______________________________________________________ DISMISSED FOR LACK OF JURISDICTION: November 21, 1997 _______________________________________________________ GSBCA 13889 CWI CONSULTANTS & SERVICES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Van Clayton Lockwood of CWI Consultants & Services, Decatur, GA, appearing for Appellant. Robert C. Smith, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and NEILL. PARKER, Board Judge. Respondent, the General Services Administration (GSA), moves the Board to dismiss this appeal for lack of jurisdiction. We agree with GSA that the appeal was untimely filed and, thus, we grant GSA's motion. Background By final decision dated June 28, 1996, appellant's contract to provide janitorial services at the Office of Personnel Management Service Center in Macon, Georgia, was terminated for default. Appeal File, Exhibit 11. On the same day, Mr. Eugene Collins, a Building Inspector in GSA's Thomasville, Georgia office, personally delivered the contracting officer's decision to appellant's president. According to Mr. Collins, appellant's president opened the letter and read it, but refused to sign an acknowledgment of its receipt. Respondent's Motion to Dismiss, Exhibit 1 (Affidavit of Eugene Collins (July 23, 1997)). Respondent also faxed the letter to appellant on June 28, 1996. Appellant maintains that it did not receive the termination letter until October 8. In an affidavit, a former employee of appellant maintains that he and appellant's president refused the letter when Mr. Collins attempted to deliver it. They believed the letter to be a termination for default. Affidavit of Vincent Brint (July 28, 1997). Appellant's notice of appeal was received by the Board on September 27, 1996 -- ninety-one days after the alleged receipt of the final decision on June 28. The notice of appeal was delivered to the Board by Federal Express. Discussion Recently, the United States Court of Appeals for the Federal Circuit repeated the longstanding statutory rules for filing a timely appeal of a contracting officer's decision: Following receipt of a contracting officer's final decision, a contractor has ninety days to appeal the decision to the appropriate agency board of contract appeals. 41 U.S.C. 606.[foot #] 1 If a timely appeal is not lodged, the contracting officer's decision on the claim "shall be final and conclusive and not subject to review by any forum, tribunal, or Government agency." 41 U.S.C. 605(b). If no appeal to the Board is taken within the ninety day statutory period set forth in section 606, the Board has no jurisdiction to hear the claim. Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982). D.L. Braughler Co. v. West, No. 96-1277, slip op. at 6-7 (Fed. Cir. Oct. 27, 1997). The Board lacks jurisdiction to consider this appeal because appellant did not file its notice of appeal within the statutory ninety-day period. According to a GSA building inspector, whose credibility we have no reason to doubt, the contracting officer's final decision terminating appellant's contract was hand delivered to appellant's president on June 28, 1996. Although appellant's president refused to acknowledge receipt of the letter, he opened the letter in the building inspector's presence and read it. The letter was also faxed to appellant on the same day. We find that appellant received the contracting officer's decision on June 28. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Pursuant to 41 U.S.C. 609(a)(1) (1994), as an alternative to appealing to the agency board of contract appeals, the contractor may file suit in the United States Court of Federal Claims. Any such action must be filed within twelve months from the date of receipt of the contracting officer's final decision. 41 U.S.C. 609(a)(3). ----------- FOOTNOTE ENDS ----------- Even if appellant's version of the events is true -- that the GSA inspector attempted to deliver the letter but appellant's president refused to accept delivery, suspecting that the letter was notice of a default termination -- appellant still "received" the letter in the legal sense. A person cannot avoid the legal consequences of receiving a document by refusing to accept delivery. Conquest Construction, Inc., PSBCA 2637, 90-2 BCA 22,682. A notice of appeal is "filed" at the Board upon the earlier of (A) its receipt by the Office of the Clerk of the Board or (B) if mailed, the date on which it is mailed through the United States Postal Service. Board Rule 101(b)(5). Where a contractor uses a courier service other than the United States Postal Service, such as Federal Express, a notice of appeal is deemed filed on the date that it is received by the Board. T and D Metal Products Co., GSBCA 10279, 90-2 BCA 22,924. Appellant did not file a notice of appeal with the Board within ninety days of June 28. The notice, sent by Federal Express, arrived at the Board on September 27 -- ninety-one days after receipt of the contracting officer's decision. This was too late to confer on the Board jurisdiction over the appeal. Decision For the reasons stated above, the appeal is DISMISSED FOR LACK OF JURISDICTION. ______________________ ROBERT W. PARKER Board Judge We concur: ________________________ ______________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge