DISMISSED FOR LACK OF JURISDICTION:  December 1, 2015
CBCA 5033
COBURN CONTRACTORS, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Jason S. Coburn, Managing Member of Coburn Contractors, LLC, Montgomery, AL,
appearing for Appellant.
Laetitia C. Coleman, Office of General Counsel, Department of Veterans Affairs,
Jackson, MS, counsel for Respondent.
Before Board Judges DANIELS (Chairman), GOODMAN, and DRUMMOND.
DANIELS, Board Judge.
Coburn Contractors, LLC (Coburn) appealed a Department of Veterans Affairs (VA)
contracting officer’s decision which denied a claim in the amount of $34,256.46.  The claim
had been made by Coburn under a contract for mechanical upgrades to buildings at the
Tuskegee, Alabama, Veterans Affairs Medical Center.  On the VA’s uncontested motion, we
dismiss the appeal for lack of jurisdiction because it was filed more than ninety days after the
contractor’s receipt of the decision.


CBCA 5033 2
Background
The United States Postal Service delivered the decision to Coburn on Friday, July 17,
2015.  Coburn filed its appeal on Monday, October 19, 2015.  October 19 is the ninety-fourth
day after July 17.
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).  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.
In Estes Brothers Construction Inc. v. Department of Transportation, CBCA 4963,
slip op. at 2 (Nov. 17, 2015), we recently said:
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.
Even if the deadline were not jurisdictional, and consequently subject to equitable tolling,
because Coburn chose not to respond to the VA’s motion, we would dismiss the appeal
because we have no basis for tolling the ninety-day limit.
As the VA maintains, because Coburn filed its appeal more than ninety days after it
received the contracting officer’s decision, the appeal must be dismissed for lack of
jurisdiction.

CBCA 5033 3
We note, as we did in Estes, that our ruling does not preclude the contractor from
challenging the contracting officer’s decision in another forum: it may initiate an action
directly in the United States Court of Federal Claims within twelve months of the date on
which it received the decision.  See 41 U.S.C. § 7104(b)(3).
Decision
The appeal is DISMISSED FOR LACK OF JURISDICTION.
_________________________
STEPHEN M. DANIELS
Board Judge
We concur:
_________________________ _________________________
ALLAN H. GOODMAN JEROME M. DRUMMOND
Board Judge Board Judge