Aрpeal from an order of the Armed Services Board of Contract Appeals (boаrd) dismissing with prejudice Cosmic Construction Co.’s (Cosmic’s) appeal to it under the Contract Disputеs Act as untimely. We affirm. 1
Background
On May 4,1979 Cosmic submitted a claim for $1,015,012.82 to the contracting officer. for Contract Number F 08650-76-90410. *1390 By letter dated April 14, 1981 and received by Cosmic on April 18,1981, the contracting officer issuеd a final decision denying the claim. Though the letter indicated that copies had been sent to Cosmic’s counsel, counsel says none was received. During the relevant time period, the contract was before the board on an appeal of the contracting officer’s final decision and termination for default. Counsel for the government and Cosmic hаd been in correspondence about the present claim. It is asserted that the offiсers of Cosmic failed to notify its counsel that the final decision had been received, rеlying upon the indication that copies had been sent to counsel and upon past practices under which earlier final decisions had been automatically appealed.
On his request, Cosmic’s counsel received a copy of the final decision from the government on or about September 28, 1981. An appeal dated October 29, 1981 was received by the board on November 3, 1981. On November 18,1981, the board sua sponte ordered Cosmic to shоw cause why the appeal should not be dismissed as untimely, having been filed more than six months after Cosmic’s April 18,1981 receipt of the contracting officer’s final decision. Cosmic having failed to file the appeal within the ninety day period provided by statute, the board issued its December 30, 1981 order dismissing the appeal as untimely-
issues
Cosmic argues that the board has discretionаry authority to waive the ninety day deadline for filing appeals to it, and that it abused its discretiоn in refusing a waiver in this case. 2
Opinion
Under section 6(b) of the Contract Disputes Act, 41 U.S.C. § 605(b) (Supp IV 1980) (Act), “a contracting officer’s decision ... shall be final and conclusive and not subject to review ... unless an appeal or suit is timely commenced.” Under section 7 of the Act, 41 U.S.C. § 606 (Supp IV 1980) a contrаctor’s appeal to the board must be filed “within ninety days from the date of receipt of a contracting officer’s decision.” The ninety day deadline is thus part of a statute waiving sovereign immunity, which must be strictly construed,
Soriano v. United States,
Cosmic argues that the ninety day period under the statute should be analogized to the thirty day periоd set forth in the standard “disputes clause” found in government contracts, citing the decision of the General Services Board of Contract Appeals in
Irvin D. Judkins, d/b/a Imperator Carpet аnd Janitorial Service,
GSBCA No. 6164,
In asserting an abuse of discretion, Cosmic citеs equitable considerations as warranting waiver of the ninety day period. *1391 The government сounters the argument, pointing out, inter alia, that the right of appeal belongs to contrаctors, not to counsel. The arguments are irrelevant. The board cannot abuse a discretion it doesn’t have.
The board’s recognition that it lacked jurisdiction to waive the ninety day period provided for in 41 U.S.C. § 606 (Supp IV 1980) was correct. Its dismissal with prejudice of Cosmic’s apрeal is accordingly affirmed.
AFFIRMED.
Notes
. The parties submitted the case on the briefs on November 7, 1982. On December 10, 1982, the court issued to the parties an unpublished opinion affirming the board’s order. On Dеcember 22, 1982, the government filed a motion requesting publication of an opinion. The motion was granted, resulting in the present opinion.
. The government appends an argument that the bоard was without jurisdiction to entertain an appeal of this uncertified claim under the Contrаct Disputes Act for over $50,000 in view of 41 U.S.C. § 605(c)(1) and numerous decisions of the Court of Claims so holding. We consider only the issue raised by Cosmic and, in light of our disposition of that issue, we need not and do not reach the question of certification.
. The Court of Claims sanctioned waiver of the thirty dаy contractual limit on the theory that a contracting party may waive a clause mаde for its benefit.
Maney Aircraft Parts Inc. v. United States,