DISMISSED FOR LACK OF JURISDICTION: August 2, 2016
CBCA 5342
ALASKA EXCAVATING, LLC,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Michael A. Grisham of Dorsey & Whitney, LLP, Anchorage, AK, counsel for
Appellant.
Rayann L. Speakman, Western Federal Lands Division Counsel, Federal Highway
Administration, Department of Transportation, Vancouver, WA, counsel for Respondent.
Before Board Judges DANIELS (Chairman), SOMERS, and LESTER.
SOMERS, Board Judge.
The United States Department of Transportation, Federal Highway Administration
(FHA or the Government) moves to dismiss this appeal for lack of jurisdiction on the ground
that appellant failed to file its appeal within the time constraints set forth in the Contract
Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012).  Appellant, Alaska Excavating, LLC
(Alaska Excavating or appellant), does not dispute that it failed to timely file its appeal.  For
the reasons set forth below, the motion to dismiss is granted.  

CBCA 5342 2
Background
On November 7, 2013, FHA awarded a contract to Alaska Excavating for 
construction of walls along a road.1  On August 3, 2015, appellant submitted a claim to the
contracting officer.  On February 24, 2016, the contracting officer determined that the
Government owed Alaska Excavating $16,183.61, but denied the remainder of the claim. 
The contracting officer sent her final decision to appellant by express mail.  The contracting
officer’s final decision contained the standard language concerning appeal rights, stating, in
pertinent part: 
This is a final decision of the Contracting Officer.  You may appeal the
decision to the Civilian 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 Civilian Board of Contract Appeals
(mailing address: 1800 F Street, N.W., Washington, DC, 20405; physical
address: 6th Floor, 1800 M Street, N.W., Washington, DC 20036; telephone
number (202) 606-8800), and provide a copy to the Contracting Officer from
whose decision this appeal is taken. 
The contracting officer concluded her decision by explaining that an appeal of the
decision may, alternatively, be filed with the Court of Federal Claims within twelve months
of the contractor’s receipt of the final decision.  Appellant acknowledges that it received the
final decision on February 26, 2016. 
 
Appellant had ninety days from the date that it received the contracting officer’s final
decision to file its notice of appeal at the Board.  Accordingly, in order for its notice of
appeal to be timely, appellant’s notice of appeal had to be filed with the Board no later than
Thursday, May 26, 2016.  Instead, appellant submitted its appeal to the Board on Friday, May
27, 2016, at 1:20 p.m. Eastern Time, by electronic mail.  In addition, appellant presented its
appeal on GSA Form 2465, entitled “Notice of Appeal,” and dated the form May 27, 2016. 
   
1 Neither party submitted the contract as part of the appeal file or the
supplemental appeal file, so the information that we can glean about the contract
requirements is based upon the facts identified in appellant’s claim and the contracting
officer’s final decision.  

CBCA 5342 3
Discussion
As we have stated previously, “[t]he 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 Products v. Department of Agriculture, CBCA 3604, 14-1 BCA
¶35,549, at 174,206 (citing 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.  Id. at
174,207 (citing Systems Development Corp. v. McHugh, 658 F.3d 1341 (Fed. Cir. 2011)); 
Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Soto Construction
Co. v. Department of Agriculture, CBCA 3210, 13 BCA ¶ 35,301; Tobias Schunck v.
General Services Administration, CBCA 3079, 13 BCA ¶ 35,222; Geo-Imaging Consulting,
Inc. v. Environmental Protection Agency, CBCA 1712, 10-1 BCA ¶ 34,318 (2009); Pixl Inc.
v. Department of Agriculture, CBCA 1203, 09-2 BCA ¶ 34,187.  Appeals that are not sent
by mail through the United States Postal Service, such as this one, are deemed filed when
received by the Board.  Tobias Schunck, 13 BCA at 172,828 (citing CWI Consultants &
Services v. General Services Administration, GSBCA 13889, 98-1 BCA ¶ 29,343 (1997),
reconsideration denied, 98-1 BCA ¶ 29,476); Charles T. Owen v. Agency for International
Development, CBCA 694, 07-2 BCA ¶ 33,638).  
Appellant received the contracting officer’s final decision on February 26, 2016. 
Accordingly, under the rules, the notice of appeal was due by May 26, 2016.  Appellant filed
its notice of appeal on May 27, 2016.    
Appellant does not dispute that it failed to file the notice of appeal timely, noting
merely that appellant “can only plead leniency under these circumstances.  A significant
portion of the issues presented by this appeal arose because the government was significantly
late in making decisions and payments.”  This argument does not excuse the late filing. 
Appellant was not only represented by counsel, but also informed in the final decision of the
contracting officer exactly how, when, and to whom the written notice of appeal should be
sent.  Accordingly, because appellant did not transmit its notice of appeal within ninety days
from receipt of the contracting officer’s final decision, we lack jurisdiction to review the
merits of this appeal.
Appellant is reminded that an untimely appeal to the Board does not preclude it from
filing a timely suit in the Court of Federal Claims. Tasunke Witco Owayawa (Crazy Horse
School) v. Department of the Interior, CBCA 2381-ISDA, 11-2 BCA ¶ 34,810, at 171,312
(citing GEO-Imaging Consulting). 

CBCA 5342 4
Decision
Respondent’s motion to dismiss is granted.  The appeal is untimely and therefore
DISMISSED FOR LACK OF JURISDICTION.  
_________________________________
 JERI KAYLENE SOMERS
Board Judge
We concur:
_________________________ _________________________________
STEPHEN M. DANIELS HAROLD D. LESTER, JR.
Board Judge Board Judge