__________________________________________________ DISMISSED FOR LACK OF JURISDICTION: July 29, 1994 __________________________________________________ GSBCA 12888-NGA HUNN CORPORATION, Appellant, v. NATIONAL GALLERY OF ART, Respondent. Randall R. Hunn of Hunn Corporation, Fairfax, VA, appearing for Appellant. Philip Jessup, National Gallery of Art, Washington, DC; and Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, VERGILIO, and DeGRAFF. DeGRAFF, Board Judge. Hunn Corporation (Hunn) and National Gallery of Art (NGA) entered into a contract for modifications to a building. On June 14, 1994, Hunn filed this appeal, challenging a contracting officer's decision that Hunn received on August 8, 1993. Because Hunn's appeal was not timely filed, we dismiss for lack of jurisdiction. Findings of Fact The parties entered into contract NGA-92-R-023 in June 1991. Respondent's Motion to Dismiss (NGA Motion), Exhibit 5. On February 18, 1993, Hunn submitted a claim for $40,106 to the contracting officer. The claim asserts that Hunn's performance was delayed by NGA, and requests an equitable adjustment to the contract price. NGA Motion, Exhibit 2. On July 26, 1993, the contracting officer denied Hunn's claim. NGA Motion, Exhibit 3. Hunn received the decision on August 8, 1993. Notice of Appeal at 1. On February 1, 1994, Hunn's accountant sent a letter to Hunn concerning its financial statements. In his letter, the accountant explained that the claim against NGA is shown as a receivable on Hunn's financial statements and represents a large part of Hunn's assets. The accountant also explained that his report would contain a statement describing the "possible impairment" of this receivable, and that such a statement is sometimes "fatal to a company." The accountant stated that he would not issue his report until the status of Hunn's claim against NGA was made clear. NGA Motion, Exhibit 4. On February 9, 1994, Hunn wrote a letter to the contracting officer, stating that, as a result of its accountant's review, Hunn wanted the contracting officer to reconsider her decision. The letter makes no mention of any earlier contact with the contracting officer concerning reconsideration. NGA Motion, Exhibit 4. In her declaration, the contracting officer states that she never agreed to reconsider her decision. She states that Hunn's February 9, 1994 letter was the first communication of any kind that she received concerning reconsideration of her July 26, 1994 decision. The contracting officer declares that, during a telephone conversation on February 24, 1994, Mr. Randall R. Hunn said that he intended to supply additional information concerning Hunn's claim, and he asked if she would reconsider her decision. The contracting officer states that, in response, she said that she could not prevent Hunn from supplying additional information, that she would place the information in the claim file without reviewing it, and that she would not reconsider her decision. The contracting officer declares that she told the NGA's project architect about her February 24, 1994 conversation with Mr. Hunn shortly after it occurred, including her statement that she would not reconsider her decision. NGA Motion, Exhibit 5. In his declaration, the project architect confirms the contracting officer's declaration. NGA Motion, Exhibit 9. On March 8, 1994, the contracting officer replied to Hunn's February 9, 1994 letter. In her letter, the contracting officer states, "As per our conversation of February 24, 1994, I stand by my final decision in denying your claim for additional funds of $40,106.00 as outlined in my letter dated July 26, 1993." NGA Motion, Exhibit 6. On March 10, 1994, the contracting officer participated in another telephone conversation with Mr. Hunn. The conversation was, according to the contracting officer's declaration, the same as the February 24, 1994 conversation. She explained to Mr. Hunn that she could not prevent him from supplying information, and that she would neither review any new information nor reconsider her decision. NGA Motion, Exhibit 5. In his declaration, Mr. Hunn states that, on March 10, 1994, the contracting officer said that she would consider the information which he wished to supply. Mr. Hunn states that he repeated this conversation to a neighbor, and the neighbor confirms in a declaration that Mr. Hunn told him that the contracting officer, on March 10, 1994, agreed to consider the information that Mr. Hunn wished to supply. Hunn Declaration at 3; Albers Declaration at 1. On April 13, 1994, Hunn sent a letter to the contracting officer. The letter states that Hunn would furnish a response to the contracting officer's March 10, 1994 "offer" to consider new information concerning Hunn's claim. NGA Motion, Exhibit 7. As a result of receiving this letter, the contracting officer initiated a telephone conversation with Mr. Hunn, the project architect, and the contract specialist on April 19, 1994. In her declaration, the contracting officer states that, during the April 19 conversation, she said that her decision had been issued in July 1993, that she would not reconsider her decision, and that she had never said that she would reconsider her decision. The contracting officer also declares that, during the April 19 conversation, Mr. Hunn agreed that she had not said that she would reconsider her decision. The contracting officer's memory of the telephone conversation is the same as the recollections of the project architect and the contract specialist, and is supported by a contemporaneous memorandum to the file that the contract specialist prepared at the request of the contracting officer. NGA Motion, Exhibits 5C, 8, 9. On May 5, 1994, Mr. Hunn sent a letter to the contracting officer. Mr. Hunn states, "As for our conversation last March, I did not intend to put the emphasis on the word 'offer' that your reading would reveal. You did, indeed, make a statement that you would read and 'consider' information that was relevant to the matter and I was appreciative of that fact." The letter goes on to state that Hunn believed the July 26, 1993 decision was flawed, that Hunn could demonstrate that reconsideration of its claim was warranted, and that Hunn wished to discuss its claim with the contracting officer. NGA Motion, Exhibit 10. Hunn filed this appeal with the Board on June 14, 1994. In its notice of appeal, Hunn states that, from the time it received the contracting officer's decision in August 1993, it understood that the contracting officer would reconsider her decision. The basis for Hunn's understanding is not made clear in the notice of appeal. The Board convened a conference call on July 14, 1994, to discuss further proceedings in this appeal. The Board directed the parties to supply the Board with written submissions, including any available documentation, addressing whether the contracting officer indicated to Hunn that she was willing to reconsider her decision. The Board also informed the parties that it was possible that the Board would convene an evidentiary hearing or a conference call after receipt of the parties' submissions. Hunn filed its submission on July 25, 1994, and NGA filed its submission, a motion to dismiss, on July 26, 1994. On July 27, 1994, the parties orally informed the Board that they did not see any need for a conference call or an evidentiary hearing. Discussion We possess jurisdiction to entertain an appeal if it is filed within ninety days from the date a contractor receives a contracting officer's decision. 41 U.S.C. 606 (1988). Clearly, Hunn did not file this appeal within ninety days after receipt of the contracting officer's decision. Hunn asserts that the time for appeal was extended because the contracting officer agreed to reconsider her decision. It is true that, in some instances, a contracting officer's agreement to reconsider a decision will extend the time for filing an appeal. Royal International Builders Co., ASBCA 42637, 92-1 BCA 24,685. Hunn must establish, by a preponderance of the evidence, facts which demonstrate that we have jurisdiction to hear this appeal. We are not required to accept the jurisdictional facts alleged by Hunn. Instead, we will consider the evidence presented by the parties in their submissions, weigh that evidence, and make our own factual findings concerning jurisdiction. Land v. Dollar, 330 U.S. 731 (1947); Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746 (Fed. Cir. 1988); Scott v. United States, 27 Fed. Cl. 829 (1993). After considering the evidence presented by the parties, we conclude that Hunn has not established that the contracting officer ever agreed to reconsider her July 26, 1993 decision, and so Hunn has not demonstrated the existence of jurisdiction. Hunn offers no evidence to support the statement contained in its notice of appeal that, from the time it received the contracting officer's decision in August 1993, it understood that the contracting officer would reconsider her decision. Hunn's evidence that the contracting officer agreed to reconsider her decision consists of Mr. Hunn's account of the March 10, 1994 telephone conversation, which he repeated to his neighbor and referred to in two letters. NGA offers a considerable amount of evidence to support its position. The contracting officer states that the first communication with Hunn concerning reconsideration was Hunn's February 9, 1994 letter. This seems likely, given the fact that the letter makes no mention of any earlier discussion of reconsideration, and considering that Hunn's letter was undoubtedly the result of the February 1, 1994 letter from Hunn's accountant. The contracting officer states unequivocally that she never agreed to reconsider her decision and her statement is supported by her March 8, 1994 letter to Hunn, by the declarations of the project architect and the contract specialist, and by the contemporaneous record of the four-party April 19, 1994 telephone conversation. Each time Hunn asserted that the contracting officer had agreed to reconsider her decision, the contracting officer took action to dispel this notion. After receipt of Hunn's February 9, 1994 letter and after the February 24, 1994 telephone call, the contracting officer wrote to Mr. Hunn and stated that she was not reconsidering her decision. After the March 10, 1994 telephone call and after receipt of Hunn's April 13, 1994 letter, the contracting officer initiated a telephone conversation with Mr. Hunn and two other persons who confirm that the contracting officer made it clear she had not agreed and would not agree to reconsider her decision. Further, the contracting officer, the contract specialist, and the project architect all recall that, during the April 19, 1994 conversation, Mr. Hunn agreed that the contracting officer had not offered to reconsider her decision. The evidence offered by NGA outweighs the evidence offered by Hunn. We conclude that the contracting officer never agreed to reconsider her decision. Because more than ninety days elapsed between the time Hunn received the contracting officer's decision and the time Hunn filed this appeal, we lack jurisdiction to consider this case. Decision Because Hunn did not file its appeal within the time required by the Contract Disputes Act, the appeal is DISMISSED FOR LACK OF JURISDICTION. _______________________________ MARTHA H. DeGRAFF Board Judge We concur: _____________________________ ________________________________ DONALD W. DEVINE JOSEPH A. VERGILIO Board Judge Board Judge