DISMISSED FOR LACK OF JURISDICTION: August 18, 1997 GSBCA 14175-C(13777-SBA) S. A. LUDSIN & CO., Applicant, v. SMALL BUSINESS ADMINISTRATION, Respondent. Steven A. Ludsin of S. A. Ludsin & Co., East Hampton, NY, appearing for Applicant. Timothy C. Treanor, Eric S. Benderson, and David A. Fishman, Office of General Counsel, Small Business Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and GOODMAN. DANIELS, Board Judge. S. A. Ludsin & Co. (Ludsin) filed an application for recovery of costs pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C.A.  504 (West 1996 & Supp. 1997). We dismiss the case for lack of jurisdiction, since the application was submitted to us later than the time permitted by statute. Background In 1995, the Small Business Administration (SBA) and Ludsin entered into a contract described as "Marketing and Sale of the U.S. Small Business Administration COLPUR 'Collateral Purchased' Real Estate." On May 3, 1996, Ludsin sent to the agency a certified claim for commissions of between $1.2 million and $1.6 million. He believed that he was entitled to this money as a result of actions taken by the parties which were related to the contract. An SBA assistant administrator, acting as contracting officer, denied the claim on July 3, 1996. On July 31, 1996, Ludsin appealed this decision to this Board. S. A. Ludsin & Co. v. Small Business Administration, GSBCA 13777-SBA, 97-1 BCA  28,812, at 143,721-25. Shortly before filing the appeal, on July 25, 1996, Ludsin had sent the assistant administrator another claim, for a final contract payment of $1,666.67. The record submitted to the Board contained no indication that the SBA ever issued a contracting officer's decision on this claim. The complaint filed by Ludsin in the pending appeal asserted that the agency owed him this final payment amount, as well as the alleged lost commissions. 97-1 BCA at 143,725-26. On February 19, 1997, the Board resolved a motion filed by the SBA regarding both of these claims. We construed the motion to be one for summary relief insofar as it addressed the lost commissions claim, and denied Ludsin's appeal of the contracting officer's decision on that claim. We took jurisdiction over the final payment claim. By effect of law, the contracting officer's failure to decide the matter was deemed a denial on the sixty- first day following his receipt of it, and Ludsin had clearly shown that he meant to appeal that deemed denial. 97-1 BCA at 143,722, 143,726-29. Ludsin's complaint also asked that the Board award the contractor costs he had allegedly incurred, apparently consisting in at least large part of attorney fees, in challenging SBA actions. We told Ludsin that to the extent that these costs included amounts he paid to appeal the deemed denial of the final payment claim, if he prevailed on that claim, he could later "file an application for an award of costs pursuant to the EAJA and our Rule 135. We caution, however, that the only costs which might be allowable are those which can fairly be allocated to that particular claim." 97-1 BCA at 143,726, 143,729. In that decision, we directed the parties to propose a schedule for further proceedings on the final payment claim. 97-1 BCA at 143,729-30. The SBA decided that the amount remaining in controversy before the Board did not justify the cost of further litigation. It therefore offered Ludsin payment of the amount he sought. Ludsin agreed to accept this offer and have this portion of the case dismissed, providing that he be allowed to retain his right to file an application or applications for reimbursement of attorney fees and costs incurred as to the case. The SBA recognized that he could make such a filing or filings. The case was dismissed on March 14, 1997. S. A. Ludsin & Co. v. Small Business Administration, GSBCA 13777-SBA (Mar. 14, 1997). By letter dated March 24, 1997, Ludsin sent to one of the attorneys who represented the SBA in that case what he called "a record of fees, costs and expenses for the final contract payment of $1,666.67 pursuant to the Order of the GSBCA dated March 14, 1997." He asserted in the letter, "This application serves as the timely assertion of fees and costs I seek . . . through . . . the Equal Access to Justice Act 5 U.S.C. Section 504. The GSBCA had allowed this application to be filed by April 14, 1997." The letter was stamped as having been received in the SBA's Office of Litigation on March 31, 1997. On April 24, 1997, the SBA, apparently believing that Ludsin had sent his March 24 letter to the Board, filed with us a response to that letter. Ludsin then sent us three missives regarding his request for reimbursement of costs. The Board convened a telephonic conference to discuss the matter. At this conference, Mr. Ludsin admitted that he had not filed his application with us, but explained that he had thought that by sending the letter to the SBA, he had met any timeliness requirement for filing. He requested leave to file a cost application directly with the Board by May 6, 1997. We granted the request, but also authorized the SBA, at its request, to submit a motion to dismiss the application as untimely filed. Ludsin submitted an application on May 2. It was docketed as GSBCA 14175-C(13777-SBA). The May 2 application is not clear as to what moneys it requests. At one point, Ludsin says, "The amount being sought is $1,870.00." Application at 2. Appended to the application is a document entitled "Itemization of Fees and Other Expenses," which shows a total of $1,870 in costs allegedly incurred between February 9 and August 9, 1996. Among these costs are legal fees of $1,575. At another point, Ludsin says, "[A]ppellant requests reimbursement of attorney fees . . . in the amount of $3678.09." Id. at 3. The application includes an invoice from a law firm for "services for the period April 1-30, 1996" ($3,542) and a canceled check from Mr. Ludsin to the firm in the amount of $3,678.09. The difference between the two amounts apparently consists of interest which accrued on the bill prior to payment. Discussion The Equal Access to Justice Act provides that "[a] party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section." 5 U.S.C.A.  504(a)(2). The term "agency," as used in this sentence, refers to "an agency that conducts an adversary adjudication," since that is the entity which is authorized by the Act to "award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding." Id.  504(a)(1). One of the forms of "adversary adjudication" for which EAJA awards may be made is "any appeal of a [contracting officer's] decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board of contract appeals." Id.  504(b)(1)(C). Such boards have been established within various agencies of the executive branch of Government. 41 U.S.C.  607(a)(1) (1994). An agency which enters into contracts with private parties but does not have a board of its own must "arrange for appeals from decisions by [its] contracting officers . . . to be decided by a board of contract appeals of another executive agency." Id.  607(c). The SBA has arranged for appeals from decisions by its contracting officers to be decided by this Board. Consequently, for purposes of the EAJA, the "agency that conducts an adversary adjudication" involving an appeal of an SBA contracting officer's decision is this Board. Under the EAJA, then, for Ludsin's cost application to be eligible for further consideration, Ludsin, the party seeking an award of fees and other expenses, must have submitted its application to this Board, the agency that conducted the adversary adjudication between Ludsin and the SBA, within thirty days of the final disposition of the adjudication. The thirty- day period for filing an EAJA cost application is jurisdictional; it cannot be waived by the Board or the parties. Griffin Services, Inc. v. General Services Administration, GSBCA 11735-C(11171), 94-2 BCA  26,624, at 132,440 (1993)(citing J.M.T. Machine Co. v. United States, 826 F.2d 1042, 1047 (Fed. Cir. 1987)). The parties agree that final disposition occurred through the Board's issuance of a dismissal order on March 14, 1997. Ludsin submitted his application to SBA counsel within thirty days of that date, but did not file it with the Board until after the thirty-day period had passed. The question placed before us, through the SBA's motion, is whether submission to agency counsel meets the statute's time requirement. The EAJA is a waiver of sovereign immunity, and as such, must be strictly construed. Levernier Construction, Inc. v. United States, 947 F.2d 497, 502 (Fed. Cir. 1991); Gilroy-Sims & Associates v. General Services Administration, GSBCA 11778-C(8720, et al.), 93-1 BCA  25,547, at 127,246 (1992). As the Court of Appeals for the Federal Circuit has explained, this law "lifts the bar of sovereign immunity for award of fees in suits brought by litigants qualifying under the statute, but does so only to the extent explicitly and unequivocally provided." Levernier, 947 F.2d at 502 (quoting Fidelity Construction Co. v. United States, 700 F.2d 1379, 1386 (Fed. Cir.), cert. denied, 464 U.S. 826 (1983)). That Court has further counseled: In construing a statute waiving the sovereign immunity of the United States, great care must be taken not to expand liability beyond that which was explicitly consented to by Congress. It is an error to suppose that the ordinary canons of statutory construction are to be applied in this context, if they would add anything to what Congress has expressly said. Id. (quoting Fidelity, 700 F.2d at 1387). Another circuit has held that this advice applies specifically to the thirty-day time limit for filing an application. Monark Boat Co. v. National Labor Relations Board, 708 F.2d 1322, 1327 (8th Cir. 1983). In our decision in the underlying appeal, we directed Ludsin's attention to one of the Board's Rules of Procedure, Rule 135, "Award of Costs." This rule provides, in part, as follows: (a) Applications for costs. An appropriate party in a proceeding before the Board may apply for an award of costs, including if applicable an award of attorney fees, under the Equal Access to Justice Act, 5 U.S.C. 504, . . . subsequent to the Board's decision in the proceeding. . . . (b) Time for filing. A party seeking an award may submit an application no later than 30 calendar days after a final disposition in the underlying appeal. . . . 61 Fed. Reg. 52,347, 52,361 (1996) (to be codified at 48 CFR 6101.35). Our rules define the term "application" to mean "a submission to the Board of a request for award of costs, under the Equal Access to Justice Act, 5 U.S.C. 504, pursuant to Rule 135." Rule 101(b)(2). The rules also contain this definition of "filing": "[A]n application for award of costs is filed 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." Rule 101(b)(5)(I). The rules govern proceedings in all cases filed with the Board. Rule 101(a). In selecting this Board to decide appeals from decisions of its contracting officers, the SBA has in effect provided that all such appeals by its contractors will be subject to these rules. Applying the teachings of the Court of Appeals for the Federal Circuit to our own Rules of Procedure, we conclude that under these rules, an application for costs under the EAJA is timely only if it is received by the Office of the Clerk or mailed to that office no later than thirty calendar days after a final disposition of the underlying appeal. The rules do not make Government counsel our agent for the purpose of receiving cost applications. The rules, by treating the Board separately from the agency, are consistent with what we comprehend to be the intent of Congress and the understanding of that intent by our appellate authority. The Board, like all boards of contract appeals established under the Contract Disputes Act of 1978, 41 U.S.C.  601-613 (1994) (CDA), is an "entity quite distinct from the contracting agency." Boeing Petroleum Services, Inc. v. Watkins, 935 F.2d 1260, 1261 (Fed. Cir. 1991). As a quasi-judicial tribunal, we function as a court and must consequently have the "requisite independence" to resolve disputes between agencies and their contractors. S. Rep. No. 1118, 95th Cong., 2d Sess. 13, 24-26 (1978), reprinted in 1978 U.S. Code Cong. & Admin. News 5235, 5247, 5258-60 (1978). As emphasized by the Court of Appeals, we "do not act as a representative of the agency." Boeing, 935 F.2d at 1261 (quoting S. Rep. No. 1118 at 26). If this functionally independent Board may not act as a representative of the agency, it seems even less likely that the agency might act as a representative of the Board -- for example, in receiving case filings. We recognize that earlier this year, the Armed Services Board of Contract Appeals (ASBCA) came to a contrary conclusion. Where an application for EAJA costs went to Government counsel, but not that board, within thirty days of final disposition of an appeal, the ASBCA held that the application was timely. In so doing, it reasoned that a CDA appeal from a final decision of a contracting officers may be accepted as timely if it is filed within the relevant time limit with a Government official who is not a board member or employee, so an EAJA application may similarly be accepted as timely. Industrial Steel, Inc., ASBCA 49632, et al., 97-1 BCA  28,979 (citing Bristol Electronics Corp., ASBCA 25140, et al., 87-2 BCA  19,697). Whatever the merits of the ASBCA's view as to timeliness of CDA appeals, the CDA and the EAJA are different statutes, and understandings of timeliness for the former are not necessarily applicable to the latter. A CDA appeal may be a contractor's introduction to a board's quasi-judicial processes; by the time the contractor is ready to submit an EAJA application, however, it is acquainted with those processes and, at least at this Board, has a copy of the tribunal's rules. (Ludsin additionally had, in the decision we issued, a specific reference to the pertinent rule.) We believe that the EAJA commands a different result than the one the ASBCA has reached -- particularly in the case of an entity like our own, which has published rules for EAJA applications. Cf. Industrial Steel, 97-1 BCA at 144,322 n.*; Defense Systems Corp., ASBCA 42939, et al., 97-1 BCA  28,895, at 144,074 n.8 (ASBCA has not issued EAJA procedures; it has "interim procedures" which are for "guidance only"). We note additionally that if we were to reach the merits of this case, we would have no difficulty in denying Ludsin's application. The law is clear that the EAJA permits reimbursement only of those costs which were incurred after the contracting officer decision in question was issued. Earlier costs are considered not to have been incurred in connection with the adversary proceeding. Levernier, 947 F.2d at 502; Vehicle Maintenance Services v. General Services Administration, GSBCA 12942-C(11663), 95-1 BCA  27,513, at 137,109; Spectrum Leasing Corp. v. General Services Administration, GSBCA 10902-C(7347), et al., 93-1 BCA  25,317, at 126,151; American Power, Inc., GSBCA 10558-C(8752), 91-2 BCA  23,766, at 119,046. Ludsin presented the claim relevant to this cost application to the contracting officer on July 25, 1996. Since the contracting officer never issued a decision on the claim, he was deemed to have denied it on the sixty-first day following his receipt of it -- on September 24, 1996. No matter which of the two versions of costs Ludsin is actually seeking, all of the costs for which he requests reimbursement were incurred prior to that date. Ludsin's contentions that all the matters he raised in the underlying appeal were parts of a single claim, and that costs incurred as early as late 1995 are eligible for reimbursement under EAJA, are spurious. Both the parties and the Board have treated the various matters, throughout their existence here, as separate and distinct. They were considered in the context of a single appeal solely for reasons of convenience. Ludsin could not have filed an EAJA application while our ruling on the lost commissions claim is before the Court of Appeals unless he had recognized, as the SBA and the Board have, that the separate and distinct final payment claim (to which the application pertains) has been fully resolved. The EAJA demands that other requirements be met as well before a cost award may be made, but we would not have to consider them since the application would so clearly fail for the reason that the asserted costs were all incurred before the contracting officer was deemed to have denied the final payment claim. Decision The application is DISMISSED FOR LACK OF JURISDICTION. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ __________________________ ANTHONY S. BORWICK ALLAN H. GOODMAN Board Judge Board Judge