CBCA 4444 1
DISMISSED FOR LACK OF JURISDICTION: July 23, 2015
CBCA 4444
DEKATRON CORPORATION,
Appellant,
v.
DEPARTMENT OF LABOR,
Respondent.
Ralph C. Thomas III of Barton Baker Thomas & Tolle LLP, McLean, VA, counsel
for Appellant.
David R. Koeppel and Colin W. O’Sullivan, Office of the Solicitor, Department of
Labor, Washington, DC, counsel for Respondent. 
Before Board Judges SOMERS, DRUMMOND, and SHERIDAN.
SHERIDAN, Board Judge. 
The Department of Labor (DOL) requests that we dismiss the appeal filed by
DekaTron Corporation (DekaTron) for lack of jurisdiction.  DOL argues that, among other
grounds, dismissal is warranted because DekaTron failed to file a timely appeal to the Board. 
DekaTron opposes the dismissal.  For the reasons discussed below, we dismiss the appeal
for lack of jurisdiction.
Background
DekaTron submitted its second certified claim to the DOL contracting officer on
September 24, 2013, and its revised second certified claim on July 11, 2014.  The claim
sought lost profits and lease expenses incurred when DOL refused to exercise the option to


CBCA 4444 2
renew DekaTron’s contract DOLJ109630970 (contract), and task orders DOJB129633991
(DOL task order) and DOJB129634128 (VA task order).  The contracting officer denied the
claim in its entirety, and furnished her final decision to DekaTron via email message and
certified mail.1  The contracting officer transmitted the final decision by email on October
10, 2014, to the following DekaTron representatives: president and CEO, Steve Silva, at his
DekaTron email address; executive vice-president, Rick Brunner, at his DekaTron email
address as well as a second email address; and DekaTron’s counsel, Ralph C. Thomas III,
at his business email address.  The October 10 email message read, in part:
Attached please find the Contracting Officer’s Final Decision on [DekaTron’s]
Second (Revised) Claim.  A hard copy is being sent via United States Postal
Service, First Class, Certified Mail.
DOL’s Microsoft Outlook program immediately confirmed that “delivery to these recipients
or groups is complete.”  The contracting officer sent a hard copy of the final decision by
certified mail on October 10, 2014, addressed to DekaTron’s president at its corporate
offices. 
That same day, the contracting officer received two email non-delivery notices, which
read in pertinent part:
Delivery has failed to these recipients or groups:
[President and CEO’s DekaTron email address]
. . . .
[Executive Vice-President’s DekaTron email address]
A problem occurred while delivering this message to this email address.  Try
sending this message again.  If the problem continues, please contact your help
desk. 
The contracting officer contacted DekaTron’s counsel by email on October 16, 2014,
regarding the email non-delivery notices:
Please be advised that I received a non-delivery notice when sending [the
October 10 email message] to [DekaTron’s president].  Similarly, when sent
1 On October 10, 2014, by separate email message, the contracting officer also
sent her final decision regarding DekaTron’s first claim.  DekaTron appealed this decision,
too, and the Board docketed the appeal as CBCA 4428.  DOL’s request that we dismiss
CBCA 4444 does not affect CBCA 4428.

CBCA 4444 3
by [certified mail] on 10/10/2014, we received a notice that the package is
being held at the post office and delivery has not been made.  Do you have
another email address or delivery address for [DekaTron’s president]?  As I
will be out of the office starting tomorrow, I am arranging to have copies of
both CO Final Decisions sent to your office by [certified mail].
DekaTron’s counsel responded that day:
I received everything.  I can’t understand why that happened with [DekaTron’s
president].  I was just talking with him a few days ago.  I’ll check it out. 
Thank you for the alert.
DekaTron received the final decision by certified mail on October 20, 2014, and filed
its notice of appeal from the contracting officer’s final decision by email on January 13,
2015.  The Board docketed the appeal as CBCA 4444.
Discussion
Parties’ Arguments
DOL argues that DekaTron’s appeal must be dismissed because it is untimely.  DOL
maintains that DekaTron’s receipt of the October 10 email message, evidenced by DOL’s
email service delivery confirmation, as well as DekaTron’s counsel’s October 16, 2014,
response, i.e., “I received everything,” began the ninety-day appeal period.  DOL argues that,
because DekaTron received the contracting officer’s final decision on October 10, 2014, but
waited until January 13, 2015S95 days laterSto file its appeal, its appeal therefrom was
untimely. 
DekaTron opposes the motion, arguing that its appeal was timely because its president
did not receive the notice of final decision until he accepted the certified letter on October
20, 2014.2  DekaTron offers October 16, 2014, the date the contracting officer sent a follow-
up email message to DekaTron’s counsel concerning the failed delivery of the October 10
email message, as the proper date for measuring the appeal period, arguing that the ninety-
day appeal period begins from the latest notification.  Appellant’s Opposition to Request for
Dismissal at 14.
Timing Requirements
2 DekaTron only addresses the lack of receipt by its president, who purportedly
did not receive the final decision until by certified mail on October 20, 2014.  DekaTron does
not state when or if its president received the final decision by email message.  So, too, is
DekaTron silent in its response as to when its executive vice-president and its counsel
received the October 10 email message containing the final decision. 

CBCA 4444 4
The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), provides that a
contracting officer shall issue a final decision in writing and shall mail or otherwise furnish
a copy of the decision to the contractor.  Id. § 7103(d).  The CDA further provides that an
appeal from the contracting officer’s final decision must be filed with the Board “within 90
days from the date of receipt of [such a] decision.”  Id. § 7104(a).3  The ninety-day filing
deadline is strictly construed and may not be waived by the Board.  D.L. Braughler Co. v.
West, 127 F.3d 1476 (Fed. Cir. 1997); Cosmic Construction Co. v. United States, 697 F.2d
1389, (Fed. Cir. 1982); Treasure Valley Forest Products v. Department of Agriculture,
CBCA 3604, 14-1 BCA ¶ 35,549; Tasunke Witco Owayawa (Crazy Horse School) v.
Department of the Interior, CBCA 2381-ISDA, 11-2 BCA ¶ 34,810.
The burden is on the Government to provide sufficient objective evidence that the
contractor received the final decision.  Riley & Ephriam Construction Co. v. United States,
408 F.3d 1369 (Fed. Cir. 2005); Brickwood Contractors, Inc. v. United States, 77 Fed. Cl.
624 (2007) (a facsimile confirmation indicating that the final decision had been successfully
transmitted did not meet the CDA requirement that a contracting officer’s final decision be
provided to the contractor “by certified mail, return receipt requested, or by any other method
that provides evidence of receipt”); Trygve Dale Westergard v. General Services
Administration, CBCA 2522, 11-2 BCA ¶ 34,842. 
The Government has met its burden.  The contracting officer furnished her final
decision to DekaTron’s president, executive vice-president, and counsel  by email message
on October 10, 2014.  While DekaTron asserts that its president did not actually receive
notice of the final decision until October 20, DekaTron does not dispute that its vice
president and counsel did receive the October 10 email message.  On October 16,
DekaTron’s counsel confirmed that he had received the October 10 email message. 
Counsel’s notice is the client’s notice, unless the applicable provision expressly requires
otherwise.  See Link v. Wabash Railroad Co., 370 U.S. 626 (1962) (citing Smith v. Ayer, 101
U.S. 320 (1879) (“[E]ach party is deemed bound by the acts of his lawyer-agent and is
considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’”)
(internal citation omitted)); Belton Industries, Inc. v. United States, 6 F.3d 756, 761 (Fed. Cir.
1993); Florida Dehydration Co. v. United States, 101 F. Supp. 361, 363 (Ct. Cl. 1951).  The
CDA requires only “receipt” of the final decision by the contractor and not “notice” specific
to a particular addressee to initiate the ninety-day period in which to appeal.  Tasunke Witco
Owayawa (Crazy Horse School), 11-2 at 171,310 (citing Robert T. Rafferty v. General
Services Administration, CBCA 617, 07-1 BCA ¶ 33,577).  Receipt of a final decision by
3 Alternatively, a contractor may file its appeal with the United States Court of
Federal Claims within twelve months of receipt of the contracting officer’s final decision.
41 U.S.C. § 7104(b).  An untimely appeal to the Board does not preclude a contractor from
filing a timely suit in the Court of Federal Claims.  Geo-Imaging Consulting, Inc. v.
Environmental Protection Agency, CBCA 1712, 10-1 BCA ¶ 34,318 (2009).

CBCA 4444 5
email occurs on the day the contractor receives the email message.  Government Services
Corp. v. Department of Homeland Security, CBCA 4204, 15-1 BCA ¶ 35,807 (2014). 
DekaTron was in receipt of the contracting officer’s final decision on October 10,
2014.  As we have held before, in the event that the contracting officer delivers multiple,
identical copies of the final decision, the ninety-day calculation “begins to run from the first
time appellant received the final decision.”  Treasure Valley Forest Products,14-1 BCA at
174,207.  Therefore, DekaTron’s window to appeal to this Board began on October 10, 2014. 
Ninety days from that date is January 8, 2015.  Because DekaTron filed its appeal of that
final decision on January 13, 2015S95 days after it received the contracting officer’s final
decisionSDekaTron’s appeal is untimely.  Accordingly, we lack jurisdiction to consider this
matter.
Decision
This appeal is DISMISSED FOR LACK OF JURISDICTION.
__________________________
PATRICIA J. SHERIDAN
Board Judge
We concur:
__________________________ __________________________
JERI KAYLENE SOMERS JEROME M. DRUMMOND
Board Judge Board Judge