Full Opinion

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Wild Hare Haulers, LLC ) ASBCA Nos. 64596, 64597, 64598 ) Under Contract No. W91249-25-D-A001 ) T.O. W91249-25-F-A013 ) APPEARANCES FOR THE APPELLANT: Aron C. Beezley, Esq. Jenna R. Mazzella, Esq. Bradley Arant Boult Cummings LLP Washington, DC Owen E. Salyers, Esq. Bradley Arant Boult Cummings LLP Charlotte, NC APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. Army Chief Trial Attorney CPT Sara E. Bennett, JA MAJ Katharine M. Calderon, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE WILSON ON THE GOVERNMENT’S MOTION TO DISMISS Appellant states that it received a contracting officer’s final decision (COFD) from the government on March 20, 2026.1 Appellant filed a notice of appeal with the Board via email dated June 19, 2026 – 91 days after it received the COFD. On June 29, 2026, the government filed a motion to dismiss the appeals for lack of jurisdiction. The government alleged appellant failed to comply with the 90-day deadline for filing appeals with the Board pursuant to the Contract Disputes Act (CDA), 41 U.S.C. § 7104(a), because it filed its appeal 91 days after receipt of the COFD (gov’t mot. at 2-3). The government further noted that the Federal Circuit has held that the 90-day deadline is a strict jurisdictional requirement that cannot be waived (id. at 3 (citing Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982))). 1 The COFD addressed three separate claims from appellant, which the Board docketed as ASBCA Nos. 64596-98. On July 6, 2026, appellant filed a one-page “notice of non-opposition” to the government’s motion to dismiss. In that document, appellant stated that it “does not oppose the Respondent’s motion and respectfully requests the Board dismiss the subject appeals without prejudice for lack of jurisdiction.” (App. resp. at 1) (emphasis added) By Order dated July 23, 2026, the Board requested that the government advise whether it intended to respond to appellant’s notice of non-opposition. On July 30, 2026, the government responded that it objected to dismissal of the appeals without prejudice, citing Cosmic Construction for the proposition that “[t]here is precedential authority for the Board to dismiss these appeals with prejudice” (gov’t corr. ltr. dtd. July 30, 2026 (citing Cosmic Constr., 697 F.2d at 1390-91)). The government then requested that the Board dismiss the appeals with prejudice or set a briefing schedule for the parties to argue the issue. Appellant did not file a reply. This decision ensued. DECISION Appellant bears the burden of proving our jurisdiction by a preponderance of the evidence. US Pan Am. Sols., ASBCA No. 63957, 25-1 BCA ¶ 38,814 at 188,810- 11 (citing, inter alia, Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)), aff’d on recon., 25-1 BCA ¶ 38,890. Under the CDA, within 90 days from the date of receipt of a COFD, a contractor may appeal the decision to an agency Board of Contract Appeals (41 U.S.C. § 7104(a)), or “bring an action directly on the claim in the United States Court of Federal Claims” within 12 months from the date of receipt of a COFD (41 U.S.C. § 7104(b)(3)). Here, there is no dispute that appellant failed to meet that deadline. Appellant admitted as much in its notice of appeal when it stated it received the COFD on March 20, 2026, and evidence in the record supports that statement (see R4, tab 83 (email from government dated March 20, 2026, forwarding the COFD)). Moreover, rather than challenging the government’s motion to dismiss, appellant filed its notice of non-opposition requesting dismissal (app. resp. at 1). Accordingly, we conclude that we do not possess jurisdiction to entertain appellant’s appeals. See US Pan Am. Sols., 25-1 BCA ¶ 38,814 at 188,812 (Board dismissed appeal filed 91 days after receipt of the COFD.). The only remaining issue to be decided is the dispute between the parties about whether the appeals should be dismissed without prejudice. Board Rule 18(b), which covers dismissals without prejudice, states in pertinent part: In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. Where the suspension has continued, or may continue, for an inordinate length of 2 time, the Board may dismiss such appeals from its docket for a period of time without prejudice to their restoration. Unless either party or the Board moves to reinstate the appeal within the time period set forth in the dismissal order, or if no time period is set forth, within one year from the date of the dismissal order, the dismissal shall be deemed to be with prejudice. This rule applies to temporary suspensions of active cases properly within the Board’s jurisdiction. As we have determined that a jurisdictional defect exists, there is no remaining avenue for reinstatement of these appeals. Accordingly, Board Rule 18 is of no avail to appellant. See Bonneville Assocs., Ltd. P’ship v. Barram, 165 F.3d 1360, 1364-65 (Fed. Cir. 1999) (appellant not entitled, under GSBCA rule similar to Rule 18, to reinstate appeal within three years where dismissal was at appellant’s request and 90-day appeal period had run at time of attempted reinstatement). Appellant’s notice of non-opposition might be interpreted as a voluntary withdrawal of its appeal, which would be without prejudice if we were bound by Rule 41(a)(1)(A)(i) and (B) of the Federal Rules of Civil Procedure. Bonneville, 165 F.3d at 1364. While we look to the Federal Rules for guidance, we have considered other factors when deciding whether a voluntary dismissal should be with or without prejudice. Lankford-Sysco Food Servs., Inc., ASBCA No. 52170, 00-2 BCA ¶ 30,945 at 152,741. Most relevant here, “a dismissal nominally without prejudice may effectively be a dismissal with prejudice if the statute of limitations has run.” Insulet Corp. v. EOFlow, Co., 176 F.4th 1347, 1352 (Fed. Cir. 2026). That is the case here, and we see no reason to state that the dismissal is without prejudice when it functionally is with prejudice. Id. (“[w]hether a dismissal is with prejudice ‘is functional, rather than semantic’”) (quoting Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1190 (Fed. Cir. 2004)). 3 CONCLUSION The government’s motion is granted, and the appeals are dismissed from the Board’s docket with prejudice. 2 Dated: September 15, 2026 OWEN C. WILSON Administrative Judge Chairman Armed Services Board of Contract Appeals I concur I concur DAVID D’ALESSANDRIS THOMAS P. MCLISH Administrative Judge Administrative Judge Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA Nos. 64596, 64597, 64598, Appeals of Wild Hare Haulers, LLC, rendered in conformance with the Board’s Charter. Dated: September 15, 2026 PAULLA K. GATES-LEWIS Recorder, Armed Services Board of Contract Appeals 2 Notwithstanding this disposition, appellant may still file suit under the CDA in the Court of Federal Claims within 12 months from the date of its receipt of the COFD. Quimba Software, Inc., ASBCA No. 57636, 12-1 BCA ¶ 34,910 at 171,652 n.1 (citing 41 U.S.C. § 7104(b)(3)). 4