DISMISSED FOR LACK OF JURISDICTION: September 13, 2012 
CBCA 2838 
JACOB CONSTRUCTION LLC, 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Ronald Jacob, President of Jacob Construction LLC, Louisville, KY, appearing for 
Appellant. 
Tracy Downing, Office of Regional Counsel, Department of Veterans Affairs, 
Nashville, TN, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), STERN, and HYATT. 
STERN, Board Judge. 
The Department of Veterans Affairs (VA) moves to dismiss for lack of jurisdiction 
the appeal of Jacob Construction LLC (Jacob). 
Background 
On June 24, 2009, the VA awarded to Jacob a contract for kitchen renovation work 
at a building in Tennessee.  On March 22, 2010, the contracting officer for the VA issued 
an order suspending work on the renovation project. The suspension remained in place until 
lifted on November 8, 2010. Thereafter, Jacob filed a claim for an equitable adjustment in 
the amount of $73,398.37 for the overhead costs it alleges it incurred during the suspension 

          
         
       
     
  
     
 
     
      
         
     
         
      
     
    
       
      
      
           
         
    
       
         
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period (delay 1). On May 5, 2011, the contracting officer issued a decision denying the 
entire claim for overhead costs. The decision fully advised Jacob of its appeal rights to the 
Board and the Court of Federal Claims. The contracting officer also sent an email message 
to appellant with the decision, stating she would consider “reasonable costs for 
remobilization.”  There were other problems on the project and Jacob filed two additional 
delay claims for extra work performed by it. 
On February 2, 2012, Jacob wrote the contracting officer regarding the three delays 
under the contract. The first part of the letter was with regard to the delay 1 claim.  Jacob 
reiterated that it sought $73,398.37 as a result of this delay. The letter set forth the basis and 
dollar amounts for the other two delays (designated delays 2 and 3). 
On February 7, 2012, the contracting officer met with Jacob and all three claims were 
discussed. A written memorandum of the meeting, apparently written by an employee of 
Jacob, attempted to summarize the meeting. This memorandum contains the following 
statement with regard to the claim for overhead costs (delay 1), denied in the contracting 
officer’s decision of May 5, 2011: 
With regard to the claims, at face value she appears to be set on paying Jacob 
for the first delay for the suspension of work, her statement to the group was 
that the VA could not tell the contractor not to work for three months then 
continue to put them off month after month and not to be responsible for the 
contractors overhead costs. 
Appellant’s Reply to Respondent’s Motion to Dismiss for Lack of Jurisdiction, Exhibit 15. 
On May 2, 2012, the contracting officer issued a decision granting appellant 
$73,468.23 for part of its claims on delays 2 and 3. Regarding the delay 1 claim for 
overhead, the contracting officer stated, 
Delay 1 has already been ruled upon with [the] Contracting Officer deciding 
no equitable adjustments due to the contractor for this time. No further action 
will be considered for this delay. 
The decision advised appellant of its appeal rights. The claims regarding delays 2 and 3 
were resolved by the parties. On May 14, 2012, Jacob appealed the denial of the claim 
regarding delay 1 to the Board. 

      
     
     
      
   
       
      
   
        
      
     
       
      
      
  
    
      
        
    
      
       
    
       
     
      
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Discussion 
The VA moves to dismiss the appeal on the basis that it was untimely filed. Jacob 
submits that the contracting officer’s decision of May 5, 2011, was not final, due to the VA’s 
actions subsequent to its issuance. Appellant submits that the VA continued to discuss and 
negotiate the claim after the issuance of the decision and that appellant was led to believe 
that its claim remained open and under consideration by the VA. 
The Contract Disputes Act provides that a contracting officer’s decision on a claim 
is final and conclusive and not subject to review unless the decision is appealed to a board 
of contract appeals within ninety days or to the Court of Federal Claims within twelve 
months of the contractor’s receipt of the decision.  41 U.S.C. §§ 7103(g), 7104 (Supp. IV 
2011). The statutory appeal period is strictly construed and cannot be waived by the Board. 
Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982). 
Yet, an exception has been made where events subsequent to the issuance of the 
decision by the contracting officer make it clear that the contracting officer did not consider 
the decision final. Thus, we have held where the parties continued to negotiate in an effort 
to settle the dispute, subsequent to the issuance of the decision and prior to the expiration 
of the appeal period, the finality of the decision was vitiated. Devi Plaza, LLC v. 
Department of Agriculture, CBCA 1239, 09-1 BCA ¶ 34,033 (2008); see also Pixl Inc. v. 
Department of Agriculture, CBCA 1203, 09-2 BCA ¶ 34,187. 
The determinative factor in examining each such case “is whether the contractor 
presented evidence showing it reasonably or objectively could have concluded the 
[contracting officer’s] decision was being reconsidered.” Sach Sinha and Associates, Inc., 
ASBCA 46916, 95-1 BCA ¶ 27,499, at 137,041. 
We see no evidence for objectively concluding that the contracting officer 
reconsidered Jacob’s claim for overhead costs within the ninety-day period after issuance 
of the decision. During this period the only evidence in the record is the contracting 
officer’s statement that she would consider a claim for remobilization costs. But these costs 
were not part of appellant’s claim or the contracting officer’s decision. Jacob could not 
reasonably conclude that bythis statement the contracting officer was reconsidering her final 
decision. There was no waiver. We find the contracting officer’s decision became final and 
conclusive ninety days after Jacob received it. 

     
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Decision 
Respondent’s motion to dismiss is granted. The appeal is untimely and is 
DISMISSED FOR LACK OF JURISDICTION . 
________________________________ 
JAMES L. STERN 
Board Judge 
We concur: 
_____________________________ _________________________________ 
STEPHEN M. DANIELS CATHERINE B. HYATT 
Board Judge Board Judge