The contractor appealed a contracting officer’s final decision to the ASBCA but filed its notice of appeal 91 days after receiving the decision—one day past the Contract Disputes Act’s strict 90-day jurisdictional deadline. The contractor did not oppose dismissal but requested it be without prejudice. The Board ruled it lacked jurisdiction to hear the appeal and dismissed it with prejudice, finding that a dismissal “without prejudice” would be meaningless since the 90-day deadline had already expired and the appeal could not be reinstated. However, the Board noted the contractor still had time to file suit in the Court of Federal Claims under the CDA’s alternative 12-month deadline.

Appeal of Wild Hare Haulers, LLC, ASBCA Nos. 64596, 64597, 64598

Background – The contractor received a contracting officer’s final decision from the Army on March 20, 2026, addressing three separate claims. The contractor filed its notice of appeal with the ASBCA on June 19, 2026—91 days after receiving the decision. The government moved to dismiss for lack of jurisdiction, arguing the contractor missed the CDA’s mandatory 90-day appeal deadline. The contractor filed a notice of non-opposition and requested dismissal without prejudice. The government objected, arguing dismissal should be with prejudice.

Jurisdictional Deadline Strictly Enforced – The CDA requires contractors to file appeals within 90 days of receiving a contracting officer’s final decision. This deadline is jurisdictional and cannot be waived. The contractor admitted it received the decision on March 20, 2026, and the record confirmed this date. The contractor’s June 19 filing came one day too late. The contractor bore the burden of proving the Board’s jurisdiction and failed to do so. The Federal Circuit has repeatedly held that the 90-day deadline is strict and non-negotiable. Because the contractor missed the deadline, the Board lacked authority to hear the appeal and had no choice but to dismiss.

With Prejudice or Without? – The contractor requested dismissal without prejudice, hoping to preserve its right to refile. Board Rule 18(b) allows dismissal without prejudice when appeals must be suspended for reasons beyond the Board’s control. But that rule applies only to cases properly within the Board’s jurisdiction that are temporarily suspended. It does not apply when a jurisdictional defect exists from the outset. The Board also considered whether to treat the contractor’s non-opposition as a voluntary withdrawal, which would typically be without prejudice under federal civil procedure rules. However, the Board concluded that labeling the dismissal “without prejudice” would be purely semantic since the 90-day deadline had passed and could not be revived.

Alternative Remedy Remains Availablle – The Board noted that while dismissal was with prejudice as to the Board appeal, the contractor retained an important alternative remedy. Under the CDA, contractors may choose between two forums: they can appeal to a Board within 90 days or file suit in the Court of Federal Claims within 12 months of receiving the final decision. Since only 91 days had passed, the contractor still had nearly 11 months remaining to file suit in the Court of Federal Claims on the same claims.

The contractor is represented by Aron C. Beezley, Esq., Jenna R. Mazzella, Esq., and Owen E. Salyers, Esq. of Bradley Arant Boult Cummings LLP. The government is represented by CPT Sara E. Bennett, JA, and MAJ Katharine M. Calderon, JA, Trial Attorneys, and Dana J. Chase, Esq., Army Chief Trial Attorney.