ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Tessada & Associates, Inc. 

Under Contract No. NNA09DB40C 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59446 

Tami J. Howie, Esq. 

Executive Vice President & 

General Counsel 

Scott W. Barber, Esq. 

NASA Chief Trial Attorney 

Colleen Burt, Esq. 

Kevin F. Kouba, Esq. 

Trial Attorneys 

NASA Ames Research Center 

Moffett Field, CA 

OPINION BY ADMINISTRATIVE JUDGE DELMAN 

ON JURISDICTION 

The Board, sua sponte, raised the issue of its jurisdiction over this appeal under 

the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, questioning whether 

Tessada & Associates, Inc. (Tessada or appellant), has filed a timely notice of appeal. 

The government declined to take a position on whether appellant's notice of appeal 

was timely. We find that the Board has jurisdiction for reasons stated below. 

FINDINGS OF FACT 

1. On 30 April 2009, NASA Ames Research Center (NASA) awarded Contract 

No. NNA09DB40C to Tessada (R4, tab 4). 

2. By letter dated 31 July 2013, appellant submitted a certified claim to the 

contracting officer (CO) via email, sent by appellant's contract manager, 

Ms. Tammy Smith (R4, tab 2 at 9, 11; app. br., ex. C, Smith aff. {Smith aff.) ~ 3). 

3. On 25 April 2014, the CO emailed to Tessada a contracting officer's final 

decision (COFD) denying the claim. The COFD was directed to Tessada's address in 

Springfield, Virginia. (R4, tab 1 at 2) The COFD was sent as an attachment to three 

persons with "@tessada.com" email addresses, including Ms. Smith (R4, tab 1 at 1 ). 

The CO received a "read" receipt from her account, stating that the "Final Decision" 

message was read on "Friday, April 25, 2014 5:51:45 PM (UTC-06:00) Central Time 
(US & Canada)" (R4, tab 1 at 7). Ms. Smith's affidavit does not address this "read" 

receipt. Ms. Smith avers that she did not read the email's attachment until Monday, 

28 April 2014 (Smith aff. ~ 8). 

4. On 25 July 2014, the Board received a notice of appeal dated 22 July 2014 

from Tessada. The notice of appeal was delivered by FedEx. (Bd. corr. file) 

5. Appellant alleges that it also sent the notice of appeal to the Board by 

regular United States Postal Service (USPS) mail on 24 July 2014 (app. br. ~ 18). 

Appellant provided a photocopy of the envelope it alleges was used to submit this 

notice of appeal. The envelope was properly addressed to the Board with the correct 

address and zip code. The envelope bears a 24 July 2014 postage meter stamp with a 

"PITNEY BOWES" designation but obviously bears no USPS postmark. (App. br., 

ex. E) The Board did not receive a notice of appeal by USPS mail. 

6. Mr. Hale is the CO who issued the COFD. His email signature block shows 

his address to be: 

(R4, tab 1) 

NASA Ames Research Center 

Mail Stop 241-l(Bldg N241, Room 232) 

Moffett Field, CA 94035 

7. Tessada also sent a copy of the 22 July 2014 notice of appeal to the CO on 

24 July 2014 via USPS mail, with sufficient postage, addressed to: 

William E. Hale 

National Aeronautics and Space Administration 

Moffett Field, CA 94035-1000 

(App. br., ex. F) 

8. The envelope mailed by Tessada to the CO, containing the notice of appeal, 

was received by the CO on 26 August 2014 at 8:00 AM and had the following 

machine-generated marking: 

NOVA 

VA220 

24JUL'14 

PM 4 [unreadable character] 

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Absent evidence otherwise, we find that this marking was generated by a U.S. Post 

Office in Northern Virginia, and that it indicates that the envelope was postmarked on 

24 July 2014. (Bd. corr. ltr. dtd. 11February2015 and attached copy of envelope) 

9. The government admits that the CO received this mailing on 26 August 

2014 (Bd. corr. ltr. dtd. 11 February 2015 and attached copy of envelope). We find 

that the CO received the notice of appeal on 26 August 2014. 

DECISION 

The Board raised the issue of jurisdiction, sua sponte, following indications in 

the Rule 4 file that appellant's notice of appeal may not have been filed within 90 days 

from appellant's receipt of the COFD. To be considered timely, an appeal from a 

COFD to an agency board must be made "within 90 days from the date of receipt" of 

the COFD. 41 U.S.C. § 7104(a). The 90-day period is statutory and cannot be waived 

by the Board. Cosmic Construction Co. v. United States, 697 F.2d 1389, 1391 

(Fed. Cir. 1982). 

In computing the 90-day period, the Board has held that when a notice of 

appeal is mailed via the USPS, "the date of filing of an appeal is the date of transfer to 

U.S. Postal Service." Thompson Aerospace, Inc., ASBCA Nos. 51548, 51904, 99-1 

BCA ~ 30,232 at 149,569. "The term 'mailed' requires a proper address, sufficient 

postage, and transfer of the notice of appeal into the custody of the USPS." Premier 

Group, ASBCA No. 58263, 13 BCA ~ 35,349 at 173,500-01 (citing Premier 

Consulting & Management Services, ASBCA No. 54691, 05-1BCA~32,949 at 

163,256-57). However, a notice of appeal carried by a commercial courier is deemed 

filed on the date it is delivered to the Board. Bay Gulf Trading Co., ASBCA 

No. 54122, 03-2 BCA ~ 32,297 at 159,805 (citing Tyger Construction Company, 

ASBCA Nos. 36100, 36101, 88-3 BCA ~ 21,149 at 106,781). 

It is well established that "filing the notice with the contracting officer is 

tantamount to filing an appeal with this Board." Thompson Aerospace, 99-1 BCA 

~ 30,232 at 149,569 (quoting McNamara-Lunz Vans & Warehouses, Inc., ASBCA 

No. 38057, 89-2 BCA ~ 21,636 at 108,856). In Thompson Aerospace, we also 

recognized that this rule applies even where a contractor attempts timely service 

directly upon the Board. Given the foregoing, we see no good reason why the USPS 

"mail box" filing rule should not equally apply to notices of appeal mailed to the CO. 

Appellant transferred the copy of the notice of appeal addressed to the CO into 

the custody of the USPS on 24 July 2014, and the envelope was postmarked on that 

date (finding 8). Hence, the notice of appeal was filed on that date. This date was 

within the 90-day period from receipt of the COFD based upon the read receipt of 

25 April 2014 and we need not determine whether the 90-day period started on 

28 April 2014 when Ms. Smith avers she first read the COFD. (Finding 3) 

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It is true that the notice of appeal was actually received by the CO on 26 August 

2014 (finding 8), which delay may have been caused by appellant's failure to provide 

as detailed an address as it could have on the envelope. In any event, a notice of 

appeal is timely filed when it is timely transferred to the custody of the USPS, not on 

the day it is received. Appellant's notice of appeal was timely postmarked by the 

USPS, and thus was timely filed. 

CONCLUSION 

We find that Tessada's notice of appeal was timely filed, and that the Board has 

jurisdiction over this appeal under the CDA. 

Dated: 21 April 2015 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

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Administrative Judge 

Armed Services Board 

of Contract Appeals 

RICHARD SHACKLEFORD 

Administrative Judge 

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. 59446, Appeal of Tessada 

& Associates, Inc., rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals