Late is late: the GAO bid protest timeliness rules, and how they can be a model for boards of contract appeals

Army Lawyer, Nov, 2007 by Eugene Y. Kim

If the government is able to make a prima facie case that an appeal is untimely, the evidentiary burden shifts to the appellant, who must demonstrate that he transmitted the notice of appeal within the prescribed period. (121) In contrast to filing a bid protest or related documents with the GAO (where timeliness is determined by when the GAO receives a filing), the ASBCA will consider an appeal to be timely if it was mailed on or before the ninetieth day of the filing window. (122) The ASBCA has "long held that the date of filing of an appeal is the date of transfer to [the] U.S. Postal Service (i.e., the postmark date)." (123) Interestingly, the ASBCA recently recognized an exception to this general rule that, in essence, negates the presumption of reliability of a U.S. Postal Service post-mark. (124) Declaring a postmark to be only "prima facie evidence that transfer had occurred by that date," (125) the ASBCA held that "a sworn statement or testimony to the effect that the transfer occurred on an earlier date is credible evidence" (126) that can establish an earlier mailing date (and therefore a timely appeal). (127)

Another interesting facet of the ASBCA's views on the timely submission of appeals is its interpretation of the proper place to file a notice of appeal. (128) Both the CDA and 41 U.S.C. [section] 606 expressly address this issue: "Within ninety days from the date of receipt of a contract officer's decision ... the contractor may appeal such decision to an agency board of contract appeals. ..." (129) Neither the CDA nor 41 U.S.C. [section] 606 expressly authorize any other activity to receive appeals on behalf of a board of contract appeals. (130) However, if an appellant mails an otherwise properly constituted appeal to the responsible contracting officer (instead of the ASBCA), the ASBCA will consider the filing to be "tantamount to filing an appeal with this board." (131) This holding is in line with the ASBCA's "practice of liberally construing appeal notices." (132) In contrast, an appellant who mails his notice of appeal to the wrong board of contract appeals runs the risk of rendering his appeal untimely, as his error will not toll the ninety-day submission requirement. (133) Appeals that are dismissed as untimely under 41 U.S.C. [section] 606 are generally disposed of "without prejudice." (134) Therefore, an untimely ASBCA appellant may still have the opportunity to obtain relief from the U.S. Court of Federal Claims (COFC), the designated judicial forum for CDA appeals. (135)

Although the ASBCA Rules do not expressly address the six-year statute of limitations on CDA appeals filed against federal contracts awarded after 1 October 1995, when litigants raise the issue, the ASBCA considers the matter to be an affirmative defense that does not impact the board's jurisdiction. (136) As a consequence, the ASBCA can review and act upon non-jurisdictional motions under ASBCA Rule 5(b), which provides no further procedural guidance or deadlines. (137) The ASBCA will treat a government motion to dismiss based on the statute of limitations as a de facto motion for summary judgment with a high substantive threshold, and will grant such a motion "only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." (138) Since the statute of limitations commences with "the accrual of the claim," (139) the ASBCA will focus on when "all events, which fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known." (140)