Kellogg Brown & Root Services, Inc. ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Kellogg Brown & Root Services, Inc. ) ASBCA No. 58175
)
Under Contract No. DAAA09-02-D-0007 )
APPEARANCES FOR THE APPELLANT: Jason N. Workmaster, Esq.
Alejandro L. Sarria, Esq.
Patrick J. Stanton, Esq.
Covington & Burling LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Carol L. Matsunaga, Esq.
Senior Trial Attorney
Defense Contract Management Agency
Carson, CA
OPINION BY ADMINISTRATIVE JUDGE SCOTT
ON TIMELINESS OF APPELLANT'S MOTION FOR RECONSIDERATION
AND ON APPELLANT'S MOTION FOR RECONSIDERATION
In its 13 May 2015 decision in the subject appeal, Kellogg Brown & Root
Services, Inc., ASBCA No. 58175, 15-1BCAii35,988, the Board denied appellant's
(sometimes KBR) motion for summary judgment that the government's claim was
barred by the Contract Disputes Act's six-year statute of limitations, 41 U.S.C.
§ 7103(a)(4)(A), and granted the government's cross-motion for summary judgment
that it was not time-barred. KBR moved for reconsideration by email on 26 June
2015. That day the Board issued an Order that the reconsideration motion appeared to
be untimely under Board Rule 20. The Order granted the parties until 27 July 2015 to
submit any evidence believed to affect the computation of the reconsideration motion
time period or any brief on the issue. KBR responded to the Order and has moved for
a Board determination that its reconsideration motion was timely filed. The Board did
not receive a response from the government.
For the reasons stated below, we deny KBR's motion for a ruling that its
reconsideration motion was timely and we dismiss its reconsideration motion as
untimely.
BACKGROUND
On 14 May 2015 the Board's Recorder sent a copy of the 13 May 2015 decision
in question to the parties' counsel of record by certified mail, receipt requested. The
certified mail receipt for the copy of the Board's decision sent to government counsel
was signed on 19 May 2015. The Board received the receipt on 26 May 2015. The
certified mail receipt for the copy of the Board's decision sent to KBR's counsel of
record, who represented KBR throughout the summary judgment motions period, was
signed on 23 May 2015. The Board received the receipt on 8 June 2015.
By Order dated 18 May 2015 the Board directed that, in view of the Board's
13 May 2015 decision, the parties were to file a proposed schedule for further
proceedings in this appeal. KBR' s counsel apparently did not receive this Order until
27 May 2015 (see below).
On 27 May 2015, one of the counsel then representing KBR, Margaret Brenner,
Esq., of Schirrmeister Diaz-Arrastia Brem LLP (Schirrmeister), located in Houston,
Texas, telephoned the presiding judge's paralegal assistant. Counsel indicated that
mail delivery had been slow due to flooding in Houston. She asked for a copy of the
Board's 13 May 2015 decision and the paralegal assistant sent a copy to her that day
by email.
Current counsel for KBR filed a notice of appearance with the Board on
17 June 2015, stating that they were replacing prior counsel. As indicated above, on
26 June 2015 current counsel filed "Appellant's Motion for Reconsideration" of the
Board's 13 May 2015 decision. The same day the Board issued an Order that the
Board's record showed that KBR had received the Board's decision on 23 May 2015
and that the reconsideration motion appeared to be untimely under Board Rule 20.
KBR filed a brief dated 8 July 2015 in support of its timeliness motion. The
brief appended as Exhibit A an 8 July 2015 declaration from Mark A. Font, Esq., a
Senior Counsel at Schirrmeister, who was one ofKBR's former counsel in this appeal.
Mr. Font averred that, on 14 May 2015, he checked the Board's website to determine
whether a decision on the parties' cross-motions for summary judgment had been
posted and that no decision had yet been posted (Font decl. if 3). He further averred:
4. The United States Postal Service ("USPS") has a
facility located ... about a mile and a half from the
Schirrmeister office. Despite this proximity, USPS
delivery to Schirrmeister was chronically slow and late in
the day .... Schirrmeister hired a delivery service to expedite
mail delivery. The delivery service Schirrmeister employs
is Bee-Line Delivery Service ("Bee-Line").
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5. Monday through Friday, Bee-Line typically
picks up Schirrmeister' s mail from USPS around 7 :00 am.
At the post office, Bee-Line receives a USPS-provided bin
with Schirrmeister' s mail already contained in it. If there
is any certified or return receipt mail, there will be a rubber
banded stack of green cards (receipts), which the USPS has
already removed from the corresponding envelope or
package, in the bin. Bee-Line signs the receipts and leaves
them at the post office. Bee-Line relies on the USPS to
have included in the bin the mail that corresponds to the
receipts. Bee-Line then delivers the same bin to
Schirrmeister's office door prior to 8:00 am. On
Saturdays, Bee-Line typically picks up the mail from
USPS between 10 :00 and 11 :00 am and then delivers the
bin to Schirrmeister's front door, just as occurs during the
week. Once Schirrmeister receives the bin, the firm's legal
assistant reviews and date stamps the mail to record the
date of receipt.
6. On Saturday May 23, 2015, Bee-Line employee
Guillermo Fernandez ("Fernandez") conducted a regular
pick-up from the USPS. At this pick-up, Fernandez signed
the green card which the ASBCA indicates was attached to
an envelope containing the ASBCA's May 13, 2015,
opinion (the "May 13 Opinion"). Fernandez then delivered
and left the bin at Schirrmeister' s office. Based upon
Schirrmeister' s consistent practice of date stamping mail to
record receipt, I am confident that the bin left at
Schirrmeister's office on May 23, 2015, did not include the
envelope containing the May 13 Opinion.
7. The next day Schirrmeister received mail was
Wednesday, May 27, 2015. May 24, 2015, was a Sunday,
and there was no mail delivery. Monday, May 25, 2015,
was Memorial Day, and again no mail was delivered.
Then, on the evening of May 25 and continuing into
May 26, Houston experience[ d] torrential rainfall, resulting
in mass flooding that shut down much of the city,
including Schirrmeister's offices. Accordingly the firm
did not receive mail on Tuesday May 26, 2015.
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8. On May 27, 2015, the mail received in the
May 23, 2015 USPS bin and the mail received in the
May 27, 2015 USPS bin was distributed. Included in this
mail was the Board's May 18, 2015 Order. This was the
first notice that the firm had that the Board had issued the
May 13 Opinion. I immediately checked the ASBCA
website, and the opinion was still not published or
available on the ASBCA website. A review of the firm's
mail also found no indication that the May 13 Opinion had
been delivered to Schirrmeister. My colleague,
Ms. Margaret Brenner, then called the Board to inquire as
to the status of the May 13 Opinion and, later that day, was
provided an electronic copy by Grace Feola.
9. Based upon Schirrmeister' s consistent practice
of date stamping mail to record receipt, I am confident that
it was not until June 2, 2015, that Schirrmeister received a
USPS bin containing the hard copy of the May 13 Opinion.
This copy was date stamped by the firm's legal assistant on
that day.
We find Mr. Font's declaration to be credible despite that it suffers to some
extent from hearsay. KBR did not submit an affidavit or declaration from the
Bee-Line employee, Mr. Fernandez, who signed the certified receipt on 23 May 2015
(Font decl. ~ 6), or from its former counsel's legal assistant, who is said to review and
date stamp counsel's mail to record the date of receipt (id.~ 5); or from whoever
reviewed counsel's mail, apparently on 27 May 2015, to ascertain whether the Board's
13 May 2015 decision had been delivered to the firm (id. ~ 8); or from anyone at the
local USPS station.
KBR speculates that:
8. The delay in delivering to Schirrmeister's offices
the copy of the May 13 Opinion that the Board had sent via
certified mail was caused by the failure of the USPS to
place the envelope containing the May 13 Opinion in a bin
for delivery to Schirrmeister prior to June 2, 2015. The
USPS' s delay in performing this task also is evidenced by
the fact that the Board did not receive back the signed
certified mail receipt for the envelope containing the
May 13 Opinion until June 8, 2015.
(App. mot. at 2-3)
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DISCUSSION
Board Rule 20 (formerly Board Rule 29, revised 21 July 2014) provides that a
motion for reconsideration "must be filed within 30 days from the date of the receipt
of a copy of the decision of the Board by the party filing the motion" and that
extensions of the period of time to file a motion "will not be granted," although
extensions to file a memorandum in support of a "timely-filed motion" may be
granted. Based upon the 23 May 2015 receipt date shown on the certified receipt
signed by an employee of the delivery service retained by appellant's then counsel of
record, any motion for reconsideration by appellant of the Board's 13 May 2015
decision was due to be filed by 22 June 2015. However, appellant did not file its
motion for reconsideration until 26 June 2015, four days later.
Appellant contends that the Board should find that KBR, through its former
counsel, did not receive the Board's 13 May 2015 decision on 23 May 2015, despite
the receipt signed by the delivery service's representative on that date. Rather, the
Board should find that KBR first received the decision on 27 May 2015, when its
counsel asked the Board's paralegal assistant for a copy. If that were the receipt date,
any reconsideration motion would be due by 26 June 2015 and KBR' s reconsideration
motion, filed that day, would be timely. Appellant did not cite to any law in support of
its timeliness motion.
In fact, the established law does not support appellant. The 30-day time limit is
strictly construed. Bruce E. Zoeller, ASBCA No. 56578, 14-1 BCA ii 35,480 (emailed
reconsideration motion 32 minutes late was untimely; appellant did not take advantage
of full filing period available and failed to file its motion on time through no fault of
the Board); AEC Corporation, Inc., ASBCA No. 42920, 03-1 BCA ii 32,139 (motion
filed a day late despite appellant's counsel's timely delivery to courier and courier's
alleged inability to gain access to Board building on due date was untimely);
Ship Analytics International, Inc., ASBCA No. 50914, 01-1 BCA ii 31,394 (Navy
received Board's decision when agency office authorized to receive mail on behalf of
agency received decision in ordinary course of business, not when it was later received
by counsel; government's reconsideration motion filed a day late was untimely); and
Bio-Temp Scientific, Inc., ASBCA No. 41388, 95-2 BCA ii 27,808 at 138,651
(appellant's reconsideration motion filed a day late was "plainly untimely," even if
decision did not come to counsel's attention until after it was delivered to location
designated by him for receipt of mail, because he was temporarily residing at his
parents' residence and using it as a business address; "it is 'receipt,' as opposed to
'notice,' that counts.").
Appellant's counsel's law firm elected to use a service to pick up its mail from
the nearby local USPS branch and deliver the mail to its office. Appellant
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acknowledges that an employee of the service signed the USPS certified receipt that
the Board's decision was received on 23 May 2015. Appellant appears to contend that
the employee relied entirely upon USPS to place the document to which the receipt
pertained in the mail bin he was to deliver to the law firm, and that he did not check to
verify that the document for which he signed a receipt was actually in the bin. Such a
procedure frustrates the entire purpose of the certified receipt process, upon which the
Board typically relies. The signed receipt is the best evidence of receipt. See Ship
Analytics, 01-1BCAiJ31,394 at 155,101. Appellant bears responsibility for the flaws
in its system that ensued.
Indeed, despite the facts that, on 27 May 2015, appellant's counsel learned that
the Board had issued a decision 14 days earlier and counsel received a copy by email,
and on 2 June 2015, counsel apparently received a copy from its delivery service,
including the Board's cover letter showing that the decision had been sent by certified
mail on 14 May 2015, there is no evidence that counsel made any inquiry of USPS or
its delivery service as to when the certified receipt had been signed or the location of
the decision to which the receipt had been appended. Instead, appellant assumed a risk
and waited to file its motion until 26 June 2015, which was too late.
DECISION
We deny appellant's timeliness motion and dismiss its motion for
reconsideration as untimely.
Dated: 18 August 2015
1\dministrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~~~i~~z:-----··-·· RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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I certify that the foregoing is a true copy of the Opinion and Decision of
the Armed Services Board of Contract Appeals in ASBCA No. 58175, Appeal
of Kellogg Brown & Root Services, Inc., rendered in conformance with the
Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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