CBCA Appeal Dismissed Because Contractor Filed By FedEx, Not USPS

As has been well-documented by news outlets, the U.S. Postal Service plans to end Saturday delivery to save money.  With the USPS facing financial and customer service struggles, it is little wonder that many government contractors rely on rival FedEx to deliver important packages.

But when it comes to filing a contract appeal with the Civilian Board of Contract Appeals, contractors may want to think twice before calling FedEx.  As one unfortunate contractor recently discovered, thanks to an arcane (and in my view, unfair) provision in the CBCA’s rules, a package sent through the USPS is deemed timely filed with the CBCA on the date of its postmark, whereas a package sent by any other means–including FedEx–is not considered filed until it is actually received at the CBCA’s office in Washington, DC.

The CBCA’s decision in Tobias Schunck, CBCA No. 3079 (2013) involved a GSA online auction for cameras.  On August 14, 2012, the GSA’s contracting officer issued a final decision denying Tobias Schunck’s claim for a refund of the purchase price.  Mr. Schunck received the decision on August 15.  The contracting officer informed Mr. Schunck that he had 90 days to appeal the decision to the CBCA.

On November 13, 2012, Mr. Schunck send his notice of appeal to the CBCA by overnight FedEx.  The notice of appeal was received on November 14, which was 91 days after Mr. Schunck received the final decision.

In response to the GSA’s motion to dismiss, Mr. Schunck argued that the appeal was timely filed because he sent it by FedEx on November 13, the 90th day.  The CBCA rejected this argument, essentially concluding that Mr. Schunck had forfeited his appeal by using FedEx instead of USPS.

The CBCA noted that Board Rule 1(b)(5)(i) states:

Any document, other than a notice of appeal or an application for award of fees and other expenses, is filed when it is received by the Office of the Clerk of the Board during the Board’s working hours. A notice of appeal or an application for award of fees and other expenses is filed upon the earlier of its receipt by the Office of the Clerk of the Board or if mailed, the date on which it is mailed to the Board. A United States Postal Service postmark shall be prima facie evidence that the document with which it is associated was mailed on the date of the postmark.

Citing prior CBCA decisions, the CBCA wrote that “mailed” means “placing the notice of appeal into the custody of the U.S. Postal Service.”  The Board continued, “[a]ppeals that are not transmitted by United States Postal Service, such as this one, are deemed filed when received by the Board.”

The CBCA concluded, “[h]ere the notice, sent by Federal Express, arrived at the Board ninety-one days after receipt of the CO’s decision.  This was too late to confer on the Board jurisdiction over the appeal.”  The CBCA dismissed Mr. Schunck’s appeal.

I see no good reason why the timeliness of an appeal should turn upon whether the contractor chooses to use FedEx, the USPS, or some other common carrier.  Indeed, had Mr. Schunck used USPS, the appeal might not have made it to the CBCA until 92 or 93 days after the final decision, but still would have been treated as timely.  Illogically, the rule seems to encourage contractors to select an arguably slower delivery method.

I hope that the CBCA, in the interest of fairness, will revisit its timeliness rule.  In the meantime, for last-minute CBCA filers, the lesson from the Tobias Schunck case is obvious: when timeliness may be an issue, use the USPS.  Just don’t expect Saturday delivery.

Leave a Reply

Your email address will not be published. Required fields are marked *