ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- ) ) Singleton Enterprises ) ) Under ContractNo. W912HN-09-C-0035 )
APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 58235

Mr. Wayne Singleton

President
Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Justin P. McCorcle, Esq.

EngineerTrial Attorney U.S. Army Engineer District,

Wilmington
OPINIONBYADMINISTRATIVE JUDGE CLARKE ONTHE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION
The government moves for dismissal for lack of jurisdictionunder the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, arguing that appellant filed its appeal beyondthe statutory 90-day appeal period. Appellant contends thatthe email attaching the final decision was ineffective to start the appeal periodrunning and that it received the written final decision on 27 April2012 making its appeal timely. We grant the government's motion and dismiss the appeal.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION
1. On 30 July 2009, the government awarded ContractNo. W912HN-09-C-0035 to Singleton Enterprises (appellant) for the Philpott Reservoir Sewer Improvements Project (R4, tab 4c).
2. By letter dated 10 November 2011, appellant requested a contracting officer's (CO's) final decision concerning claims for "differing site condition and additional requirement directed by the Government" (R4, tab 3a).
3. On 19 March 2012, CO John P. Mayo issued a final decision denying appellant's differing site condition claim in a letter addressed to appellant (R4, tab 2). The final decision included a complete statement ofappeal rights (id.). The final decision was returned as undeliverable on 27 March 2012 (gov't mot., attach. 2, Cliffdecl.**~** 3).Between 27 March 2012 and 11 April2012 the government attempted to deliver the final decision to appellant by both electronic and written means but was unsuccessful 1(gov't mot., attach. 1, Mayo decI.**~~** 4-7, attach. 2, CliffdecI.**~~** 4-8).
4. On 11 April2012 at 5:35pm, CO Mayo sent appellant a copy ofthe 19 March 2012 final decision via email (gov't mot., attach. 1, Mayo decl.**~** 8, ex. A) stating in part: Attached is a copy ofthe Contracting Officer[']s Decision concerningyourrequest for the equitable adjustment of Contract W912HN-09-C-0035. The decision was sentto you via US Mail onMarch 19 2012 andthen again by registered mail on 3 April 2012 but both attempts were returned to our office due tothe address being incorrect.
Please verify your correct address, phone number, and your receipt ofthis email, as we have had difficulty contacting you. (Gov'tmot., attach. 1, Mayo decl.**~** 8, ex. A)
5. On 12 April2012 at 8:28am, appellant respondedby email stating:
I have received your e-mail and attached Contracting Officer's Decision and GovernmentEstimate Methodology. Ourcorrect address is P.O. Box 129, Luthersville, GA 30259. Our correct phone number is 770-927-1618. The correctphone number for our projectmanager, AI Fox, is 404-964-2775. (Gov't mot., attach. 1, Mayo decl.**~** 9, ex. B)
6. On 27 April 2012, Mr. A.C. Fox, appellant's project manager, sent a letter to CO Mayo referring to the 11 April2012 email:
The Government's email ofApril 11, 2012 included the Contracting Officer's Decision dated March 19, 2012, as an attachment, and a settlement offer of$65,273.74, plus $2,043.16 previously denied, which would increase the referenced contract value to $1,400,478.90 after modification.

1The government does not contend that these attempts commencedthe appeal period so we need not delve into the details ofthe transmissions as the government does in its motion.

2In addition, that communication stated a revised contract completion date ofDecember 13, 2012 with assessed liquidated damages of$69,300.00 currently withheld. In consideration ofthe offer we have thoroughly reviewed and analyzed the history ofeach delay, design defect and differing site condition, including cause, circumstances, corrective action and costs. Forthe record, we will discuss the facts before stating ourposition. (App. supp. R4, tab 3 at 1 0)
7. By letter dated 12 July 2012, appellant filed an appeal ofthe CO's 19 March 2012 final decision withthe Board (R4, tab 1). The envelope is postal meter stamped on "07/12/2012" andpostmarked "13 JUL 2012" (gov't mot., attach. 5 at 1-3).
8. The government included a declaration by CO Mayo with its motion; paragraph 10 reads: "(h]avingreceivedMr. Singleton's confirmationthathe received the COD, I did not make further attempts to mail a paper copy ofthe decision to Singleton Enterprises" (gov't mot., attach. 1).
9. In its "Position Regarding Timeliness ofthe Appeal," (opposition) appellant asserts that the copy ofthe final decision attached to the 11 April 2012 email was "corrupted" and could notbe opened (app. opp'n at 6). Appellant also asserted that it received "the original COFD

...on or about April27, 2012" (app. opp'n at 7). Neither of these assertions is supportedby evidence. On 5 February 2014 the Board ordered the parties to supplementthe record with "all documentary ortestimonial evidence supporting the parties' versions ofthe facts surrounding appellant's two assertions cited above" no later than 13 February 2014 (Bd. corr. file). The governmentresponded on 13 February 2014 stating that it had no further evidence to submit (Bd. corr. file). Appellant did notrespondto the Board's order.
DECISION
The burden ofproofis on appellant to establish that its appeal was timely filed; however, the government has the burden ofprovingthe date the final decision was received. 

### John J. 

### Kuqali General Contractor, ASBCA No. 53979, 03-1 BCA**~** 32,204 at 159,264. Mr. Singleton acknowledged receiving the 11 April2012 email with the 19 March 2012 final decision attached, on 12 April2012 (SOF**~** 5). Such an acknowledgement ofreceipt serves to commence the running ofthe appeal time. 

### Kuqali, 03-1 BCA**~** 32,204 at 159,264. The government has met its burden. The CDA requires that an appeal ofa CO's final decision be filed with the Board within 90 days after receipt. 41 U.S.C. 

### § 7104(a). Under normal circumstances the 90-day period would

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### commence on the day after receipt or 13 April2012 (Board Rule 33(b)). The 90-day periodwould therefore end on Wednesday, 11 July 2012. The appeal letter was metered 12 July 2012 and postmarked on 13 July 2012 (SOF 

### ,-r 7). Under normal circumstances, the appeal would be late based on either date. Appellant, however, alleges two circumstances that are not "normal" and could change this result ifproven. First appellant contends that the attachment to the 11 April 20 12 email containing the final decision could not be opened (SOF 

### ,-r 9). Ifproven, we might not consider acknowledgement ofreceipt ofthe email with final decision attached on 12 April2012 to effectively commence the running ofthe 90-day appeal time. Second, appellant alleges that it received a written version ofthe final decision by letter on or about 27 April2012 (id.). 

### Ifthis were proven, we would startthe running ofthe 90-day appeal period on 28 April2012 and the appeal wouldbe timely. AST Anlagen-undSanierungstechnik GmbH, 

### ASBCANo. 51854,04-2 BCA

### ,-r 32,712 at 161,836 (Where multiple copies ofa final decision are received, absent some indication that an earlier version is intended to start the appeal period, the date ofreceipt ofthe last copy commences the appeal period.). Therefore, we must decide ifappellant has proven either ofthese contentions by credible evidence. Appellant failed to respond to the Board's'orderto supplementthe record with evidence supporting its contentions (SOF 

### ,-r 9). There is no mention ofa "corrupted file" in either Mr. Singleton's 12 April2012 acknowledgement ofreceipt (SOF**~** 

### 5) or Mr. Fox's 27 April2012letter (SOF**~** 

### 6). We would expectthe inability to read the final decision to be mentioned. We cannot square the contemporaneous documents with appellant's unsupported contentions almost two years after the fact. We conclude that appellant has notprovidedthe Board with any evidence that the file containing the final decision was corrupted and could not be opened. Appellant did not produce credible evidence that the final decision was received on orabout 27 April2012. We are confronted with appellant's unsupported contention that it received a copy on or about 27 April2012 and CO Mayo'stestimony that after he received confirmation ofreceipt on 12 April2012, he did not mail another copyto appellant (SOF**~** 

### 8). Appellanthaving failed to produce any evidence regarding receipt on 27 April2012, we must fully credit CO Mayo'stestimony.

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### CONCLUSION Appellanthaving failed to meet its burden ofproofas to its two contentions, we find that the appeal is untimely. The appeal is dismissed with prejudice for lack of jurisdiction.
Dated: 24 March 2014

I concur

# ~~-A#- Administrative Judge Acting Chairman Armed Services Board ofContract Appeals Administr tive Judge Armed Services Board ofContract Appeals

ruCHARDSHACKLEFORD Administrative Judge Acting Vice Chairman Armed Services Board ofContractAppeals
I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 58235, Appeal ofSingleton Enterprises, rendered in conformance with the Board's Charter.
Dated:

5 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals