DISMISSED FOR LACK OF JURISDICTION: July 28, 2010 
CBCA 1870 
FMDIAZ CONSTRUCTION, INC., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Jill M. Himlan of Lang, Richert & Patch, P.C., Fresno, CA, counsel for Appellant. 
Marnie G. Ganotis, Office of the General Counsel, Department of Agriculture, San 
Francisco, CA, counsel for Respondent.
 
Before Board Judges GILMORE , BORWICK , and STEEL .
 
STEEL , Board Judge.
 
Respondent has moved to dismiss the above-captioned appeal on the ground that the 
Board does not have subject matter jurisdiction to hear the appeal because the notice of 
appeal was not timely filed with the Board. Appellant disputes that the appeal was untimely 
filed. The Board finds that the appeal was not filed timely, and the motion to dismiss is 
granted. 

 
 
             
            
             
                 
                
               
              
                
              
             
          
            
              
                  
              
                
                 
              
            
            
       
             
              
                
   
           
            
   
2 CBCA 1870 
Factual Background 
The following facts are undisputed. On October 21, 2009, a contracting officer (CO) 
of the Department of Agriculture, Forest Service, issued a final decision denying appellant’s 
claim involving construction of the Dinkey Creek Amphitheater in the Sierra National Forest. 
In the final decision, the CO notified appellant that it had ninety days from the date of receipt 
of the final decision to appeal the decision to this Board. Appellant received the CO’s final 
decision on October 26, 2009. Counsel sent appellant’s notice of appeal to the Board via 
Federal Express standard overnight delivery on January 25, 2010. The notice of appeal was 
delivered to the Board on January 27, 2010. The Board issued a notice of docketing on 
January 27, 2010, indicating that it had received appellant’s notice of appeal on that day. 
With the Board’s permission, on March 26, 2010, respondent filed the instant motion to 
dismiss for lack of jurisdiction in lieu of its answer. 
Discussion 
The Contract Disputes Act of 1978, which governs the Board’s review of contracting 
officer decisions, requires that an appeal of such a decision be filed “[w]ithin ninety days 
from the date of receipt of [the] decision.” 41 U.S.C. § 606 (2006). This deadline for filing 
has been strictly construed by the Court of Appeals for the Federal Circuit because the 
authorization to make the filing is a waiver of sovereign immunity. A late filing divests the 
Board of jurisdiction to consider the case on its merits. D.L. Braughler Co. v. West , 127 F.3d 
1476, 1480 (Fed. Cir. 1997); Cosmic Construction Co. v. United States , 697 F.2d 1389, 1390 
(Fed. Cir. 1982); Robert T. Rafferty v. General Services Administration , CBCA 617, 07-1 
BCA ¶ 33,577, at 166,340 ; Tiger Natural Gas, Inc. v. General Services Administration , 
GSBCA 16039, 03-2 BCA ¶ 32,321, at 159,910-11. 
Regarding the deadline for filing an appeal with the Board, Board Rule 1(b)(5)(i) 
states: 
A notice of appeal or an application for award of fees and other expenses is 
filed upon the earlier of its receipt by the Office of the Clerk of the Board or 
if mailed, the date on which it is mailed to the Board.  A United States Postal 
Service postmark shall be prima facie evidence that the document with which 
it is associated was mailed on the date of the postmark. 
48 CFR 6101.1(b)(5)(i) (2009). 

 
             
                
 
                
                
               
                 
               
            
            
                 
               
        
               
               
            
            
                
                 
           
            
              
               
             
               
             
              
           
              
             
            
3 CBCA 1870 
Appellant does not dispute that the notice of appeal was delivered by Federal Express 
to the CBCA Office of the Clerk on January 27, 2010, nor that this was ninety-three days 
after appellant received the CO’s final decision.  It argues, however, that having placed the 
notice of appeal in the hands of a courier service on Monday, January 25, 2010, it thus 
“mailed” the document in a timely fashion, and the notice of appeal was therefore timely. 
It has long been settled that the only exception to the requirement that a notice of 
appeal be received by the Board within ninety days of the receipt of a final decision by an 
appellant is when the notice of appeal is given into the custody of the United States 
Government by delivery, properly addressed and with adequate postage affixed, to the United 
States Postal Service (USPS) within the ninety-day timeframe, regardless of when the notice 
is actually received at the Board. Only in that instance does the date of mailing satisfy the 
requirement that a notice of appeal be “received” by the Office of the Clerk within ninety 
days of the receipt of a final decision. 
In fact, boards of contract appeals have clearly stated that the use of a private delivery 
service for hand-delivery is not afforded the same status as use of the USPS and therefore 
the boards do not have jurisdiction over late-received appeals that were transmitted through 
delivery services. For example, the General Services Board of Contract Appeals has held 
that: 
A notice of appeal is “filed” at the Board upon the earlier of (A) its receipt by 
the Office of the Clerk of the Board or (B) if mailed, the date on which it is 
mailed through the United States Postal Service. Board Rule 101(b)(5). 
Where a contractor uses a courier service other than the United States Postal 
Service, such as Federal Express, a notice of appeal is deemed filed on the date 
that it is received by the Board. T and D Metal Products Co. , GSBCA 10279, 
90-2 BCA ¶ 22, 924.  Appellant did not file a notice of appeal with the Board 
within ninety days. . . . The notice, sent by Federal Express, arrived at the 
Board . . . ninety-one days after receipt of the contracting officer’s decision. 
This was too late to confer on the Board jurisdiction over the appeal. 
CWI Consultants & Services v. General Services Administration , GSBCA 13889, 98-1 BCA 
¶ 29,343 (1997), reconsideration denied, 98-1 BCA ¶ 29,476; see also Owen v. Agency for 
International Development , CBCA 694, 07-2 BCA ¶ 33,638; Dan Nelson , AGBCA 97-130­
1, 97-1 BCA ¶ 28,967; Fireman’s Fund Agribusiness, AGBCA 2004-189-F, 04-2 BCA 

 
                  
              
               
           
              
                  
                 
             
               
     
                
             
            
              
             
            
           
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4 CBCA 1870 
¶ 32,779. Only notices of appeal placed in the custody of the USPS are “mailed.” 1 All other 
forms of delivery do not constitute mailing, and thus require actual delivery to the Board 
within the ninety-day time period to come within the jurisdiction of the Board. Tiger Natural 
Gas ; Elaine Dunn Realty , HUD BCA 98-C-101-C1, 98-1 BCA ¶ 29,581. 
In Tiger, the GSBCA noted that “counsel’s choice of the means of filing was a 
significant contributing factor to the late filing. . . . Had Tiger placed the notice in the mail 
on the day it gave the notice to Federal Express for courier delivery . . . [appellant] would 
have filed on time. The Postal Service’s postmark would have been proof of timely filing.” 
03-2 BCA at 159,913. Instead, a courier was entrusted with delivery as appellant’s agent, and 
by using its services appellant “assumed the risk that Federal Express might lose the packet, 
might not find the building, or finding the building, might not be able to find someone to 
deliver it to, resulting in a late delivery.” California Packaging v. General Services 
Administration , GSBCA 13448-C(13299), 96-2 BCA ¶ 28,544. The same applies here. 
Counsel’s decision to entrust the notice of filing to a courier service for hand-delivery resulted 
in late filing, which deprived the Board of jurisdiction to hear the appeal.
2 
Decision 
For the foregoing reasons, respondent’s motion to dismiss the appeal for lack of 
jurisdiction is granted. The appeal is DISMISSED FOR LACK OF JURISDICTION . 
CANDIDA S. STEEL 
Board Judge 
1 To “mail” a document means that it must be delivered “into the custody of the U.S. 
Postal Service.” Davis v. Brown , 7 Vet. App. 298, 303 (1994). 
2 Appellant seeks sanctions against respondent for failure to consult with counsel for 
appellant before filing its motion as required by Rule 8(a). In fact, respondent’s counsel did 
inform appellant’s counsel of her intention to file a motion to dismiss. Furthermore, if 
respondent had not filed a motion to dismiss, the Board would have had to dismiss the appeal 
for lack of jurisdiction sua sponte . This request is meritless and is denied. 

 
 
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5 CBCA 1870 
We concur: 
BERYL S. GILMORE ANTHONY S. BORWICK 
Board Judge Board Judge