ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of-- ) 

) 

Singleton Enterprises ) 

) 

Under Contract No. W912HN-09-C-0035 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 58235 

Mr. Wayne Singleton 

President 

Thomas H. Gourlay, Jr., Esq. 

Engineer Chief Trial Attorney 

Justin P. McCorcle, Esq. 

Engineer Trial Attorney 

U.S. Army Engineer District, 

Wilmington 

OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S 

MOTION TO DISMISS FOR LACK OF JURISDICTION 

The government moves for dismissal for lack of jurisdiction under the Contract 

Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, arguing that appellant filed its 

appeal beyond the statutory 90-day appeal period. Appellant contends that the email 

attaching the final decision was ineffective to start the appeal period running 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) FOR PURPOSES OF THE MOTION 

1. On 30 July 2009, the government awarded Contract No. 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 of appeal rights (id. ). The final decision 

was returned as undeliverable on 27 March 2012 (gov't mot., attach. 2, Cliff decl. ~ 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 dec I. ~~ 4-7, attach. 2, Cliff dec I. ~~ 4-8). 

4. On 11 April2012 at 5:35pm, CO Mayo sent appellant a copy of the 19 March 

2012 final decision via email (gov't mot., attach. 1, Mayo decl. ~ 8, ex. A) stating in part: 

Attached is a copy of the Contracting Officer[']s Decision 

concerning your request for the equitable adjustment of 

Contract W912HN-09-C-0035. The decision was sent to you 

via US Mail on March 19 20 12 and then again by registered 

mail on 3 April 20 12 but both attempts were returned to our 

office due to the address being incorrect. 

Please verify your correct address, phone number, and your 

receipt of this email, as we have had difficulty contacting 

you. 

(Gov't mot., attach. 1, Mayo decl. ~ 8, ex. A) 

5. On 12 April2012 at 8:28am, appellant responded by email stating: 

I have received your e-mail and attached Contracting Officer's 

Decision and Government Estimate Methodology. Our correct 

address is P.O. Box 129, Luthersville, GA 30259. Our correct 

phone number is 770-927-1618. The correct phone number for our 

project manager, 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 of April 11, 2012 included 

the Contracting Officer's Decision dated March 19, 20 12, 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. 

1 The government does not contend that these attempts commenced the appeal period so 

we need not delve into the details of the transmissions as the government does in 

its motion. 

2 
In addition, that communication stated a revised contract 

completion date of December 13, 2012 with assessed 

liquidated damages of$69,300.00 currently withheld. In 

consideration of the offer we have thoroughly reviewed and 

analyzed the history of each delay, design defect and differing 

site condition, including cause, circumstances, corrective 

action and costs. For the record, we will discuss the facts 

before stating our position. 

(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 with the Board (R4, tab 1). The envelope is postal meter stamped on 

"07/12/2012" and postmarked "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]aving received Mr. Singleton's confirmation that he received the 

COD, I did not make further attempts to mail a paper copy of the decision to Singleton 

Enterprises" (gov't mot., attach. 1). 

9. In its "Position Regarding Timeliness ofthe Appeal," (opposition) appellant 

asserts that the copy of the final decision attached to the 11 April 20 12 email was 

"corrupted" and could not be 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 supported by evidence. On 5 February 2014 the Board ordered the 

parties to supplement the record with "all documentary or testimonial evidence 

supporting the parties' versions of the facts surrounding appellant's two assertions cited 

above" no later than 13 February 2014 (Bd. corr. file). The government responded on 

13 February 2014 stating that it had no further evidence to submit (Bd. corr. file). 

Appellant did not respond to the Board's order. 

DECISION 

The burden of proof is on appellant to establish that its appeal was timely filed; 

however, the government has the burden of proving the 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 of receipt serves to commence the running of the appeal time. Kuqali, 

03-1 BCA ~ 32,204 at 159,264. The government has met its burden. The CDA requires 

that an appeal of a 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 

3 
commence on the day after receipt or 13 April2012 (Board Rule 33(b)). The 90-day 

period would 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 if proven. First 

appellant contends that the attachment to the 11 April 20 12 email containing the final 

decision could not be opened (SOF ,-r 9). If proven, we might not consider 

acknowledgement of receipt of the email with final decision attached on 12 April2012 to 

effectively commence the running of the 90-day appeal time. Second, appellant alleges 

that it received a written version of the final decision by letter on or about 27 April2012 

(id.). If this were proven, we would start the running of the 90-day appeal period on 

28 April2012 and the appeal would be timely. AST Anlagen-und Sanierungstechnik 

GmbH, ASBCA No. 51854,04-2 BCA ,-r 32,712 at 161,836 (Where multiple copies of a 

final decision are received, absent some indication that an earlier version is intended to 

start the appeal period, the date of receipt ofthe last copy commences the appeal period.). 

Therefore, we must decide if appellant has proven either of these contentions by credible 

evidence. 

Appellant failed to respond to the Board's' order to supplement the record with 

evidence supporting its contentions (SOF ,-r 9). There is no mention of a "corrupted file" 

in either Mr. Singleton's 12 April2012 acknowledgement of receipt (SOF ~ 5) or 

Mr. Fox's 27 April2012letter (SOF ~ 6). We would expect the 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 not provided the 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 or about 27 April2012. We are confronted with appellant's unsupported contention 

that it received a copy on or about 27 April2012 and CO Mayo's testimony that after he 

received confirmation of receipt on 12 April2012, he did not mail another copy to 

appellant (SOF ~ 8). Appellant having failed to produce any evidence regarding receipt 

on 27 April2012, we must fully credit CO Mayo's testimony. 

4 
CONCLUSION 

Appellant having failed to meet its burden of proof as to its two contentions, we 

find that the appeal is untimely. The appeal is dismissed with prejudice for lack of 

jurisdiction. 

Dated: 24 March 20 14 

I concur 

~~-A#- Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administr tive Judge 

Armed Services Board 

of Contract Appeals 

ruCHARDSHACKLEFORD 

Administrative Judge 

Acting Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 58235, Appeal of Singleton 

Enterprises, rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals