC v. General Services Administration, CBCA 6095, 18-1 BCA ¶ 37,122, at
180,676 (citing Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir.
1982)).  “The ninety day deadline is thus part of a statute waiving sovereign immunity, which
must be strictly construed.”  Cosmic Construction Co., 697 F.2d at 1390.  Even if a
contractor files its appeal one day late, which is the case in this appeal, the Board lacks
jurisdiction.  See JAF Supply, Inc. v. Department of Veterans Affairs, CBCA 6934, 20-1 BCA
¶ 37,729, at 183,126 (“[T]he Board did not receive JAF’s appeal until September 29, 2020,
ninety-one days after JAF received the contracting officer’s final decision.”).  Consequently,
the Board lacks jurisdiction to hear this appeal.

CBCA 8335 3
OTB requests that the Board dismiss this appeal without prejudice in order to avoid
a dismissal with prejudice that would deny it of its “day in court.”  Once the Board
determines that it lacks jurisdiction to hear an appeal, it can only dismiss the appeal, and it
does not reach the merits of the appeal.  MINACT, Inc. v. Department of Labor, CBCA 7575,
23-1 BCA ¶ 38,243, at 185,701 (2022).  In contrast, a dismissal with prejudice is a final
adjudication on the merits of an appeal that bars any further action by the parties.  Id.  (citing
Toole Construction Co., HUD BCA 79-439-C49, 81-2 BCA ¶ 15,318, at 75,866. 
Consequently, the Board’s dismissal of this appeal for lack of jurisdiction does not bar
OTB’s ability to pursue a possible appeal at COFC in accordance with the CDA.  Id.
(“Because we have . . . dismissed [the appeal] for lack of jurisdiction, the appellant still has
time to seek relief in the Court of Federal Claims if it so desires.”)
Decision
The appeal is DISMISSED FOR LACK OF JURISDICTION.
    H. Chuck Kullberg         
H. CHUCK KULLBERG
Board Judge
We concur:
    Marian E. Sullivan              Elizabeth W. Newsom     
MARIAN E. SULLIVAN ELIZABETH W. NEWSOM
Board Judge Board Judge