Actual Receipt of Notice Means Actual Receipt of Notice Under the Contracts Disputes Act
The difficulty of proving receipt by mail or facsimile is illustrated by last weeks decision of the Federal Circuit Court of Appeals in Riley and Ephrian Construction Company, Inc. v. United States, Download file reversing a summary judgment holding a contractor’s suit under the Contract Disputes Act was time barred because it was filed more than one year after the contracting officer mailed and faxed notice of his decision rejecting the claim.
Statutes and contractual provisions requiring notice often create time limits for taking additional action from the date of the other parties “receipt.” Figuring out whether and when the notice was actually received can present evidentiary problems. Proof of mailing to the correct address creates a Download file">presumption of receipt, but that presumption can be rebutted.
Under the Contract Disputes Act a contractor must file suit within one year of “receipt” of the contracting officers final decision. On November 27, 2001 a contracting officer notified Riley and Ephrian(R & E) its claim had been rejected by (i) certified letter mailed to R & E’s post office box and (ii) facsimile transmitted to the facsimile number on file for R & E’s attorney. When the contracting officer learned the letter had not been picked up, he called the attorney to ask him if he would accept another copy of the letter and faxed another notice to the attorney on January 30, 2002. The contractor filed suit within one year of January 30, but more than one year after mailing and facsimile transmission of the November 27 notice.
The district court granted summary judgment to the United States reasoning the contractor had impliedly appointed the post office its representative for purposes of receipt of the letter and the evidence was overwhelming the attorney had received the notice notwithstanding his denials of actual receipt.
The appellate court found the post office was not the contractor’s representative and that the United States had actual notice the certified letter was never received by the contractor. As for the initial facsimile to the attorney, the court held proof the facsimile was electronically transmitted was not adequate to prove receipt.
The lesson here? The first is follow up. If your rights depend on proof of receipt make sure you have a signed receipt or other proof of actual delivery and receipt. The second is check your mailbox. The contractor almost lost its right to pursue a six figure claim by failing to check its mail.