DISMISSED FOR LACK OF JURISDICTION:  July 2, 2009
 
CBCA 1203
 
PIXL INC.,
 
A p p e l l a n t , 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Ajay Sagar, Vice President of Pixl Inc., Fairfax, VA, appearing for Appellant. 
Elin M. Dugan, Office of the General Counsel, Department of Agriculture, 
Washington, DC, counsel for Respondent.
 
Before Board Judges SOMERS , HYATT, and VERGILIO.
 
HYATT, Board Judge.
 
Respondent, the Department of Agriculture (USDA), has moved to dismiss the 
subject appeal, brought by appellant, Pixl Inc., as untimely under the Contract Disputes Act 
of 1978 (CDA).  After reviewing the motion, appellant’s response, and USDA’s reply to 
Pixl’s response, we conclude that the appeal is untimely filed and that the Board lacks 
jurisdiction to entertain it. 

 
 
         
      
   
      
 
  
 
 
   
 
     
    
 
 
 
 
2 CBCA 1203 
Findings of Fact 
In April 2004, Pixl was awarded a contract by the USDA’s Forest Service to provide 
technical support services for the Forest Service’s INFRA project. 1 By letter dated 
December 11, 2006, Pixl presented a certified claim to the contracting officer requesting a 
final decision on a miscellany of claims.  The contracting officer’s copy of this letter is 
stamped as received on January 15, 2007.  Appeal File, Exhibit 14.  
After requesting additional information, the contracting officer issued a decision on 
November 7, 2007,
2 generally denying Pixl’s claim, except as to small amounts of interest 
owing on certain vouchers submitted by Pixl.  The letter was transmitted to Pixl by overnight 
mail and a copy of the receipt is attached to the Government’s motion as Exhibit A.  This 
letter contains the following statement: 
This is the final decision of the Contracting Officer.  You may appeal this 
decision to the Civilian Board of Contract Appeals.  If you decide to appeal, 
you must, within 90 days of the date you receive this decision, mail or 
otherwise furnish, written notice to the Board and provide a copy to the 
contracting officer from whose decision this appeal is taken. 
Appeal File, Exhibit 14. 
On April 7, 2008, Pixl sent another certified claim to the contracting officer, alleging 
that the certified claim submitted to the contracting officer on December 11, 2006, was for 
fiscal year 2007 “damages” and had not yet been addressed. Appellant also added a claim 
for fiscal year 2008, “damages.” Appellant followed up this letter with an electronic mail 
communication demanding that the contracting officer respond to its claim.  Appeal File, 
Exhibit 15.  The contracting officer responded in a letter dated April 28, 2008, informing 
Pixl that the April 7, 2008 “claim” “does not introduce any new evidence that substantiates 
your allegations . . . and will not be processed as an additional claim.”  Appeal File, Exhibit 
17.  
1 The term INFRA refers to an integrated suite of Forest Service software 
applications and databases. 
2 The Forest Service points out in its motion that while appellant’s notice of 
appeal actually refers to a contracting officer’s decision dated October 6, 2007, the Forest 
Service did not issue such a decision on that date and believes that the November 7, 2007, 
decision is the one which appellant has appealed.  This decision is set forth in the appeal file 
at exhibit 14. 

   
 
 
 
 
 
  
  
    
  
 
 
     
    
  
 
3 CBCA 1203 
Pixl submitted its appeal  through the United States Postal Service, priority mail.  It 
was date stamped on May 24, 2008, and received by the Board on May 29, 2008.  The Board 
docketed the appeal on May 30, 2008.  
Discussion 
USDA has moved to dismiss this appeal for lack of jurisdiction, on the ground that 
it was filed more than ninety days after the contractor received the contracting officer’s 
decision in November 2007.  
The Contract Disputes Act of 1978, 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.”  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.  Failure to file an appeal within the ninety day deadline divests the Board of 
jurisdiction to consider the case on its merits.  Three Rivers Timber, Inc. v. Department of 
Agriculture, CBCA 1044, 08-1 BCA ¶ 33,833 (citing Renda Marine, Inc. v. United States, 
509 F.3d 1372, 1381 (Fed. Cir. 2007); 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).  Because Pixl did not file its appeal within ninety days from the date 
of its receipt of the decision in question, we do not have jurisdiction to consider the appeal. 
Pixl’s belated attempt to resubmit its claims with an additional claim in the letter 
dated April 7, 2008, cannot serve to resuscitate jurisdiction at the Board.  In this case, with 
respect to the underlying claim, once ninety days elapsed from appellant’s receipt of the 
decision on November 8, 2007, appellant no longer had the option to pursue an appeal at the 
Board.  To toll the ninety-day limitation period, any request that the contracting officer 
reconsider his decision must have been made before the expiration of that ninety-day period. 
Schleicher Community Corrections Center, Inc. , DOT BCA 3046, et al., 98-2 BCA 
¶ 29,941; Adventure Group, Inc., ASBCA 45511, 93-3 BCA ¶ 25,967.  There is no evidence 
in the record that Pixl requested reconsideration of the November 7, 2007 decision prior to 
sending the April 7, 2008 letter.  As a result, Pixl has not demonstrated that the Board has 
jurisdiction to consider this matter.  Hunn Corp. v. National Gallery of Art, GSBCA 12888­
NGA, 94-3 BCA ¶ 27,148; accord Propulsion Controls Engineering, ASBCA 53307, 01-2 
BCA ¶ 31,494. 

 
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4 CBCA 1203 
Decision 
USDA’s motion is granted.  This appeal is DISMISSED FOR LACK OF 
JURISDICTION. 
CATHERINE B. HYATT 
Board Judge 
We concur: 
JERI KAYLENE SOMERS JOSEPH A. VERGILIO 
Board Judge Board Judge