MOTION TO DISMISS DENIED: June 29, 2016
CBCA 5240
BLUEGRASS CONTRACTING CORPORATION,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Dave Luttrell, Vice President of Bluegrass Contracting Corporation, Lexington, KY,
appearing for Appellant.
Grace Reidy, Office of Chief Counsel, Federal Highway Administration, Department
of Transportation, Washington, DC, counsel for Respondent.
Before Board Judges DANIELS (Chairman), SOMERS, and GOODMAN.  
SOMERS, Board Judge.
Bluegrass Contracting Corporation (Bluegrass) entered into a contract with the
Department of Transportation, Federal Highway Administration, to repair and improve
drainage chases and to mill and overlay asphalt roadway at the Devil’s Courthouse Tunnel
along the Blue Ridge Parkway in North Carolina.  On October 7, 2015, Bluegrass submitted
a claim for $71,522 for additional costs incurred during the project.  The contracting officer
denied the claim by letter dated November 16, 2015, and provided Bluegrass with notice of
its appeal rights.  

CBCA 5240 2
Bluegrass received the final decision on November 17, 2015, and appealed the
decision to the Board.  The Board received the notice of appeal on March 9, 2016, and
docketed it on March 18, 2016.  On May 18, 2016, the agency filed a motion to dismiss for
lack of jurisdiction, stating that the appeal had not been timely filed, based upon the
statement in the docketing notice that the appeal had been filed on May 9, 2016.  Bluegrass
“disputes” the agency’s motion to dismiss, asserting that “it mailed [the] appeal on
February 12, 2016 and this document should have been received by the CBCA by the
February 16, 2016 deadline.”  Bluegrass states “[i]n retrospect we put too much trust in the
U.S. Postal Service and should have used overnight service.”  
 Discussion
The Contract Disputes Act, 41 U.S.C. §§ 7101-7109 (2012), requires that an appeal
of a contracting officer’s final decision to a board of contract appeals must be filed “[w]ithin
ninety days from the date of receipt of [the] decision.”  41 U.S.C. § 7104(a).  Alternatively,
a contractor may file its appeal with the United States Court of Federal Claims within twelve
months.  41 U.S.C. § 7104(b).  “Failure to file an appeal within the ninety-day deadline
divests the Board of jurisdiction to consider the case on its merits.”  Soto Construction Co.
v. Department of Agriculture, CBCA 3210, 13 BCA ¶ 35,301, at 173,286 (citing Cosmic
Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982)); 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.  
The Board’s Rules of Procedure detail the requirements for filing an appeal.  Rule
1(b), 48 CFR 6101.1(b) (2015), provides as follows: 
(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 a document with which it is associated was mailed
on the date of the postmark.  
Bluegrass alleges that it mailed the notice of appeal on February 12, 2016.   “‘Mailed,’
in the context of the Rules, means placed into the custody of the United States Postal
Service.”  Estes Brothers Construction, Inc. v. Department of Transportation, CBCA 4963,
15-1 BCA ¶ 36,166, at 176,482 (citing 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)).  The Board received
the notice of appeal from Bluegrass in a postage-stamped and properly addressed envelope. 
The envelope contains a postmark from the United States Postal Service indicating that it was

CBCA 5240 3
received by the Postal Service on February 16, 2016.  We need not determine whether
Bluegrass mailed its notice on February 12 or February 16, 2016.  Both dates meet the
Contract Disputes Act’s ninety-day limitation on filing.1    
Decision 
Respondent’s motion to dismiss is DENIED.  
_________________________________
 JERI KAYLENE SOMERS
Board Judge
We concur:
_________________________________ _________________________________
STEPHEN M. DANIELS ALLAN H. GOODMAN
Board Judge Board Judge
1  Although February 16 was the ninety-first day after Bluegrass received the
contracting officer's decision, a filing on that day is considered timely under our Rules,
since the ninetieth day (Monday, February 15) was a federal holiday.  See Board Rule
3(c) (48 CFR 6101.3(c) (2015)).