_______________________________________________________ DISMISSED FOR LACK OF JURISDICTION: February 12, 1993 _______________________________________________________ GSBCA 12153 HILL CONSTRUCTORS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Derek Glanvill, President of Hill Constructors, Inc., Houston, TX, appearing for Appellant. Lee W. Crook, III, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges HENDLEY, VERGILIO, and DeGRAFF. DeGRAFF, Board Judge. Appellant, Hill Constructors, Inc. (Hill), seeks to challenge a contracting officer's decision that denied appellant's claim for $15,570. Respondent filed a motion to dismiss, asserting that the Board lacks jurisdiction to consider this appeal because it was not timely filed. Appellant filed a motion requesting that the appeal be dismissed, without prejudice to being refiled. Because the appeal was filed untimely at the Board, respondent's motion is granted and appellant's motion is denied. Findings of Fact[foot #] 1 The parties entered into contract GS-07P-89-HUC-0074, project ITX87002, for the conversion and modernization of the United States Post Office located in Austin, Texas. By claim ----------- FOOTNOTE BEGINS --------- [foot #] 1 Because no appeal file was submitted, the facts recited in this opinion are based upon documents appended to the notice of appeal and correspondence from the parties to the Board. ----------- FOOTNOTE ENDS ----------- letter dated June 5, 1992, Hill requested payment of $15,570 for work performed in connection with waterproofing installation. The contracting officer denied Hill's claim in a decision dated July 20, 1992. The decision notified Hill that, if it wished to file an appeal with the Board, it was required to mail its notice of appeal to the Board within ninety days from the date it received the decision.[foot #] 2 The contracting officer sent the decision to Hill by certified mail. Hill signed the certified mail receipt on July 22, 1992. On October 26, 1992, ninety-six days after Hill received the contracting officer's final decision, Hill sent its appeal to the Board by private courier. The Board received Hill's appeal on October 27, 1992, ninety-seven days after Hill received the contracting officer's final decision. Discussion Section 6(b) of the Contract Disputes Act, 41 U.S.C. 605(b) (1988), provides that a contracting officer's decision is conclusive and not subject to review unless a suit or an appeal is timely commenced. The Act provides that an appeal is timely commenced if a contractor files the appeal with the Board within ninety days from the date the contractor receives the decision. 41 U.S.C. 606 (1988). The ninety-day deadline constitutes a waiver of sovereign immunity which must be strictly construed, and thus delimits the Board's jurisdiction. Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982). Because this appeal was filed more than ninety days from the date Hill received the contracting officer's decision, the appeal cannot be dismissed without prejudice to being refiled. Instead, the appeal must be dismissed for lack of jurisdiction. Decision For the foregoing reasons, the appeal is DISMISSED for lack of jurisdiction. _______________________________ MARTHA H. DeGRAFF ----------- FOOTNOTE BEGINS --------- [foot #] 2 The contracting officer's decision also explained that Hill could file a suit in what is now the United States Court of Federal Claims within one year from the date Hill received the decision. ----------- FOOTNOTE ENDS ----------- Board Judge We concur: _____________________________ _______________________________ JAMES W. HENDLEY JOSEPH A. VERGILIO Board Judge Board Judge