Cosmic Const. Co. v. U.S., 23-82
| Decision Date | 10 December 1982 |
| Docket Number | No. 23-82,23-82 |
| Citation | 697 F.2d 1389 |
| Parties | 30 Cont.Cas.Fed. (CCH) 70,732 COSMIC CONSTRUCTION CO., Appellant, v. The UNITED STATES, Appellee. . Federal Circuit |
| Court | U.S. Court of Appeals — Federal Circuit |
Thomas Denoia of Giordano, Halleran & Crahay, Middletown, N.J., on the brief, for appellant.
Thomas W. Petersen and Mary Mitchelson, Washington, D.C., on the brief, for appellee. With them on the brief was Asst. Atty. Gen. J. Paul McGrath, Washington, D.C.
Before MARKEY, Chief Judge, and RICH and DAVIS, Circuit Judges.
Appeal from an order of the Armed Services Board of Contract Appeals (board) dismissing with prejudice Cosmic Construction Co.'s (Cosmic's) appeal to it under the Contract Disputes Act as untimely. We affirm. 1
On May 4, 1979 Cosmic submitted a claim for $1,015,012.82 to the contracting officer for Contract Number F 08650-76-90410. By letter dated April 14, 1981 and received by Cosmic on April 18, 1981, the contracting officer issued a final decision denying the claim. Though the letter indicated that copies had been sent to Cosmic's counsel, counsel says none was received. During the relevant time period, the contract was before the board on an appeal of the contracting officer's final decision and termination for default. Counsel for the government and Cosmic had been in correspondence about the present claim. It is asserted that the officers of Cosmic failed to notify its counsel that the final decision had been received, relying upon the indication that copies had been sent to counsel and upon past practices under which earlier final decisions had been automatically appealed.
On his request, Cosmic's counsel received a copy of the final decision from the government on or about September 28, 1981. An appeal dated October 29, 1981 was received by the board on November 3, 1981. On November 18, 1981, the board sua sponte ordered Cosmic to show cause why the appeal should not be dismissed as untimely, having been filed more than six months after Cosmic's April 18, 1981 receipt of the contracting officer's final decision. Cosmic having failed to file the appeal within the ninety day period provided by statute, the board issued its December 30, 1981 order dismissing the appeal as untimely.
Cosmic argues that the board has discretionary authority to waive the ninety day deadline for filing appeals to it, and that it abused its discretion in refusing a waiver in this case. 2
OpinionUnder section 6(b) of the Contract Disputes Act, 41 U.S.C. Sec. 605(b) (Supp IV 1980) (Act), "a contracting officer's decision ... shall be final and conclusive and not subject to review ... unless an appeal or suit is timely commenced." Under section 7 of the Act, 41 U.S.C. Sec. 606 (Supp IV 1980) a contractor's appeal to the board must be filed "within ninety days from the date of receipt of a contracting officer's decision." The ninety day deadline is thus part of a statute waiving sovereign immunity, which must be strictly construed, Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957), United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), and which defines the jurisdiction of the tribunal, here the board. Id., at 586-87, 61 S.Ct. at 769-70.
Cosmic argues that the ninety day period under the statute should be analogized to the thirty day period set forth in the standard "disputes clause" found in government contracts, citing the decision of the General Services Board of Contract Appeals in Irvin D. Judkins, d/b/a Imperator Carpet and Janitorial Service, GSBCA No. 6164, 81-2 BCA p 15,350, at 76041. The analogy fails. A contract clause is not a statute waiving immunity and defining jurisdiction. Judkins, in holding that the board there involved had authority to waive the ninety day statutorily imposed period, was erroneously decided. 3
In asserting an abuse of discretion, Cosmic cites equitable considerations as warranting waiver of the ninety day period. The government counters the argument, pointing out, inter...
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