Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405


                                                                                                              

      DISMISSED FOR LACK OF JURISDICTION: February 24, 2003
                                                                                                              


                           GSBCA 16056


                    RAY COMMUNICATIONS, INC.,

                                             Appellant,

                                v.

                 GENERAL SERVICES ADMINISTRATION,

                                             Respondent.

     Dr. Leonard Ray, Sr., President of Ray Communications, Inc., Philadelphia, PA,
appearing for Appellant.

     Michael J. Noble, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.

Before Board Judges DANIELS (Chairman), BORWICK, and NEILL.

DANIELS, Board Judge.

     The General Services Administration (GSA), respondent, moves the Board to dismiss
for lack of jurisdiction an appeal filed by Ray Communications, Inc. (Ray).  We grant the
motion, as the appeal was filed too late for us to hear it.

                            Background

     On December 2, 1998, GSA awarded to Ray a multiple award schedule contract with
a performance period of December 2, 1998, through December 1, 2003.

     By decision dated October 2, 2002, a GSA contracting officer canceled the contract,
effective on November 3, 2002, and determined that Ray owed GSA $17,935 on unreported
sales under the instrument.  The contracting officer advised Ray that if it wished to appeal
her decision to this Board, it would have to do so within ninety days from the date on which
it received the decision.

     The contracting officer's decision was sent to Ray by both facsimile transmission and
commercial courier service.  Ray received the facsimile transmission on the afternoon of
October 2, 2002, and the copy delivered by courier on the morning of October 3.

     Ray's notice of appeal is dated December 23, 2002.  The notice of appeal was sent to
us in the United States mail.  The envelope in which it arrived is postmarked January 10,
2003, and was delivered on January 16.  Ray has presented no evidence as to the date on
which it mailed the appeal (or as to any other matter in response to the motion).

                            Discussion

     The Contract Disputes Act of 1978 provides:  "Within ninety days from the date of
receipt of a contracting officer's decision . . . , the contractor may appeal such decision to an
agency board of contract appeals. . . ."  41 U.S.C.   606 (2000).

     The deadline for filing an appeal is unforgiving; it has been strictly construed by the
Court of Appeals for the Federal Circuit because the authorization to make the filing is a
waiver of sovereign immunity.  As that court has held, "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."  D. L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir. 1997) (citing
Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982)).  The
Board has consistently followed the court's directive by dismissing for lack of jurisdiction
appeals which are filed more than ninety days after the filers received the subject contracting
officer decisions.  E.g., Mid-South Metals, Inc. v. General Services Administration, GSBCA
15702, 02-1 BCA   31,723 (2001); D. L. Woods Construction, Inc. v. General Services
Administration, GSBCA 13882, 97-2 BCA   29,009 (1996); Wood & Co. v. Department of
the Treasury, GSBCA 12452-TD, 94-1 BCA   26,395 (1993).

     Ray received the contracting officer's decision on October 2, 2002.  (The receipt of
a second copy of the decision on October 3 is superfluous for the purpose of determining date
of receipt.)  Filing generally occurs when a document is received by the Office of the Clerk
of the Board, but if a notice of appeal is mailed, it is considered to have been filed on the date
on which it is mailed.  A United States Postal Service postmark is prima facie evidence that
the document with which it is associated was mailed on the date of the postmark.  Rule
101(b)(5)(i) (48 CFR 6101.1(b)(5)(i) (2001)).  Ray's notice of appeal bears a postmark of
January 10, 2003, and we have no other evidence as to the date of mailing, so we conclude
that the notice was mailed on January 10.  The date typed on the notice and the date of
delivery are irrelevant for the purpose of determining when the notice was filed.

     Ninety days after October 2, 2002   the day Ray received the contracting officer's
decision   was December 31, 2002.  Ray's notice of appeal would have been timely only if
it had been filed by that date.  Because the notice of appeal was not filed until January 10,
2003   one hundred days after Ray received the decision   it is untimely, and we have no
jurisdiction to consider the appeal.

                             Decision

     The case is DISMISSED FOR LACK OF JURISDICTION.





                                   _________________________
                                   STEPHEN M. DANIELS
                                   Board Judge

We concur:




_________________________               _________________________
ANTHONY S. BORWICK            EDWIN B. NEILL
                                        Board Judge                             Board Judge