Appeal of ZSA ZSA RENEE PENDER

October 24, 1995

Appeal of

ZSA ZSA RENEE PENDER

Under Contract No. HCR 20682

PSBCA No. 3853

APPEARANCE FOR APPELLANT:

Zsa Zsa Renee Pender

APPEARANCE FOR RESPONDENT:

Evelyn M. Loeb, Esq.

OPINION OF THE BOARD ON MOTION TO DISMISS

This appeal is from a Contracting Officer’s final decision terminating Appellant’s right to perform service on her Highway Contract Route (HCR). Respondent, United States Postal Service, has filed a Motion to Dismiss the appeal, alleging that the Board lacks jurisdiction because the appeal was not timely filed. Although Appellant was granted a thirty day period to file a reply to the motion, no such reply has been filed. The following findings of fact are made for the purpose of deciding Respondent’s motion.

FINDINGS OF FACT

1. On June 30, 1993, Respondent issued a Notice of Renewal of Appellant’s contract, HCR 20682, for the transportation of mail between La Plata and Junction Oliver Shop Road (NO), MD. Performance under the renewal contract was to begin on July 1, 1993 and extend to June 30, 1997 (Appeal File (AF) Tab 1A).

2. The contract included the Postal Service standard form for highway transportation contracts, Postal Service Form 7407, July 1992, which included the standard “Claims and Disputes” and “Termination by the Postal Service for Default” clauses (AF Tab 1C).

3. By final decision dated April 13, 1995, the Contracting Officer terminated Appellant’s contract for default and fully advised Appellant of her appeal rights (AF Tab 4).

4. Appellant received the Contracting Officer’s final decision terminating her contract for default on April 15, 1995 (AF Tab 5; Torres Declaration, ¶2).

5. Appellant’s notice of appeal, although dated August 24, 1995, was postmarked July 25, 1995 (AF Tab 3; Torres Declaration ¶4), received by the Contracting Officer on July 26, 1995 (AF Tab 2; Torres Declaration ¶3), and received by the Recorder on July 31, 1995.

DECISION

Under the Contract Disputes Act of 1978, as amended,^{^[1]} an appeal to a board of contract appeals must be filed within 90 days from the date of receipt of a contracting officer’s final decision. The 90 day appeal period is jurisdictional and cannot be waived by a board.^{^[2]} Since Appellant’s notice of appeal was mailed 101 days after receipt of the Contracting Officer’s final decision, the appeal is untimely and the Board lacks jurisdiction to consider Appellant’s claim.^{^[3]} Accordingly, Respondent’s Motion to Dismiss is granted and the appeal is dismissed for lack of jurisdiction.

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman

^{^[2]}Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Jeff W. Loder, PSBCA No. 2771, BCA 90-3 ¶23,159 (July 12, 1990); Conquest Construction, Inc., PSBCA No. 2637, BCA 90-2 ¶22,682 (Nov. 20, 1989).

^{^[3]}Appellant may bring an action directly in the United States Court of Federal Claims within 12 months from the date of receipt of the Contracting Officer’s final decision. The Court of Federal Claims is located at 717 Madison Place, NW, Washington, DC 20005.