DISMISSED FOR LACK OF JURISDICTION:  November 17, 2015
CBCA 4963
ESTES BROTHERS CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Philip E. Beck of Smith, Currie & Hancock LLP, Atlanta, GA, counsel for Appellant.
Milton Hsieh, Office of Counsel, Federal Highway Administration, Department of
Transportation, Sterling, VA, counsel for Respondent.
Before Board Judges DANIELS (Chairman), POLLACK, and ZISCHKAU.
DANIELS, Board Judge.
We hold here, on motion of respondent, that our rules regarding filing of appeals of
contracting officer decisions mean what they say and are to be construed strictly.  A notice
of appeal which was filed later than the ninetieth day after the contractor’s receipt of a
contracting officer decision, as that date is construed by the rules, must be dismissed for lack
of jurisdiction.
Background
In 2013, the Department of Transportation’s Federal Highway Administration
(FHWA) awarded to Estes Brothers Construction, Inc. (Estes) a contract for rehabilitation


CBCA 4963 2
of portions of Newfound Gap Road in Tennessee.  On January 29, 2015, Estes submitted to
FHWA a claim in the amount of $868,489 under this contract.  By decision dated June 10, 
2015, a FHWA contracting officer denied the claim and notified Estes of its “right to appeal
this Decision within 90 days from the date of receipt . . . . to the Civilian Board of Contract
Appeals” or to “bring an action directly in the United States Court of Federal Claims within
12 months of the date you receive this Decision.”  Estes received the decision at 1:27 p.m.
on June 11, 2015.  The contractor submitted a notice of appeal to this Board by electronic
mail at 4:35 p.m. on Wednesday, September 9, 2015.  The Board accepted the notice on
Thursday, September 10, 2015.
Discussion
The Contract Disputes Act provides that a contractor may appeal a contracting
officer’s decision to an agency board of contract appeals “within 90 days from the date of
receipt of [that] decision.”  41 U.S.C. § 7104(a) (2012).  The ninetieth day after Estes
received the contracting officer’s decision at issue was September 9, 2015.  Estes transmitted
its notice of appeal to the Board at 4:35 p.m. Eastern Time on that day.  Was that filing
timely?
We have held that the Act’s deadline for appealing a decision 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.  Failure to file an appeal within the ninety-day
deadline divests the Board of jurisdiction to consider the case on its merits.”  Treasure Valley
Forest Products v. Department of Agriculture, CBCA 3604, 14-1 BCA ¶ 35,549, 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); and several Board
decisions); see also DekaTron Corp. v. Department of Labor, CBCA 4444, 15-1 BCA
¶ 36,045, at 176,061.
We recognize that within the past year, in Sikorsky Aircraft Corp. v. United States,
773 F.3d 1315, 1320-22 (Fed. Cir. 2014), the Court of Appeals held that another deadline
imposed by the Contract Disputes Act – for submitting a claim to the contracting officer –
is not jurisdictional.  The Court did not address in that decision whether established case law
as to the deadline for filing an appeal with a board of contract appeals should be revisited. 
In the absence of a Court ruling on that matter, we continue to follow prior Court decisions
that consider this deadline jurisdictional.
The Board’s Rules of Procedure explain the requirements for filing an appeal with the
Board.  Rule 1(b), 48 CFR 6101.1(b) (2014), includes the following provisions:

CBCA 4963 3
(5)  Filing.  (i)  . . . A notice of appeal . . . 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.
. . . .
(iii)  Filings submitted by electronic mail (e-mail) are permitted,
with [exceptions not relevant here]. . . . The filing of a document by e-mail
occurs upon receipt by the Board on a working day, as defined in . . . Rule
1(b)(9)[].  All e-mail filings received by 4:30 p.m., Eastern Time, on a working
day will be considered to be filed on that day.  E-mail filings received after that
time will be considered to be filed on the next working day.
. . . . 
(9)  Working day.  The term “working day” means any day other than
a Saturday, Sunday, federal holiday, day on which the Office of the Clerk is
required to close earlier than 4:30 p.m.,[1] or day on which the Office of the
Clerk does not open at all, as in the event of inclement weather.
Under these Rules, it is clear that a notice of appeal which is not “mailed” is filed
when it is received by the Office of the Clerk of the Board.  “Mailed,” in the context of the
Rules, means placed into the custody of the United States Postal Service.  Tobias Schunck
v. General Services Administration, CBCA 3079, 13 BCA ¶ 35,222, at 172,828; FM Diaz
Construction, Inc. v. Department of Agriculture, CBCA 1870, 12-1 BCA ¶ 35,049, at
172,179 n.1 (2010).  Contrary to Estes’ position, mail and e-mail are treated differently by
the Rules, so a notice of appeal which is e-mailed is not “mailed.”  A filing which is
submitted by e-mail is received on the day of its transmission only if it is received by 4:30
p.m., Eastern Time, on that day.  If the filing is received after that time, it is considered to be
filed on the next working day.  The next working day, September 10, was the ninety-first day
after Estes received the contracting officer’s decision – too late to meet the Contract Disputes
Act’s ninety-day limitation on filing.
1 4:30 p.m. Eastern Time is the end of the Board’s working hours on each
working day.  Rule 1(b)(10).

CBCA 4963 4
Estes contends that “while the Board can create rules to govern its administration of
proceedings before it, it cannot adopt Rules which expand or contract the jurisdiction granted
to it by the United States Congress, and the Board’s Rules should not be interpreted to do
so.”  We agree with this position, but note that our Rules do not expand or contract our
statutory jurisdiction over appeals of contracting officer decisions.  The Rules allow filing
of appeals as late as 11:59 p.m. on the ninetieth day after a contractor receives a decision. 
The Rules limit the use of certain vehicles for filing that late in the day – vehicles other than
mail may only be used through 4:30 p.m. on that day – but they allow filing throughout the
day as long as the filing is by mail.  
Even if the Rules limited the filing vehicle to electronic means, court decisions have
held that a forum may end its day for receipt of e-filed pleadings at a particular time. 
W. Kelly Stewart and Jeffrey L. Mills, “New Risks Every Litigator Should Know,” For the
Defense (June 2011) at 29 (citing PHL Variable Insurance Co. v. U.S. Bank National Ass’n,
Civ. No. 10-1197, 2010 WL 3926310 (D. Minn. Oct. 4, 2010) (“The Court will not excuse
PHL’s dilatoriness in filing the Complaint when it slept on its rights.”); Stark v. Right
Management Consultants, 247 F. App’x 855 (8th Cir. 2007) (“the district court did not abuse
its discretion by deeming Stark’s complaint untimely under its Local Rule 5.1”); People ex.
rel. Madigan v. Illinois Commerce Commission, 231 Ill. 2d 370, 385 (Ill. 2008) (“imposing
a 5 p.m. deadline is perfectly compatible with e-filing,” as shown by an “extensive list of
other agencies and jurisdictions that have imposed rules and regulations providing for such
a deadline”)).
And even if the ninety-day limit for appealing a contracting officer decision to a board
of contract appeals were to be considered non-jurisdictional, Estes’ filing would still be
untimely.  The Court of Appeals for the Federal Circuit has held that the non-jurisdictional
time limit for submitting a claim to a contracting officer is subject to equitable tolling.  Arctic
Slope Native Ass’n, Ltd. v. Sebelius, 583 F.3d 785, 798 (Fed. Cir. 2009) (citing Irwin v.
Department of Veterans Affairs, 498 U.S. 89 (1990)).  Equitable tolling is “[t]he doctrine that
the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not
discover the injury until after the limitations period had expired.”  Black’s Law Dictionary
656 (10th ed. 2014).  “Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.”  Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005).  Estes does not argue that either of these elements is present here, so equitable tolling
is not available to it.  Instead of trying to make the requisite showing, the contractor says that
our Rules 1(a), (c), and (d) give the Board the power to waive the Rules in a particular case
when their application would work an injustice and urges us to employ that power to allow
its appeal to proceed.  But without good cause, such as must be present for equitable tolling,
we have no reason to waive the Rules even if the ninety-day limit were deemed non-

CBCA 4963 5
jurisdictional.  Estes has cited no justification other than its desire to have its appeal heard
here.
As Estes understands, our ruling does not preclude the contractor from challenging
the contracting officer decision in another forum: it may initiate an action directly in the
United States Court of Federal Claims within twelve months of the date it received the
decision.  See 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, Inc. v.
Environmental Protection Agency, CBCA 1712, 10-1 BCA ¶ 34,318, at 169,513 (2009)).
Decision
The appeal is DISMISSED FOR LACK OF JURISDICTION.
_________________________
STEPHEN M. DANIELS
Board Judge
We concur:
_________________________ _________________________
HOWARD A. POLLACK JONATHAN D. ZISCHKAU
Board Judge Board Judge