Government Contracts Monitor

CBCA Says a Timely Claim Must be \"Mailed\" Using the USPS

March 7, 2013

A recent Civilian Board of Contract Appeals case confirmed that it will not tolerate tardiness, not even by one day, and that the much-maligned U.S. Postal Service is still the best way to send something to the Board.   In Schunck v. General Services Administration, CBCA No. 3079, Mr. Schunck was denied a refund for twelve cameras he bought at a GSA auction. The written notice of denial stated that he had 90 days from the date of the final decision to appeal the decision to the Board. The contracting officer’s final decision was on August 15, 2012.  Mr. Schunck sent his notice of appeal via Federal Express standard overnight delivery on November 13, 2012, which was delivered to the Board on November 14, 2012.    The 90 day time period, however, ended on November 13, 2012.

The Board referenced Board Rule 1(b)(5)(i), which states that a notice is filed timely either upon receipt by the Office of the Clerk, or, if mailed, the date on which it is mailed to the Board.  The definition of “mailed” is placing the notice of appeal “into the custody of the U.S. Postal Service.”  Since Mr. Schunck’s notice was sent by Federal Express, the Board held that the notice was deemed filed when received by the Board rather than the date it was dropped off at Federal Express, causing it to be one day late.

This result seems a bit harsh, particularly for a pro se individual who probably did not read Board Rule 1(b)(5)(i) or the prior Board rulings defining “mailing” and seemed to have the intent to file an on-time filing.  Nevertheless, the case presents a cautionary tale for attorneys and other individuals who practice before the Board that a day late and a dollar short is always going to be a day late and a dollar short at the Board, unless you use the Post Office.

 

Brian Stolarz is the attorney responsible for the content of this article.