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By W. Samuel Niece
Howrey LLP
Under the federal Contract Disputes Act (41 USC §601 et seq.), a contractor has two ways to challenge an adverse final decision by the contracting officer: either (1) appeal to the applicable Board of Contract Appeals (BCA); or (2) file suit in the U.S. Court of Federal Claims. A contractor has "ninety days from the date of receipt of a contracting officer's final decision" to appeal to the BCA (41 USC §606) but "twelve months from the date of the receipt by the contractor of the decision of the contracting officer" to file suit in the Court of Federal Claims (41 USC §609 (a) (3)).
Contractor Riley & Ephriam Construction Co., Inc. (R&E) submitted a claim for $294,097, listing its business address as a post office box in Stone Mountain, Georgia. On November 27, 2001, the contracting officer sent a final decision denying R&E's claim to R&E's post office box by certified mail. In addition, the contracting officer faxed a copy of the final decision to the fax number on file for R&E's attorney.
The certified letter arrived at the Stone Mountain post office on November 30, 2001, and a postal employee placed a note in R&E's box that the letter could be picked up at the counter. On December 19, 2001, the post office placed another note in R&E's box. However, R&E did not pick up the letter, so on December 29, 2001, the post office returned the certified letter to the contracting officer. On January 30, 2002, the contracting officer faxed the attorney a second message that the letter had been re-sent.
R&E filed suit in the Court of Federal Claims on January 24, 2003, which was less than 12 months after the second transmittal of the final decision but more than 12 months after the November 30, 2001, arrival of the November 27, 2001, letter at the Stone Mountain post office. The Court of Federal Claims granted the government's motion for summary judgment, finding that R&E had received both the November 27, 2001, letter and the facsimile transmission more than 12 months before it filed suit. Riley & Ephriam Construction Co., Inc. v. United States, 61 Fed.Cl. 405 (2004). R&E timely appealed to the Federal Circuit, which reversed. Riley & Ephriam Construction Co., Inc. v. United States, 2005 U.S.App.LEXIS 8817 (Fed.Cir. May 18, 2005).
First, with regard to November 27, 2001, facsimile transmission to R&E's attorney, the government was unable to produce a fax confirmation sheet for the November 27, 2001, fax, and R&E's attorney represented that he never personally received the fax. The government was able to produce a fax cover sheet, phone records indicating a 2.6-minute call to the attorney's fax line and a statement from the contracting officer that government's fax machine indicated electronically that the transmission was a success. This was good enough for the Court of Federal Claims but not for the Federal Circuit: "Proof of message exit from a transmitting machine cannot serve as a proxy for proof of actual receipt of the sent message by a remote receiving terminal."
Second, with regard to the November 27, 2001, letter to R&E's Stone Mountain post office box, the Court of Federal Claims found that " 'receipt' also occurred on November 30, 2001, when the CO's certified letter arrived at Plaintiff's business address - the PO box listed on the claim submitted to the CO." Once again the Federal Circuit disagreed. The key issue was whether the post office was R&E's agent; the Court of Federal Claims held that it was; the Federal Circuit held that it was not. In so holding, however, the Federal Circuit was careful to distinguish R&E's situation -- where it had rented a box in an official United States post office - from the situation in Policy Analysis Co. v. United States, 50 Fed.Cl. 626 (2001), where the contractor rented a box from a commercial mail box company, and the commercial mail drop was deemed the contractor's agent.
While Riley & Ephriam concerned a suit filed in the Court of Federal Claims, it probably is applicable to BCA appeals. In both cases, the clock starts ticking upon "actual" receipt of the contracting officer's final decision by the contractor. The difference is that the door to the BCA closes 90 days hence while the door to the Court of Federal Claims closes 12 months hence. The contractor should carefully weigh the pros and cons of each venue well before the expiration of 90 days from receipt of the final decision.
Once a contractor has submitted a claim, it needs to ensure that it (and its agents) are monitoring incoming mail and facsimiles for the final decision. A call to the contracting officer every month or so to inquire as to status is in order. The thing to avoid is the final decision dropping through the cracks. Once the final decision is received, it is a good idea to write to the contracting officer informing him or her of the date of actual receipt. This will make it more difficult for the government to subsequently allege an earlier date.
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For more information about the issues covered in this report, please contact W. Samuel Niece in our San Francisco office at 415-848-4979 or at nieces@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2005 Howrey LLP
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