4 C.F.R. 21.2(b) states that, for GAO protests, GAO has the option to dismiss or not dismiss a protest that is filed late if there is good cause or it is an important issue. In other words, if there’s a good reason, GAO can accept an untimely protest. (Please note that this is not suggesting the filing deadline does not matter, GAO treats it very strictly most of the time and you should treat it as a “drop-dead” deadline).
For this reason, some think this same discretion applies in other protests and appeals regarding government contracts. For the Civilian Board of Contract Appeals (CBCA), it very much does not.
Cherokee 8A Group (“Cherokee”) was the awardee for a contract for construction services with the Department of Veterans Affairs (“VA”). Cherokee 8A Group, CBCA 7107. As sometimes is the case, a dispute arose over outstanding balances, time extensions, and additional costs. Cherokee submitted an uncertified claim to the contracting officer on September 12, 2018, and then certified that claim on September 25, 2018. The contracting officer approved the claim in part but denied the time extension and additional costs. Cherokee was notified of this decision via a May 2, 2019 letter. In this letter, it stated: “If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken.”
FAR 6101.2(d)(1) states that, under the Contract Disputes Act (41 U.S.C. Chapter 71), “a notice of appeal must be filed within 90 calendar days after the date of receipt of a contracting officer’s decision on a claim.” As the letter was received on May 2, 2019, this gave Cherokee a deadline of July 31, 2019 to file an appeal. Cherokee decided instead on May 9, 2019 to send a letter to the VA asking for reconsideration of the contracting officer’s decision. The VA did not respond. Still, plenty of time, right?
Cherokee, apparently confused as to where to file the appeal, sent the contracting officer and a VA official an email on July 11, 2019, asking if the VA’s Office of Construction and Facilities Management was the correct forum to appeal the contracting officer’s final decision. Cherokee sent another letter on July 22, an email on July 30, and then another email on July 31, all asking if the appeal had been sent to the proper address.
After two more inquiries by Cherokee, the VA finally responded on March 16, 2021, stating that if the appeal had been filed properly, it would have been referred to their litigation department by that point, and it had not. The VA also provided contact information for CBCA. Cherokee filed its notice of appeal on April 21, 2021 with the CBCA. The VA responded with a motion to dismiss the next day for untimeliness, as the deadline for appeal was July 31, 2019.
Cherokee argued that the VA misled it about the appropriate forum for appeal, and that the VA had been on notice of the appeal since May 2019. Noting the multiple requests for information from the VA about the appropriate forum, Cherokee asserted the VA’s omission of information was intentional or negligent; but for the VA’s lack of response, Cherokee would have timely and correctly filed the appeal.
CBCA stated that 41 U.S.C. § 7104(a) gives a contractor 90 days from the date of the contracting officer’s decision on a claim to appeal it to the CBCA. Quoting Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982), it noted that “deadline is ‘part of a statute waiving sovereign immunity, which must be strictly construed.” “This deadline may not be waived by the Board.” Cherokee had the responsibility to properly file its appeal on time with the CBCA. Failure to do such is not excused by the contracting agency failing to respond to inquiries from the contractor. In fact, referring to FAR 33.211(a)(4)(v), CBCA noted, “[t]he Federal Acquisition Regulation (FAR) does not require the contracting officer to identify the CBCA in the final decision.”
CBCA did recognize that exceptions exist where “an agency misleads the contractor and remains silent as to the appropriate forum for an appeal” as well as “if the agency fails to give notice to the contractor.” But, in this matter, the contracting officer provided the appropriate language from the FAR regarding appeal rights. Furthermore, that the VA may have known of the intention to appeal back in May 2019 was irrelevant. “CBCA does not view contracting officers as agents that may accept appeals on the Board’s behalf.” Furthermore, the information for what was needed to appeal was publicly available. Cherokee’s appeal was untimely, and CBCA dismissed it.
The oft-repeated lesson is clear: deadlines are deadlines. The exceptions that will allow late filings are extremely narrow and should not be relied on. A good rule is to treat deadlines as having zero exceptions. Another great lesson: do not expect the agency to point out where you have to go to appeal. While agencies do try to be helpful, they aren’t generally required to guide you to where you need to file your protest. Even if you think you can do the protest yourself, consulting with an attorney as to the requirements can save you a lot of heartache.
Planning on filing a protest or appeal? Email us or give us a call at 785-200-8919.