January 10, 1997

Appeal of

LARRY ALPERIN

LEASE AGREEMENT

PSBCA No. 3994

APPEARANCE FOR APPELLANT:

Larry Alperin

APPEARANCE FOR RESPONDENT:

Charles T. Jackson, Esq.

OPINION OF THE BOARD ON MOTION TO DISMISS

This appeal is from a contracting officer’s final decision denying a claim by Appellant for rent and restoring property leased by Respondent, the United States Postal Service.  Respondent 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 August 16, 1995, Appellant submitted a claim to the contracting officer in the amount of $1,100,000.00 for additional lease payments and the cost of repairing damage allegedly arising out of Respondent’s termination of a lease of Appellant’s property at 4917 Genesta Avenue, Encino, California  (Respondent’s Exhibit No. (RX) 1).

2.  By final decision dated September 14, 1995, the contracting officer denied the claim and fully advised Appellant of his appeal rights (RX 2).

3.  Appellant received this final decision on September 18, 1995 (RX 3).

4.  On September 13, 1996, Appellant sent a letter to the contracting officer which appealed the final decision (RX 4).

5.  Appellant’s Notice of Appeal was received by the Board and docketed on September 23, 1996  (Notice of Appeal).

DECISION

Under the Contract Disputes Act of 1978, as amended, an appeal to an agency board of contract appeals must be filed within 90 days from the receipt of a contracting officer’s final decision.  41 U.S.C. §606.  The 90 day appeal period is jurisdictional and cannot be waived by a board.  Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Jeff W. Loder, PSBCA No. 2771, 90-3 BCA ¶ 23,159; Conquest Construction, Inc., PSBCA No. 2637, 90-2 BCA ¶ 22,682.  Since Appellant mailed its notice of appeal 361 days after receipt of the contracting officer’s final decision, the appeal is untimely and the Board lacks jurisdiction to consider Appellant’s claim.  Accordingly, Respondent’s motion to dismiss is granted and the appeal is dismissed for lack of jurisdiction.

William K. Mahn

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman