Ace-Federal Reporters

v.
Barram

226 F.3d 1329

Sept. 28, 2000

Ronald K. Henry, Kaye, Scholer, Fierman, Hays, Handler, LLP, of Washing-

ton, DC, argued for appellants. Of counsel was Mark A. Riordan. Richard P.
Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, De-
partment of Justice, of Washington, DC, argued for appellee. With him on the
brief were David W. Ogden, Assistant Attorney General; David M. Cohen,
Director; and Harold D. Lester, Jr., Assistant Director. Of counsel on the
brief was John E. Cornell, Sr. Assistant General Counsel, Office of the Gen-
eral Counsel — LP, General Services Administration, of Washington, DC.

Before MAYER, Chief Judge, MICHEL and SCHALL, Circuit Judges.

MAYER, Chief Judge.

Ace-Federal Reporters, Inc., Ann Riley & Associates, Ltd., AR-TI Recording,
Inc., California Shorthand Reporting, Executive Court Reporters, and Miller
Reporting Co., Inc. (collectively, the “contractors”) appeal from a decision of
the General Services Administration (GSA) Board of Contract Appeals, deny-
ing their claims for breach of contract. See Ace-Federal Reporters, Inc. v. Gen.
Servs. Admin., 99-1 BCA (CCH) ¶30,139 (Oct. 30, 1998). Because the board
erred in concluding that the terms of the contracts preclude recovery of lost
profits, we reverse and remand.

Background

In 1988, GSA issued a request for proposals for transcription and court re-
porting services for various federal agencies. The request for proposals con-
templated multiple award schedule contracts to be “made with more than one
supplier for comparable items at either the same or different prices for deliv-
ery to the same geographical area.” 41 CFR101-26.408-1(A) (1988). GSA
awarded contracts to ten companies, including the six appellants.

Included in each contract was the standard requirements clause found in

Federal Acquisition Regulation 52.216-21(c) which provides, “[e]xcept as this
contract otherwise provides, the Government shall order from the Contractor
all the supplies or services specified in the Schedule that are required to be
purchased by the Government activity or activities specified in the Schedule.”
48 CFR52.216-21(c) (1988). Each contract also included a termination for
convenience clause that limited government liability should GSA cancel
them. The parties stipulated that during the term of the contracts, some of
the agencies covered by the contracts contracted for transcription services
with companies that were not parties to the contracts. According to 41 CFR
101-26.401-3 (1988), and other evidence in the record, this was not permitted
absent a waiver from GSA.

In 1995, the contractors filed claims with the contracting officer alleging
breach of their contracts because of the unauthorized off-schedule purchases
and seeking lost profits and consequential damages. The contracting officer
declined to take action. The contractors appealed to the board, which consoli-
dated their claims. Before the board, GSA raised six defenses to any potential
liability: (1) the termination for convenience clause precludes recovery of lost
profits; (2) the contractors should not recover damages because they had re-
ceived orders in excess of estimates in the request for proposals; (3) grand ju-
ry reporting was not covered by the contracts; (4) off-schedule purchases
made at a lower price were permissible; (5) the contracts were illusory be-
cause the exceptions, when taken together, rendered the consideration value-
less; and (6) the contractors’ claims are barred by the statute of limitations in
the Contract Disputes Act, 41 USC 605(a), as amended by the Federal Acqui-
sition Streamlining Act of 1994, Pub.L. No. 103-355, 2351, 108 Stat. 3243,
3322 (1994).

The board specifically rejected the last defense, but did not address the re-
mainder of them because it decided sua sponte that because these were not
requirements contracts, none of the contractors were guaranteed any busi-
ness. Therefore they were not entitled to lost profits or consequential damag-
es. The contractors appeal, but do not seek review of the board’s denial of
their claims for consequential damages.

Discussion

We have jurisdiction over an appeal from a decision of an agency board of

contract appeals by virtue of 28 USC 1295(a)(10) (1994). The only issues in
this case are questions of law which we review de novo. See Caldwell &
Santmyer, Inc. v. Glickman, 55 F.3d 1578, 1581 (Fed.Cir. 1995).
“[C]ontract terms ... must fit into one of the three possible types of supply
contracts: those for a definite quantity, those for an indefinite quantity and
those for requirements,” Torncello v. United States, 231 Ct.Cl. 20, 681 F.2d
756, 761-62 (1982), although we should not be blinded by how one labels a
contract. See Maint. Eng’rs v. United States, 749 F.2d 724, 726 n. 3 (Fed.Cir.
1984). The government’s argument is that because these contracts do not con-
tain terms for a minimum or specific quantity, they are not enforceable un-
less they are requirements contracts. In distinguishing these contracts from
requirements contracts, the government stresses that the contractual lan-
guage allowed the agencies to consider other sources to assure that the pur-
chases of services are made to the best advantage of the government. 1 The
government also emphasizes that none of the contractors had an exclusive
arrangement to provide services.

The contractors respond that even though the contracts did not guarantee
them any work individually, the contractual language should not be inter-
preted as allowing the agencies to ignore the regulatory and contractual obli-
gations that restricted their placement of orders. The contractors further as-
sert that lost profits are the appropriate remedy for this breach under Locke
v. United States, 151 Ct.Cl. 262, 283 F.2d 521 (1960).

In Locke, GSA awarded contracts for typewriter repair to four companies in

the same geographic area. The contracts provided that the companies were to
be listed in a Federal Supply Schedule. Under the contracts, government
agencies were required, with few exceptions, to use the companies listed in
the schedule. The agencies could choose any company from the schedule, and
each company listed on the schedule was obligated to perform the services
specified in the contract. Locke performed some services, but after several
months GSA terminated the contract for default and removed his name from
the schedule. Locke filed an appeal with GSA’s board of review, which found
that GSA terminated the contract without proper cause, but denied his re-
quest for lost profits.

1 Section M.2 of the contracts provide:

Offerors are advised that agencies which contemplate placing orders for services
contained in the contracts resulting from this request for proposal[s] will be in-
structed, except where precluded by administrative expense or urgency considera-
tions, to consider equally those contract sources and other sources to assure that
purchases of such services are made to the best advantage of the Government,
taking into consideration the technical requirements, price, availability, delivery
time and any other pertinent factors.
On appeal, the government took the position that lost profits are not recover-
able because the contract did not guarantee that any work would be available
or that Locke would be awarded it over any other company on the schedule.
The court disagreed, holding that the possibility of obtaining work from a list-
ing in the schedule had real business value, even if there was no guarantee of
obtaining a certain amount of work. The government also asserted that any
damages were too speculative to prove. Again, however, the court determined
that “the plaintiff gave valuable consideration for the promise of a perfor-
mance which would have given him a chance at business and profit,” and
“where the value of a chance for profit is not outweighed by a countervailing
risk of loss, and where it is fairly measurable by calculable odds and by evi-
dence bearing specifically on the probabilities that the court should be al-
lowed to value that lost opportunity.” Id. at 524.

A contract is not unenforceable merely because it does not fit neatly into a
recognized category. To be valid and enforceable, a contract must have both
consideration to ensure mutuality of obligation, see generally Restatement
(Second) of Contracts 71, 72 (1981), and sufficient definiteness so as to “pro-
vide a basis for determining the existence of a breach and for giving an ap-
propriate remedy.” Id. 33(2); see, e.g., Aviation Contractor Employees, Inc. v.
United States, 945 F.2d 1568, 1572-74 (Fed.Cir. 1991). In our case, as consid-
eration for the contractors’ promises regarding price, availability, delivery,
and quantity, the government promised that it would purchase only from the
contractors on the schedule, with few exceptions. The government’s promise,
just as in Locke, has substantial business value because there were only be-
tween two and five authorized sources in each of the designated geographic
regions. Rather than vying with 18,000 other transcription services for the
government’s business, the contractors had to compete with only one to four
other contractors. The government cites the multiple awards clause of the
contract stating that the agencies are instructed to consider other sources be-
sides the contract sources. See note 1, supra. The government interprets this
clause as allowing the agencies to purchase the contractually covered services
from any source as they saw fit. However, the contractual language states
that the agencies should “consider” other sources; it does not give them au-
thority to contract with companies other than those listed absent a waiver.
Therefore, each time an agency that did not obtain a GSA waiver2 arranged

2 The pertinent regulation reads:

Requests for waivers.

(a) When an ordering office that is a mandatory user under a schedule determines
that items available from the schedule will not meet its specific needs, but similar
for services covered under the contract from a non-contract source, the gov-
ernment did not act within the limited exception and breached the contract.

There is sufficient content to the contracts to permit the determination of an

appropriate remedy. “If a reasonable probability of damage can be clearly es-
tablished, uncertainty as to the amount will not preclude recovery,” and the
board’s duty is to “make a fair and reasonable approximation of the damag-
es.” Locke, 283 F.2d at 524. The relevant factors in determining the value of a
chance for obtaining business include: the total amount of business the plain-
tiff would have been eligible for; any material facts that would have tended to
prevent the plaintiff from receiving his proportionate share of such business;
and the average expenses incurred in fulfilling the obligations of the contract.
See id. In this case, the parties have stipulated the amount of additional
transcription contracted off-schedule to the page and the amount of each con-
tractor’s market share of business. These stipulations would be a good start
on a “fair and reasonable” basis from which to calculate damages.

The board alluded to the government’s argument that it should impose a con-
structive termination for convenience on these contracts to the extent unau-
thorized off-schedule purchases were made, in effect multi-, mini- termina-
tions for convenience. The government pursues this argument here citing
Krygoski Const. Co. v. United States, 94 F.3d 1537, 1545 (Fed.Cir. 1996). The

items from another source will, it shall submit a request for waiver to the Com-
missioner, Federal Supply Service (F), GSA, Washington, DC 20406, except as
provided in (b) below. Requests shall contain the following information:
(1) A complete description of the required items, whenever possible; e.g., de-
scriptive literature such as cuts, illustrations, drawings, and brochures that
explain the characteristics and/or construction.
(2) A comparison of prices and the technical differences between the request-
ed item and the schedule item, identifying as a minimum the—
(i) Inadequacies of the schedule item to perform required functions; and
(ii) Technical, economic, or other advantages of the item requested.
(3) Quantity required.
(4) Estimated annual usage or a statement that the requirement is nonrecur-
rent or unpredictable.
(b) Ordering offices shall not initiate action to acquire similar items from non-
schedule sources until a request for waiver is approved, except as otherwise pro-
vided in interagency agreements.
48 CFR8.404-3 (1999).
“GSA granted waivers to the Federal Communications Commission, the Federal Energy
Regulatory Commission for the Office of Administrative Law Judges only, and the De-
partment of Labor, Branch of Hearings and Review.” Ace Federal at 99-1 BCA ¶30,139 at
149,105.
contractors urge us to reach the issue even though the board did not decide it
because it is solely a matter of law and it will advance these cases, which are
already into their fourth and fifth years.

We think it is advisable to address the point because we believe that in the

context of this case it is a non-issue. The GSA contracting officer insisted
throughout the administration of these contracts that they be performed as
written. She resisted efforts by using agencies to deviate from the schedule,
and did not condone rogue actions by agencies in defiance of her role as con-
tracting officer. The agencies had no authority to terminate these contracts,
in whole or in part. Their unauthorized actions were breaches, pure and sim-
ple.

“[N]o decision has upheld retroactive application of a termination for conven-

ience clause to a contract that had been fully performed in accordance with
its terms.” Maxima Corp. v. United States, 847 F.2d 1549, 1557 (Fed.Cir.
1988). We see no reason in law or logic to impose a retroactive constructive
termination for convenience here. The concept is a fiction to begin with, but
there has to be some limit to its elasticity. The contractors stood ready to per-
form throughout, did perform those orders placed, and the contract ended.

Conclusion

Accordingly, the decision of the General Services Administration Board of

Contract Appeals is reversed, and the case is remanded for further proceed-
ings consistent with this opinion.

Costs

Each party shall bear its own costs.

Reversed and Remanded

 Aerojet Solid Propulsion

00-1 BCA ¶30,855

March 17, 2000

Appearance for the Appellant: William R. Phillips, Esq., Senior Vice Presi-
dent, Law and General Counsel GenCorp, Inc., Fairlawn, OH. Appearances
for the Government: COL Nicholas P. Retson, JA, Chief Trial Attorney; MAJ
Edward E. Beauchamp, JA; CPT Kenneth G. Wilson, JA, Trial Attorneys

Opinion by Administrative Judge Tunks

ASBCA No. 44568 is a defective pricing appeal that arose from a contractor’s
failure to disclose competitive supplier quotations in its locked bid box prior
to the date of agreement on price. The Government alleges that the contrac-
tor’s failure to disclose the quotations resulted in an overstatement of the
contract price in the amount of $487,374, entitling it to a refund under the
Truth in Negotiations Act (TINA), 10 USC §2306a, as amended by Pub. L.
100-180, 4 December 1987. The contractor has paid the Government
$513,841.87, which includes the sum claimed by the Government plus accu-
mulated interest. In ASBCA No. 46057, the contractor seeks return of that
payment plus interest, asserting that the quotations were neither cost or
pricing data nor reasonably available under TINA. Only entitlement is at is-
sue.

Findings of Fact

1. On 20 August 1987, the Air Force Plant Representative Office (AFPRO)

issued a Contractor Deficiency Report (CDR) to Aerojet Solid Propulsion
Company (Aerojet), a subsidiary of GenCorp, for failure to have adequate
controls for safeguarding the confidentiality of telefaxed bids (GSR4, tab 3; tr.
1/169-71).

2. The AFPRO was responsible for reviewing and approving Aerojet’s pur-
chasing systems. The primary purpose of the AFPRO’s surveillance was to
prevent fraud in federal procurement. If the AFPRO withdrew approval of
Aerojet’s subcontract system, the system at issue here, Aerojet would have to
obtain prior approval from the Government before placing any major subcon-
tracts and submit to heightened surveillance by the AFPRO. (Tr. 1/211-13)
3. In response to the CDR, Aerojet moved its telefax machine out of the buy-
ers’ area into the procurement services area and rewrote Procurement Opera-
tions Procedure (POP) No. 1206, entitled “Quotation Control” (tr. 1/171- 73).
Under revised POP No. 1206, competitive telefax quotations were treated the
same way as competitive mail-in quotations. They were put in a locked bid
box until the day after the quotation due date. (GSR4, tab 5) POP No. 1206,
dated November 1987 provided, in part, as follows:

2. GENERAL

2.1 [Q]uotations must be safeguarded from unauthorized dis-

closure. Confidentiality must be insured for all quotes.
…
3. RESPONSIBILITIES
…
3.1.1 Receive self-addressed quotation return envelopes, open,
date/time stamp “in” the quotation.

a. If the return is in response to a “competitive” solicitation, re-

tain quote in locked file until the day after the quotation due
date. Only the number and identity of bidders shall be availa-
ble, and then only to procurement employees with a need to
know.
…
3.1.2 Bids received after the quotation due date … shall be
opened, stamped “Late Bid” and delivered to the buyer.

3.1.3 Receive FAX quotations, date/time stamp “in”, and retain

or release as in 3.1.1 above.
…
3.1.5 Five days prior to quotation due date, buyer may be ad-
vised of the number and identity of bids received ….

4. Revised POP No. 1206 satisfactorily corrected the defects in Aerojet’s han-
dling of telefax quotations (tr. 1/174-76).

5. On 6 February 1989, Aerojet solicited quotations from W.R. Grace Compa-

ny (Grace) and Angus Chemical Company (Angus) for 290,000 pounds of ni-
troethane (GSR4, tab 11). Nitroethane is the “key” and most expensive mate-
rial used to produce nitroplasticizer, a chemical used as an energetic
propellant and explosive binder in ordnance (GSR4, tab 58 at 8; Complaint
and Answer pp 1).
6. Grace submitted a quotation of $1.98 per pound and Angus submitted a
quotation of $2.00 per pound (GSR4, tab 11).

7. On 26 May 1989, the Government issued Request for Quotations (RFQ) No.
DAAA09-89-R-0311 for a 5-year multiyear contract for nitroplasticizer with
delivery to begin in May 1990 (R4, tab 1). Aerojet was the sole supplier of the
material (tr. 1/16).

8. The Government awarded letter Contract No. DAAA09-89-C-0599 to Aero-

jet on 2 August 1989 (R4, tab 1; GSR4, tab 13). The contract incorporated
FAR 52.215- 22 PRICE REDUCTION FOR DEFECTIVE COST OR PRICING
DATA (APR 1988), which provided, in part, as follows:

(a) If any price, including profit or fee, negotiated in connection

with this contract … was increased by any significant amount
because (1) the Contractor … furnished cost or pricing data
that were not complete, accurate, and current as certified in its
Certificate of Current Cost or Pricing Data, … the price or cost
shall be reduced accordingly and the contract shall be modified
to reflect the reduction.

9. The following portions of 10 USC §2306a are relevant to these appeals:

(d)(2) In determining for purposes of a contract price adjust-

ment under [TINA] whether, and to what extent, a contract
price was increased because the contractor … submitted defec-
tive cost or pricing data, it shall be a defense that the United
States did not rely on the defective data submitted by the con-
tractor …

(National Defense Authorization Act for Fiscal Year 1987, PL 99-661, §952,
100 Stat. 3947).

(g) Cost or Pricing Data Defined. In this section, the term “cost
or pricing data” means all facts that, as of the date of agree-
ment on the price of a contract … a prudent buyer or seller
would reasonably expect to affect price negotiations significant-
ly.

(National Defense Authorization Act for Fiscal Year 1988 and 1989, PL 100-
180, §804, 101 Stat. 1125).
10. The following provisions of the Federal Acquisition Regulation (FAR) in
effect on the date of the RFQ are also relevant, in part, to this dispute:

15.801 Definitions.
…
“Cost or pricing data” means all facts as of the date of price
agreement that prudent buyers and sellers would reasonably
expect to affect price negotiations significantly … Cost or pric-
ing data are more than historical accounting data; they are all
the facts that can be reasonably expected to contribute to the
soundness of estimates of future costs and to the validity of de-
terminations of costs already incurred. They also include such
factors as (a) vendor quotations …

15.804-7 Defective cost or pricing data.

(b)(1) If, after award, cost or pricing data are found to be inac-
curate, incomplete, or noncurrent as of the date of final agree-
ment on price given on the … Certificate of Current Cost or
Pricing Data, the Government is entitled to a price adjustment
… of any significant amount by which the price was increased
because of the defective data.

(2) In arriving at a price adjustment, the contracting officer

shall consider (i) the time by which the cost or pricing data be-
came reasonably available to the contractor and (ii) the extent
to which the Government relied upon the defective data.

11. Aerojet submitted its price proposal to the Government on 19 June 1989
(GSR4, tab 18).

12. On 10 August 1989, Mr. Robert T. Estabrook, one of Aerojet’s chemical

buyers, orally confirmed the Grace quotation of $1.98 per pound (GSR4, tab
11; tr. 150).

13. On 30 August 1989, Aerojet submitted a revised price proposal. The

priced Bill of Materials (BOM) in the proposal reflected a price of $1,289,472
for 651,472 pounds of nitroethane and indicated that the price was based on
the 10 August 1989 Grace quotation (Gov’t br. at p 47; app. br. at 1; GSR4,
tabs 7, 27). The material overview contained the following information con-
cerning Aerojet’s prices:

Chemical prices reflect Price in Effect quotes escalated using DRI Industrial
Chemical index WPI06INS. Those items over $100,000 were bid as follows:

1. Nitroethane – 95% Competitively bid

…
Final chemical quotes will be solicited 8 to 10 weeks prior to
required delivery.

(GSR4, tab 7)

14. A “price in effect” quotation is one that will be adjusted in the future. It is
not a firm quotation. (Tr. 1/108, 187)

15. In the 1990 time period, the price of chemical materials was subject to vi-
olent fluctuations (ASR4, tab 1 at 14).

16. Joint Stipulation of Fact No. 47 provided, and we find, as follows:

Both the Government and Aerojet were aware that Nitroethane

would have to be purchased by Aerojet to manufacture the Ni-
troplasticizer to be delivered under Contract DAAA09-89-C-
0599. The “Material Overview” page in Aerojet’s price proposal
of 30 August 1989 stated that purchase orders for Nitroethane
would be solicited eight to ten weeks prior to the time the
chemical was required. The Government was aware of the
schedule requirements under the Contract for Nitroplasticizer
deliveries to the Government.

17. On 13 February 1990, Aerojet submitted another revised price proposal.

The proposal included an escalation factor of 16.4567% for nitroethane
(GSR4, tabs 21, 22).

18. The Defense Contract Audit Agency (DCAA) audited the February pro-
posal and recommended that the escalation factor be reduced to 7.2787%. It
did not question Aerojet’s proposed price per pound for nitroethane (GSR4,
tabs 21, 22).

19. On 30 April 1990, Aerojet submitted its last revised proposal (R4, tab 5).
The unescalated price of nitroethane in this proposal was still $1.98 per
pound (GSR4, tab 44).
20. Negotiations began on 2 May 1990, with material costs being one of the
first subjects to be discussed. Although the parties disagreed over the appro-
priate escalation factor to be applied to nitroethane, they did not disagree
over the unescalated $1.98 price per pound proposed by Aerojet. (GSR4, tabs
33, 37; tr. 1/130-38)

21. On 3 May 1990, Aerojet updated its raw material costs. The update did
not change the unescalated price of nitroethane (GSR4, tabs 27, 58 at 8).

22. On 5 June 1990, Mr. W. Dewayne Carr, a parts buyer for Aerojet, solicited
quotations for 651,000 pounds of nitroethane from Grace and Angus (ASR4,
tabs 11, 12). Mr. Carr was filling in for the principal chemical buyer who was
on vacation (ASR4, tab 1 at 7, 11).

23. On 14 June 1990, Grace orally requested and Mr. Carr granted a 2-day
extension of the bid due date to 20 June 1990 (ASR4, tab 1 at 6, 17, 28-29, tab
12).

24. On 15 June 1990, Grace confirmed that the bid due date had been ex-
tended by 2 days and advised that it could offer a reduced price if Aerojet
could accept rail car deliveries of 160-180,000 pounds (GSR4, tab 30).

25. On the same date, 15 June 1990, Mr. Carr issued a confirmation to both
Grace and Angus stating that the bid due date had been extended by 2 days
and that Aerojet could accommodate rail car deliveries of 160-180,000 pounds
(GSR4, tabs 31, 32).

26. Aerojet received Angus’ bid on 15 June 1990 and put it in the bid box
(GSR4, tab 35). Grace’s bid was received on 19 June 1990 (ASR4, tab 12). In
the mistaken belief that the bid due date was 18 June 1990, Aerojet’s pro-
curement services personnel stamped it “Late Bid” and gave it to Mr. Carr as
prescribed by POP No. 1206 (ASR4, tab 1 at 20-21). Mr. Carr marked the bid
“Not Late Extended to 6-20-90” and returned it to procurement services,
where it was put in Aerojet’s bid box (ASR4, tab 1 at 20-21).

27. Mr. Carr testified that he did not see Grace’s price and that it would not,
in any event, have meant anything to him because he was not involved with
the February 1989 solicitation, did not participate in the 21 June 1990 bid
opening and did not buy the nitroethane for this contract (ASR4, tab 1 at 21-
22, 31, tab 2 at 7).
28. Negotiations continued off and on until 20 June 1990 when the parties
reached agreement on a price of $18,462,235. Aerojet executed its Certificate
of Current Cost or Pricing Data on the same date. (R4, tab 5; GSR4, tab 34)

29. Ms. Shelby Yankee, the Government’s chief negotiator, testified that “dur-
ing negotiations we used … the $1.98 unit price that Aerojet had given us …”
(tr. 1/31). Mr. Owen M. Dean, another member of the negotiating team, testi-
fied that “[t]he Government fully relied on the $1.98 quote” (tr. 1/112- 13).
Both negotiators testified that they would have negotiated a lower price had
they known that Aerojet had lower quotations in-house (tr. 1/31-34, 94-97,
111-13). The Government’s post-negotiation business clearance, which was
prepared by Ms. Yankee, confirms that the Government relied on the “verbal
quotes dated Aug 89” of $1.98 per pound shown on the BOM in formulating
its final objective for raw material and that it ultimately achieved that objec-
tive (GSR4, tab 33 at 8, 19). We are satisfied that the team relied on the
$1.98 per pound price disclosed by Aerojet.

30. Aerojet did not disclose that it had unopened competitive supplier quota-
tions in its bid box prior to the agreement on price (tr. 1/32, 111).

31. On 21 June 1990, Aerojet opened the quotations in its bid box. Angus’ bid
was for $1.45 per pound and Grace’s bid was for $1.47 per pound. (ASR4, tabs
11, 12)

32. The Government issued Modification No. PZ0002 definitizing Contract

No. DAAA09-89-C-0599 on 7 August 1990. Delivery was to commence on 31
January 1991. (R4, tab 1d) As finally negotiated, the contract was for 536,257
pounds of nitroplasticizer with a 1% variance over. For production purposes,
the quantity required by the Government was to be combined with quantities
ordered by other Aerojet customers and produced as a single production run
of 679,800 pounds (GSR4, tabs 19, 33). Aerojet placed an order for 651,000
pounds of nitroethane with a Grace supplier, Solvents and Chemicals, on 14
August 1990. The price was $1.36 for the first 160,000 pounds and $1.38 for
the remaining 491,000 pounds (GSR4, tab 42).

33. On 22 October 1991, DCAA issued a post-award review recommending

that the contract be reduced by $483,813 as a result of Aerojet’s failure to dis-
close that it had lower quotations for nitroethane prior to the agreement on
price (GSR4, tab 44).
34. On 30 April 1992, the contracting officer issued a final decision demand-
ing payment of $487,374 plus interest (increasing DCAA’s recommendation to
include $3,561 for additional quantities) (R4, tab 5). Aerojet filed a Notice of
Appeal dated 22 May 1992. The appeal was docketed as ASBCA No. 44568.

35. On 9 February 1993, Aerojet paid the Government $513,841.87, which

included the sum claimed by the Government plus accumulated interest
(GSR4, tab 48). Aerojet subsequently submitted a claim for $513,841.87 plus
interest, which the contracting officer denied. The appeal was docketed as
ASBCA No. 46057 and consolidated with ASBCA No. 44568.

Decision

These appeals raise two questions: (1) whether Aerojet was required to open
and disclose competitive supplier quotations in its locked bid box prior to the
date of agreement on price; or alternatively (2) whether Aerojet was required
to disclose the fact that it had unopened competitive supplier quotations in
its bid box prior to the date of agreement on price. We conclude that Aerojet
was not required to open the bid box and disclose the bid prices. However, we
hold that Aerojet should have disclosed the fact that it had the additional
quotations.

Since defective pricing is an affirmative Government claim, the Government

bears the burden of proof. This entails proving three elements by a prepon-
derance of the evidence. First, the Government must prove that the disputed
data is cost or pricing data under TINA. Second, it must prove that the dis-
puted data was either not disclosed or not meaningfully disclosed to a proper
Government representative. Third, it must prove that it relied on defective
data to its detriment and show by some reasonable method the amount by
which the final negotiated price was overstated. In proving the last element,
the Government is aided by a rebuttable presumption that the “natural and
probable consequence” of nondisclosure is an increase in the contract price.
Once the Government proves these elements, the burden shifts to the con-
tractor to prove that the Government did not rely on defective data or that
the undisclosed data would not have been relied on even if it had been dis-
closed. The Government retains the ultimate burden of proving a causal con-
nection between the undisclosed or defective data and an overstated contract
price. United States v. United Technologies Corporation, Sikorsky Aircraft Di-
vision, 51 F. Supp. 2d 167 (D. Conn. 1999); Rosemount, Inc., ASBCA No.
37520, 95-2 BCA ¶27,770.
In our view, Aerojet’s failure to open and disclose the quotations in its bid box
prior to the agreement on price does not constitute defective pricing. Aerojet’s
bid box procedure is a reasonable business practice. The primary purpose of
the procedure is to prevent fraud in federal procurement, particularly the
premature disclosure of bidding information to unauthorized persons. Pro-
curement Procedure (POP) No. 1206 required that procurement services per-
sonnel time and date stamp all incoming bids and retain competitive quota-
tions in a bid box until the day after the bid due date. POP No. 1206
prohibited procurement services personnel from disclosing the amount of the
quotations in the bid box to anyone prior to bid opening. If Aerojet fails to ad-
here to POP No. 1206, the Government may withdraw approval of its pur-
chasing system and require it to obtain prior approval of all major subcon-
tracts and submit to heightened surveillance by the AFPRO. The
Government has not pointed to any evidence showing that Aerojet manipu-
lated POP No. 1206 to avoid its disclosure obligations under TINA. To the
contrary, the record shows that Aerojet established the bid due date for the
final nitroethane quotations several weeks before either party knew when
they would reach agreement on price.

The Government cites Grumman Aerospace Corporation, ASBCA No. 27476,

86-3 BCA ¶19,091, for the proposition that a contractor must disclose cost or
pricing data even if it violates an internal company policy. In Grumman, we
held that the contractor was required to disclose a draft Cost Analysis Re-
port, which we held to be cost or pricing data, even though the company had
an internal policy prohibiting disclosure of draft documents. In our view, POP
No. 1206 is considerably different than an internal policy relating to draft
documents. POP No. 1206 sets forth Aerojet’s procedure for preventing fraud
in its contracts with the Government. The Government has approved POP
No. 1206 and regularly monitors Aerojet for compliance. If Aerojet fails to
adhere to POP No. 1206, the Government may withdraw approval of its sub-
contract system. As a result, we conclude that Grumman did not require
Aerojet to violate POP No. 1206.

The Government secondly argues that “information in a Contractor’s pur-

chasing department, relating to the prices of materials, is clearly factual and
must be disclosed.” (Gov’t br. at 43) As indicated infra, procurement services
personnel were prohibited from disclosing the quotations in the bid box until
the day after the bid due date and there is no evidence that they were dis-
closed prior to that date. As a result, Sylvania Electric Products, Inc. v. Unit-
ed States, 479 F.2d 1342 (Ct. Cl. 1973), which was cited by the Government,
is inapposite. In Sylvania, the Court held that cost or pricing data known to a
branch of the company was reasonably available despite evidence that, in the
ordinary course of events, it would take 30 to 37 days for the data to reach
the negotiators. The Court reasoned that a “simple telephone call” would
have obviated the problem. Since Aerojet’s procurement services personnel
were prohibited from disclosing the quotations in the bid box until one day
after the bid due date, the amount of the quotations could not be obtained by
a “simple telephone call” and were not reasonably available prior to the bid
opening date which did not occur prior to the agreement on price.

Citing Aerojet-General Corporation, ASBCA No. 12264, 69-1 BCA ¶7664, aff’d
on reconsid. 70-1 BCA ¶8140, the Government thirdly argues that even if
Aerojet’s negotiators and the signer of the Certificate of Current Cost or Pric-
ing Data were not aware of the amount of Grace’s 19 June 1990 quotation,
Mr. Carr saw the quotation and had actual knowledge of the amount. In
Aerojet-General, we held that the fact upper management personnel were
aware of engineering and cost analyses showing that one of its subcontractor
quotations was excessive rendered the data reasonably available. In this
case, Aerojet received the Grace bid on 19 June 1990. Procurement services
erroneously marked it “Late Bid” because it was received after the 18 June
1990 bid due date shown on the solicitation. In accordance with POP No.
1206, Mr. Carr marked the bid “Not Late Extended to 6-20-90” and returned
it to procurement services, where it was retained in a locked bid box until 21
June 1990 in compliance POP No. 1206. Mr. Carr was a parts buyer for Aero-
jet who was filling in for the vacationing chemical buyer. He did not see the
amount of Grace’s 19 June 1990 quotation, did not know the amount of
Grace’s February 1989 quotation, was not present at the opening of the quo-
tations on 21 June 1990 and did not purchase nitroethane for this contract.
We conclude that Mr. Carr did not have actual knowledge of the price of the
19 June 1990 Grace quotation and that the amount of the quotations in the
bid box was not known until after the parties reached agreement on price.

Alternatively, the Government argues that the fact Aerojet had unopened
quotations in its bid box on the date of agreement on price was, in and of it-
self, cost or pricing data that should have been disclosed under TINA. The
1987 amendments to TINA defined cost or pricing data as all facts that, as of
the date of the agreement on price, a prudent buyer or seller would reasona-
bly expect to affect price negotiations significantly. In determining what is
cost or pricing data, the legislative history “reaffirm[ed] that the term …
should be broadly construed.” H.R. Rep. No. 100-446, 100th Cong. 1st Sess.
657, reprinted in 1987 U.S. Code Cong. & Ad. News 1769. In short, TINA re-
quires the contractor to disclose “all the facts necessary to place the Govern-
ment in a position equal to that of the contractor with respect to making
judgments on pricing.” Norris Industries, Inc., ASBCA No. 15442, 74-1 BCA
¶10,482 at 49,574.

We conclude that the existence of unopened bids for nitroethane in Aerojet’s

bid box was cost or pricing data that a prudent buyer or seller would reason-
ably expect to affect negotiations significantly. Nitroethane was the most ex-
pensive raw material used to produce nitroplasticizer. Aerojet solicited the
quotations on 5 June 1990, shortly after the parties began negotiations, and
the bid opening date was 21 June 1990, one day after the agreement on price.
Under POP No. 1206, Aerojet’s negotiators could have easily determined the
number of bids and the identity of the bidders prior to the agreement on
price. Moreover, Aerojet was aware that the price of nitroethane was subject
to wide fluctuations during this time period and that it might obtain a price
reduction for rail deliveries. Thus, we conclude Aerojet’s failure to disclose
the fact that it had unopened quotations for nitroethane in its bid box violat-
ed TINA.

The Government has proven that the existence of unopened bids for ni-
troethane in Aerojet’s bid box was cost or pricing data within the meaning of
TINA and that Aerojet failed to disclose that fact to the Government prior to
the agreement on price. With the aid of the presumption that the natural and
probable consequence of nondisclosure is an overstated negotiated contract
price, the Government has established a prima facie case of defective pricing.
Since the presumption is rebuttable, the burden of production or going for-
ward now shifts to Aerojet to prove that the Government did not rely on de-
fective data in pricing the contract.

Aerojet argues that the testimony of the Government’s chief negotiator, Ms.
Shelby Yankee, was so “evasive, vague and enigmatic” that it was impossible
to determine what she relied on in pricing the contract (app. br. at 26). Not-
withstanding, Ms. Yankee clearly testified that “during negotiations we used
… the $1.98 unit price that Aerojet had given us.” Our review of the BOM has
failed to reveal any other item with a cost of $1.98 per unit. Mr. Owen M.
Dean, a cost/price analyst who was a member of the negotiating team, testi-
fied that “[t]he Government fully relied on the $1.98 quote”. Both negotiators
testified that they would have negotiated a lower price if they had known
that Aerojet had lower quotations. The Government’s post- negotiation clear-
ance, which was prepared by Ms. Yankee, confirms that she relied on the
“verbal quotes dated Aug 89” in formulating her final objective for raw mate-
rial and that she ultimately achieved that objective. We conclude that Aerojet
has not carried its burden of proving that the Government did not rely on de-
fective data.

The appeals are denied.

ELIZABETH A. TUNKS
Administrative Judge
Armed Services Board of Contract Appeals

We concur
MARK N. STEMPLER
Administrative Judge, Acting Chairman

CAROL C. DICUS, JR.

Administrative Judge, Acting Vice Chairman
 Allied Signal

41 Cont.Cas.Fed. (CCH) ¶77,004

September 20, 1996.

Appearances: For the Applicant: Jay McFadyen, Esq.; AlliedSignal, Inc.; Tor-
rence, California. For the Applicant: Steven Briggerman, Esq.; Seyfarth
Shaw, Fairweather, & Geraldson; Washington, D.C.. For the Government:
Daniel Telfer, Contracting Officer; Federal Aviation Administration; Wash-
ington, D.C.

Opinion by Administrative Judge Fennessy on Applicant’s Request

for Relief under Public Law 85-804

Applicant, AlliedSignal, Inc. (Allied) seeks $3,416,102.55 as an amendment

without consideration to Contract DTFA01-85-Y-01001 (the contract) be-
tween the Federal Aviation Administration (FAA) and AMEX, Inc. (AMEX)1
pursuant to Federal Acquisition Regulation (FAR) 50.302-1(b).2 The contract
required the development and production of an Automated Weather Observa-
tion System (AWOS). The amount requested is the difference between the
actual costs plus fixed fee incurred by AMEX, as audited by the Defense Con-
tract Audit Agency, and the amount paid by the Federal Aviation Admin-
istration (FAA).3 The loss consists of: (1) a cost overrun in the amount of
$829,979; (2) an investment by AMEX in the amount of $1,269,970 toward
the completion of the design work required by the contract; and (3)
$1,301,490 in additional costs incurred by AMEX in its attempt to complete
the design work. The basis for the Application is that “Government action”
caused AMEX to incur that loss. The contracting officer submitted comments
on the Application and recommended that, except for $15,345 in fees admit-
tedly due AMEX, it be denied upon the grounds that the contract in question
“does not convey facilitation of the national defense” and that “relief does not
lie under FAR Part 50.”

1 AMEX was at one time a subsidiary of Allied.

2 Part 50 of the FAR implements Pub. L. 85-804, as amended. 50 USC §§1431-1435.
3 The audit report is not in the record but the FAA has not challenged Allied’s contention in
this regard.
Background

On October 15, 1984, the FAA awarded the contract to the Small Business
Administration, with AMEX as the subcontractor, pursuant to Section 8(a) of
the Small Business Act. Shortly after the award of the contract, AMEX was
acquired by Allied’s predecessor, the Allied Corporation, losing its status as a
small and disadvantaged business under Section 8(a). The record does not
reveal the date of that transaction but a letter dated March 7, 1985, shows
that, as of that date, AMEX was doing business as “AMEX, An Allied Bendix
Aerospace Company.”

The contract was a letter contract structured in three phases. Although es-
sentially the same AWOS system was available commercially, there re-
mained some unsolved technical problems in the system’s sensors. Therefore,
Phase I, requiring design and development work, was a cost-plus-fixed-fee
arrangement with a total estimated cost of $1,387,073 and a fixed fee of
$97,095 for a total estimated cost-plus-fixed-fee of $1,484,168. Phases II and
III were unpriced at award but were to be definitized later on a fixed-price
basis. Phase II required production of 5 AWOSs and Phase III called for pro-
duction of 367 AWOSs. The FAA predicted that the Phase III procurement
would cost about $70,000,000. This was one-half of the FAA’s requirement.
The other half would be procured competitively.

The contract was awarded in phases because of a commitment by the FAA to

the Small Business Administrator to procure the AWOS under a Section 8(a)
pilot program. AMEX, the intended contractor, was scheduled to graduate
from the 8(a) program before the FAA would have obtained approval to begin
procuring production units of the AWOS. By awarding the 3-phased letter
contract, the FAA was able to award the production units to AMEX before it
graduated from the 8(a) program, pending approval to begin production; but
it could terminate Phases II and III if approval were not granted.

The contract included the “Limitation of Government Liability (Apr 1984)

(Deviation)” clause. 48 CFR §52.216-24. That clause provided:

(a) In performing this contract, the Contractor is not author-

ized to make expenditures or to incur obligations exceeding
$3,984,168. In performing Phase I, the contractor is not author-
ized to make expenditures or incur obligations exceeding
$1,484,168. In performing Phase II, the contractor is not au-
thorized to make expenditures or incur obligations exceeding
$1,500,000 which figure includes an amount for Phase II long
 lead items. In performing Phase Ill, the contractor is not au-
thorized to make expenditures or incur obligations exceeding
$1,000,000.

(b) The maximum amount for which the Government shall be

liable if this contract is terminated is $3,984,168. The maxi-
mum liability for the Government under Phase I is 1,484,168.
The maximum liability for the Government under Phase II, in-
cluding Phase II long lead items, is $1,5000,000. The maximum
liability for the Government under Phase III is $1,000,000.

The contract also included the “Limitation of Cost (April 1984)” clause, appli-
cable only to Phase I. 48 CFR 52.232-20. That clause required AMEX to use
its best efforts to perform the specified work and all obligations under the
contract within the estimated cost. It also required AMEX to notify the con-
tracting officer if 1) it had reason to believe that within the next 60 days it
expected to incur costs which, when added to all costs previously incurred,
would exceed 75% of the specified estimated cost or, 2) if the total cost for the
performance of the contract, exclusive of any fee, would be either greater or
substantially less than had been previously estimated. The clause further
provided that the Government was not obligated to reimburse AMEX for
costs incurred in excess of the estimated cost specified and that AMEX was
not obligated to continue performance or otherwise incur costs in excess of
the estimated costs until the contracting officer notified AMEX in writing
that the estimated cost had been increased.

The Specification required AMEX to provide monthly “Project Cost Control

and Financial Information” reports. These reports are not in the record.

Phase I called for, among other things, a Preliminary Design Review by Jan-
uary 15, 1985, a Critical Design Review by March 26, 1985, and delivery of a
final system design on May 23, 1985. Phases II and III were to be completed
by May 31, 1986, and September 30, 1990, respectively.

By a March 7, 1985 letter AMEX confirmed a telephonic notice to the FAA

that the costs incurred on the contract during February 1985 were expected
to have exceeded 75% of the estimated cost. Apparently, AMEX did not know
its actual February expenditures as of March 7. AMEX stated that its month-
ly cost control reports for December 1984 and for January 1985 constituted
prior notice that the expenditure level would exceed 75% of the estimated
cost in February.
By a letter dated March 28, 1985, AMEX notified the FAA that funds would
expire at midnight on April 19, 1985.4 The FAA also wrote to AMEX on
March 28, 1985, advising AMEX not to incur costs in excess of the estimated
cost of the contract.5

By an April 10, 1985 letter AMEX forecast estimated expenditures of

$375,000 for April 20 to May 19 and of $350,000 for May 20 to June 19 for a
total of $725,000. AMEX stated that the primary effort during May and June
would be the Critical Design Review, the final Phase I effort except for correc-
tions to the documentation package.

AMEX sent a proposal dated April 14, 1985, to the FAA.6 Subsequently,
AMEX submitted a breakdown of the proposed costs allocating $378,433 for
cost growth and $487,696 for changes in the scope of work for a total estimat-
ed cost to complete Phase I of $866,127.

On April 19, 1985, AMEX notified the FAA that the contract funds had ex-
pired on that date as forecast. AMEX requested a “letter authorization” to
“proceed at a rate of $50,000 per week” in order to maintain program continu-
ity. There is no evidence of an FAA response to that request.

Because Phase I was to have been essentially complete by March 26, the FAA
decided to perform a technical audit of the contract. By Modification No. 0002
dated April 20, 1985, the FAA increased the total estimated cost plus fixed
fee of the contract by $79,572. The express purpose of the modification was to
fund AMEX’s participation in the technical audit.

By a letter dated April 22, 1985, AMEX stated the need for a resolution of the
funding problem by April 24, 1985, “to prevent further restructuring of pro-
gram personnel and effort.” AMEX had reduced its level of expenditures dur-
ing March and April to “stretch out” the contract funding.

4 That letter is not in the record but AMEX referred to it in a letter from AMEX to the FAA
dated April 19, 1985, and the FAA has not refuted its existence.
5 That letter also is not in the record. It was referenced in the statement of one of the FAA
personnel who submitted comments on Allied’s Application. Allied did not dispute its ex-
istence in the brief it filed after the FAA had provided its comments.
6 The proposal is not in the record.
By Modification No. 0003 dated May 5, 1985, the FAA added $300,000 to the
estimated cost, bringing the total estimated cost to $1,761,439. The modifica-
tion specified that AMEX was not authorized to incur costs in excess of the
revised total estimated costs and that the Government’s total liability for
Phase I was $1,863,740, the revised total estimated costs plus fixed fee.

There is no contention or evidence that AMEX ever notified the contracting

officer that it was about to exceed, or had exceeded, the additional funding
provided by Modification Nos. 0002 and 0003.

The FAA conducted the technical audit from May 20 through May 23, 1985,
during which numerous changes to the contract requirements were agreed
upon. It was noted during the meeting that the FAA required an estimate to
complete Phase I before any more funds would be added to the contract.

By a letter dated May 28, 1985, AMEX reminded the FAA that Modification
No. 0003 provided only $300,000 of the $378,433 applicable to cost growth
and that it expected that the additional $78,433 would be forthcoming. Addi-
tionally, AMEX withdrew its earlier $478,696 proposal on the change-in-
scope work because of changes that had been agreed upon during the May
meeting. AMEX planned to submit a new proposal based upon a revised
statement of work the FAA was preparing. There is no indication that the
FAA ever responded to AMEX’s request for the additional $78,433.

By a letter dated June 12, 1985, the FAA forwarded to AMEX a list of “ap-
proved changes.”

In an undated letter to the FAA concerning an upcoming August meeting to

discuss the completion of Phase I AMEX stated in pertinent part:

As you are aware, per FAA direction, all direct charge efforts
have ceased and the AWOS personnel have been reassigned.7

By a letter dated August 22, 1985, the FAA provided AMEX with a “working
copy” of a revised statement of work with the understanding that AMEX
would not incur any costs under the contract prior to the meeting scheduled
for August 27, 1985.

7 One of the FAA technical personnel who provided comments on this Application also re-
called that the FAA had issued a “stop work order” to AMEX.
By an undated letter, the FAA requested AMEX to submit a proposal by Sep-
tember 30, 1985 for the completion of Phase I.

AMEX submitted its proposal on a Standard Form 1411 dated October 8,

1985. That form indicated that it was a fixed-price proposal. It showed
$2,043,452 as costs and $306,518 as profit for a total of $2,349,970. On page 2
it showed the proposed price as $2,349,970, an AMEX investment of
$969,970, with a net price to the FAA of $1,380,000.

In the cover letter to the proposal AMEX stated that it was investing in the
completion of Phase I with the expectation that AMEX’s performance during
the remainder of Phase I would be such that approval would be given to pro-
ceed with Phases II and III. AMEX submitted two letters with the proposal.
A letter from Mr. James B. Skaggs, President of Bendix Electronic Systems
Company, an Allied Bendix Aerospace Company, to Mr. Thomas A. Brancati,
President of AMEX, stated in pertinent part:

As you are aware, the Automated Weather Observing System

Program at ESD is a key element ... in your [AMEX’s] Strategic
Business Plan. To insure this important program is successful-
ly completed, I am committing to you financial investment, ex-
perienced personnel, and the expertise of the Bendix Electronic
Systems Company to make the AWOS a success.

I believe that you will successfully complete the Phase I pro-

gram and, in spite of the fact that you do not have a priced op-
tion for Phase II and Phase III, the financial investment re-
quired to close the gap between your projected cost and the
program budget is available. I suggest that you highlight this
in your cost proposal to demonstrate the Bendix commitment.

Further, I understand that staffing the technical effort for your

division will be difficult. I am making available to you technical
specialists from our Electronics Communication Division to
support the design effort.

To further assist the program I am placing at AMEX’s disposal

Palmer Arnold, of the Communications Division, to assist your
established Advisory Counsel....

Be aware at all times that the complete commitment of the

Bendix Electronic Systems Company is available to assist you
in successfully completing the AWOS design and I encourage
you to take advantage of these resources as you see fit.
In a separate letter to the contracting officer, Mr. Brancati also expressed
AMEX’s dedication to the program and reiterated the commitments by Ben-
dix. Mr. Brancati stated that AMEX was willing to invest in the program
without “priced options” for Phases II and III because he was confident that
AMEX’s performance on Phase I would “secure that business.”

An undated AMEX “Program Overview” also reveals that AMEX understood

that successful completion of Phase I was a prerequisite to proceeding to
Phases II and III. Based upon these communications, we conclude that
AMEX and Allied knew that successful completion of Phase I was a prerequi-
site for progressing to Phases II and III of the contract.

In a document entitled “AMEX/FAA Conference Prompter” dated December

20, 1985, marked “Company Private,” AMEX stated the reasons it and its
higher level corporate management were willing to make an investment in
the AWOS program:

1) We see it as an excellent near term business opportunity, as

our analysis for Phase II and Phase III indicate a good return
on our Phase I past and future investment. 2) We desire to be a
key supplier to the FAA as we believe that the National Air-
space Plan and other activities are viable and necessary gov-
ernment ventures. 3) In the long term we expect to have a
complete stand alone division at AMEX that does business with
the FAA exclusively and can cater to their special technical and
programmatic requirements.

***

As we stated this program makes sense to us on a business ba-

sis as we have analyzed the profit potential for the 208 systems
which was originally 367. Of course we anticipate success in
what we understand there [sic] will be a third competition for
the towered site systems. In addition, we believe that there are
additional markets with the Military and foreign airports to
make this an even further viable business venture after our pi-
lot set aside program (208) is completed.

The record does not disclose what transpired between October 8, 1985 and
January 27, 1986, except that the parties negotiated an even greater invest-
ment by AMEX and a lower price to the FAA of $1,080,000 for the completion
of Phase I. A record of a telephone conversation on January 27 between FAA
contracting personnel and AMEX personnel reveals that the FAA requested
AMEX to submit a revised Standard Form 1411, showing either zero profit or
8% profit. The AMEX employee responded by reminding the FAA employee
that this was a “bottom line negotiation. Profit was not agreed to and it [was]
known that AMEX [was] investing over $1 million.” However, AMEX submit-
ted the revised Form 1411, indicating that cost and profit did not apply and
that the final negotiated price for the completion of Phase I was $1,080,000,
without any reference to AMEX’s actual anticipated cost to complete Phase I.
Thus, the price agreed upon for the completion of Phase I was $1,269,979 less
than AMEX’s proposed costs plus profit of $2,349,970.

In the meantime, by the end of 1985 there had been discussions within the
FAA about changing the acquisition plan for the AWOS. By 1986 the FAA
was discussing “getting out of the weather business” and moving the majority
of the AWOS procurement to the National Weather Service. Nevertheless,
the FAA planned to continue with Phases II and III of the contract if AMEX
were successful in completing Phase I. If AMEX were not successful, the FAA
planned to purchase a small number of systems from commercial sources un-
til the National Weather Service units were available.

On February 28, 1986, the FAA and AMEX mutually executed Modification
No. 0004. The Modification divided Phase I into Phase IA and Phase IB. It
provided that Phase IA was complete but that the “Allowable Cost and Pay-
ment (April 1984)” clause (48 CFR §52.216-7) and the “Fixed Fee (April
1984)” clause (48 CFR §52.216-8) remained in effect. It also provided that the
total estimated cost-plus-fixed fee for Phase IA was $1,863,740 (the amount
the FAA had already obligated for Phase I) and that “[i]n no event shall the
Government be liable for any amount in excess of the total estimated cost-
plus-fixed fee under Phase IA of the contract.” Modification No. 0004 also
provided that AMEX was to complete the necessary design work under Phase
IB for the fixed-price of $1,080,000. The final documentation package for
Phase I was due to be delivered to the FAA within 33 weeks of the date the
modification was executed, by October 18, 1986. By Modification No. 0004 the
parties also agreed to reduce the quantity of units to be produced in Phase HI
from 372 to 106 with an option to purchase up to 372. Phases II and III re-
mained undefinitized.

Allied treats the plan to complete Phase I as a fixed price undertaking, as en-
tirely the concept of the FAA. However, a statement by one of the FAA repre-
sentatives which accompanied the contracting officer’s response to Allied’s
Application is that it had been AMEX’s idea to structure the completion of
Phase I as a fixed price effort to demonstrate AMEX’s commitment to the
program. The FAA’s comment is consistent with the letters which accompa-
nied the proposal.

Approximately four months after the execution of Modification No. 0004, on

July 2, 1986, AMEX executed an unqualified release in consideration of the
sum of $1,863,740 “which has been paid or is to be paid” to AMEX or its as-
signees. Although the release did not mention Phase IA, the dollar amount
was the exact amount the FAA had obligated for Phase IA, and which the
parties had agreed in Modification No. 0004 was the limit of the Govern-
ment’s liability for Phase IA. We conclude, therefore, that the release applied
to Phase IA. There is no evidence that this release was obtained by duress.

The software Critical Design Review was held on September 30, 1986, and
the hardware Critical Design Review was held on October 20. These Reviews
revealed that all of the requirements for Phase IB still had not been met.
There remained some 1000 items which required resolution. According to the
FAA, AMEX stated that it had spent all of the money budgeted for the work
and, if the FAA did not increase the funding, AMEX would stop work. AMEX
also indicated that it would agree to a “mutual termination” if it were not re-
quired to complete the work. The FAA considered terminating the contract
for default or agreeing to a no-cost termination. The work submitted by
AMEX was of no value to the FAA and the funds expended on the program
were wasted. Allied did not refute these contentions.8

The details of what transpired over the next few months are not revealed in
the record. What is known is that following the unfavorable Critical Design
Review, a meeting was held on January 26 through January 28, 1987, to as-
sess the Phase IB design effort. Thereafter, AMEX significantly reduced its
staff for this contract and the work continued at a much slower pace.

8 Allied submitted a letter dated March 17, 1987 from Congressman James Howard, Chair-
man of the House Committee on Public Works and Transportation, which states that ap-
proval for production of the AWOS had been granted in January 1986 and that the Criti-
cal Design Review had been finished. Chairman Howard was inquiring of the reason
fabrication and testing of the prototype had not commenced. We do not accept this letter
as evidence that AMEX had successfully completed the CDR. AMEX’s signature of Modifi-
cation No. 0007 (discussed below) confirms that the FAA waived discrepancies in AMEX’s
work when the parties agreed to the no-cost termination. Moreover, it is unlikely that if
AMEX has successfully completed the CDR it would have agreed to a no-cost termination,
thereby relinquishing its opportunity to recoup its investment in the AWOS program.
By an April 29, 1987 letter to AMEX, the FAA specified the then-outstanding
deficiencies.9

On June 18, 1987, the parties mutually executed Modification No. 0007. That
modification: (1) added $14,353 to the contract for AMEX’s costs of the Janu-
ary meeting, bringing the total price for Phase IB to $1,094,353; (2) waived
the discrepancies identified in the FAA’s April 29, 1987 letter; (3) deobligated
the funds for Phases II and III and (4) released the Government from “all lia-
bilities, obligations, claims, and demands whatsoever, based on, or arising
out of, this contract.” There is no evidence of any coercion or duress on the
part of the FAA in connection with this modification.

In January 1988 AMEX was acquired from Allied by Science Applications In-
ternational Corporation (SAIC). Under the terms of the sale, Allied retained
responsibility for this contract and any proceeds from the contract will go to
Allied.

On May 31, 1988, AMEX changed its name to SAIC Range Systems. On May
29, 1990, SAIC Range Systems merged with and into SAIC as a division. Al-
lied states that AMEX has ceased operating as a separate entity.

On June 12, 1991, SAIC submitted a final voucher for $3,416,102.55, the
amount requested by this Application. That amount included $15,345 in fees
not previously invoiced under Phase IA.

In November 1992, Allied contemplated asserting claims against the FAA for
changes in the statement of work that increased the cost of the contract.
However, there is no evidence that Allied pursued any claims.

According to Allied’s brief, from 1974 through 1987 AMEX performed 1,300
contracts of which approximately 600 were Government contracts. Many of
the Government contracts involved high technology applications as complex
as the contract which is the subject of this Application.

The record establishes that final payment on the contract has not been made.

In August 1993, 6 years after the mutually agreed upon no-cost termination,
Allied submitted this Application to the contracting officer. Approximately 2
years later, the contracting officer forwarded it to the Board recommending

9 This letter is not in the record.

that it be denied except for the $15,345 in unpaid fees due under Phase IA.
The contracting officer also stated that the contract, which was for the devel-
opment of ground equipment to assist the FAA in the detection of wind shear,
“does not convey facilitation [of] the national defense” and that “relief does
not lie under FAR Part 50.”

Discussion

Allied’s Application for relief pursuant to Public Law 85-804 is based upon
Federal Acquisition Regulation 50.302-1(b), which provides in pertinent part:

When a contractor suffers a loss ... under a defense contract be-

cause of Government action, the character of the action will
generally determine whether any adjustment in the contract
will be made, and its extent.... Thus, when Government action,
while not creating any liability on the Government’s part, in-
creases performance costs and results in a loss to the contrac-
tor, fairness may make some adjustment appropriate.

Id. This section provides the broadest basis for granting extraordinary con-
tractual relief. The overriding considerations for granting relief pursuant to
this section are equity and fairness. However, even under this broad section,
there are limitations upon the exercise of the authority granted by Public
Law 85-804. Specifically, FAR 50.203 provides:

(b) No contract, amendment, or modification shall be made un-

der the Act’s authority

(1) Unless the approving authority finds that the action will
facilitate the national defense;

(2) Unless other legal authority within the agency con-

cerned is deemed to be lacking or inadequate.

Thus, prerequisites for granting relief pursuant Pub. L 85-804 are determina-
tions that granting the relief will facilitate the national defense and that
there is no other adequate legal authority within the agency.

Other Legal Authority

If AMEX had not executed the two releases voluntarily relinquishing its right
to pursue legal remedies, the Government actions alleged by Allied, the if
true, are precisely the types of actions for which there are adequate legal
remedies within the agency from the contracting officer and/or the Board of
Contract Appeals pursuant to the “Disputes” clause of the contract and the
Contract Disputes Act. Specifically, according to Allied, the contracting officer
waived the provisions of the Limitation of Costs clause by urging AMEX to
continue work and therefore was obligated to fund the $829,297 overrun. If
Allied’s allegation is correct, there is ample legal authority for that proposi-
tion. See e.g., Wind Ship Development Corp., 83-1 BCA ¶16,135 (DOTBCA
1982); Soil Systems, Inc., 84-1 BCA ¶17,191 (DOTBCA 1984); Dames &
Moore, 93-1 BCA ¶25,487 (IBCA 1992); Flight Dynamics Research Corpora-
tion, 88-3 BCA ¶20,861 (ASBCA 1988). Similarly, Allied’s allegation that
Modification No. 0004 is void because, contrary to regulation, it called for de-
sign and development work on a fixed price basis could also be remedied by
the contracting officer and/or the Board of Contract Appeals. See e.g., Folk
Construction Company, Inc., 93-3 BCA ¶26,094 (ENG. BCA 1993); Francisco
Garcia Gutierrez, 92-1 BCA ¶24,633 (ASBCA 1991); ALTA Construction Com-
pany, 90-1 BCA ¶22,527 (PSBCA 1989); INTER-CON Security Systems, Inc.,
84-2 BCA ¶17,274 (GSBCA 1984); Swinging Hoedads, 82-2 BCA ¶16,000
(AGBCA 1982). Finally, Allied’s contention that the FAA failed to disclose a
material fact to AMEX during the negotiation of Modification No. 0004 and
thereby induced AMEX to continue to “invest” in the contract with the expec-
tation that it would recoup the investment during the Phase III also is an ac-
tion redressable by the contracting officer and/or the Board of Contract Ap-
peals. See e.g., J.A. Jones Construction Co., 1996 ASBCA LEXIS 195 (August
21, 1996); C.M. Moore, 85-2 BCA ¶18,110 (PSBCA 1985); SCM Corporation,
85-1 BCA ¶17,783 (ASBCA 1984).

Because AMEX executed the releases, those remedies are no longer available.
However, due to the equitable nature of Public Law 85-804 relief, the releases
do not preclude us from considering whether fairness and equity warrant re-
lief. In this regard, the absence of any evidence of improper conduct or over-
reaching by the Government in obtaining the releases is inconsistent with
Allied’s allegation that relief is warranted in the interest of fairness. Moreo-
ver, as discussed below, even aside from the releases, the record does not
support the conclusion that fairness and equity warrant relief and that grant-
ing the relief would, therefore, facilitate the national defense.

Facilitation of the National Defense

In recommending denial of the Application, the FAA contracting officer stated
that the contract for the AWOS did not facilitate the national defense. How-
ever, the test is not whether the contract facilitated the national defense but
whether granting relief will facilitate the national defense. Allied bears the
burden of establishing that issuing an amendment without consideration to
the AMEX contract in the amount requested will facilitate the national de-
fense.

In this regard, Allied has directed our attention to extraordinary contractual

relief decisions which granted relief to small and minority-owned disadvan-
taged businesses when the record demonstrated that the Government had
taken unfair advantage of a contractor’s inexperience and limited financial
resources. In those cases, the Contract Adjustment Boards found that fair-
ness and equity warranted relief and determined that granting Public Law
85-804 relief would facilitate the national defense.

The cases cited by Allied are inapposite to the facts presented to the Board.
Although AMEX was a minority-owned business at the time of contract
award, it was an experienced, successful Government contractor scheduled to
soon graduate from the Small Business Administration’s Section 8(a) pro-
gram. Shortly after contract award, AMEX graduated from the Section 8(a)
program and was purchased by, and became a part of, a large, experienced
Government contractor, the predecessor of Allied. When the alleged Govern-
ment actions occurred, AMEX enjoyed the technical, financial, and adminis-
trative support of its higher level corporate management. With the benefit of
this support, AMEX made a series of business decisions aimed first, at at-
tempting to fulfill its business plan, the successful completion of the AWOS
program, and later, at extricating itself from a contract which, for some un-
explained reason, it was unable to complete successfully.

The Government actions alleged by Allied do not reflect unfairness or over-

reaching by the FAA. As to the $829,297 unfunded overrun on Phase IA of
the contract, Allied has not demonstrated that the Government urged it to
continue performance knowing of that overrun. AMEX has not established
that it ever gave notice of that overrun or when the Government first learned
of it. What the record demonstrates is that Allied gave notice of an impending
overrun and of the expiration of funds as of April 19, 1985. In response, by
Modifications Nos. 0002 and 0003, the Government added a limited amount
of money to the contract; an amount less than Allied had predicted was nec-
essary to complete Phase I. When adding the funds the FAA reminded AMEX
not to incur costs in excess of the contract funds, as increased, in accordance
with the Limitations of Costs and Limitations of Funds clauses. There is no
evidence that AMEX ever timely notified the contracting officer that it was
about to exceed the additional contract funds.
Although the record reveals communications between the parties following
the technical audit in May 1985 up to the execution of Modification No. 0004
in February 1986, it does not require the conclusion that the FAA waived the
Limitation of Costs clause by encouraging AMEX to continue to incur costs in
excess of the total estimated contract costs, as amended. In fact, an AMEX
document submitted by Allied shows that AMEX represented to the FAA that
it had reassigned the employees who worked on the contract as directed by
the FAA pending receipt of a revised statement of work. Simply stated, the
record supports the conclusion that the FAA directed AMEX not to exceed the
contract funds.

Allied also contends that it should recoup the $1,269,979 it agreed to “invest”
in the completion of Phase I when it entered into Modification No. 0004 be-
cause it was contrary to regulation to have converted the completion of Phase
I into a fixed price undertaking. The following excerpts from the regulations
in effect when the parties entered into Modification No. 0004 are pertinent:

Cost reimbursement contracts are suitable for use only when

uncertainties involved in contract performance do not permit
costs to be estimated with sufficient accuracy to use any type of
fixed-price contract.

48 CFR §16.301-2 (October 1985)

(1) A cost-plus-fixed-fee contract is suitable for use when ... for

example —

(i) The contract is for the performance of research or prelim-

inary exploration or study, and the level of effort required is
unknown; or

(ii) The contract is for development and test, and using a

cost-plus-incentive-fee contract is not practicable.

(2) A cost-plus fixed-fee contract normally should not be used in

the performance of major systems once preliminary explora-
tion, studies, and risk reduction have indicated a high degree of
probability that the development is achievable and the Gov-
ernment has established reasonably firm performance objec-
tives,

Id. §16.306(b).
 (b) Selecting the appropriate contract type [for research and
development] is the responsibility of the contracting officer.
However, because of the importance of technical considerations
in R & D, the choice of contract type should be made after ob-
taining recommendations of technical personnel. Although the
Government ordinarily prefers fixed-price arrangements in
contracting, this preference applies in R & D contracting only
to the extent that goals, objectives, specifications, and cost es-
timates are sufficient to permit such a preference. The preci-
sion with which the goals, performance objectives and specifi-
cations for the work can be defined will largely determine the
type of contract employed. The contract type must be selected
to fit the work required.

(c) Because the absence of precise specifications and difficulties

in estimating costs with accuracy ... normally preclude using
fixed-price contracting for R & D, the use of cost-
reimbursement contracts is usually appropriate ...

(d) When levels of effort can be specified in advance, a short-

duration fixed-price contract may be useful for developing sys-
tem design concepts, resolving potential problems, and reduc-
ing Government risks. Fixed-price contracting may also be
used in minor projects when the objectives of the research are
well defined and there is sufficient confidence in the cost esti-
mate for price negotiations.

(e) Projects having production requirements as follow-on to

R&D efforts normally should progress from cost-
reimbursement contracts to fixed-price contracts as designs be-
come more firmly established, risks are reduced, and produc-
tion tooling, equipment, and processes are developed and prov-
en....

Id. §35.006.

Considering these regulations in light of the facts before us, we cannot con-
clude that it was improper for the parties to have agreed to the completion on
Phase I on a fixed price basis. When the contract was initially awarded, the
AWOS system had already been developed except for resolving some tech-
nical problems with the system’s sensors. By the time the parties entered into
Modification No. 0004, AMEX had already expended considerable time and
money on the Phase I work. As a result of the technical audit of AMEX’s
Phase I work, the FAA drafted a revised, much more specific statement of
work, which added additional tasks and deliverables to the contract require-
ments. Given the more precise specification with clear goals and objectives,
the contracting officer acted with reasonable discretion by entering into Modi-
fication No. 0004 on a fixed-price basis.10

What is surprising is that Modification No. 0004 was characterized as a fixed

price modification given AMEX’s investment into the completion of Phase I.
That arrangement renders the Modification more like a cost-sharing type of
contract. AMEX has not contended that it was contrary to regulation to make
a cost-sharing contract. According to the applicable regulations, a cost-
sharing contract is one in which the contractor is paid no fee and is reim-
bursed only for an agreed-upon portion of its allowable costs. It is appropriate
for use “when the contractor agrees to absorb a portion of the costs, including
the expectation of substantial compensating benefits.” 48 CFR §16.303. Con-
sidering that AMEX expected to recoup its investment in the program with
the Phase III production units, the agreements reached by the parties in
Modification No. 0004 are consistent with the applicable regulations. While it
may have been a poor procurement practice to have asked AMEX to alter its
SF 1141 to comport with the characterization of Modification No. 0004 as a
fixed-price endeavor, the fact remains that the FAA was only willing to spend
an additional $1,080,000 to complete Phase I and it was mutually agreed that
AMEX would fund the additional costs necessary to complete the project.

This brings us to Allied’s contention that the FAA materially misrepresented

the circumstances when it allowed AMEX to believe that it would recoup its
investment with the production units, causing AMEX to spend $1,301,490 in
addition to the fixed price of Modification No. 0004 plus AMEX’s planned in-
vestment in the program. According to Allied, the FAA knew when it execut-
ed Modification No. 0004 that it was “getting out of the weather business”
and transferring the procurement of all the AWOS units to the National
Weather Service. However, the record reveals that the FAA’s plan to transfer
the AWOS procurement to the National Weather Service did not involve the
367 units required by Phase III of the AMEX contract.

10 In a footnote to its brief, Allied argues that, to the extent the parties believed the circum-
stances were suitable for a fixed-price contract for the completion of Phase I, they were
mistaken and Allied is entitled to relief. As with Allied’s other theories, that is the type of
action for which other adequate legal remedies existed within the agency. See, Hilton Con-
struction Company, 80-1 BCA ¶14,318 (DOTBCA 1980); Para/Medical Supplies, Inc., 82-1
BCA ¶15,660 (VABCA 1982); Louisiana-Pacific Corporation, 81-1 BCA ¶14,928 (AGBCA
1981).
The evidence is that, when the FAA began to think about transferring the
AWOS program to the National Weather Service, its intention was to contin-
ue with AMEX for the 367 planned production units provided AMEX success-
fully completed Phase I. By the time the parties executed Modification No.
0004, however, they agreed that the FAA would buy only 106 AWOS under
Phase III with an option to purchase up to 367 units. Thus, AMEX knew
when it executed Modification No. 0004 that, even if it successfully completed
Phase I of the contract, it might produce only 106 production units.

In any event, contrary to Allied’s contention, the plan for transferring some of
the AWOS procurement to the National Weather Service was not the reason
Phases II and III were not definitized. The record reflects that the FAA did
not proceed with Phases II and III because AMEX was unable to satisfactori-
ly complete Phase I.11 Therefore, the parties mutually agreed to end what had
become a losing proposition for both. They entered into the no-cost termina-
tion reflected in Modification No. 0007. As part of that agreement, the FAA
waived the remaining deficiencies in AMEX’s work and AMEX released all
claims against the Government. When it executed Modification No. 0007
AMEX knew all the material facts, including the fact that it would not be re-
couping its investment in the AWOS program by the production of AWOS
units. As noted above, there is no indication in the record that Modification
No. 0007 was the result of any overreaching or duress by the FAA.

While the record reveals a troubled contract, it does not evidence the type of
Government action that would warrant extraordinary relief pursuant to Pub-
lic Law 85-804. Public Law 85-804 was not designed to relieve Government
contractors from unsatisfactory contract performance and from what may ap-
pear, in distant hindsight, to have been poor business decisions.

Finally, Allied has failed to demonstrate how granting relief to Allied for the
losses incurred by AMEX several years ago would facilitate the national de-
fense. The fact that AMEX is no longer an operating entity militates heavily
against a determination that granting the relief requested would facilitate
the national defense. There is no allegation or evidence that AMEX’s losses
on this contract adversely affected Allied’s ability to perform its Government
contracts. Allied’s delay in submitting the application for 6 years after the
termination strongly suggests that AMEX’s loss did not adversely affect Al-
lied’s ability to function as a Government contractor.

11 See footnote No. 8 and related text.

Decision

The Application for extraordinary relief pursuant to Public Law 85-804 is de-
nied.12

12 There is no allegation that the FAA requires the authority of Public Law 85-804 to pay the
$15,345 in fees admittedly due under Phase IA.
 Ameresco Solutions

11-1 BCA ¶34705

March 4, 2011

Appearances for the Appellant: Richard J. Webber, Esq., Patrick R. Quigley,

Esq. Arent Fox LLP Washington, DC. Appearances for the Government: Dan-
iel K. Poling, Esq. DLA Chief Trial Attorney Paul R. Hahn, Esq. Senior
Counsel Kathleen A. Murphy, Esq. Trial Attorney

Opinion by Administrative Judge Peacock

These appeals involve a Department of Energy indefinite-delivery/indefinite-

quantity (IDIQ) contract and a Defense Energy Support Center (DESC) de-
livery order issued against the IDIQ contract.1 The delivery order was termi-
nated for the convenience of the government. Ameresco Solutions, Inc.
(Ameresco) submitted a termination settlement proposal that was denied in
part by a DESC contracting officer and appealed here. A later protective
claim resulted in another denial and another appeal. The government has
moved to dismiss the appeals. The motion is denied.

Statement of Facts (SOF) for Purposes of the Motion

1. The United States Department of Energy (DOE) and Ameresco entered in-
to Contract No. DE-AM36-990R2270 1 in February 1999 (R4, tab 1). That
contract was completely revised in bilateral Modification No. M006 dated 12
March 2003 (R4, tab 101).

2. The DOE contract was an IDIQ contract. Under Section B.l, appellant was
to provide energy savings performance contracting (ESPC) conservation ser-
vices including Geothermal Heat Pump (GHP) and other energy conservation
measures (ECMs) for federal facilities in the United States and for federally-
owned facilities in overseas locations. The total maximum contract value
(“the sum of contractor payment streams associated with all delivery orders”)
was not to exceed $500,000,000. The minimum guarantee order(s) value was
$150,000. (R4, tab 101 at B-1)

1 In 2010, the Defense Logistics Agency (DLA) renamed the Defense Energy Support Center
“DLA Energy.” Because the relevant events took place while the agency was called the De-
fense Energy Support Center, we will use the term, DESC in this opinion. I
3. The DOE contract contemplated that federal agencies would issue delivery
orders to Ameresco for specific projects. Section B.3 of the contract included
FAR 52.216-22, (MODIFIED) INDEFINITE QUANTITY (OCT 1995) which
stated, among other things, that the quantities set out in the Schedule were
estimates and were not purchased by the contract. It also stated that delivery
or performance would only be made “as authorized by orders issued in ac-
cordance with the Ordering clause.” (R4, tab 101 at B-2)

4. Section B.4 set out clause FAR 52.216-18, (MODIFIED) ORDERING (OCT
1995) which provided as follows:

(a) Any services to be furnished under this contract shall be or-

dered by issuance of delivery orders by an authorized Contract-
ing Officer for a United States Government federal agency
(Agency Contracting Officer). Agency Contracting Officers shall
submit draft delivery order requests for proposals and draft de-
livery orders, prior to issuance, to the DOE Contracting Officer
for this contract to obtain his/her review and sugges-
tions/comments.

(c) All delivery orders are subject to the terms and conditions of
this contract, except as modified by the terms and conditions of
a specific delivery order request for proposal, as permitted by
the contract. In the event of a conflict between the terms and
conditions of a delivery order and those of this contract, the de-
livery order provisions will take precedence. (Also see Section
C.l.)

(R4, tab 101 at B-2)

5. At Section C.l, General Requirements/Project Scope, the DOE contract

stated that its purpose was to acquire, under an energy savings performance,
IDIQ contract, GHP-centered energy conservation services “as specified in
each delivery order issued against this contract.” It went on to say that “[a]ll
provisions that follow throughout ... may be revised within the overall scope
of the contract as necessary (based on the needs of an agency) in an Agency
Delivery Order Request for Proposal (DO RFP), unless noted otherwise in
this contract at the specific provision. In the event of a conflict between the
DO RFP and the IDIQ, the provisions of the DO RFP will prevail. (See more
specific information at Section H-19.)” (R4, tab 101 at C-l) (Emphasis in orig-
inal)
6. Section E.l, INSPECTION (MAR 1997), stated that inspection of items and
services provided under the DOE contract or any delivery order issued under
it was to be accomplished by the agency contracting officer’s representative
(COR) identified in a specific delivery order. Section E.2, ACCEPTANCE
(MAR 1997), stated that acceptance of work under the contract or any deliv-
ery order issued under it was to be accomplished by the agency contracting
officer for a specific delivery order. (R4, tab 101 at E-l)

7. Section F of the DOE contract covered deliveries or performance. It provid-

ed that the contractor was required to commence work under the contract on-
ly upon issuance of delivery orders. As to specific delivery orders, the contrac-
tor was to commence and complete work as set out in the delivery order. The
DOE contract was said to have a maximum period of 25 years from the date
of contract award, but with a limit on the period for the placement of delivery
orders. The term of delivery orders was to be stated in each delivery order.
That term was comprised of the implementation period for ECMs installa-
tion, plus the energy savings performance period. The principal place of per-
formance was to be specified in each delivery order. Finally, there were no
specific deliverables for delivery orders in the DOE contract. The contractor
was required to submit the deliverables set out in the reporting requirements
in each specific delivery order as well as Section D of the DOE contract. (R4,
tab 101 at F-1)

8. Section G.l discussed contract administration for the DOE contract and for
the delivery orders. Administration of delivery orders was to be accomplished
by the agency contracting officer (CO), agency COR, and any other persons
identified in the delivery order by the ordering agency contracting office. Sec-
tion G.3 addressed invoice submittals and stated that payments would com-
mence when all ECMs were installed and accepted, all other deliverables
were received, and the installation was successfully operational for a 30-day
test period. The agency CO or COR for the specific delivery order would make
the latter determination. (R4, tab 101 at G-l)

9. In Section H.3, the DOE contract provided that performance was subject to
the technical direction of the DOE COR or of the agency COR for a specific
delivery order issued under the DOE contract (R4, tab 101 at H-2).

10. Sections H.19 through H.26 of the DOE contract covered the process lead-
ing to the issuance of delivery orders (R4, tab 101 at H-l 0-26). Section H.19
stated that the IDIQ contract could be used by all federal agencies, solicita-
tions for specific delivery orders “may contain additional clauses and provi-
sions, as well as differing clauses and provisions than those included in this
contract, whether due to [the] FAR, other agency-specific regulations, or
agency requirements or practices dictated by the specific project. The agency-
specific requirements as documented in the agency solicitation (DO RFP)
shall be understood to either override or supplement the contract require-
ments, as indicated in the DO RFP, and as permitted by the language at Sec-
tion C.1 of this contract.” In Section H.20, the DOE contract provided that
agency contracting officers could issue delivery orders using single source
awards (contractor-identified projects) or by selecting competing contractors
(government-identified process). The section stated that the government an-
ticipated “awarding fixed price delivery orders against” the DOE contract.
Before a contractor could submit a contractor-identified proposal, it had to
obtain the concurrence of the DOE COR. (R4, tab 101 at H-10-12) Sections
H.21 and H.22 set out the requirements for contractor initial proposals and
the evaluation procedures (R4, tab 101 at H-12-17). Sections H.24 and H.25
set out the preparation instructions and evaluation procedures for final pro-
posals (R4, tab 101 at H-18-26).

11. Part II, Section I of the DOE contract incorporated by reference, among
other clauses, FAR 52.202-1, DEFINITIONS (OCT 1995), ALTERNATE I
(APR 1984); FAR 52.233-1, DISPUTES (DEC 1998), ALTERNATE I (DEC
1991); and FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE
GOVERNMENT (FIXED-PRICE) (SEP 1996). It also incorporated, as to the
construction phases of the contract and delivery orders, FAR 52.249-10,
DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) and, as to the ser-
vices phases of the contract and delivery orders, FAR 52.249-8, DEFAULT
(FIXEDPRICE SUPPLY AND SERVICE) (APR 1984). (R4, tab 101 at 1-1-5)

12. On 18 October 1999, DOE and DESC entered into a memorandum of un-
derstanding (MOU) relating to DOE regional super ESPC. The purpose of the
MOU was to “establish the organizational relationships, responsibilities, and
activities” of DOE and DESC for award of delivery orders under such ESPCs.
The MOU stated that DOE contracts:

[C]ontain the terms and conditions generally applicable to all

Federal Agencies. Each project Delivery Order will include all
agency specific requirements, terms and conditions and all pro-
ject specific information .... Delivery Orders will be signed by
the DESC Contracting Officer, as delegated to DESC by the
DOE Contracting Officer. Administration of the Delivery Or-
ders will be the responsibility of DESC and/or the DoD custom-
er.
(Gov’t mot., attach. A at 1, 2)

The primary responsibilities for DOE included providing support in explain-

ing the Super ESPC contracting process, providing guidance to DESC for
preparation of delivery order RFPs, and delegating authority to award ESPC
delivery orders to the DESC Directorate of Alternative Fuels. DESC was to
pursue award of delivery orders, provide expertise in implementation of
ESPC contracts and delivery orders, determine the method of procurement,
negotiate and prepare the delivery order, and award the delivery order (id.).

13. In September 2003, Ameresco submitted to DESC a proposal for an Ener-

gy Savings Performance Contract relating to Fort Monmouth, New Jersey
(R4, tab 3). Shortly thereafter, DESC issued a delivery order denominated an
Order for Supplies or Services to appellant (R4, tab 4).

14. The Order for Supplies or Services was issued on a form that is very simi-
lar to a DD Form 1155 although it was not labeled as such. The DOE contract
number, DE-AM36-990R2270 1, was listed as was the number of the delivery
order, SP0600-03-F-8269. The order was said to have been issued by DESC to
“CONTRACTOR,” Ameresco, for shipment to the U.S. Garrison at Fort Mon-
mouth, New Jersey. It also stated that “PAYMENT WILL BE MADE BY”
“DFAS – St. Louis Field Sites.” Under Box 16, “Type of Order,” “Delivery”
was checked and followed by the text: “This delivery order is issued on anoth-
er Government agency or in accordance with and subject to terms and condi-
tions of above numbered contract.” Under the statement, “ACCEPTANCE.
THE CONTRACTOR HEREBY ACCEPTS THE OFFER REPRESENTED BY
THE NUMBERED PURCHASE ORDER AS IT MAY PREVIOUSLY HAVE
BEEN OR IS NOW MODIFIED, SUBJECT TO ALL OF THE TERMS AND
CONDITIONS SET FORTH, AND AGREES TO PERFORM THE SAME,” an
Ameresco vice president signed the order on 30 September 2003. The sched-
ule of supplies/service stated “ENERGY SAVINGS PERFORMANCE.
CONTRACT, FT. MONMOUTH, NJ, Contractor shall install Energy Conser-
vation Measures in accordance with this Delivery Order Statement of Work
IDO RFP, See page 2.” The amount of the contract was $51,491,892. (R4, tab
4 at 1)

15. Section B, “Supplies or Services and Price/Costs,” provided as follows in

paragraph B. 7.

This delivery order (DO) award is issued pursuant to the au-

thority granted by the Energy Policy Act of 1992 (PL 102-486),
 Executive Order 13123 and 10 USC 2865, for the purpose of re-
ducing energy consumption and energy costs. Unless otherwise
specified herein, this DO incorporates the terms and conditions
of the United States Department of Energy’s Energy Savings
Performance Contract No. DE-AM36-990R2270 1, as modified.
Agency and site specific requirements are identified below, as
permitted by the terms and conditions of the contract, using
the same standard contract format numbering as the Indefinite
Delivery Indefinite Quantity (lDIQ) contract. These require-
ments may either supercede the IDIQ contract requirement or
represent requirements that are in addition to those specified
in the IDIQ contract. In either case, specific guidance is provid-
ed at the beginning of each clause. In all cases, agency and site-
specific requirements are considered to be within the scope of
the IDIQ. Unless specifically noted, any reference to the Con-
tracting Officer (CO) or the Contracting Officer’s Representa-
tive (COR) within this DO is directed toward those of the order-
ing agency (See block 24 of the DD 1155, found on page 1 of
this document) and not of the Department of Energy (DOE) CO
and COR. Ameresco’s revised final proposal dated September
19 and September 30, 2003, is hereby incorporated into this DO
contract award.

(R4, tab 4 at 2)

16. Section B also included five schedules setting out the work to be accom-
plished, the estimated cost savings as a result of the work, and the prices to
be paid for the work (R4, tab 4 at 2a-f).

17. Paragraph C.2 of the DO specified five ECMs to be implemented at Fort

Monmouth: lighting upgrade; HVAC renovation; utility energy services con-
tract (UESC) implementation; geothermal heat pumps; and cogeneration sys-
tem site preparation (R4, tab 4 at 3). The remainder of Section C set out fur-
ther requirements relating to the ECMs. As to each category of ECM and the
DO generally, the order stated that the requirements in the DO either super-
ceded or were in addition to the requirements of the DOE contract. (R4, tab 4
at 3-22)

18. Paragraph F.2 identified the place of performance as the Fort Monmouth
Army Installation, New Jersey (R4, tab 4 at 23). Paragraph G.1 stated that
the agency contracting officer for the DO from project inception and the agen-
cy contracting officer’s representative were DLA or DESC personnel. The
agency COR at Fort Monmouth also had the responsibility for certifying in-
voices. (R4, tab 4 at 23-24)

19. The DO incorporated a number of FAR, DFARS, and DLAD clauses.

These did not include disputes, termination for convenience, or default claus-
es. (R4, tab 4 at 28-29)

20. On 27 September 2006, a DESC CO terminated appellant’s DO for con-

venience under FAR 52.249-2 (R4, tab 51). Ameresco submitted termination
settlement proposals on 27 August 2007 and 12 November 2007 (R4, tabs 52,
53). A DESC CO granted the proposals to the extent of $19,667,872 and de-
nied them to the extent of$6,697,526 (R4, tab 7). Ameresco filed an appeal
that was docketed as ASBCA No. 56824. Appellant later submitted a protec-
tive claim for $6,697,526 and a Contract Disputes Act certification (R4, tab 8),
which the DESC CO also denied (R4, tab 9). A new appeal was filed and
docketed as ASBCA No. 56867. The appeals have been consolidated.

21. Ameresco has submitted its complaint. In lieu of filing an answer, the
government moved to dismiss. Briefing was concluded on 11 February 2011.

Decision

The government contends that the Contract Disputes Act (CDA), 41 USC
§7105(e)(1)(A) as amended in 2006, only provides for ASBCA jurisdiction over
appeals from Department of Defense (DoD) contracting officer decisions rela-
tive to DoD contracts (gov’t mot. at 7). The government argues, in moving to
dismiss, that the Board lacks jurisdiction because the “contract” at issue is
not the delivery order but the DOE contract, and the Board has not been au-
thorized to decide appeals under a non-DoD contract (gov’t mot. at 6).

Appellant contends that the 30 September 2003 delivery order relating to

Fort Monmouth was a discrete contract between Ameresco and DESC, a DoD
agency. The delivery order was terminated for convenience by the DESC con-
tracting officer. Appellant submitted termination settlement proposals to
DESC which were paid in part and denied in part by a DESC contracting of-
ficer who issued the final decisions under the delivery order, further evidenc-
ing that the delivery order was a DoD contract. Accordingly, appellant con-
cludes that the Board has CDA jurisdiction over the instant appeals. (App.
resp. at 6-12)
Because the government challenges the factual basis for our jurisdiction, the
allegations in the pleadings are not controlling. Cedars Sinai Medical Center
v. Watkins, 11 F.3d 1573, 1583-1584 (Fed.Cir. 1993), cert. denied, 512 U.S.
1235 (1994); E.M Scott & Associates, ASBCA No. 45869, 94-3 BCA ¶27,059.
We accept as true for purposes of the motion only the factual allegations that
are uncontroverted. Id. The facts supporting the challenged jurisdictional al-
legations are subject to fact finding by the Board, and the burden of estab-
lishing jurisdiction is on appellant. Id.

The CDA applies to express or implied contracts for, among other things, the
procurement of services and the procurement of construction, alteration, re-
pair or maintenance of real property. 41 USC §7102(a)(2), (3). This Board has
jurisdiction “to decide any appeal from a decision of a contracting officer of
the Department of Defense, the Department of the Army, the Department of
the Navy, the Department of the Air Force, or the National Aeronautics and
Space Administration relative to a contract made by that department or
agency.” 41 USC §7105(e)(I)(A). The question raised by the government’s mo-
tion is whether the DESC delivery order constituted a “contract.” The gov-
ernment cites Gardner Zemke Co., ASBCA No. 51499, 98-2 BCA ¶29,997, in
arguing that the Board does not have jurisdiction here because DOE “made”
the contract at issue. (Gov’t mot. at 9)

For the reasons stated below, we find that the DESC delivery order was a
discrete contract between a DoD entity and appellant and, as a result, we
have jurisdiction to hear these appeals under the CDA.2

The fact that the DESC delivery order was issued against an established
DOE contract with appellant does not mean that the delivery order does not
constitute a separate contract. Both parties focus on FAR 2.101 which defines
“contract” as follows:

[A] mutually binding legal relationship obligating the seller to

furnish the supplies or services (including construction) and
the buyer to pay for them. It includes all types of commitments
that obligate the Government to an expenditure of appropriat-
ed funds and that, except as otherwise authorized, are in writ-
ing. In addition to bilateral instruments, contracts include (but

2 We emphasize that our discussion of the contractual status of delivery orders concerns
solely our CDA jurisdiction. Whether “orders” of various types issued pursuant to various
contractual vehicles constitute separate “contracts” in other contexts may involve other
FAR provisions, issues and considerations that we do not reach.
 are not limited to) awards and notices of awards; job orders or
task letters issued under basic ordering agreements; letter con-
tracts; orders, such as purchase orders, under which the con-
tract becomes effective by written acceptance or performance;
and bilateral contract modifications. Contracts do not include
grants and cooperative agreements covered by 31 USC 6301, et
seq.

The above FAR definition is sufficiently comprehensive to include “delivery”

orders. The fact that “delivery” (as opposed to “purchase”) “orders” are not
expressly enumerated is not significant. The listing of examples was not all
inclusive. The delivery order here was clearly a bilateral “mutually binding
legal relationship obligating the seller to furnish the supplies or services (in-
cluding construction) and the buyer to pay for them.” Moreover, delivery or-
ders also qualify as “orders, such as purchase orders, under which the con-
tract becomes effective by written acceptance or performance.” Id. Although
the definition of “delivery order” in FAR 2.101 refers to orders “against an
established contract,” that language does not exclude the existence of both an
“established contract” and a delivery order that also qualifies as a contract.
We have, in fact, described delivery orders as contracts in decisions such as
Mach II, ASBCA No. 56425, 09-2 BCA ¶34,224 and Winding Specialists Co.,
ASBCA No. 37765, 89-2 BCA ¶21,737. The DESC delivery order also de-
scribes itself as “this DO contract award” (SOF ¶15). This case involves two
different government “buyers.” The relevant “buyer” for purposes of this dis-
pute was not DOE but DESC, the only agency obligated to pay for the sup-
plies/services furnished by Ameresco. Basic, essential operative contractual
terms and details in dispute here were not in place prior to issuance of the
delivery order. There was no “commitment” to purchase definite sup-
plies/services, obligation to buy or sell such services/supplies, or agreement to
expend appropriated DoD funds in a specific amount prior to execution of the
DO. The DO’s incorporation of some provisions in the DOE contract by refer-
ence, does not convert the DO into a DOE acquisition.

Our conclusion that the delivery order constitutes a discrete contract under
the above FAR definition is consistent with traditional case law analyses of
what constitutes a contract. In determining whether an arrangement is a
contract for purposes of jurisdictional statutes, the Federal Circuit has stated
that “any agreement can be a contract within the meaning of the Tucker Act,
provided that it meets the requirements for a contract with the Government,
specifically: mutual intent to contract including an offer and acceptance, con-
sideration, and a Government representative who had actual authority to
bind the Government.” California Federal Bank, FSB v. United States, 245
F.3d 1342, 1346 (Fed.Cir. 2001), cert. denied, 534 U.S. 1113 (2002); Massie v.
United States, 166 F.3d 1184, 1188 (Fed.Cir. 1999).3 We have reached similar
conclusions with respect to our jurisdiction under the CDA. Factek, LLC,
ASBCA No. 55345,07-1 BCA ¶33,568. Both appellant and the government
characterize agreements that meet the requirements listed above as “common
law” contracts. The government goes on to propose that even if delivery or-
ders could be considered “common law” contracts, they would not have “con-
tract status” because they are not set out in the above FAR definition of con-
tracts. (Gov’t reply at 2-3) Nothing in California Federal Bank, Massie, or
Factek suggests that a contract for purposes of jurisdictional statutes has to
be explicitly listed in FAR 2.101. Implied-in-fact contracts are not listed and
both the Court of Federal Claims and this Board have unquestioned authori-
ty to hear appeals relating to such contracts. 28 USC §1491(a)(I); 41 USC
§7102(a). And, as noted, delivery orders are not excluded from the definition
of “contract” in FAR 2.101. The listing of some contractual types and vehicles
in that FAR section is not intended to be exhaustive and exclude others that
satisfy the basic prerequisites.

The delivery order here was issued by DESC to Ameresco which was listed as
the “CONTRACTOR.” It included the work to be done by appellant and the
prices to be paid by DESC. The supplies and services were to be provided at
the U.S. Garrison at Fort Monmouth, New Jersey. Payment to Ameresco was
to be made through the St. Louis office of the Defense Finance and Account-
ing Service (DFAS). The delivery order was signed by a DESC contracting
officer and sent to appellant. In Box 16, an Ameresco vice president signed
the delivery order on 30 September 2003 under the statement:
“ACCEPTANCE. THE CONTRACTOR HEREBY ACCEPTS THE OFFER
REPRESENTED BY THE NUMBERED PURCHASE ORDER AS IT MAY
PREVIOUSLY HAVE BEEN OR IS NOW MODIFIED, SUBJECT TO ALL
OF THE TERMS AND CONDITIONS SET FORTH, AND AGREES TO
PERFORM THE SAME.” (SOF ¶14)

The delivery order included all of the required elements of a contract.4 There
was mutuality of intent to contract as indicated by the order/offer signed by

3 The Tucker Act, 28 USC §1491(a)(I), gives the Court of Federal Claims jurisdiction to hear
claims based upon express or in1plied contracts with the United States.
4 (SOF¶¶ 4, 5, 6, 8, 10, 12, 15, 18) There is no dispute that the DESC contracting officer had
authority to bind the government and issue final decisions. It would be inappropriate for
the DESC contracting officer to have conceded authority to decide a dispute under a non-
DESC contract.
the DESC contracting officer and the explicit written acceptance by Ameresco
through its vice president. Appellant’s promise to deliver the supplies and
services in the order and DESC’s promise to pay for them constituted the
necessary consideration. See, e.g., RESTATEMENT (SECOND) OF
CONTRACTS §75 cmt a. (1981) (“In modem times the enforcement of bar-
gains is not limited to those partly completed, but is extended to the wholly
executory exchange in which promise is exchanged for promise”).

Our finding that the delivery order was a contract is supported by the form
used by DESC. As noted, the delivery order is not labeled but appears to be a
version of the DD Form 1155. (SOF ¶14) The DD Form 1155 is authorized for
placing orders under indefinite-delivery contracts, DFARS 216.505 (2003),
and may be used in ordering services that exceed $100,000 under multiple
award contracts, DFARS 216.505-70 (2003). We have stated, albeit in dicta,
that acceptance of a government “offer by the supplier when box 16 of DD
Form 1155 is checked results in a bilateral contract.” Western Manufacturing
Co., ASBCA No. 25089, 81-1 BCA ¶15,024. We also find it significant that the
order form used here appears to be a DoD form rather than the non-DoD spe-
cific SF 1449 or the DOE F 4250.3, Order for Supplies or Services. It is also
noteworthy that DESC was responsible for administration of the DO and, for
the most part, the DESC DO provisions took precedence over those of the
DOE contract. In most matters relating to the DO, DESC, rather than DOE,
officials had authority to act.

The government also notes that the ASBCA Charter, in subsections (b) and
(c), provides for jurisdiction pursuant to contract provisions or DoD direc-
tives, but goes on to say that there is nothing in either the DOE contract or
the DO that would meet those requirements (gov’t mot. at 9-10). We have
found that the delivery order was an express contract under the CDA. The
Charter subsections cited by the government do not delimit that statutory
jurisdiction.

Conclusion

For the reasons stated above, the government’s motion to dismiss is denied.
 Barren Island Marina
v.
United States

44 Fed.Cl. 252
July 9, 1999.

Francis J. Murray, Rockville Centre, NY, for plaintiff. C. Coleman Bird, with
whom were Assistant Attorney General Frank W. Hunger and David M. Co-
hen, Washington, DC, for defendant. Anthony R. Conte, Department of the
Interior, of counsel.

Opinion and Order

TURNER, Judge.

This case, arising from a marina concession contract with the National Park
Service, was initiated in May 1995 in the United States District Court for the
Eastern District of New York and was transferred to this court in May 1996.
Thereupon, plaintiff filed, on October 10, 1996, an amended complaint assert-
ing claims in six counts.

This opinion addresses defendant’s motion filed on July 30, 1997 to dismiss
three counts of the amended complaint for lack of subject-matter jurisdiction
and for summary judgment on the remaining three counts. We conclude that
to the extent defendant seeks to dismiss three counts for lack of jurisdiction,
the motion must be denied, but we further conclude that defendant is entitled
to summary judgment with respect to all counts of the amended complaint.1

The following is undisputed. Barren Island Marina, Inc., a New York corpora-
tion, executed a contract with the National Park Service (NPS) to construct
and operate a marina in the Jamaica Bay Unit of the Gateway National Rec-
reation Area in Brooklyn, New York. Amend.Compl., ¶¶5, 6. The term of the
contract was for ten years commencing January 1, 1979. Id., p 6. The contract
was informally extended until March 31, 1995. Id., p 12.

1 In an amended answer filed on March 5, 1998, defendant asserted a counter-claim. This

opinion does not directly address or resolve defendant’s counter-claim.
While performing under the contract, plaintiff, through its president and sole
shareholder, Theodore A. Prakope, knowingly submitted false financial re-
ports to NPS and bribed a NPS deputy director. Def. Prop. Find. of Fact,
¶¶5-12; Pl.Stat. of Genuine Issues, ¶¶5-12. In April 1995, defendant assumed
control of the marina and hired a temporary operator. Amend.Compl., ¶17.

The six counts in plaintiff’s amended complaint contain the following asser-
tions:

1. In the first count, plaintiff says that defendant failed to compensate

plaintiff for the fair value of its improvements at the marina as required
by the contract and, further, prevented it from “negotiat[ing] with a suc-
cessor concessioner for the value of its compensable interests in the mari-
na.” Id., ¶¶24, 26-31.

2. In the second count, plaintiff asserts that defendant failed to submit to

arbitration, as required by the contract, to determine the fair value of
plaintiff’s property. Id., ¶38.

3. In the third count, plaintiff asserts that defendant failed to obtain its
consent when it hired a “temporary operator” and, subsequently, failed to
compensate it for the use of its property by the temporary operator as is
required by the contract. Id., ¶¶40-45.

4. In the fourth count, plaintiff asserts that defendant breached its duty
to maintain the marina and plaintiff’s personal property. Id., ¶¶46-49.

5. The fifth count asserts that defendant failed to compensate plaintiff for
monies defendant received on delinquent accounts. Id., ¶¶50-52.

6. In a sixth count, plaintiff asserts that

Defendant’s breach of the Concession Contract, and its re-

fusal to issue [a] Statement of Requirements for a new con-
cession contract, or to pay Plaintiff for its compensable in-
terests at the marina, for the use of its personal property at
the marina, for the wasting of its assets, or for the money
Defendant received on Plaintiff’s behalf, has led to the de-
struction of Plaintiff as an ongoing business concern, and
the loss of its credit and financial viability.... Wherefore,
Plaintiff seeks damages ... plus interest ... on this claim for
relief.
 Id., ¶¶53-54. (Although asserted as a separate, sixth count and designated
a “claim for relief,” we believe that this sixth count is, more precisely, a
prayer for consequential damages rather than a separate ground for re-
lief.)

Defendant answered the amended complaint and filed a special plea in fraud
on January 8, 1997. (Defendant filed, on March 5, 1998, an amended answer,
counter-claim and a renewed special plea in fraud.) The case currently stands
on defendant’s motion to dismiss filed on July 30, 1997.

II

Defendant argues that because plaintiff, through its president and sole
shareholder, knowingly submitted false financial reports to NPS and bribed a
NPS deputy director, plaintiff’s first, second and third counts should be for-
feited pursuant to 28 USC 2514. Def.Mot. (7/30/97) at 10-16. These counts are
addressed in Part III below concerning defendant’s plea in fraud.

Defendant further argues that plaintiff’s other claims should be dismissed for
lack of subject-matter jurisdiction because the fourth and sixth counts sound
in tort and the fifth count is based upon an implied-in-law contract. Id. at 6-9.

In its fourth claim for relief, plaintiff alleges that defendant failed to main-
tain and protect plaintiff’s property at the marina after plaintiff was termi-
nated as concessioner. Amend.Compl., ¶¶46-49. In its sixth claim, plaintiff
alleges that the government’s breach “led to the destruction of Plaintiff as an
ongoing business entity, and the loss of its credit and financial viability.” Id.,
¶53. Defendant asserts that this court does not have subject-matter jurisdic-
tion to adjudicate these claims because they are claims for waste which
sounds in tort. Def.Mot. (7/30/97) at 6-8. Plaintiff alleges in its fifth claim for
relief that defendant received payment on delinquent accounts “which were
due and owing to Plaintiff.” Amend.Compl. (10/10/96), ¶50. Defendant argues
that this court lacks subject-matter jurisdiction over count five because the
claim for “money had and received” is based upon an implied-in-law contract.
Def.Mot. (7/30/97) at 8-9.

Plaintiff counter-argues that these claims are within this court’s jurisdiction
because they are based upon the Fifth Amendment of the United States Con-
stitution, the National Park System Concessions Policy Act (CPA), 16 USC
20-20g, and its Concession Contract with the government. We agree that we
have jurisdiction over counts four, five and six.

While assertions of waste may sound in tort, the claims in counts four and six
are grounded in the contract-in-suit just as are the claims in counts one, two
and three and, consequently, fall within our subject-matter jurisdiction. Simi-
larly, we conclude that, in the context of this case, count five asserts a claim
grounded on the Concession Contract and is not intended to be a stand-alone
claim based on an unrelated implied-in-law contract. Consequently, we also
have subject-matter jurisdiction over count five.

III

The pivotal issue presented by defendant’s motion for partial summary judg-
ment is whether plaintiff can maintain any claim against the government
arising out of or relating to its contract with NPS in light of the forfeiture
provisions of 28 USC 2514, which provides:

A claim against the United States shall be forfeited to the

United States by any person who corruptly practices or at-
tempts to practice any fraud against the United States in the
proof, statement, establishment, or allowance thereof.

In such cases the United States Court of Federal Claims shall

specifically find such fraud or attempt and render judgment of
forfeiture.

In this case, it is undisputed that Theodore A. Prakope, the president and

sole shareholder of plaintiff corporation, committed fraud under the contract
by submitting false annual financial reports. Def.Mot. (7/31/97), Appendix
(Transcript of Criminal Cause for Pleading) at 58-64; Def. Prop. Find. of
Fact,¶5; Pl. Stat. of Genuine Issues, ¶5. When Prakope committed fraud he
was acting as president, and his conduct is imputed to plaintiff. See O’Brien
Gear & Machine Co. v. United States, 219 Ct.Cl. 187, 199, 591 F.2d 666, 672
(1979); Supermex, Inc. v. United States, 35 Fed.Cl. 29, 43 (1996).

Once a contract is tainted by fraud, a contractor may not recover forany claim
arising under the contract even when the particular claim is not directly re-
lated to the fraud. Little v. United States, 138 Ct.Cl. 773, 778, 152 F.Supp. 84,
87 (1957). Contrary to plaintiff’s argument, there is no need for a nexus be-
tween the fraud and the claims asserted. Id.
Based on the Little case, there is no question that all claims arising under the
contract are subject to forfeiture. Plaintiff alleges a breach of the Concession
Contract in counts one, two and three. Thus, all three of those counts clearly
arise under the contract. Amend.Compl., ¶¶30, 38, 44. Plaintiff’s fourth
claim — asserting that the government breached its duty to properly main-
tain plaintiff’s property — is also grounded in the Concession Contract. Any
duty placed on the government would have arisen from the contractual lan-
guage which gave the government the right to enter the property but “not so
as to destroy or unreasonably interfere with ... such lands or the improve-
ments thereon.” Amend.Compl., Tab 1 (Concession Contract) at 6. Plaintiff’s
fifth claim, for recovery of the monies defendant received on delinquent ac-
counts, similarly is grounded in the contract. The government’s seizure of
plaintiff’s property was pursuant to its right under the contract to recover a
franchise fee. Id. at 8. Thus, plaintiff’s claim for the recovery of such property
also arises out of the contract. Finally, as set forth in Part I above, we view
count six of the amended complaint as a claim for consequential damages
arising from other contract claims and, thus, also subject to forfeiture.

IV

Ordinarily, under the Little case, claims arising from the Concession Contract
must be forfeited. However, plaintiff asserts that applying the forfeiture pro-
visions of 28 USC 2514 in this case would violate the Double Jeopardy Clause
of the Fifth Amendment, the Excessive Fines Clause of the Eighth Amend-
ment and the Concessions Policy Act, 16 USC 20-20g. See Pl. Resp. (10/7/97)
at 25-28; Pl. Sur-reply (2/18/98) at 11-20; Pl. Answer (4/23/98), ¶¶33 & 34.

A
The Double Jeopardy Clause provides that no “person [shall] be subject [to]
the same offence to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. “The Clause protects only against the imposition of multiple crim-
inal punishments for the same offense ... and then only when such occurs in
successive proceedings.” Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct.
488, 139 L.Ed.2d 450 (1997) (emphasis added). With respect to this case, we
note that, while plaintiff’s president has been convicted and fined for the
criminal acts he committed while performing under the contract, see Def.
Prop. Find. of Fact, ¶¶5-12 and Pl. Stat. of Genuine Issues, ¶¶5-12, plaintiff
corporation has not been subject to criminal or civil proceedings.2 Plaintiff

2 Hudson states that a “civil remedy” may be considered a “criminal penalty” for purposes of
the Double Jeopardy Clause if certain factors are met by “only the clearest proof.” 522 U.S.
at 100, 118 S.Ct. 488 (citations omitted). Hudson disavowed the Court’s reasoning in Unit-
disputes this, arguing, inter alia, that it stands in the shoes of its president
for purposes of double jeopardy because, if the criminal misconduct of the
president is imputed to the company for purposes of forfeiture, the criminal
punishment of the president should be imputed to the company for purposes
of double jeopardy. Pl. Sur-reply (2/18/98) at 15. Plaintiff cites no authority
for this proposition, and we know of none. For these reasons, we conclude
that the double jeopardy clause does not prevent forfeiture of plaintiff’s
claims.

B
The Eighth Amendment provides that “excessive fines” shall not be imposed.
U.S. Const. amend. VIII. In Austin v. United States, 509 U.S. 602, 604, 113
S.Ct. 2801, 125 L.Ed.2d 488 (1993), the Supreme Court held that the exces-
sive fines clause applies to in rem civil forfeitures. In doing so, the court ex-
pressly held that the application of the excessive fines clause is not limited to
criminal proceedings. “[T]he question is not, as the United States would have
it, whether forfeiture under [21 USC] 881(a)(4) and (a)(7)3 is civil or criminal,
but rather whether it is punishment.” Id. at 610, 113 S.Ct. 2801. The Court
held that “forfeiture generally and statutory forfeiture in particular histori-
cally have been understood, at least in part, as punishment.” Id. at 611-19,
113 S.Ct. 2801. More specifically, the Court held that forfeiture under the
statute at issue, 21 USC 881(a)(4) and (a)(7), was intended as a punishment.
Id. at 622, 113 S.Ct. 2801. For this reason, the Court held that the forfeiture
was subject to the excessive fines clause. Id. at 622, 113 S.Ct. 2801. Ultimate-
ly, the Court remanded the case for determination of whether the forfeiture
was, in fact, excessive. Id. at 623, 113 S.Ct. 2801.

In a recent case, United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028,
2036, 141 L.Ed.2d 314 (1998), the Court held that an in personam criminal
forfeiture under 31 USC 5316(a)(1)(A)4 is a punishment for purposes of the
excessive fines clause. The Court then went on to evaluate whether the par-
ticular forfeiture at issue was excessive.

ed States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), in part, for fail-
ing to focus on the “threshold question: whether the successive punishment ... is a ‘crimi-
nal’ punishment.” Id. at 102, 109 S.Ct. 1892.
3 The statute cited is the Comprehensive Drug Abuse Prevention and Control Act of 1970.
4 This section of the United States Code punishes the willful failure to report the transpor-
tation of more than $10,000 outside the United States.
Through Austin and Bajakajian, the Supreme Court has held that civil, crim-
inal, in rem and in personam forfeitures can be punishments for purposes of
the excessive fines clause. For this reason, our determination of whether the
forfeiture under 28 USC 2514 is subject to the excessive fines clause will not
turn on the civil or in personam nature of the forfeiture but rather on wheth-
er the forfeiture is a “punishment.”5

Section 2514 provides: “A claim against the United States shall be forfeited ...
by any person who corruptly practices or attempts to practice any fraud
against the United States in the proof, statement, establishment, or allow-
ance thereof.” 28 USC 2514. The plain meaning of the statute is that the val-
ue of the forfeiture is not restricted or even linked to the value of the loss sus-
tained by the government. For this reason, the forfeiture is not, strictly
speaking, a remedy. Additionally, because forfeiture under 2514 requires
demonstration of fraud — intentional conduct — the forfeiture is more akin
to punishment. Moreover, we note that the forfeiture, in fact, may have un-
mercifully harsh punitive effects because once fraud under a government con-
tract has been committed and proved, all claims under the contract are for-
feited, even ones not related to the fraud. See Little, 138 Ct.Cl. at 778, 152
F.Supp. at 87.

The Court of Claims, in O’Brien Gear & Machine Co. v. United States, 219
Ct.Cl. 187, 209-212, 591 F.2d 666, 678-80 (1979), likewise alluded that the
purpose of the statute was to punish fraud. In discussing the legislative his-
tory of 28 USC 2514, the court stated:

The debates on the Court of Claims Act contain repeated refer-

ences to the frauds which had accompanied the past considera-
tion of claims in Congress, to the firmness of Congressional in-
tention to guard against such frauds in the claims in the court
and to the purpose of what is now section 2514 as a preventa-
tive and a penalty.

O’Brien, 219 Ct.Cl. at 209, 591 F.2d at 678 (emphasis added). The court cited
the floor debate, in which it was said that the bill was “meant to visit with
merited punishment that corrupted moral sense which regards the Govern-
ment as always a proper prey for fraudulent rapacity.” Id. (citations omitted).

5 In United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 2035-36, 141 L.Ed.2d 314
(1998), the Supreme Court undermined Austin insofar as in rem forfeitures are concerned.
This trend does not affect our case, because the forfeiture here is in personam. The forfei-
ture is not aimed at the guilty property, but at the guilty person (plaintiff corporation).
The court concluded that “Congress’ purpose to prevent and punish fraud ...
was aimed at all who committed fraud and thus at all plaintiffs in the court.”
Id.

For all the reasons stated above, we conclude that the forfeiture in this case
is punitive and therefore is subject to the excessive fines clause. However,
this determination does not benefit plaintiff.

Fraud is easy to commit and difficult to detect. It was undoubtedly this com-
bination of factors that led Congress to enact the extreme measure embodied
in the forfeiture statute applicable to those who conduct business with the
government. More to the point, while the statute may be extreme, especially
as interpreted and applied by the courts, it is not excessive. Every contractor
doing business with the government since enactment of the forfeiture statute
has known, or has been deemed to know, of the extremely serious conse-
quences of fraud against the government. The statute put the world on notice
that temptation to commit fraud should be resisted, inter alia, because of the
total forfeiture of contract-based claims which will result.

Further, the fraud committed by plaintiff’s president and sole shareholder

was neither minor nor of short duration. The fraud consisted of blatant falsi-
fication of financial records in order to cheat the government out of rents to
which it was entitled, and the falsifications continued over an extended peri-
od. Def.Mot. (7/31/97), Appendix (Transcript of Criminal Cause for Pleading)
at 58-64. Forfeiture of all rights under the contract hardly seems constitu-
tionally excessive under these circumstances.

C
Plaintiff’s first claim is stated as a claim under the contract and, in the alter-
native, as a takings or statutory claim. Specifically, plaintiff asserts in its
complaint and throughout its briefs that it is entitled to compensation for its
vested property rights in the marina and that the government’s use of the
property without compensation constitutes a taking. See, e.g., Amend.Compl.
(10/10/96), ¶¶ at 14, 26, 32; Pl. Resp. (10/7/97) at 5, 10-20. Plaintiff argues
that the CPA, 16 USC 20-20g, protects its investment as concessioner and
establishes its possessory interest in its improvements.

The CPA allows the Secretary of the Interior to give concessioners a property
interest in their improvements even though those improvements are on fed-
eral land.
 [T]he Secretary may include in the contracts for the providing
of facilities and services such terms and conditions as, in his
judgment, are required to assure the concessioner of adequate
protection against loss of investment in structures, fixtures,
improvements, equipment, supplies, and other tangible proper-
ty provided by him for the purposes of the contract ... resulting
from discretionary acts policies, or decisions of the Secretary
occurring after the contract has become effective under which
acts, policies or decisions the concessioner’s authority to con-
duct some or all of his authorized operations under the contract
ceases or his structures, fixtures, and improvements ... are re-
quired to be transferred to another party or to be abandoned,
removed, or demolished. Such terms and conditions may in-
clude an obligation of the United States to compensate the con-
cessioner for loss of investment, as aforesaid.

16 USC 20b(a).

Section 20e of the CPA more precisely provides concessioners with a compen-
sable interest in their improvements:

A concessioner who ... constructs, pursuant to a contract ... any

structure, fixture, or improvement upon land owned by the
United States within an area administered by the National
Park Service shall have a possessory interest therein, which
shall consist of all incidents of ownership except legal title....
The said possessory interest shall not be extinguished by the
expiration or other termination of the contract and may not be
taken for public use without just compensation. The said pos-
sessory interest may be assigned, transferred, encumbered, or
relinquished.

16 USC20e (emphasis added).

Plaintiff asserts the CPA as an alternative basis for relief, arguing that
claims thereunder are not subject to the forfeiture provisions of 28 USC 2514.

Although the language of the CPA provides concessioners with a possessory

interest in their improvements, the CPA also allows that interest to be
waived: “The said possessory interest may be assigned, transferred, encum-
bered, or relinquished.” 16 USC 20e (emphasis added).

The legislative history supports this interpretation of the CPA: “Provision is

also included in the bill for relinquishment of a possessory interest; this will
permit waiver, if, in particular circumstances, the concessioner and the Sec-
retary agree that such is proper.” S.Rep. No. 765 (1965), reprinted in 1965
USCC.A.N. 3489, 3491 (emphasis added). We conclude from the language of
the CPA, that a concessioner can waive its right to retain a possessory inter-
est in its improvements.

In this case, plaintiff did just that. Plaintiff agreed in the contract to release
any possessory interest it had in its improvements. The contract states:

This contract does not grant the Concessioner any possessory

interest in concessioner improvements built on lands assigned
during the term of this contract. The concessioner relinquishes
and waives any right of compensation for any Concessioner im-
provements made on the Government owned lands assigned for
the purposes of this contract.

Amend.Compl., Tab 1 (Concession Contract) at 6.

Plaintiff argues that it did not waive its possessory interest under the con-
tract and that this fact is proved by section 11 of the contract “which specifi-
cally granted [plaintiff] a right of compensation for the property to be held for
the use of a successor concessioner (including the government itself) and for
the use of its personal property by any temporary operator.” Pl. Sur-reply
(2/18/98) at 6. Section 11 of the contract states:

If for any reason, the Concessioner shall cease to be authorized

to conduct the operations authorized hereunder ... and thereaf-
ter such operations are to be conducted by a successor, whether
a private person or an agency of the government, (i) the Con-
cessioner will sell and transfer to the successor designated by
the Secretary all property of the Concessioner used or held for
use in connection with such operations; and (ii) the Secretary
will require such successor, as a condition to the granting of a
permit or contract to operate, to purchase from the Concession-
er the fair value thereof and any unrecovered costs of Govern-
ment-owned personal property and equipment replaced by
Concessioner.

Amend.Compl., Tab 1 (Concession Contract) at 11 (emphasis added).

In sum, the CPA states that a concessioner has a right to be compensated for
its improvements on government-owned land. The CPA also states that this
right can be waived. The contract contains two relevant provisions, one of
which states that the concessioner does not have a right to compensation for
improvements because the concessioner has waived any possessory interests
in improvements and one of which states that the concessioner has a right to
compensation for all property used to run the concession. Plaintiff argues
that the latter provision proves that the former provision does not constitute
waiver of its right to a possessory interest in improvements. Pl. Sur-reply
(2/18/98) at 6.

Plaintiff urges us to consider various correspondence and the latest prospec-

tus for the Gateway Marina concession, all of which, plaintiff asserts, contain
admissions by the NPS that plaintiff has a right to be compensated for its
possessory interests in the marina. See, e.g., Pl. Sur-reply (2/18/98) at 7-8; Pl.
Supp. Decl. (4/3/98), ¶¶4-8. However, we conclude that the provisions of the
contract do not contradict each other; a right to compensation for property
used for the marina (e.g., supplies) does not undo the relinquishment of pos-
sessory interest in marina improvements. Because the terms of the contract
do not conflict and are unambiguous, parol evidence and other alleged admis-
sions are not relevant. Barseback Kraft AB v. United States, 121 F.3d 1475,
1479 (Fed.Cir.1997).

Based on the language of the CPA and the language of the contract, we con-
clude that the plaintiff does not have a “possessory interest” under the CPA
in the improvements it made at the marina because plaintiff waived these
rights when it signed the concession contract. Although the contract purports
to secure the concessioner’s right to compensation for other “property ... used
... in connection with such operations,” Amend.Compl., Tab 1 (Concession
Contract) at 12, all of plaintiff’s rights and claims based on the contract were
forfeited by the fraud.

D
We hold that defendant has established that plaintiff committed fraud
against the United States under the government contract-in-suit and, as a
result, its special plea in fraud must be granted. Accordingly, we concluded
that defendant is entitled, pursuant to 28 USC 2514, to a judgment of forfei-
ture with respect to all claims asserted by plaintiff.

Based on the foregoing, it is ORDERED as follows:

1. To the extent that defendant’s dispositive motion filed on July 30, 1997
seeks dismissal of counts four, five and six of the amended complaint for lack
of subject-matter jurisdiction, the motion is DENIED.

2. To the extent that defendant’s said dispositive motion seeks a declaration

of forfeiture pursuant to 28 USC 2514 and, consequently, summary judgment
with respect to counts one, two and three of the amended complaint, the mo-
tion is GRANTED.

3. Further, counts four, five and six of the amended complaint are declared to
be forfeited to the United States of America pursuant to 28 USC 2514.

Entry of judgment for defendant with respect to all of plaintiff’s claims shall
be withheld pending resolution of all issues (including damages issues) relat-
ed to defendant’s counter-claim.

The parties shall file a joint status report by Monday, August 9, 1999, con-
cerning the prospects of settlement with respect to defendant’s counter-claim
filed on March 5, 1998, and, if settlement is unlikely, a suggested procedure
for addressing and resolving said counter-claim.
 BLR Group
v.
United States

96 Fed.Cl. 9
December 16, 2010.

Timothy F. Noelker, St. Louis, MO, for plaintiff. William P. Ravel, United
States Department of Justice, Washington, DC, for defendant.

Opinion and Order

Sweeney, Judge.

In this case, plaintiff BLR Group of America, Inc. alleges that government
personnel prepared and disseminated an unfair and inaccurate evaluation of
its performance under a contract with the United States Air Force (“Air
Force”) and requests appropriate nonmonetary relief under the Contract Dis-
putes Act of 1978 (“CDA”), 41 USC §§601-613 (2006). It is perhaps unsurpris-
ing, given the nature of plaintiff’s request, that the attempts to ascertain the
court’s jurisdiction in this matter have been made in a seemingly piecemeal
fashion. Unsuccessful in its first motion to dismiss this case on jurisdictional
grounds, defendant, raising new arguments, sought reconsideration and pre-
vailed. Now plaintiff seeks reconsideration, arguing that the court applied an
incorrect legal standard in declining to exercise jurisdiction or, alternatively,
that it can meet the standard articulated by the court with newly presented
evidence. Thus, once again, the court is required to examine plaintiff’s juris-
dictional argument. After a searching review of the parties’ contentions, the
court concludes that it cannot exercise jurisdiction over plaintiff’s complaint
and therefore denies plaintiff’s motion for partial reconsideration.

I. Background

The following background information is taken from the court’s November 25,
2008, and August 16, 2010 decisions.1 On April 14, 2006, the Air Force
awarded plaintiff a contract to provide Air Traffic Management support ser-
vices. The Air Force then terminated the contract for its convenience on Sep-

1 A more comprehensive recitation of the factual and procedural history can be found in
those decisions. See BLR Group of Am., Inc. v. United States, 94 Fed.Cl. 354 (2010); BLR
Group of AM., Inc. v. United States, 84 Fed.CL. 634 (2008).
tember 26, 2006. After the contract’s termination, the Air Force evaluated
plaintiff’s performance under the contract in a Contractor Performance As-
sessment Report (“CPAR”). Although plaintiff had previously requested that
the Air Force employee charged with assigning and supervising its work be
replaced due to her purported bias against it, she was permitted to assist in
the preparation of plaintiff’s evaluation. The ratings and narrative included
in the evaluation were generally unfavorable to plaintiff. The contracting of-
ficer, Nancy Kreke, signed the evaluation on November 21, 2006, in her role
as the Assessing Official.2 Plaintiff subsequently met with Air Force person-
nel to discuss the evaluation on January 8, 2007, but the Air Force personnel
declined to respond to the inquiries posed by plaintiff.

The CPAR included a specific section titled “Contractor Comments” to permit

plaintiff to respond to the Air Force’s evaluation. Plaintiff submitted its
comments on January 12, 2007, expressing, at length, its concern about the
evaluation’s inaccuracies and the possible biases of the supervisor who helped
prepare the evaluation. At the conclusion of its comments, plaintiff indicated
that it did not concur with the unfavorable assessment of its performance and
requested that its performance be reevaluated. Despite plaintiff’s objections,
the Reviewing Official approved the evaluation on February 6, 2007,3 without
making any “substantive modification[s].” The next day, the Air Force dis-
seminated the CPAR to other procurement officials via the Past Performance
Information Retrieval System (“PPIRS”).

Plaintiff filed a complaint in this court on August 1, 2007, asserting two

claims and seeking declaratory and injunctive relief. In its first claim for re-
lief, plaintiff requested that the court “direct the Air Force to revise the
CPAR to make it fair and accurate and consistent with the facts, or, alterna-
tively, to rescind the CPAR in its entirety.” In its second claim for relief,
plaintiff requested that the court direct the Air Force to revise or rescind the
PPIRS version of the CPAR. Defendant moved to dismiss plaintiff’s complaint
for lack of jurisdiction. In its November 25, 2008 decision, the court concluded
that it possessed jurisdiction to entertain plaintiff’s first, but not its second,
claim for relief.

2 The Assessing Official is responsible for, among other things, reviewing the evaluation
narrative prepared by her representatives.
3 The Reviewing Official is responsible for reviewing, commenting on, and then issuing a
CPAR when the CPAR reflects disagreement between the Assessing Official and the con-
tractor.
Defendant then sought reconsideration of the court’s finding of jurisdiction,4
dismissal of plaintiff’s complaint on mootness grounds due to the removal of
the CPAR from the PPIRS, or, in the alternative, summary judgment in its
favor. In its August 16, 2010 decision, the court declined to find the case
moot, but, based on the new arguments raised by defendant, concluded that it
lacked jurisdiction over plaintiff’s first claim for relief. In particular, it held
that although plaintiff’s January 12, 2007 response to the Air Force’s evalua-
tion appeared to fall within the definition of a CDA claim by providing notice
to the contracting officer of the basis of the claim and the relief sought, it
nevertheless could not be a CDA claim. It explained that because plaintiff’s
response was submitted to Ms. Kreke in her role as Assessing Official as part
of the performance evaluation procedures established by the Federal Acquisi-
tion Regulation (“FAR”), “a context wholly separate and distinct from the
CDA claim process,” she was only obligated “to treat the response as contrac-
tor comments to a performance evaluation ..., and not also as a CDA claim.”
The court further concluded that there could be no contracting officer decision
or deemed denial because “[i]f a contracting officer cannot be expected to un-
derstand comments from a contractor regarding a performance evaluation to
be a CDA claim requesting a decision, then the contracting officer certainly is
not obligated to issue a decision where no claim has been submitted.” Plain-
tiff now seeks reconsideration of these two conclusions.

II. Standard of Review

A motion for reconsideration is a request for extraordinary relief and is not to

be used by a dissatisfied party to relitigate the case. Caldwell v. United
States, 391 F.3d 1226, 1235 (Fed.Cir. 2004); Four Rivers Invs., Inc. v. United
States, 78Fed.CL. 662, 664 (2007); Fru-Con Constr. Corp. v. United States, 44
Fed. Cl. 298, 300 (1999), aff’d per curiam, 250 F.3d 762 (Fed.Cir. 2000) (ta-
ble). Thus, such a motion “does not provide an occasion for a party ‘to raise
arguments that it could have raised previously, but did not’ “ or to “reassert
arguments that the Court already has considered.” Four Rivers Invs., Inc., 78
Fed.Cl. at 664 (quoting Browning Indus., Inc. & Subsidiaries v. United Staes,
No. 05-738T, 2007 WL 1412087 at *1 (Fed.Cl. May 10, 2007)). Rather, the
court may grant a motion for reconsideration when there has been an inter-
vening change in the controlling law, newly discovered evidence, or a need to
correct clear factual or legal error or prevent manifest injustice. See R. Ct. of
Fed. Cl. 59(a)(1) (allowing the court to grant a motion for reconsideration “for

4 The court treated defendant’s motion for reconsideration as a renewed motion to dismiss
plaintiff’s complaint for lack of jurisdiction.
any reason for which a new trial has heretofore been granted in an action at
law in federal court” or “for any reason for which a rehearing has heretofore
been granted in a suit in equity in federal court”); Bd. Of Trs. Of Bay Med.
Ctr. v. Humana Military Healthcare Servs., Inc., 447 F.3d 1370, 1377
(Fed.Cir. 2006); Fla. Power & Light Co. v. United States, 66 Fed.Cl. 93, 96
(2005). “The decision whether to grant reconsideration lies largely within the
discretion of the [trial] court.” Yuba Natural Res., Inc. v. United States, 904
F.2d 1577, 1583 (Fed.Cir. 1990).

III. Discussion

In its motion, plaintiff first argues that the court has impermissibly limited
the definition of a CDA claim by holding that a contractor’s comments regard-
ing an agency’s evaluation of its performance, which otherwise appear to
meet the definition, cannot be a claim because they were submitted in “a con-
text wholly separate and distinct from the CDA claim process.” In particular,
plaintiff contends that the court has misconstrued the definition of a CDA
claim, asserting that although the definition expressly excludes certain de-
mands for monetary relief, it contains no such exclusions related to demands
for nonmonetary relief. Defendant argues that the court properly declined to
treat plaintiff’s submission as a CDA claim. After careful consideration of the
parties’ arguments, the court finds that plaintiff has not established a basis
for reconsideration.

The CDA requires that “[a]ll claims by a contractor against the government
relating to a contract shall be in writing and shall be submitted to the con-
tracting officer for a decision.” 41 USC §605(a). To determine whether a con-
tractor’s submission constitutes a claim, the court must consider the regula-
tions “implementing the CDA, the language of the contract in dispute, and
the facts of the case.” Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed.Cir.
1995) (en banc). The regulations implementing the CDA provide the following
definition:

“Claim” means a written demand or written assertion by one of

the contracting parties seeking, as a matter of right, the pay-
ment of money in a sum certain, the adjustment or interpreta-
tion of contract terms, or other relief arising under or relating
to the contract. However, a written demand or written asser-
tion by the contractor seeking the payment of money exceeding
$100,000 is not a claim under the Contract Disputes Act of
1978 until certified as required by the Act. A voucher, invoice,
or other routine request for payment that is not in dispute
 when submitted is not a claim. The submission may be con-
verted to a claim, by written notice to the contracting officer ...,
if it is disputed either as to liability or amount or is not acted
upon in a reasonable time.

FAR §2.101 accord id. §52.233-1. There is “no requirement in the [CDA] that
a ‘claim’ must be submitted in any particular form or use any particular
wording.” Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592
(Fed.Cir. 1987); see also Transam Ins. Corp. v. United States, 973 F.2d 1572,
1578 (Fed.Cir. 1992) (noting that “certain ‘magic words’ need not be used and
that the intent of the ‘claim’ governs”). “All that is required is that the con-
tractor submit in writing to the contracting officer a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and
amount of the claim.” Contract Cleaning Maint., Inc., 811 F.2d at 592. Thus,
the contractor’s request for a decision from the contracting officer need not be
explicit; it may be implied. James M. Ellett Constr. Co. v. United States, 93
F.3d 1527, 1543 (Fed.Cir. 1996); see also Transam, Ins. Corp., 973 F.2d at
1576 (“The statute’s broad language demonstrates that as long as what the
contractor desires by its submissions is a final decision, that prong of the
CDA claim test is met.”).

In its parsing of the regulatory definition set forth above, plaintiff interprets
the enumeration of exceptions that apply to claims for monetary relief, but
not to claims for nonmonetary relief, as an intent to preclude the reading of
any exceptions into what may constitute a claim for nonmonetary relief.
Plaintiff’s interpretation finds support in the law. See Horner v. Andrziewski,
811 F.2d 571, 575 (Fed.Cir. 1987) (“[A]s a general rule of statutory construc-
tion, the expression of one exception indicates that no other exceptions ap-
ply.”); 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction §47.23, at 418 (7th ed. 2007) (“The enumeration of exclusions
from the operation of a statute indicates that the statute should apply to all
cases not specifically included.”); see also Andrus v. Glover Constr. Co., 446
U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980) (“Where Congress
explicitly enumerates certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of evidence of a contrary leg-
islative intent.”). But see 2A Singer & Singer, supra, at 420 (“The maxim is ...
inapplicable where the listed exceptions were obviously not meant to be the
only exceptions.”). Nevertheless, plaintiff’s overarching argument — that the
court has impermissibly limited the definition of a CDA claim — cannot
stand.
The court reaches its conclusion on two grounds. First, in determining
whether a contractor’s submission constitutes a CDA claim, the court must
examine the intent of the contractor as expressed in the submission. Trans-
am, Ins. Corp., 973 F.2d at 1578. As the court noted in its decision, plaintiff’s
January 12, 2007 response to the Air Force’s evaluation appears to fall within
the definition of a CDA claim by providing notice to the contracting officer of
the basis of the claim and the relief sought. However, what the response did
not do was alert Ms. Kreke that plaintiff was seeking a decision from her, in
her role as contracting officer, awarding relief that was separate from the re-
lief available through the FAR’s performance evaluation procedures. Those
procedures gave Ms. Kreke, in her role as Assessing Official, the power to
grant the relief sought by plaintiff — reevaluation of its performance. And,
plaintiff provided no hint in its response that it intended the response to
serve as a request for relief outside those procedures pursuant to the CDA.
Thus, Ms. Kreke had no notice that plaintiff intended that she treat the re-
sponse as a CDA claim.

Second, the court is required, when determining whether a contractor has

submitted a CDA claim, to look beyond the definition of a CDA claim and
take into account the particular facts of the case. Reflectone, Inc., 60 F.3d at
1575. Here, plaintiff was entitled, pursuant to the FAR, to submit “com-
ments, rebutting statements, or additional information” in response to the
Air Force’s evaluation. FAR §42.1503(b). And, the Air Force was required to
disseminate plaintiff’s comments with its evaluation. Id. Plaintiff was aware
that it was entitled to submit a response and that its response would be in-
cluded with the evaluation as part of the CPAR. See BLR Group of Am., Inc.,
84 Fed.Cl. at 637 (describing Ms. Kreke’s communication with plaintiff re-
garding its entitlement to submit a response and indicating that the CPAR
included a space for “contractor comments”). Indeed, it submitted a response
and that response was included in the CPAR. BLR Group of Am., Inc., 94
Fed.Cl at 360. These facts demonstrate that plaintiff, in submitting a re-
sponse to the Air Force’s evaluation, was acting within the confines of the
FAR’s performance evaluation procedures and was not submitting a claim
pursuant to the CDA.

In sum, looking at plaintiff’s intent when submitting its response to the Air
Force’s evaluation and the facts surrounding plaintiff’s response, it is evident
that the response cannot constitute a claim pursuant to the CDA. And, as the
court has previously held, without a valid CDA claim, there can be no con-
tracting officer decision or deemed denial.5 Accordingly, the court declines to
reconsider its decision based on plaintiff’s first argument.

Plaintiff’s second argument is that it did, in fact, submit a valid CDA claim to
the contracting officer that meets the criteria set forth by the court. In sup-
port of this argument, it produces, for the first time, a January 23, 2007 elec-
tronic-mail message sent from its counsel to Ms. Kreke in response to her
January 11, 2007 electronic-mail message to counsel.6 Pl.’s Exs. O, P. The
relevant portion of plaintiff’s counsel’s message provides:

It is our understanding, based on the USAF CPARS Guide,

that you have the discretion to change the initial CPARS rat-
ings and narrative in response to BLR Group’s concerns, pre-
sented at the meeting on 9 January 2007 and in its follow-up
written submission, and further detailed in BLR Group’s for-
mal responses to the CPARS assessment (submitted on 12
January 2007). Moreover, as Assessing Officer, the USAF
CPARS Guide charges you with conducting a “[q]uality review
of the entire evaluation.” Irrespective of the format of the 9 Jan
meeting, we believe that BLR Group has raised issues, both
substantive and procedural, that demonstrate that the CPARS
assessment as originally written is not a fair or accurate evalu-
ation of BLR Group’s performance under the contract. Accord-
ingly, we hope that you will exercise your power to change that
assessment.

In the alternative, we request that you withdraw the CPARS

assessment because contract performance clearly was not com-

5 Further, plaintiff’s contention that the Reviewing Official’s approval and dissemination of
the CPAR constitutes a contracting officer’s decision is without merit. The Reviewing Offi-
cial was not the contracting officer, and plaintiff has provided no legal support for the
proposition that someone other than a contracting officer can issue an appealable decision
under the CDA. Nor has plaintiff presented any evidence that the Reviewing Official was
acting as the contracting officer when he approved and disseminated the CPAR. The fact
that the Reviewing Official was the contracting officer’s direct supervisor is irrelevant.
6 In its September 29, 2010 order, the court indicated that, in the interest of justice, it in-
tended to exercise its discretion and consider this electronic-mail message even though
plaintiff provided it to the court for the first time on reconsideration. Nevertheless, the
court recognizes that plaintiff had ample opportunity to submit the message in response to
defendant’s renewed motion to dismiss for lack of jurisdiction, in which defendant argued
that plaintiff could not have been asserting a claim pursuant to the CDA because the par-
ties were acting within the procedures outlined in the FAR for conducting performance
evaluations.
 pleted within the meaning of FAR 42.1502, as explained more
fully in BLR Group’s Questions in Follow-Up to the 9 January
2007 meeting, submitted to you on 10 January 2007.

Pl.’s Ex. O at 3. Plaintiff’s counsel sent this message after plaintiff submitted
its comments to the Air Force’s evaluation on January 12, 2007, but before
the Reviewing Official approved and disseminated the CPAR on February 7,
2007.

Plaintiff contends that the January 23, 2007 electronic-mail message was
sent to Ms. Kreke outside of the FAR’s performance evaluation procedures
and that, therefore, it satisfies the definition of a CDA claim. Defendant ar-
gues that the message was not “wholly separate and distinct” from the FAR’s
performance evaluation procedures and did not provide Ms. Kreke, in her role
as contracting officer, sufficient notice that plaintiff intended to assert a
claim pursuant to the CDA. A thorough examination of the parties’ argu-
ments leads the court to conclude that plaintiff cannot prevail.

As with the previously discussed contractor comments, the court scrutinizes

the intent of the January 23, 2007 electronic-mail message sent to Ms. Kreke,
as reflected by its contents, and the facts of the case that illustrate the con-
text within which the message was sent to Ms. Kreke. Reflectone, Inc., 60F.3d
at 1575; Transam. Ins. Corp., 973 F.2d at 1578. Although it is true that the
FAR’s performance evaluation procedures do not contemplate any communi-
cations from the contractor to the evaluating agency once the contractor has
submitted its official written comments regarding the agency’s evaluation, it
is apparent, upon reading the January 23, 2007 message as a whole, that
plaintiff’s counsel was attempting to persuade Ms. Kreke to change or with-
draw the Air Force’s evaluation within the FAR’s performance evaluation
procedures. Plaintiff twice invoked the Contractor Performance Assessment
Reporting System Guide as the source of Ms. Kreke’s power to amend or
withdraw the evaluation, while making no reference to Ms. Kreke’s power to
make those same changes in her role as contracting officer. In other words,
the message contains no indication that counsel intended to assert a claim
under the CDA. Moreover, given that the Reviewing Official had not yet re-
viewed the contested evaluation or disseminated the evaluation through the
PPIRS, the factual context within which counsel sent the message to Ms.
Kreke was the FAR’s performance evaluation process and not the CDA’s dis-
pute resolution process.
In sum, examination of the intent of, and facts surrounding, the January 23,
2007 electronic-mail message sent to Ms. Kreke leads the court to conclude
that the message cannot constitute a claim pursuant to the CDA. And, be-
cause the message is not a valid CDA claim, it cannot serve as the basis for a
contracting officer’s decision or deemed denial. Accordingly, the court declines
to reconsider its decision based on plaintiff’s second argument.

IV. Conclusion

For the reasons set forth above, the court DENIES plaintiff’s motion for re-
consideration.

IT IS SO ORDERED.
 Cascade General

01-01 BCA ¶31415

May 4, 2001

Appearance for the Appellant: John T. Jozwick, Esq., Paradise Valley, AZ.
Appearances for the Government: Fred A. Phelps, Esq., Navy Chief Trial At-
torney; James D. Beback, Esq., Trial Attorney, Supervisor of Shipbuilding,
Conversion and Repair; Everett, WA.

Opinion By Administrative Judge Freeman Under Rules 11 And 12.3

Cascade General, Inc. (Cascade) appeals the denial of its claim for providing
an environmental protection plan allegedly in excess of specification require-
ments. Cascade has elected the Rule 12.3 Accelerated Procedure. Both parties
have submitted the appeal for decision under Rule 11 without oral hearing.
Pursuant to our order of 14 November 2000, we decide entitlement only.

Findings Of Fact

1. On 1 October 1999, the Supervisor of Shipbuilding, Conversion and Repair,

USN, Everett, Washington (SUPSHIP) awarded Job Order No. 007M01 to
Cascade for specified items of work on the USS FIFE at the Puget Sound Na-
val Shipyard (PSNS). The work was to begin on 13 October 1999 and be com-
pleted by 23 December 1999. (R4, tab 1 at 1, 1A, 2; ex. A-58 at 2)

2. The job order incorporated by reference the DFARS 252.217-7003

CHANGES (DEC 1991) clause, and the terms and conditions of Master Ship
Repair Agreement (MSRA) N00024-92-H-8033 (R4, tab 1 at 1A, 23). The
MSRA required, among other things, that the contractor comply with the Re-
source Conservation and Recovery Act (RCRA) and with “all other applicable
Federal, State and local laws, codes, ordinances and regulations for the man-
agement and disposal of hazardous waste.” (R4, tab 2)

3. Paragraph 3.2 of Work Item 077-10-001 required Cascade to remove and

handle all hazardous waste identified in Work Item 077-11-001 in accordance
with NAVSHIPYARDPUGET Instruction P5100(14)(Rev 2-93), the RCRA,
and COMNAVAIRPAC Instruction 5400.1B with Enclosure 4, PSNS Work
Practices and Availability Information (R4, tab 8). The PSNS Work Practices
document required compliance with NAVSHIPYDPUGETINST P5090.5D
“Hazardous Waste Management Plan” and with PSNS instructions for solid
waste management, medical waste management, PCB management, oil and
hazardous substance (OHS) spills and spill prevention, water pollution pre-
vention and control, and air pollution control (ex. A-3).

4. Paragraph 3.3 of Work Item 007-10-001 required Cascade to have a written

procedure, approved by the SUPSHIP, for “Environmental Protection and
Hazardous Waste Management” with the following “minimum” requirements:

3.3.1 The names and titles of management personnel in charge

of the contractor’s hazardous waste program.

3.3.2 The names and titles of competent persons trained to

properly handle hazardous waste.

3.3.3 The contractor’s method of accounting for hazardous

waste materials from generation until turned over to Puget
Sound Naval Shipyard.

3.3.4 The location of the contractor’s temporary storage sites

for hazardous waste materials.

3.3.5 A plan to minimize hazardous waste generation by reduc-

ing the volume or toxicity by neutralizing, recycling or other-
wise removing it from the requirements of Subtitle “C” of
[RCRA]

3.3.6 The contractor’s method for transporting and disposal of

waste material.

(R4, tab 8)

5. On 14 October 1999, Cascade had an environmental “kick-off’ meeting with

Navy representatives (ex. A-98 at 3). At this meeting, Cascade was given a
28-page PSNS “boilerplate” environmental protection plan which included
provisions for (i) storm water pollution prevention management, (ii)
wastewater management, (iii) air pollution control, (iv) spill prevention, (v)
waste awaiting designation, (vi) salvageable/reusable material and recyclable
waste, (vii) solid waste management, (viii) dangerous waste management, (ix)
sewage and odor control, and (x) environmental compliance training (ex.
A-17).

6. The scope and detail of the PSNS boilerplate environmental protection

plan went significantly beyond the “minimum” requirements specified for the
contractor’s plan in paragraph 3.3 of Work Item 077-10-001 (R4, tab 8; exs.
A-17, -101 at 3). An introductory note to the boilerplate plan, however, stated:

This Boilerplate Environmental Protection Plan is provided for

the contractor’s convenience. The contractor is free to write and
submit its own plan to the Contracting Officer....

(Ex. A-17 at 1)

7. Prior to the kick-off meeting, CH2M Hill, an engineering consulting firm,

had offered to provide environmental management consulting to Cascade for
the FIFE job order at a not-to-exceed price of $65,000 (exs. A-18, -101, -103).
On 14 October 1999, Cascade accepted CH2M Hill’s offer (exs. A-18, -98 at 3).

8. On or about 20 October 1999, Cascade with CH2M Hill’s assistance sub-

mitted its initial environmental protection plan. Cascade’s initial plan con-
sisted of 24 pages and covered all of the applicable areas in the PSNS boiler-
plate plan. (Exs. A-19, -101 at 3) The Navy, however, required two revisions
to this initial plan before granting its approval (exs. A-22, - 24, -101 at 3). The
final revision of the plan (Revision 2) as approved by the Navy on 23 October
1999 consisted of 25 pages of text and 120 pages of appendices from PSNS
Instruction P5090.5D, Chapters 1, 2 and 3 (exs. A-24, -101 at 3).

9. On 17 November 1999, Cascade gave written notice to the contracting of-

ficer that the requirements and documentation “imposed” on the USS FIFE
job order “exceed normal and reasonable environmental controls,” and that it
intended to submit a request for a constructive change (R4, tab 14). The con-
tracting officer did not reply to this notice.

10. On 22 December 1999, CH2M Hill requested a $46,000 increase in the

amount of its consulting contract. The request cited an increase in the man-
hours required to perform the contract, over and above its bid estimate, and
stated “if work had been completed as originally scheduled, CH2M HILL
would have been under budget.” (Ex.A-31)

11. The job order completion date was extended from 23 December 1999 to 10
January 2000 due to changes in the propulsion shaft prairie air tube repairs
and the impact of those changes on scheduled “hot work” in support of other
hull, mechanical and electrical work items. This extension of time was pro-
posed by Cascade at no increase in price on 5 January 2000 and accepted by
the Navy on 14 January 2000. (R4, tab 15)
12. On 5 January 2000, Cascade submitted a request for equitable adjust-
ment (REA) for $66,000 for the alleged additional costs of “complying with
PSNS environmental control procedures that were not a requirement of the
original contract.” The REA alleged that 15 data, reporting, inspection and
labeling requirements for hazardous materials brought into the PSNS, and
ten sections of the environmental protection plan exceeded specified require-
ments. The request did not explain how the $66,000 amount requested was
calculated. (R4, tab 18) On 14 April 2000, the contracting officer denied the
REA (R4, tab 23).

13. By letter dated 24 April 2000, Cascade submitted the REA as a certified
claim with the claimed amount reduced to $62,996. Cascade explained the
claimed amount as being one-half of the total amount invoiced by CH2M Hill
plus 20 percent. (R4, tab 24) CH2M Hill’s total billings to Cascade were
$104,994.21 (R4, tab 24 at 4-9). By final decision dated 28 June 2000, the con-
tracting officer denied Cascade’s claim entirely (R4, tab 27). This appeal fol-
lowed.

Decision

The scope and detail of the PSNS boilerplate environmental protection plan
exceeded the “minimum” specified requirements for that plan. See Findings 4
and 6. Moreover, in the course of the approval process the scope and detail of
the plan were further expanded to include 120 pages of extracts from the
PSNS internal environmental protection instructions. See Finding 8. While
the boilerplate plan stated on its face that it was not mandatory, and that the
contractor could prepare its own plan, it is clear from the Navy’s subsequent
refusal to approve Cascade’s initial plan as submitted, and its requirement
for additional revisions, that the boilerplate plan as expanded in the revisions
was in fact mandatory.

Cascade has proven that it was required to provide an environmental protec-

tion plan that exceeded in scope and detail the specified minimum require-
ments for that plan. Accordingly, it is entitled to a price adjustment under
the Changes clause for the difference in cost between producing the plan
specified by the contract and producing the plan approved by the Navy. Cas-
cade, however, is not entitled to a price adjustment for the cost of implement-
ing the approved plan. The MSRA and Work Item 077-10-001 required Cas-
cade to handle and dispose of hazardous waste as prescribed in the RCRA, all
other applicable Federal, State and local laws, codes, ordinances and regula-
tions, and specified Navy instructions. See Findings 2 and 3. There is no evi-
dence that any of the environmental protection actions prescribed in the ap-
proved plan exceeded the actions otherwise required of Cascade by the
MSRA, Work Item 077-10-001, or the laws, codes, ordinances, regulations
and Navy instructions referenced therein.

The appeal is sustained in part on entitlement, and remanded for settlement

of quantum in accordance with this decision.

MONROE E. FREEMAN, JR.

Administrative Judge

I concur
MARK N. STEMPLER
Administrative Judge, Acting Chairman
 Centron Industries

01-4 BCA ¶32531

February 5, 2004

Appearance for the Appellant: Sam Zalman Gdanski, Esq., Suffern, NY. Ap-
pearances for the Government: Fred A. Phelps, Esq., Navy Chief Trial Attor-
ney; David B. Funk, Esq., Assistant Counsel; Naval Inventory Control Point,
Mechanicsburg, PA.

Opinion by Administrative Judge Freeman

In Centron Industries, Inc., ASBCA No. 52581, 02-2 BCA ¶32.022, we sus-
tained this appeal from a default termination after the contracting officer
unilaterally converted the termination to one for convenience. Centron now
applies for an award of attorneys’ fees and expenses incurred in connection
with the appeal. We deny the application. Although Centron was a prevailing
party, the government’s position in the appeal was substantially justified.

Pursuant to the Equal Access to Justice Act (EAJA), 5 USC §504, Centron is
eligible for an EAJA award as a prevailing party if (i) it did not have more
than 500 employees and a net worth of more than $7,000,000 at the time it
filed the appeal, and (ii) the appeal resulted in a board-ordered change, in
appellant’s favor, in the legal relationship of the parties. See Buckhannon
Board and Care Home, Inc. v. West Virginia Department of Health and Hu-
man Resources, 532 U.S. 598 (2001); Brickwood Contractors, Inc. v. United
States, 288 F.3d 1371, 1380 (Fed.Cir. 2002). If eligible as a prevailing party,
Centron is entitled to an award unless the government proves that its posi-
tion in the appeal and in the events giving rise to the appeal was substantial-
ly justified or that special circumstances make an award unjust. See 5 USC
§504(a)(l) and Dean Kurtz Construction Company, ASBCA 35483, 89-3 BCA
¶22,001 at 110, 616-17.

The government does not dispute Centron’s eligibility with respect to number
of employees and net worth. It does dispute Centron’s status otherwise as a
prevailing party, and it also contends that its position was substantially justi-
fied. The government disputes Centron’s prevailing party status on the
ground that the change from a default to a convenience termination was the
result of the contracting officer’s voluntary act and not the result of the
Board’s decision. This argument is without merit. Centron’s prevailing party
status under Buckhannon and Brickwood turns on whether there was a
board-ordered conversion of the default termination, and not on whether the
board decision was preceded by and based upon the voluntary conversion by
the government.

Buckhannon and Brickwood respectively held that, without a court-ordered

change in the legal relationship of the parties, neither a statutory change nor
a voluntary change by the government in the relationship conferred prevail-
ing party status. Buckhannon and Brickwood did not hold that a court-
ordered change in the legal relationship would not confer prevailing party
status if preceded by and based upon a voluntary change by the government.
The government’s argument to the contrary is in substance an argument go-
ing to the board’s jurisdiction. We rejected that argument in our previous de-
cision. We reject it again for the reasons previously stated. See 02-2 BCA
¶32,022 at 158,260.

The government argues that our decision sustaining the appeal was not an
enforceable decision on the merits because it contained no “review of the mer-
its” (gov’t resp. at 12). We disagree. The government’s voluntary conversion of
the default termination obviated any need for a review of the merits, and in
that respect our decision was an adjudication on the merits in the same man-
ner as a dismissal with prejudice for failure to prosecute. See Bulloch Inter-
national, Inc., ASBCA No. 44210, 93-2 BCA ¶25,692 at 127, 808.

Our decision sustaining the appeal provided the finality and enforceability of
a judicial imprimatur to the conversion of the default termination that was
entirely lacking in the contracting officer’s voluntary act standing alone. In
Elrich Contracting Inc., ASBCA No. 50867, 02-2 BCA ¶31,950, we denied an
EAJA application where the applicant had not requested a decision sustain-
ing the appeal and agreed to a dismissal after the government converted the
default termination on the first day of the hearing. Our conclusion in that
case was: “Elrich obtained success, but not formal judicial relief. Accordingly,
we must deny its application for attorneys fees and expenses.” 02-2 BCA at
157,844. The formal judicial relief that was lacking in Elrich is present in
Centron’s case and meets the judicial imprimatur requirement for Centron’s
prevailing party status under Buckhannon and Brickwood. See 532 U.S. at
605; 288 F.3d at 1380; see also Rice Services, Ltd. v. United States, No. 02-
468C, 2004 U.S. Claims LEXIS 5 (Fed. Cl. January 13, 2004).

On the substantial justification issue, we agree with the government that its
position was substantially justified both in the appeal and in the events giv-
ing rise to the appeal. The contract was awarded on 21 December 1995 with a
first article test report (FATR) delivery date of 15 December 1996 (R4, tab 1
at 1, 20). Centron failed to deliver a compliant FATR on that date. On 13
January 1999, Centron requested a change in two test requirements that it
alleged were impossible to meet (R4, tab 31). After being informed by the re-
sponsible logistics personnel that previous suppliers of the same item had
met the cited test requirements, the contracting officer denied Centron’s re-
quest (R4, tabs 25, 32, 33).

On 29 November 1999, one day before its most recent extended FATR deliv-
ery date, Centron requested a convenience termination on the ground that:
“[w]e have determined after over three years of unsuccessful attempts and
the expenditure of a great deal of money, that it is neither feasible nor practi-
cable to produce a multicoupler ... meeting all of the required specifica-
tions....” (R4, tab 48) On 13 December 1999, the government terminated the
contract for default (R4, tab 8).

The appeal was filed on 18 January 2000. Discovery began in May 2000 (gov’t
status report, 11 July 2000). Four days after the scheduled close of discovery,
the contracting officer on 28 September 2001 converted the default termina-
tion to a convenience termination (gov’t resp., attach. 1). The contracting of-
ficer’s affidavit states that, although he believed the default termination was
justified, “after reviewing the termination for default against the circum-
stances imposed on the government by Centron’s appeal, I decided that it
would be in the best interests of the government to attempt to settle the dis-
pute” (gov’t resp., attach. 2).

The contracting officer’s unilateral conversion of the default termination to a

convenience termination is not by itself conclusive evidence that the govern-
ment’s position in the appeal up to that time was not substantially justified.
See Labelle Industries, Inc., ASBCA No. 44201, 98-2 BCA ¶29,829 at 147, 679-
80. The Rule 4 appeal file cited above contains substantial documentary evi-
dence that previous suppliers had met the drawing requirements. After more
than one year of discovery, Centron cites no evidence to the contrary. On this
record, the government has carried its burden of proving that its position in
the appeal was substantially justified.

The application is denied.

MONROE E. FREEMAN, JR.

Administrative Judge
We Concur
ROBERT PEACOCK
Administrative Judge

ALEXANDER YOUNGER
Administrative Judge

I Concur in result (see separate opinion)

MARK N. STEMPLER
Administrative Judge, Acting Chairman

I Concur in result (see separate opinion)

EUNICE W. THOMAS
Administrative Judge, Vice Chairman

Opinion Concurring in Result by Administrative Judges Thomas and

Stempler

We Concur in result without joining in the discussion. Appellant does not

qualify as a prevailing party. We do not reach the substantial justification
issue.

In January 2000 appellant appealed from the termination for default of its
contract. Appellant sought the conversion of the termination for default to
one for convenience. On 5 February 2001, the Board issued a prehearing or-
der setting dates for the close of discovery (24 September 2001), exchange of
witness and exhibit lists (22 October 2001), and a hearing (26 November
2001). On 28 September 2001, the contracting officer converted the termina-
tion for default to one for convenience. According to his declaration, “after re-
viewing the termination for default against the circumstances imposed on the
Government by Centron’s appeal, I decided that it would be in the best inter-
ests of the Government to attempt to settle the dispute” (gov’t resp., attach. 2,
¶ 8). The Board did not participate in any way in resolving the dispute.

Subsequent to the conversion of the termination for default to one for conven-
ience, the Board issued an order asking the parties to show cause why the
appeal should not be dismissed as moot. In reply, appellant requested that
“an appropriate official document ... be issued ... so appellant may seek reim-
bursement of attorney’s fees” (Centron Industries, Inc., ASBCA No. 52581, 02-
2 BCA ¶32,022 at 158,261 (dissent), quoting appellant’s 23 December 2001
reply). The government moved to dismiss the appeal for lack of jurisdiction.
On 1 October 2002, the Board issued an opinion, from which we dissented,
sustaining the appeal. Id. The Board stated that appellant’s request that the
appeal be sustained was in substance a motion for summary judgment on the
merits. It continued that “[h]aving converted the default termination to one
for convenience while the appeal was pending, the Government has failed to
carry its burden of proof in the appeal.” It concluded that appellant was enti-
tled to a Board decision sustaining the appeal as a matter of law. (02-2 BCA
at 158,260)

We pointed out that the appeal was moot and that appellant had requested
that it be sustained for the purpose of establishing its eligibility for EAJA
fees. Sustaining the appeal under these circumstances, where the parties had
resolved the merits of the appeal without any participation by the Board, and
thus qualifying the appellant as a prevailing party for purposes of EAJA, was
inconsistent with Buckhannon. 02-2 BCA at 158,262. The majority responded
that it was premature to reach the Buckhannon issue: and Brickwooddo not
apply at this stage of the dispute.” 02-2 BCA at 158,260.

In the current opinion, the majority argues that appellant is a prevailing par-
ty under Buckhannon because the prior decision “provided the finality and
enforceability of a judicial imprimatur.” In other words, while professing in
the prior opinion that it would be premature to address the Supreme Court’s
decision, the majority now admits that it was attempting to decide the pre-
vailing party issue by implication. The majority accepts the contracting of-
ficer’s explanation in opposition to the EAJA application that he decided be-
cause of the circumstances of the appeal that it was in the best interests of
the government to settle the dispute. The Supreme Court unmistakably held
in Buckhannon that a voluntary change in conduct of this type would not
support an award of attorney’s fees (see 532 U.S. at 600, 604 n.7, 605, 609).
The majority states that prevailing party status turns on “whether there was
a board-ordered conversion of the default termination.” There was no Board-
ordered conversion; the conversion had already occurred. We conclude that
appellant is not a prevailing party and that the majority’s mistaken decision
does not affect that result.

MARK N. STEMPLER
Administrative Judge, Acting Chairman

EUNICE W. THOMAS
Administrative Judge, Vice Chairman
 Clearwater Constructors
v.
United States

56 Fed.Cl. 303
April 25, 2003.

Joseph A. Camardo, Jr., Auburn, New York, attorney of record for the plain-
tiff. Lara Levinson, Department of Justice, Washington, D.C., with whom
was Assistant Attorney General Robert D. McCallum, Jr., David M. Cohen,
Director, and James M. Kinsella, Deputy Director, for the defendant.

Opinion

MEROW, Senior Judge.

This matter is before the court in this contract dispute action brought pursu-
ant to the Contract Disputes Act of 1978 (“CDA”), upon defendant’s motion to
dismiss a portion of plaintiff’s complaint for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims
(“RCFC”). One of the jurisdictional predicates to commencing an action in
this court pursuant to the CDA is that the parties must demonstrate that a
valid claim has been presented to the Contracting Officer (“CO”) for consider-
ation. The sole issue for the court’s consideration at this time is whether a
letter submitted to the CO in 1986 constituted a valid claim by the contractor
and whether the subsequent response was a final decision by the CO, suffi-
cient to trigger the time running for plaintiff to file a complaint. For the rea-
sons stated below, defendant’s motion to dismiss is granted.

Background

Facts and Procedural History

The facts of this matter are undisputed. On or about February 20, 1986,
plaintiff, Clearwater Constructors, Inc. (“Clearwater”) and the Army Corps of
Engineers (“the Corps”) entered into Contract No. DACA45-86-C-0068. Pur-
suant to that agreement, Clearwater was to construct a “3-bay hangar” at
Grand Forks Air Force Base in North Dakota. Compl. at ¶¶7-8. Clearwater
subcontracted the work required for the fabrication and erection of the hang-
ar doors to Fleming Steel Company, Inc. (“Fleming”). On or about May 8,
1986, the government issued Modification P00002 (“Mod.P00002”) to the con-
tract, which specifically provided that “control panels shall be explosion
proof.” Compl. ¶47; see also Def.’s Reply in Supp. of Partial Mot. to Dismiss,
Attach. “A” at p. 1. Fleming sought guidance from defendant with regard to
that Modification. Compl. ¶¶48-62; see also Def.’s Reply in Supp. of Partial
Mot. to Dismiss, Attach. “A” at p. 2. The Corps responded that the modifica-
tion was merely a clarification of contract requirements and not a change to
the contract.

Sometime before the end of May 1986, a dialogue ensued and continued
through August 1986, via telephone, mailgram and letter, between Clearwa-
ter, Fleming and the Corps regarding the interpretation which should be ap-
plied to Mod. P00002. Compl. ¶¶47-62. On or about July 14, 1986, Fleming
advised the government and Clearwater that its pricing for Mod. P00002
would be $11,848.57. Compl. ¶58. On or about August 22, 1986, plaintiff al-
legedly advised Fleming that “the Corps was going to direct Fleming to fur-
nish all electrical equipment … [for the h]angar as explosion proof…. and
that Fleming was to do the work effort without additional compensation.”
Compl. ¶62. On or about September 3, 1986, Clearwater purportedly forward-
ed a letter from the Corps,1 which formally declared that certain paragraphs
of Mod. P00002 were included for clarification and were not a change to the
contract. Compl. ¶63. Accordingly, the Corps stated that those paragraphs
were to be deleted from Mod. P00002. Id. By letter dated September 16, 1986,
Fleming formally voiced its disagreement with the Corps’ interpretation of
the effect Mod. P00002 would have upon the contractor and subcontractor
(“Fleming letter”). Specifically, Fleming stated:

This letter is a formal protest of the Corps of Engineers’ deci-

sion relating to the electrical equipment required for … [the
hangar doors.]

Our interpretation of Architectural Drawing A-3 exempts the

electrical equipment for the [hangar] doors from hazardous du-
ty classification.

******

On May 8, 1986[,] Modification Proposal P00002 (months after

award of contract) was issued; Item 2.10 reads “… Paragraph
3.6.1 in four places, …” insert “except in the Fuel Cell hangar
control panels shall be explosion-proof ….” Item 2.11 reads “….

1 The Corps’ letter was identified as bearing serial number 86-0068-97. The court has not
been provided with a copy of that letter.
Paragraph 6.9.2 … insert [‘]except in the Fuel Cell hangar con-
trol panels shall be explosion-proof ….[’]” These insertions
without further modification of the existing Specifications are
not workable. We had cabled for clarification on the change or-
der request….

*****

Mr. … of the Corps of Engineers had communicated in his July

29, 1986 letter, … that Amendment 5, Item 3 “further specifies
that the equipment … [relative to the hangar doors] will be
rated for hazardous equipment…. Since Amendment 5 covered
the requirements …, as well as Sheet A-3, we see no reason for
increasing contract price to achieve explosion-proof characteris-
tics of the hangar doors…. The explosion-proof characteristics
should be provided at no additional cost to the [g]overnment.”

Firstly, we would like to point out that Addendum 5 did not

change in any form Drawing A-3 of the contract drawings. Sec-
ondly, Addendum 5 states … after “hinged doors,” insert “ex-
cept control panels and associated wiring and devices shall be
explosion-proof for hazardous areas.” There are no instructions
in that insertion that changes the key plan or notes on Draw-
ing A-3. This insertion merely states that the control panels
and associated wiring and devices that are in the hazardous
areas shall be explosion-proof. However, by Drawing A-3 the
hangar doors are clearly not in the hazardous area····

Lastly, we contend that the Corps of Engineers did not make

their intent clear and concise in the contract drawings or
[s]pecifications. This fact is backed up by the act of issuing a
Modification Proposal requesting price change. It was not until
the Corps of Engineers reviewed our submission on Modifica-
tion Proposal P00002 that they declared unequivocably [sic]
that their intent was contrary to the contract drawings. Why
then was a Modification Proposal issued if, as they claim, their
intentions were clear on the contract documents.

It is our position that we should not have to suffer economically

for the mistakes on the contract documents by the Architect
and Corps of Engineers. It is our intention to seek reimburse-
ment for the cost expended in complying with the Corps of En-
gineers[‘] erroneous contention that all electrical equipment on
the hangar doors … were shown as hazardous equipment in the
contract drawings.
 As the General Contractor for this project, we request of you
submission of our protest by the contract procedures and lan-
guage.

Def.’s Reply in Supp. of Partial Mot. to Dismiss, Attach. “A,” p. 1-2.

On or about September 30, 1986, Clearwater submitted a cover

letter to the Contracting Officer (“CO”) to which it attached the
Fleming letter (“Clearwater letter”). In its cover letter, Clear-
water specifically stated:

******

Fleming Steel Company asserts that their interpretation of the

Contract documents does not indicate Explosion Proof Electri-
cal Equipment and Controls in [the] Hangar Bay … as a re-
quirement of the contract. Fleming’s position is that this work
is a change in scope and should be covered by a Contract Modi-
fication.

Per Fleming’s request, and in accordance with Contract Clause

43, “Disputes,” we herein formally request a review and deci-
sion of the … CO as allowed for under the terms of our agree-
ment.

Should you have any questions or require additional infor-

mation, please advise.

******

Def.’s Reply in Supp. of Partial Mot. to Dismiss, Attach. “B.”

On or about July 21, 1987, the CO purportedly issued a final decision and
concluded that Fleming was not entitled to an equitable adjustment with re-
gard to changes made by Mod. P00002. Compl. ¶67. At the end of that deci-
sion letter, the CO included the standard appeal language. Id.

On or about March 14, 1996, nearly ten years after the CO’s final decision,
Clearwater submitted a certified claim for Equitable Adjustment, which in-
cluded the costs relating to Mod. P00002. See Pl.’s Answer in Opp’n to Def.’s
Partial Mot. to Dismiss at Ex. 1. The total amount of the claim was
$672,050.64, of which the portion relevant to Mod. P00002 amounted to
$29,114.12. Compl. ¶5; Pl.’s Answer in Opp’n to Def.’s Partial Mot. to Dismiss
at Ex. 1.

In response, on or about June 15, 2000, the CO issued a final decision in

which it denied Clearwater’s claim in its entirety. Pl.’s Answer in Opp’n to
Def.’s Partial Mot. to Dismiss at Ex. 2. Specifically, with regard to the portion
of the claim relevant to Mod. P00002, the CO stated:

d. Issue 4 — Modification proposal P00002. This portion of the

claim deals with matters previously addressed in a Contracting
[O]fficer’s Decision issued on July 21, 1987. The claim was de-
nied at that time, and will not be considered again in this Con-
tracting Officer’s Decision. Fleming’s supplement argues that
the … [Corps] erroneously issued a Final Decision based on
Fleming’s letter, and that Fleming is entitled to raise the is-
sues again. The … [Corps] disagrees. The prime contractor,
Clearwater, forwarded Fleming’s letter with a cover letter that
specifically requested a Contracting Officer’s Decision. That de-
cision was issued, and the matter has been concluded as far as
the … [Corps] is concerned.

Pl.’s Answer in Opp’n to Def.’s Partial Mot. to Dismiss, Ex. “2,” at p. 6.

On or about June 12, 2001, Clearwater filed a complaint in this Court chal-
lenging the conclusions stated in the CO’s June 15, 2000 final decision. Spe-
cifically, Clearwater requested that this court find it is entitled to recover
$672,050.64, pursuant to the Changes clause of the contract, or alternatively,
based upon its allegations of breach of contract. Compl. at p. 29.2 Further-
more, Clearwater seeks interest, pursuant to the CDA, from the date defend-
ant received the claim until the date the claim is paid. Id. Plaintiff also seeks
costs and reasonable attorney’s fees pursuant to the Equal Access to Justice
Act and the CDA. Id.

The government subsequently moved, pursuant to RCFC 12(b)(1), to dismiss

that portion of the complaint which the CO stated had already been ad-
dressed in the CO’s July 21, 1987 decision.

2 This portion of the complaint does not have enumerated paragraphs.

Discussion

Jurisdiction and Standard of Review

The inflexible requirement that jurisdiction be established as a threshold
matter before proceeding to the merits of an action submitted for the court’s
review “spring[s] from the nature and limits of judicial power of the United
States.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct.
1003, 140 L.Ed.2d 210 (1998)

As defendant correctly states, RCFC 12(b)(1) provides for dismissal of a claim

for “lack of jurisdiction over the subject matter.” As the plaintiff, Clearwater
bears the burden of proving that this court has jurisdiction over the allega-
tions stated in its complaint. Alder Terrace, Inc. v. United States, 161 F.3d
1372, 1377 (Fed.Cir. 1998). The court may consider all relevant evidence in
order to resolve any disputes as to the truth of the jurisdictional facts alleged
in the complaint. Reynolds V. Army & Air Force Exch. Serv., 846 F.2d 746,
747 (Fed.Cir. 1988). If it appears, upon construing the allegations in the com-
plaint favorably to the pleader, that plaintiff cannot prove any set of facts
which would entitle him to relief, the complaint must be dismissed. Scheur v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); conley V. Gib-
son, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed. 80 (1957); see also McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780,80 L.Ed. 1135
(1936) (determining that plaintiff, as party who seeks to exercise jurisdiction
in his favor, bears burden of establishing jurisdiction).

Clearwater’s complaint will not be dismissed for lack of jurisdiction however,

“unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Emery Worldwide Air-
lines, Inc. v. United States, 49 Fed.Cl. 211, 219 (2001) (quoting Conley, 355
U.S. at 45-46, 78 S.Ct. 99) aff’d, 264 F.3d 1071 (Fed.Cir 2001). In this regard,
the court’s focus is not upon the issue of whether a plaintiff will ultimately
prevail but “whether the claimant [can demonstrate that this court has juris-
diction to resolve its disputes and therefore,] is entitled to offer evidence to
support the claim.” Scheuer, 416 U.S. at 236, 94 S.Ct. 1683.

The scope of this court’s jurisdiction must be narrowly construed. Logicvision,

Inc. v. United States, 54 Fed.Cl. 549, 551 (2002) (citing Hart v. United States,
910 F.2d 815, 817 (Fed.Cir. 1990)). Jurisdiction in this court is conferred by
the Tucker Act which provides in relevant part: “[t]he United States Court of
Federal Claims shall have jurisdiction to render judgment upon any claim
against the United States founded either upon the Constitution, or any Act of
Congress, or any regulation of an executive department, or upon any express
or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.” 28 USC §1491(a)(1) (2002)3 With re-
spect to disputes arising pursuant to the CDA, Congress has granted this
court “jurisdiction to render judgment upon any claim by or against, or dis-
pute with, a contractor arising under section 10(a)(1) of the Contract Dis-
putes Act of 1978, including a dispute concerning termination of a contract,
rights in tangible or intangible property, compliance with cost accounting
standards, and other nonmonetary disputes on which a decision of the con-
tracting officer has been issued under section 6 of that Act.” See 28 USC
§1491(a)(2) (emphasis added); Accordingly, this court has jurisdiction to de-
cide both monetary and non-monetary disputes. 28 USC §1491(a)(2); see also
Alliant Techsystems, Inc. v. United States (noting that open ended language
in statute is not restrictive with regard to types of claims that can be pursued
in this court under the CDA).

Pursuant to section 6 of the CDA, “[a]ll claims by a contractor against the

government relating to a contract shall be in writing and shall be submitted
to the contracting officer for a decision.” 41 USC §605(a). Under section
10(a)(1) of that Act, the court’s jurisdiction encompasses actions filed in the
appropriate forum within a specified time period triggered by the date of the
receipt by the contractor of the decision of the CO4 concerning the claim. 28
USC §1491(a)(2); 41 USC §§605(a), 609(a)(3); see James M. Ellett Constr. Co.,
Inc. v. United States, 93 F.3d at 1537, 1541 (Fed.Cir. 1996); see also Alliant,
178 F.3d at 1269-70 (noting that prior to 1992 amendments to the Tucker
Act, direct actions on monetary claim decisions could be asserted in this
court, whereas appeals from non-monetary claim decisions were relegated to
the Board of Contract Appeals).

3 The 2000 version of the United States Code is relied upon unless otherwise noted.
4 In certain circumstances a deemed denial is appropriate. 41 USC §605(c)(5) (“Any failure
by the contracting officer to issue a decision on a contract claim within the period required
will be deemed to be a decision by the contracting officer denying the claim and will au-
thorize the commencement of the appeal or suit on the claim as otherwise provided in this
chapter”); see also Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264, 1269
(Fed.Cir. 2001) (“The Corps failed to issue a final decision on Randa’s claim, resulting in a
deemed denial of the claim”).
The Parties’ Contentions
The parties do not dispute the timing and content of the communications ex-
changed between the contractor, subcontractor and the CO with regard to
Mod. P00002.

Rather, the government contends that the Clearwater letter, forwarding the
Fleming letter to the Corps, was a valid non-monetary claim and that the
CO’s July 21, 1987 response was a final decision. In the alternative, the gov-
ernment asserts that the series of letters Clearwater submitted to the CO
with regard to Mod. P00002 must be considered together with plaintiff’s July
14, 1986 cost proposal as constituting a “logical progression” which eventual-
ly amounted to a monetary claim.

Regardless of whether the claim is characterized as a non-monetary claim or

as a monetary claim, the government continues, Clearwater did not timely
pursue an appeal of the CO’s final decision upon Mod. P00002. Therefore, the
government asserts that with regard to that portion of the claim allegedly
stemming from Mod. P00002, Clearwater’s failure to adhere to the statutory
time frames mandates dismissal due to a failure of jurisdiction, and Clearwa-
ter cannot proceed to offer evidence in support of its claim.

Clearwater opposes the government’s characterization of its September 30,

1986 letter, or Fleming’s September 16, 1986 letter, as a valid claim under
any circumstances, regardless of whether that “claim” is described as mone-
tary or nonmonetary. Rather, Clearwater contends that Fleming’s letter was
meant to be a “formal protest” of the Corps’ actions and a summary of Flem-
ing’s position with respect to the essential recision of Mod. P00002. Clearwa-
ter argues that its September 30, 1986 letter cannot, however, be considered
a non-monetary demand for declaratory relief because, in its view, neither
letter conveyed an assertion of entitlement for relief. Rather, the letters al-
legedly explain the contractor’s (and subcontractor’s) disagreement with the
government’s interpretation and express Clearwater’s opinion that the al-
leged extra contractual work required by the government should be covered
by a future modification to the contract, to which the contractor intended to
subsequently file a monetary claim. Alternatively, Clearwater contends that
its letter conflicts with Fleming’s letter and therefore, the CO was not pre-
sented with a clear and unequivocal statement as to the basis of the alleged
entitlement.

Furthermore, to the extent that the government alleges that plaintiff has
made out a monetary claim, Clearwater asserts that it did not provide the CO
with any of the required indicia of a valid claim. Specifically, plaintiff con-
tends that neither Clearwater nor Fleming submitted a “sum certain,” pricing
information, a certification, or a request for the CO’s final decision.

Accordingly, based upon Clearwater’s argument that it did not submit a valid
claim to the CO, plaintiff contends that the CO’s July 21, 1987 final decision
was improper and did not trigger the time period within which plaintiff
might appeal. Rather, Clearwater asserts that the only valid claim it submit-
ted to the CO was dated March 14, 1996, and that the time period for appeal-
ing the CO’s decision did not end until one year after the date of the CO’s fi-
nal decision, issued on June 15, 2000. Because Clearwater’s complaint was
filed on June 12, 2001, plaintiff asserts the court has jurisdiction to review
that portion of the claim with respect to Mod. P00002.

Analysis

1. Validity of September 1986 Letter(s) as Non-Monetary Claim(s)

In the absence of a statutory definition of what constitutes a “claim” for pur-
poses of the CDA, the Federal Acquisition Regulation (“FAR”) defines that
term as:

a written demand or written assertion by one of the contracting

parties seeking, as a matter of right, the payment of money in a
sum certain, the adjustment or interpretation of contract
terms, or other relief arising from or relating to the contract.

48 CFR §33.201;5 Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1576 (Fed.Cir.

1995). Additionally, claims must be submitted to the CO for a decision. Rex
Sys. Inc. v. Cohen, 224 F.3d 1367, 1371-72 (Fed.Cir. 2000); Ellett, 93 F.3d at
1543; see also Kanag’Iq Constr. Co. v. United States, 51 Fed.Cl. 38, 43 (2001).
To state a non-monetary claim there is no requirement that the contractor
make a request for a sum certain. GPA-I, LP v. United States, 46 Fed.Cl. 762,
766 (2000). Accordingly, the contractor is required to satisfy just two re-
quirements to set forth a non-monetary claim: ( i ) the contractor must make
a “written demand … seeking as a matter of right … the adjustment or inter-
pretation of contract terms;” and ( ii ) that request must be submitted to the
CO for a decision. Id. at 767.

5 For convenience with regard to citations to the FAR, the full citation in the Code of Feder-
al Regulations shall be replaced with a reference to the FAR ( e.g. 48 CFR §33.201 shall be
referred to as FAR §33.201).
i.
Statement of a claim pursuant to the CDA does not depend upon any particu-
lar language or conformity to any specific format. Transamerica Ins. Corp.,
Inc. v. United States, 973 F.2d 1572, 1576 (Fed.Cir. 1992), overruled in part
on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1579 & n. 10
(Fed.Cir. 1995); Medina Constr., Ltd. v. United States, 43 Fed.Cl. 537, 550
(1999); see also Kanag’Iq, 51 Fed.Cl. at 43-44. Instead, “the intent of the
‘claim’ governs.” Transamerica, 973 F.2d at 1576; Contract Cleaning Maint.,
Inc. v. United States, 811 F.2d 586, 592 (Fed.Cir. 1987); Kanag’Iq, 51 Fed.Cl.
at 44. The contractor need only submit a clear and unequivocal statement
that gives the CO adequate notice of the basis and amount of the claim. Con-
tract Cleaning Maint., 811 F.2d at 592; Medina, 43 Fed.Cl. at 550. In certain
circumstances, even “a series of letters can be read together to comprise a
clear and unequivocal statement giving the CO notice of the basis for the con-
tractor’s claim.” Kalamazoo Contractors, Inc. v United States, 37 Fed.Cl. 362,
368 (1997) (citation omitted); see also Contract Cleaning Maint., 811 F.2d at
592; GPA-I, LP, 46 Fed.Cl. at 767.

In support of its assertion that the Clearwater letter, and the accompanying
Fleming letter, meet the necessary criteria to be a non-monetary claim, the
government first focuses upon that portion of the regulatory definition of a
claim which states that a contractor’s written demand must seek “as a matter
of right … interpretation of a contract term.” See FAR §33.201. Specifically,
the government states that because Clearwater requested that the CO pro-
vide an interpretation of the contract terms on its subcontractor’s behalf, the
two letters together constituted a non-monetary claim pursuant to 41 USC
§605(a) and FAR §33.201.

In opposition, and in reliance upon GPA-I, LP, 46 Fed.Cl. at 766. Clearwater

argues that in order for a demand for an interpretation of contract terms to
be considered a claim under the CDA, the contractor must “specifically assert
entitlement … [to the declaratory relief sought] by asserting specific contrac-
tual and legal grounds for its interpretation [of the contract.]” Pl.’s Resp. in
Opp’n to Def.’s Reply in Supp. of Partial Mot. to Dismiss at 2; GPA-I, LP, 46
Fed.Cl. at 766. In this regard, Clearwater asserts that the Fleming letter
merely put the Corps on notice of its intention to file a monetary claim and
did not request further consideration of the Corps’ position. This argument is
unpersuasive.

In GPA-I, LP, the government had entered into two leases with plaintiff for
office space, parking and other amenities. GPA-I, LP, 46 Fed.Cl. at 764. The
parties later disputed the meaning of the clause regarding rental payment
due dates. Id. After a conversation regarding the lease disputes, the CO
asked plaintiffs to make their claims in writing and stated that he would
then provide a final decision. Id. at 765. Ultimately, the CO issued a decision
interpreting the lease as allowing the government to make its lease payments
within thirty days of the first workday of each successive month (i.e. making
the May rent due within thirty days of the first workday of June). Id. Even
after this decision, plaintiff continued to assert that the lease required de-
fendant to pay rent within the first workday of each rental month (i.e. mak-
ing the June rent due within thirty days of the first workday of May). Id. The
court based its statement of the standard for ascertaining this court’s juris-
diction, over the non-monetary claims seeking interpretation of the lease
clauses, upon Alliant, 178 F.3d at 1265; GPA-I, LP, 46 Fed.Cl. at 766.

In Alliant, the Federal Circuit explained that in order to establish that a con-
tractor’s claim is asserted “as a matter of right” pursuant to the regulatory
definition of a “claim,” the contractor must specifically assert entitlement to
the relief sought. Alliant, 178 F.3d at 1265. To meet this requirement, “the
claim must be a demand for something due or believed to be due rather than,
for example a cost proposal for work the government later decides it would
like performed.” Id. (citations omitted). It was concluded that the contractor
in Alliant had met that requirement by providing the government with a let-
ter asserting specific contractual and legal grounds for its interpretation. Id.
The Federal Circuit did not hold, as the court suggested in GPA-I, LP, that in
order to specifically assert entitlement to declaratory relief, a contractor must
“assert specific contractual and legal grounds for its interpretation.” GPA-I,
LP, 46 Fed.Cl. at 766. Rather, the Federal Circuit stated that the letter the
contractor in Alliant had provided to the CO which stated factual and legal
grounds for the relief sought, was an acceptable means of specifically assert-
ing entitlement to the relief sought by making a demand for something due or
believed to be due. Alliant, 178 F.3d at 1265.

Moreover, based upon evidence similar to that found adequate to state a non-
monetary claim in Alliant, the GPA-I, LP court found that the contractor had
stated a non-monetary claim by stating a claim (1) requesting an explanation
for the allegedly late payments; (2) requesting that the CO address the issue;
and (3) by asserting specific contractual grounds for its interpretation of the
“payment due-date-clause.” GPA-I. LP, 46 Fed.Cl. at 767. Although the evi-
dence in GPA-I, LP was similar to that relied upon in Alliant, there is no ba-
sis for limiting the broadly stated elements of proof required for stating a
claim, as set forth in Alliant, in the manner suggested by GPA-I, LP. See e.g.,
Contract Cleaning Maint., 811 F.2d at 592 (“[w]e know of no requirement in
the … [CDA] that a ‘claim’ must be submitted in any particular form or use
any particular wording”).

The requirements set forth in Alliant for establishing a non-monetary claim

are met by reading the 1986 letters together. In that correspondence, Flem-
ing stated that pursuant to its interpretation of the contract’s architectural
drawings, the electrical equipment on the hangar doors should be exempted
from hazardous classification. Def.’s Final Reply in Supp. of Partial Motion to
Dismiss, Attach. “A” at ¶1. Specifically, Fleming noted that it understood that
the control panels in hazardous areas were to be explosion-proof, but that the
contract drawings as supplemented by a document identified as “Addendum
5,” showed that the hangar doors at issue were not in a hazardous area and
therefore, Fleming asserted, were not required to be explosion-proof. Id. at ¶2.
In closing, Fleming expressly stated that it intended to seek reimbursement
for costs resulting from the requirement that the hangar doors be made ex-
plosion proof, and opined that it “should not have to suffer economically for
the mistakes on the contract documents by the Architect and Corps of Engi-
neers.” Id. Clearwater summarized Fleming’s view and state that the work
described in Mod. P00002 represented “a change in scope and should be cov-
ered by a contract modification.” Def.’s Final Reply in Supp. of Partial Motion
to Dismiss, Attach. “A.”

In sum, Fleming and Clearwater clearly offered a precise and well-explained

rationale, founded both upon the facts of this matter and the language of the
contract and contract modification, setting forth the reasons for its interpre-
tation of the contract. This recitation included an extensive and detailed ex-
planation of Fleming’s “interpretation of Architectural Drawing A-3.” Id. at 1-
3. In addition, the subcontractor discussed the effect Mod. P00002 would
have upon the costs to complete the contract, and pointed out, with specifici-
ty, the issues upon which it conflicted with the government’s interpretation.
Accordingly, the letters submitted to the CO clearly stated both factual and
contractual grounds for its position, which is an acceptable means of specifi-
cally asserting entitlement to the relief sought by making a demand for some-
thing due or believed to be due. See Alliant, 178 F.3d at 1265; see also GPA-I,
LP, 46 Fed.Cl. at 767.

Clearwater unpersuasively asserts that its letter somehow conflicts with that
submitted by Fleming and therefore that the CO was not presented with a
clear and unequivocal statement as to the basis of its alleged entitlement.
Not only has Clearwater failed to explain which provisions of the two letters
are in conflict, but the substance of the alleged conflict is not apparent based
upon the evidence submitted. Rather, Clearwater’s letter summarized the
specific reasons set forth in the Fleming letter detailing its differences with
the government’s position upon Mod. P00002. It would be illogical to find that
a reasonable contractor and subcontractor could have intended the specific
and succinct description of the problem submitted to the CO in this case to
have been anything other than a clear and unequivocal statement of the dis-
agreement with the government’s interpretation of Mod. P00002. See Con-
tract Cleaning Maint., 811 F.2d at 592.

Accordingly, it is concluded that, for purposes of the CDA, by reading the

Clearwater letter in conjunction with the Fleming letter, a clear and une-
quivocal statement of plaintiff’s disagreement with the government’s inter-
pretation of Mod. P00002 is embodied in the contractor’s (and subcontrac-
tor’s) “written demand” seeking, as a matter of right, interpretation of that
contract modification.

ii.
In addition to submission of a formal, written claim to the CO, a final deci-
sion by the CO is also a jurisdictional prerequisite to maintaining a suit in
this court. See Bath Iron Works Corp. v. United States, 20 F.3d 1567, 1578-79
(Fed.Cir. 1994); Made in the USA Found. v. United States, 51 Fed.Cl. 252,
255-56 (2001); Newport News Shipping and Dry Dock Co. v. United States, 44
Fed.Cl. 613, 615 (1999).

Notwithstanding plaintiff’s protestations that the 1986 letters merely demon-

strated an intent to file a future claim in this matter, Fleming expressly re-
quested, in its September 16, 1986 letter, that Clearwater “submi[t] … [its]
protest by the contract procedures and language.” Def.’s Final Reply in Supp.
of Partial Motion to Dismiss, Attach. “A” at ¶3. Clearwater, strengthened
Fleming’s request, on September 30, 1986, by “formally request [ing] a review
and decision of the … [CO] as allowed for under the terms of our agreement.”
Def.’s Final Reply in Supp. of Partial Motion to Dismiss, Attach. “B.” It is not
clear whether a contractor can avoid a finding that the contractor’s submis-
sions requested a final decision by expressing a desire to settle or negotiate
the dispute, or meet with the government to further discuss the matter.
Transamerica, 973 F.2d at 1577-79; Contract Cleaning Maint., 811 F.2d 592;
Kanag’Iq, 51 Fed.Cl. at 44. Nevertheless, neither Clearwater nor Fleming
made any such attempt to prevent the CO from making a final decision in
response to the 1986 letters. Rather, their letters indicated the conclusion,
not the continuation of a lengthy discussion with regard to the appropriate
interpretation to be afforded Mod. P00002. Both letters are precise and obvi-
ously drafted with care. By applying a “common sense” standard to this
court’s analysis of the documents submitted to the CO and the language with
which the parties chose to express themselves, the contractor communicated
a desire for a CO’s decision. Transmerica, 973 F.2d at 1577-79; Kanag’Iq, 51
Fed.Cl. at 44.

Because the September 30, 1986 claim was submitted in writing, and sought,
as a matter of right, not only an interpretation by the CO of the contract
terms, but also a final decision as to the correct meaning of Mod. P00002, it is
concluded that Clearwater submitted a valid non-monetary claim pursuant to
the CDA at that time. See GPA-I, LP, 46 Fed.Cl. at 767.

Moreover, the CO understood the parties’ request and on July 21, 1987, pro-
vided a final decision including the boilerplate language regarding the con-
tractors’ appellate rights. Compl. ¶67; see e.g., Alliant, 178 F.3d at 1267 (not-
ing that even in absence of boilerplate language CO’s decision could be
characterized as final if that was the intent of the parties); Placeway Constr.
Corp. v. United States, 920 F.2d 903, 907 (Fed.Cir. 1990) (same). Additional-
ly, the contractors themselves treated the July 21, 1987 letter as a final deci-
sion by apparently ceasing all discussion on the matter and proceeding in ac-
cordance with the CO’s direction. Alliant, 178 F.3d at 1268 (noting that if
decision were characterized non-final, contractor would not be required to
obey CO’s directive without further discussions).

In 1987, this court did not possess jurisdiction to review a final decision upon
a claim seeking interpretation of contract terms and the appropriate avenue
to appeal the CO’s decision was to the board of contract appeals.6 41 USC
§§606, 607(d), 609 (1982) (current version at 41 USC §§606, 607(d), 609
(2000)); Overall Roofing & Constr. Inc. v. United States, 929 F.2d 687, 689
(Fed.Cir. 1991), superceded by Federal Courts Administration Act of 1992,
Pub. L. No. 102-572, 106 Stat. 4506 (1992). In order to timely comply with the
jurisdictional requirements of the CDA, Clearwater must have filed its ap-
peal to the board within ninety days of the CO’s final decision. It is undisput-
ed that Clearwater did not do so and therefore this court is without jurisdic-
tion to decide the issues relative to the claim presented to the CO on
September 30, 1986. See e.g., Petroleum Constr., Inc., DOTCAB No. 2533,

6 In 1992, Congress expanded this court’s jurisdiction to include non-monetary disputes.

Federal Courts Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506 (1992);
Garrett v. General Electric Company, 987 F.2d 747, 750 (Fed.Cir. 1993).
2533, 1993 WL 18821 at *4, 93-2 BCA ¶25,760, 25760 (DOTCAB Jan. 25,
1993) (discussing appeals process following CO’s final decision prior to pas-
sage of Federal Courts Administration Act of 1992); Allied Production Man-
agement, Inc., DOTCAB No. 2466, 2466, 1991 WL 258345 at *1, 92-1 BCA
¶24,585, 24585 (DOTCAB Nov. 15, 1991).

2. Validity of September 1986 Letter(s) as Monetary Claim(s)

Because there was a valid non-monetary claim presented to the CO and a val-
id CO’s final decision in this case, the court need not reach defendant’s alter-
native assertion that Clearwater had stated a valid monetary claim.7 Never-
theless, even if the court were to review that allegation, the evidence
presented is insufficient to formulate an opinion as to whether a monetary
claim was established.

Based upon the foregoing, two of the three elements for stating a monetary
claim pursuant to the CDA have been met. Specifically, Clearwater made a
written demand, clearly and unequivocally stating the basis for its claim, and
that claim was presented to the CO. In order to state a monetary claim, the
only additional item Clearwater need establish is that its claim contained a
statement of a “sum certain.” Ellett, 93 F.3d at 1542. In this case, however,
the court would not be able to render a determination because the parties
have not presented sufficient facts upon which to formulate an opinion as to
whether the statements of price presented in the July 14, 1987 cost proposal
were sufficient to establish that a “sum certain” was properly presented to
the CO. See e.g., Pevar Co. v. United States, 32 Fed.Cl. 822, 825 (1995) (de-
termining that amount submitted was too speculative to be a “sum certain”).

7 It is noted, that had the contractor stated a monetary claim, the legal precedents in effect
in 1987 would have allowed the contractor twelve months within which to file a complaint
in the Court of Federal Claims. See 41 USC §609(a)(3) (1987). This issue is not relevant in
this matter however, because plaintiff did not commence any action at all within the
twelve months after the CO’s 1987 decision. The evidence shows that after receiving the
CO’s decision, the matter was apparently not addressed again until March 14, 1996, when
Clearwater submitted, for a second time, its claim with regard to Mod. P00002. On or
about June 15, 2000, The CO indicated his refusal to render a second decision upon the
same subject matter. See Sharman Co. v. United States, 2 F.3d 1564, 1571 (Fed.Cir. 1993)
(determining that CO does not have authority to issue a subsequent claim based on the
same operative facts as an earlier claim currently in litigation), overruled in part on other
grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir. 1995).
Conclusion

Clearwater’s September 30, 1986 letter, and the accompanying September 16,
1986 letter authored by Fleming, together constituted a valid non-monetary
claim for purposes of the CDA. In the absence of evidence that a complaint
was timely filed in the appropriate forum, it is concluded that this court is
without jurisdiction to address that portion of the complaint regarding facts
presented to the CO in the September 30, 1986 claim.

Accordingly it is ORDERED that:

(1) Defendant’s Partial Motion to Dismiss those matters which the CO re-
viewed in conjunction with the 1986 claim and which were the subject of the
CO’s July 21, 1987 final decision, is GRANTED;

(2) Each party shall bear its own costs;

(3) The parties shall comply with the procedures for filing the Answer to the
Complaint set forth in the Order filed November 15, 2001.
 Corrigan
v.
United States

70 Fed.Cl. 665
May 10, 2006.

John L. Corrigan, Auburn, WA, pro se. Dawn S. Conrad, with whom were Pe-
ter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and
Kathryn A. Bleecker, Assistant Director, United States Department of Jus-
tice, Civil Division, Commercial Litigation Branch, Washington, DC, for de-
fendant. Kathy M. Sachen-Gute, National Credit Union Administration, of
counsel.

Opinion and Order

HEWITT, Judge.

Before the court is Plaintiff’s Motion for This Court’s Reconsideration Dis-
missing Plaintiff’s Claims on Summary Judgment (Pl.’s Mot.) and the follow-
ing responsive briefing: Defendant’s Response to Plaintiff’s Motion for Recon-
sideration (Def.’s Resp.) and Plaintiff’s Reply to Defendant’s Response to
Plaintiff’s Motion for This Court’s Reconsideration (Pl.’s Reply). Plaintiff
moves for reconsideration of this court’s opinion in Corrigan v. United States,
68 Fed.Cl. 589 (2005). In its opinion, the court held that plaintiff’s Fair Labor
Standards Act (FLSA) claims that accrued more than three years before the
filing of plaintiff’s complaint were time-barred, Corrigan, 68 Fed.Cl. at 593;
that plaintiff’s remaining FLSA claims were barred because his position as a
CU-11 examiner was classified as FLSA-exempt based on the professional
exemption, id. at 595; that plaintiff’s Federal Employee Pay Act (FEPA) over-
time claims were barred because plaintiff did not obtain prior written ap-
proval as required by 5 CFR §550.111(c), id. at 596; and that plaintiff was
ineligible for reimbursement of his travel expense claims under the Federal
Travel Regulations (FTR) and the National Credit Union Administration
(NCUA) Travel Manual, id. at 601. Plaintiff’s motion for reconsideration con-
sists of the following. First, requesting the court to reconsider plaintiff’s time-
barred FLSA claims, plaintiff introduces the new arguments that his time-
barred claims are “subject to ‘equitable tolling’ ” and that “the ‘continuing
claims doctrine applies.’ ”1 Pl.’s Mot. at 5. Second, requesting the court to re-
consider plaintiff’s remaining FLSA claims, plaintiff reiterates his argument
that he is subject to the FLSA, rather than exempt from it, despite his posi-
tion as a CU-11 credit union examiner. Id. at 5-6. Third, plaintiff reiterates
his argument that “[t]he FEPA and FLSA are in pari materia” and that “un-
der both [the FLSA and FEPA,] covered employees must be paid when work-
ing overtime.” Id. at 5. Finally, plaintiff argues that the court erred in its
analysis of plaintiff’s travel expense claims because the court did not follow
the process articulated by the General Services Board of Contract Appeals
(GSBCA) in Thurman, GSBCA No. 15562-TRAV, 01-2 BCA ¶31516, 2001 WL
748223 (GSBCA June 27, 2001), and, further, that the court erred by deciding
the travel claims on summary judgment because the GSBCA allegedly ap-
plies an inconsistent approach to “personal convenience” travel expense
claims, so that the court is not empowered to adopt one approach over anoth-
er. Id. at 1-4. For the reasons detailed below, plaintiff’s motion for reconsid-
eration is DENIED.

I. Background2

Plaintiff, a credit union examiner for the NCUA, filed a complaint with this
court on October 20, 2004, and an amended complaint on March 7, 2005,
seeking reimbursement for overtime pay and travel expenses allegedly in-
curred in connection with his professional duties. Specifically, Mr. Corrigan
sought overtime pay for travel during non-working days and beyond the for-
ty-hour work week from December 1, 1999 to present and from December 1,
2000 to present and reimbursement for the following travel expenses: the
constructive cost of lodging in Seattle when he stayed with relatives because
of voluntary and requested reassignment there; costs of car rental on week-

1 Plaintiff also reiterates the argument that his overtime claims under the FLSA are gov-
erned by the Contract Disputes Act (CDA). Pl.’s Mot. at 4. The court addressed this ques-
tion of law in its 2005 opinion in this case (Opinion). See Corrigan v. United States, 68
Fed.Cl. 589, 592 (2005). There, citing Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.
1985), the court stated:
Nor is plaintiff’s case governed by the CDA. Mr. Corrigan was appointed
to his position with NCUA, and it is well-established that “federal em-
ployees derive the benefits and emoluments of their positions from ap-
pointment rather than from any contractual or quasi-contractual rela-
tionship with the government.”

Corrigan, 68 Fed.Cl. at 593 (quoting Chu, 773 F.2d at 1229).

2 A full recitation of the facts is set out in Corrigan, 68 Fed.Cl. at 589-91.
ends between business travel in Anaheim, California; costs of lodging and per
diem expenses between business engagements in Orlando, Florida; and lodg-
ing and per diem expenses incurred in Alexandria, Virginia after a conference
there. Mr. Corrigan began working for NCUA as a CU-9 examiner on No-
vember 14, 1999 and was promoted to the position of CU-11 credit examiner
effective January 14, 2001. Corrigan, 68 Fed.Cl. at 591. NCUA classified his
CU-9 position as non-exempt and his CU-11 position as exempt from the pro-
visions of the FLSA.3 Id. Mr. Corrigan concedes that he did not obtain prior
written authorization for his overtime work; rather, “all authorization to
work overtime was oral.” Id. at 596.

On August 5, 2005, defendant filed its Motion to Dismiss and Motion for
Summary Judgment (Def.’s Mot. or Defendant’s Motion).4 Responsive briefing
followed.5 In an Opinion and Order (Opinion) dated November 15, 2005, the
court granted defendant’s motion, holding that plaintiff’s claims that had ac-
crued prior to October 21, 2001 were time-barred, Corrigan, 68 Fed.Cl. at
593; that plaintiff’s position as a CU-11 credit examiner rendered him ineli-
gible for plaintiff’s remaining overtime claims under the FLSA pursuant to
the FLSA’s professional exemption, id. at 595; that the fact that plaintiff did
not obtain prior written approval for overtime work rendered him ineligible
to receive overtime pay under FEPA, id. at 596; and that plaintiff was ineli-
gible as a matter of law to receive reimbursement for his travel expense
claims under the rules contained in the Federal Travel Regulations (FTR)
and the NCUA Travel Manual, id. at 601. Plaintiff now requests reconsidera-
tion of the court’s determinations of those issues. Pl.’s Mot. at 1-7. The court
considers plaintiff’s request in accordance with the standards of Rule 59 of
the Rules of the Court of Federal Claims (RCFC).

3 The court reviewed and affirmed NCUA’s and the Office of Personnel Management’s
(OPM’s) determination of Mr. Corrigan’s non-exempt status on the basis of a professional
exemption when he occupied the position of CU-11 credit examiner. Corrigan, 68 Fed.Cl.
at 593-95.
4 Defendant’s Motion was accompanied by Defendant’s Proposed Findings of Uncontrovert-
ed Fact (DPFUF).
5 In response to Defendant’s Motion, plaintiff filed Plaintiff’s Response to Dismiss and Mo-
tion for Summary Judgment (Pl.’s Resp.) accompanied by Plaintiff’s Response to Proposed
Findings of Uncontroverted Fact (Pl.’s Facts) on September 16, 2005, and defendant filed
Defendant’s Reply in Support of Its Motion to Dismiss and Motion for Summary Judgment
(Def.’s Reply) on September 23, 2005.
II. Standard of Review

RCFC 59(a)(1) affords this court discretion to grant reconsideration “to all or
any of the parties and on all or part of the issues, for any of the reasons es-
tablished by the rules of common law or equity applicable as between private
parties in the courts of the United States.” RCFC 59(a)(1); see Yuba Natural
Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed.Cir. 1990) (“The decision
whether to grant reconsideration lies largely within the discretion of the dis-
trict court.”). A party “does not persuade the court to grant … [a] motion [for
reconsideration] by merely reasserting arguments which were previously
made and were carefully considered by the court.” Henderson County Drain-
age Dist. No. 3 v. United States, 55 Fed.Cl. 334, 337 (2003). In addition, by
failing to raise an issue when it is first available to be litigated, a party
waives consideration by the court of the issue on reconsideration, even when
the party is pro se. Lamle v. Mattel, Inc., 394 F.3d 1355, 1359 n. 1 (Fed.Cir.
2005) (holding that pro se party had waived issue where party had first
raised issue on motion for reconsideration); Abbott Labs. v. Syntron Biore-
search, Inc., 334 F.3d 1343, 1355 (Fed.Cir. 2003) (holding that party had
waived issue by failing to raise issue in opening brief); Seldovia Native Ass’n,
Inc. v. United States, 36 Fed.Cl. 593, 594 (1996) (“[A] motion for reconsidera-
tion … should not be based on evidence that was readily available at the time
the motion was heard.”); see Bishop v. United States, 26 Cl.Ct. 281, 286 (1992)
(a motion for reconsideration “is not intended to give an unhappy litigant an
additional chance to sway the court”). “To prevail on a motion for reconsider-
ation, the movant must point to a manifest error of law or mistake of fact.”
Pac. Gas & Elec. Co. v. United States, 58 Fed.Cl. 1, 2 (2003). Specifically, the
moving party must show: (1) the occurrence of an intervening change in the
controlling law; (2) the availability of previously unavailable evidence; or (3)
the necessity of allowing the motion to prevent manifest injustice. Griswold v.
United States, 61 Fed.Cl. 458, 460-61 (2004). “A motion for reconsideration
‘enables a trial court to address oversights, and the court appreciates the op-
portunity to do so.’ ” Cane Tenn., Inc. v. United States, 62 Fed.Cl. 703, 705
(2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed.Cl. 298, 315
(1999)).
III. Discussion

A. Plaintiff’s Overtime Claims Under the FLSA

In Corrigan, the court held that plaintiff’s FLSA overtime claims that ac-
crued prior to October 20, 2001 were barred by the statute of limitations.6
Corrigan, 68 Fed.Cl. at 593. In the original briefing, plaintiff argued that his
overtime claims that accrued prior to October 20, 2001 were not time-barred
because he had submitted a first stage grievance to NCUA on January 20,
2002. Pl.’s Resp. at 1; see Corrigan, 68 Fed.Cl. at 592. In his motion for recon-
sideration, plaintiff argues for the first time that his time-barred FLSA over-
time claims are subject to equitable tolling.7 Pl.’s Mot. at 5. Plaintiff does not
argue that there has been an intervening change in the controlling law or
that he has discovered new evidence not available at the time of original
briefing. See id. Rather, plaintiff bases his argument on the fact that he had
submitted his first stage grievance to the agency on January 20, 2002. Id. In
support of his position, plaintiff quotes the following language in Wells v.
United States, 420 F.3d 1343 (Fed.Cir. 2005): “[T]he Supreme Court suggest-
ed that equitable tolling would apply ‘where the claimant has actively pur-
sued his judicial remedies….’ ” Id. In the alternative, plaintiff argues that his
“overtime claims were ongoing and [subject to] the ‘continuing claims doc-
trine….” Id. at 5. Arguing that these claims present “material issues,” plain-
tiff argues that summary judgment was inappropriate. Id.

Defendant argues, citing White Mountain Apache Tribe of Ariz. v. United

States, 9 Cl.Ct. 32, 34 (1985), that plaintiff’s “arguments are not based upon
any new law or new evidence, and therefore, are not proper grounds for re-

6 October 20, 2001 is three years prior to the date plaintiff’s complaint was filed. The FLSA
statute of limitations is generally two years but is three years for willful violations of the
statute. 29 USC §255(a) (2000). For purposes of its Opinion, the court assumed without
deciding that the applicable statute of limitations was three years. See Corrigan, 68
Fed.Cl. at 593.
7 Plaintiff also reiterates his argument set forth in his original briefing that the statute of
limitations did not begin to run “until after the administrative determination.” Pl.’s Reply
at 2. Plaintiff argued that the filing of his claim with the administrative agency, NCUA,
tolled the statute of limitations, and that the statute did not begin to run again until a fi-
nal determination was reached. Pl.’s Resp. at 1. The court addressed this issue in Corri-
gan. There, the court stated, “Contrary to Mr. Corrigan’s assertions, the filing of his
NCUA grievance, an administrative claim, ‘does not toll the statute of limitations imposed
by section 255(a).’ ” Corrigan, 68 Fed.Cl. at 593 (quoting Hickman, 10 Cl.Ct. at 552). Be-
cause plaintiff merely reiterates his prior argument on reconsideration without pointing to
an intervening change in the controlling law, previously unavailable evidence, or resulting
manifest injustice, plaintiff has not articulated a basis for reconsideration.
consideration.” Def.’s Resp. at 9. Defendant also argues that the continuing
claims doctrine does not apply to FLSA claims to extend the limitations peri-
od beyond three years, id. at 10, and that equitable tolling is inapplicable to
Mr. Corrigan’s claim because plaintiff’s claim filed with OPM was not “a de-
fective pleading filed during the statutory period,” id. at 11, because the gov-
ernment put Mr. Corrigan on notice that he was not eligible for overtime by
classifying his position as exempt, id. at 10-11, and because plaintiff “was not
led to believe that he would be paid overtime for travel,” id. at 11.8

To the extent that plaintiff’s equitable tolling argument is a mere reassertion

of his argument on summary judgment or a disagreement with the law gov-
erning time of accrual of claims, the court declines to reconsider plaintiff’s
claim. As the court stated in Corrigan, “[A] claim for unpaid overtime under
the FLSA accrues at the end of each pay period when it is not paid.” Corri-
gan, 68 Fed.Cl. at 592-93 (quoting Cook v. United States, 855 F.2d 848, 851
(Fed.Cir. 1988)). In addition, to the extent that plaintiff’s equitable tolling
and continuing claims doctrine arguments present new legal theories which
could have been asserted during briefing on summary judgment, the court
also declines to consider plaintiff’s claims. Because plaintiff uses the same
facts on which to base his new legal theories, he could have argued these new
legal theories at the summary judgment stage. Plaintiff does not assert “a
manifest error of law or mistake of fact” which would entitle him to reconsid-
eration.9 See Pac. Gas, 58 Fed.Cl. at 2. Furthermore, failure to reconsider
plaintiff’s claim would not cause manifest injustice. Accordingly, the court
declines to reconsider plaintiff’s claims.

Even if the court were to reconsider plaintiff’s claims on the merits, however,
plaintiff would not prevail. Equitable tolling, though available in suits
against the government, Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96,

8 Defendant also argues that “Mr. Corrigan’s filing of an administrative claim does not con-
stitute a defective pleading because OPM had the authority to grant the relief that he re-
quested, and his filing with OPM was not a mandatory prerequisite to judicial relief.”
Def.’s Mot. at 11.
9 Plaintiff also argues that his newly asserted legal theories constitute “material issues” so
that summary judgment was inappropriate. Pl.’s Mot. at 5. A court may not decide a case
on summary judgment where issues of material fact exist. RCFC 56(c); Agredano v. United
States, 70 Fed Cl. 564, 567 (2006), 2006 WL 800758, at *3. A fact is defined as material if
it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court notes that plaintiff’s arguments are legal
arguments and do not constitute issues of material fact which might affect the outcome of
the suit.
111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (holding that “the same rebuttable pre-
sumption of equitable tolling applicable to suits against private defendants
should also apply to suits against the United States”), is “an exceptional rem-
edy, reserved for extraordinary circumstances, which ‘[f]ederal courts have
typically extended … only sparingly.’ ” O’Connell v. Sec’y of HHS, 63 Fed.Cl.
49, 63 (2004) (quoting Irwin, 498 U.S. at 96, 112 L.Ed.2d 435 (1990)). Federal
courts have equitably tolled a statute in cases “where the claimant has pur-
sued his judicial remedies by filing a defective pleading during the statutory
period,” Irwin, 498 U.S. at 96, 111 S.Ct. 453, “where the complainant has
been induced or tricked by his adversary’s misconduct into allowing the filing
deadline to pass,” id., or where the claimant’s damages were “inherently un-
knowable,” Japanese War Notes Claimants Ass’n v. United States, 178 Ct.Cl.
630, 634, 373 F.2d 356 (1967); see Nerseth v. United States, 17 Cl.Ct. 660, 665
(1989) (“Application of th[e] doctrine [of equitable tolling] requires that a
plaintiff [be] excusably unaware of the existence of his cause of action at the
time it accrues.”). Courts have been reluctant equitably to toll the statute of
limitations where the claimant “failed to exercise due diligence in preserving
his legal rights.” Irwin, 498 U.S. at 96, 111 S.Ct. 453.

At the outset, in order for plaintiff to prevail, the statute pursuant to which
plaintiff claims relief must be subject to equitable tolling. See Irwin, 498 U.S.
at 96, 111 S.Ct. 453; Arakaki v. United States, 62 Fed.Cl. 244, 250-51 (2004).
The Federal Circuit has stated in dicta in United States v. Cook, 795 F.2d 987
(Fed.Cir. 1986), that “[w]hen and if the time comes, the district court will
presumably apply the doctrine of equitable tolling consistently with Congress’
intent in enacting the particular statutory scheme set forth in FLSA.” Cook,
795 F.2d at 994. This court and its predecessor, however, have stated only in
dicta whether congressional intent supports the application of equitable toll-
ing to the FLSA. Compare Doyle v. United States, 20 Cl.Ct. 495, 499-500
(1990) (stating that equitable tolling is unavailable for willful violations be-
cause Congress has already provided an extension of the limitations period
for those violations), aff’d Doyle v. United States, 931 F.2d 1546, 1549-50
(Fed.Cir. 1991) with Christofferson v. United States, 64 Fed.Cl. 316, 326
(2005) (stating that “the weight of authority favors equitable tolling of FLSA
claims”); see also Ewer v. United States, 63 Fed.Cl. 396, 402 (2004) (stating
that “the FLSA limitations period is not a statute of repose; thus, the princi-
ples of equitable tolling apply” but declining equitably to toll the statute). The
court has once held in an unpublished order, repeated in a published deci-
sion, that the FLSA is subject to equitable tolling. Hickman v. United States,
43 Fed.Cl. 424, 427 (1999). The court need not decide whether the FLSA is
subject to equitable tolling, however, because plaintiff has not pleaded facts
that would entitle him to equitable tolling of the statute.

Plaintiff argues that the court should equitably toll the statute because plain-
tiff filed a claim with NCUA on January 20, 2002.10 See Pl.’s Mot. at 5. Plain-
tiff seems to argue that his claim filed in this court should relate back to his
claim filed with the agency. See id. Filing an administrative claim, however,
does not toll the statute of limitations, as stated in Corrigan, 68 Fed.Cl. at
593 (“Contrary to Mr. Corrigan’s assertions, the filing of his NCUA grievance,
an administrative claim, ‘does not toll the statute of limitations imposed by
[29 USC] section 255(a).’ ”) (quoting Hickman, 10 Cl.Ct. at 552); see also
Nerseth, 17 Cl.Ct. at 665 (1989), and is not a necessary prerequisite to filing a
claim in this court, id. (“There is nothing in the language of the Act that
would support plaintiffs’ belief that the pursuit of administrative relief is a
prerequisite to bringing an action in this Court.”). Nor is the filing of an ad-
ministrative claim a basis for equitable tolling of the statute. See Irwin, 498
U.S. at 95-96, 111 S.Ct. 453. Plaintiff’s filing of an administrative claim does
not amount to “pursu[ing] [plaintiff’s] judicial remedies by filing a defective
pleading during the statutory period,” as articulated by Irwin as a basis for
equitable tolling, id. at 96, 111 S.Ct. 453; plaintiff did not attempt to file a
complaint in this or any court until October 20, 2004. Rather, this is a case of
plaintiff’s “fail[ing] to exercise due diligence in preserving his legal rights.”
Id. “[I]gnorance of rights which should have been known is not enough to toll
their running.” Braude v. United States, 218 Ct.Cl. 270, 278, 585 F.2d 1049
(1978); Japanese War Notes, 178 Ct.Cl. at 634, 373 F.2d 356. Because plain-
tiff has not demonstrated an “extraordinary circumstance[ ],” O’Connell, 63
Fed.Cl. at 63, warranting equitable tolling of the FLSA, the court declines
equitably to toll plaintiff’s overtime claims under the statute.

Plaintiff also cannot successfully assert the continuing claims doctrine to pre-
serve his overtime claims that accrued prior to October 21, 2001. “In order for
the continuing claim doctrine to apply, the plaintiff’s claim must be inherent-
ly susceptible to being broken down into a series of independent and distinct
events or wrongs, each having its own associated damages.” Brown Park Es-
tates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed.Cir. 1997).

10 In his original briefing, plaintiff argued that the statute of limitations did not begin to run
until after the administrative determination. Pl.’s Resp. at 1. Although plaintiff uses the
term “equitable tolling” in his motion for reconsideration, plaintiff does not argue any of
the bases on which a statute of limitations may be equitably tolled, and plaintiff reiterates
the argument set forth in his original briefing, that the statute of limitations did not begin
to run until after the administrative determination was reached. Pl.’s Reply at 2.
Under the continuing claims doctrine, each violation begins the limitations
period anew, Friedman v. United States, 159 Ct.Cl. 1, 310 F.2d 381, 385
(1962) (“[W]here the payments are to be made periodically, each successive
failure to make proper payment gives rise to a new claim upon which suit can
be brought.”), and the plaintiff is entitled to recover for each violation that
accrues within the limitations period, Brown Park, 127 F.3d at 1457-58.
Plaintiff’s case presents the classic example of the continuing claims doctrine.
The continuing claims doctrine permits plaintiff to assert a new claim each
time overtime compensation was excluded from his paycheck. Beebe v. United
States, 226 Ct.Cl. 308, 640 F.2d 1283, 1293 (1981). The court has already ap-
plied the continuing claims doctrine to plaintiff’s claims, however, in Corri-
gan. There, the court considered the merits of plaintiff’s claims that accrued
after October 21, 2001. This is the relief to which plaintiff is entitled under
the continuing claims doctrine. Plaintiff cannot recover damages beyond the
FLSA limitations period. See Ewer v. United States, 63 Fed.Cl. 396, 400-401
(2004) (holding that, although the continuing claims doctrine applied to
plaintiffs’ military pay claims, plaintiffs could not recover damages beyond
the FLSA limitations period). Plaintiff therefore is not entitled to reconsider-
ation of his overtime pay claims accruing prior to October 21, 2001.

Plaintiff is also not entitled to reconsideration of his overtime pay claims ac-
cruing on or after October 21, 2001. Plaintiff argues that he is subject to the
provisions of the FLSA because “[t]he FLSA does not allow the agency to put
me in th[e] position [of not receiving overtime pay for travel time beyond the
forty-hour work week].” Pl.’s Mot. at 5. Plaintiff explains,

The FLSA requires the agency to provide a 40 hour work week.

The FLSA gives the agency the option of having my travel time
within that 40 hour work week, or to give me compensatory
time for travel. However, in violation of the FLSA, the agency
does neither. It then claims that they don’t have to pay me for
this work. That is in violation of the FLSA.11

11 To the extent that plaintiff raises new travel expense claims beyond those under consider-
ation on summary judgment, the court declines to consider those claims. Plaintiff may not
allege additional complaints on a motion for reconsideration; any claims not asserted at
the time of initial briefing are waived. Lamle, 394 F.3d at 1359 n. 1 (holding that pro se
party had waived issue where party had first raised issue on motion for reconsideration);
Abbott, 334 F.3d at 1355 (holding that party had waived issue by failing to raise issue in
opening brief); Seldovia, 36 Fed.Cl. at 594 (“[A] motion for reconsideration …. should not
be based on evidence that was readily available at the time the motion was heard.”).
Id. Although plaintiff concedes that “the court may be right that I am exempt
from the FLSA overtime rules,” id. at 6, plaintiff argues that “the FLSA is
more than just overtime-and therefore, other parts of the FLSA apply to me,”
id.

Defendant argues that, “[i]n his motion for reconsideration, Mr. Corrigan
raises the same arguments that he raised in his response to the Govern-
ment’s motion to dismiss and motion for summary judgment,” Def.’s Resp. at
11, and that “RCFC 59 ‘may not be used to relitigate legal issues previously
considered and resolved by the court.’ ” Id. at 11-12 (quoting Fla. Power &
Light Co. v. United States, 66 Fed.Cl. 93, 96 (2005)). Defendant continues,
“[a] movant may not merely recapitulate cases and arguments considered by
the court before rendering its original decision.” Id. at 12 (quoting Fla. Power,
66 Fed.Cl. at 96). Defendant also argues that “Mr. Corrigan cannot recover
overtime pay for time he spends on business travel outside of the 40-hour
work week because he is exempt from the overtime provisions of FLSA.” Id.
Defendant argues that, in finding Mr. Corrigan FLSA-exempt, “this [c]ourt
properly applied the test for the professional exemption.” Id.

Mr. Corrigan’s argument that, even if FLSA-exempt, he could not be exempt

from all provisions of the FLSA reiterates the argument he made in his origi-
nal briefing. Compare Pl.’s Mot. at 6 with Pl.’s Resp. at 2-3. In his original
briefing, plaintiff argued, “I am only exempt from certain provisions of the
FLSA….” Pl.’s Resp. at 2. As the court stated in its Opinion in Corrigan, “Mr.
Corrigan has identified no authorities which support his view that he is ‘only
exempt from certain provisions of the FLSA’ and the court is not aware of any
legal support for Mr. Corrigan’s view.” 68 Fed.Cl. at 593. Plaintiff may not, on
a motion for reconsideration, re-litigate issues already decided by the court in
its opinion on original briefing. Henderson County, 55 Fed.Cl. at 337. Accord-
ingly, the court declines to reconsider plaintiff’s claims for overtime travel
accruing on or after October 21, 2001.12

12 Even if the court were to reconsider the merits of plaintiff’s claims for overtime travel that
accrued on or after October 21, 2001, plaintiff’s overtime claims would fail because plain-
tiff was exempt from the overtime provision of the FLSA under the professional exemption
while he worked in the position of CU-11 credit union examiner. Corrigan, 68 Fed.Cl. at
595 (“The court finds, as did NCUA and OPM, that Mr. Corrigan’s work as a CU-11 credit
union examiner met the criteria for the professional exemption from FLSA coverage.”). For
covered employees, the FLSA prescribes maximum hours beyond which overtime pay is
due. Section 207(a)(1) of 29 U.S.C. provides:
Except as otherwise provided in this section, no employer shall employ
any of his employees … for a workweek longer than forty hours unless
such employee receives compensation for his employment in excess of the
Plaintiff appears to argue that claims for overtime pay for travel beyond the
forty-hour work week are not claims for overtime, and that plaintiff is there-
fore not exempt from those provisions. Pl.’s Mot. at 6. To the extent that
claims for overtime pay for travel beyond the forty-hour work week can be
distinguished from overtime pay for overtime work, however, overtime pay
for travel is less available than overtime pay for overtime work. See, e.g., 29
CFR §785.39 (2005) (regulating the availability of overtime pay for travel).
Even for employees eligible for overtime pay under the FLSA, overtime pay is
generally not available for travel time spent beyond the normal work day,
even to or from sites away from the employee’s home community. 29 CFR
§785.39 (“[T]he Divisions will not consider as worktime that time spent in
travel away from home outside of regular working hours….”); accord Imada
v. City of Hercules, 138 F.3d 1294, 1297 (9th Cir. 1998). The exception to this
rule, for non-exempt employees, is for travel occurring during an employee’s
regular working hours on non-working days. 29 CFR §785.39.

Even to the very limited extent that overtime pay for travel time beyond the
forty-hour work week is available to employees covered by the FLSA, howev-
er, that overtime pay is not available to plaintiff because plaintiff is FLSA-
exempt. Furthermore, plaintiff states a claim for overtime pay-which is not
somehow a different animal on account of its being a claim for overtime trav-
el. Accordingly, Mr. Corrigan is ineligible to receive overtime pay under the
FLSA for overtime hours worked or for travel beyond the forty-hour work
week.

B. Plaintiff’s Overtime Claims Under FEPA

Plaintiff reiterates his arguments set forth in his original briefing that FEPA
and the FLSA are “in pari materia” and that “under both statutes covered
employees must be paid when working overtime.” Compare Pl.’s Mot. at 5
with Pl.’s Resp. at 2. In its original briefing, defendant, citing 5 USC §5542(c),

hours above specified at a rate not less than one and one-half times the
regular rate at which he is employed.
29 USC §207(a)(1) (2000). The FLSA exempts certain employees from the overtime provi-
sion. 29 USC §213 provides:
(a) The provisions of … section 207 of this title shall not apply with re-
spect to—
(1) any employee employed in a bona fide executive, administrative, or
professional capacity….
29 USC §213(a)(1) (2000).
correctly pointed out that plaintiff cannot recover overtime pay under both
the FLSA and FEPA. Def.’s Mot. at 11; Def.’s Reply at 5; 5 USC §5542(c);
Corrigan, 68 Fed.Cl. at 596. On reconsideration, the court reaffirms its con-
clusion that plaintiff is ineligible to receive overtime pay under the FLSA.
Corrigan, 68 Fed.Cl. at 593, 595; supra, Part II.A. Plaintiff is also ineligible
to receive overtime pay under FEPA because plaintiff did not obtain prior
written approval of overtime work, as required by OPM regulation 5 CFR
§550.111(c). Corrigan, 68 Fed.Cl. at 596. In that sense, plaintiff’s statement
that “under [FEPA], covered employees must be paid when working over-
time,” Pl.’s Mot. at 5, is overly broad. FEPA does not apply to plaintiff’s
claims. Because plaintiff has merely reiterated an argument made in his orig-
inal briefing without alleging or basing the argument on discovery of new ev-
idence or a change in applicable law, the court declines to reconsider plain-
tiff’s overtime claims under FEPA.

C. Plaintiff’s Travel Expense Claims

Plaintiff requests reconsideration of his travel expense claims. Pl.’s Mot. at 1-
4, 6. Plaintiff first argues that GSBCA has taken an inconsistent approach to
personal convenience claims, so that it is inappropriate for the court to adopt
one approach over the other. Id. at 1-2. Plaintiff also argues that the court’s
analysis of plaintiff’s travel expense claims was improper because (1) the
court failed to follow the process articulated by GSBCA in Thurman, id. at
*2-3, and (2) the court failed to compare the total constructive cost13 of plain-
tiff’s travel expenses with the total actual cost, id. Finally, plaintiff argues
that “even if this court [had] properly determined [the steps of the process
articulated by GSBCA in Thurman], it would still be improper for the court to
[decide the case at the] summary judgment [stage] — because this is a mate-
rial issue and one that should not be [decided on] summary judgment.” Id. at
*3.

Defendant argues that “Mr. Corrigan raises no new legal argument and pre-
sents no new evidence for the court to reconsider its decision on his travel ex-
pense claims.” Def.’s Resp. at 8. Defendant argues that, to the extent plaintiff
seeks review of prior GSBCA decisions, this court does not have jurisdiction
to review decisions of GSBCA that are not currently before it. Id. at *7. De-

13 The “constructive cost” to which plaintiff refers is “the constructive cost of the authorized
method of transportation” where an “employee elects to use a [privately-owned vehicle] in-
stead of an alternative form of transportation … authorize [d by the agency].” 41 CFR
§301-70.105 (2005). The constructive cost is defined as “the sum of per diem and transpor-
tation expenses the employee would reasonably have incurred when traveling by the au-
thorized method of transportation.” 41 CFR §301-70.105(a).
fendant argues that “[t]his [c]ourt is not bound by the GSBCA’s decision in
[Thurman] …,” id., and that “ Thurman is not even applicable to this case
because none of Mr. Corrigan’s travel expense claims seek reimbursement for
driving his privately-owned vehicle in lieu of flying to his temporary duty sta-
tions,” id. at *8, the claims at issue in Thurman. As for the travel expenses
incurred during Mr. Corrigan’s drive in his privately-owned vehicle to Seattle
in March 2001, defendant argues that those expenses were “part of his relo-
cation expenses” and were “not covered by the agency.”14 Id.

Although opinions of the GSBCA are persuasive authority, they do not bind
this court. See XTRA Lease, Inc. v. United States, 50 Fed.Cl. 612, 624 (2001)
(using decisions of the Government Accountability Office (GAO) and the
GSBCA as persuasive, but not binding, authority); Transam. Ins. Co. v. Unit-
ed States, 31 Fed.Cl. 602, 605 n. 1 (1994) (recognizing decisions of Boards of
Contract Appeals not to be binding on this court); Universal Restoration, Inc.
v. United States, 16 Cl.Ct. 214, 218 (1989) (“[Armed Services Board of Con-
tract Appeals] decisions, though persuasive, are not accorded stare decisis ef-
fect….”). It is the duty of this court to apply the statutes and regulations to
the facts of the case. This court is not bound by GSBCA’s approach to the
evaluation of personal convenience travel expense claims. Even if the GSBCA
takes an inconsistent approach to personal convenience travel expense
claims, that circumstance would have no bearing on the decisions of this
court. In addition, because the facts of this case are not in dispute and the
only dispute plaintiff raises is the application of the law, this court appropri-
ately decided plaintiff’s travel expense claims on summary judgment. See
RCFC 56(c).

Even if this court were to apply the approach taken by the GSBCA in Thur-
man, plaintiff would still not be entitled to recover the travel expenses he
claims. In Thurman, the GSBCA, quoting Yates, GSBCA 15109-TRAV, 00-1
BCA ¶30,785, 2000 WL 145477, articulated a three-step analysis for evaluat-
ing personal convenience travel expense claims applicable to situations where
“an employee chooses to travel in his or her own vehicle rather than by the
means of transportation most advantageous to the government.” Thurman,
GSBCA No. 15562-TRAV, at *1-2. The GSBCA described the analysis as fol-
lows:

14 Plaintiff did not claim in his original briefing an entitlement to reimbursement for travel
expenses for his drive to Seattle incurred at the time of his relocation; the court therefore
did not address any such claim in its Opinion in Corrigan. The court declines to address
such a potential claim here.
 First the agency should determine, through the standard appli-
cation of statute and regulation, the allowability of the various
components of an employee’s travel claim…. The agency should
then total the allowable costs.

Second, the agency should determine the total constructive cost

of the employee’s travel had he or she traveled by the method
of transportation deemed to be in the Government’s best inter-
est….

After computing the two totals, the agency should compare

them. If the total of costs determined in standard fashion to be
allowable is greater than the total of the constructive costs, the
agency should limit reimbursement to the latter figure.

Id. at *2 (quoting Yates, GSBCA 15109-TRAV, 00-1 BCA ¶30,785). Even as-
suming that this three-step approach were properly applicable to plaintiff’s
claims,15 however, plaintiff would not be able to recover personal convenience
travel expenses because plaintiff’s claims are not “allowable” and therefore
would not survive the first step of the analysis. Contrary to plaintiff’s asser-
tions, then, the court need not take a total cost approach by separately total-
ing the allowable and constructive costs and comparing them because the
court would not reach step three in the evaluation of plaintiff’s claims. Be-
cause this court effectively applied the first step in its opinion in Corrigan
and appropriately dismissed plaintiff’s claims at that stage, deciding that
they were not “allowable” as a matter of law, see Corrigan, 68 Fed.Cl. at 601
(“As a matter of law, Mr. Corrigan is not entitled to reimbursement for any of
his claimed travel expenses.”), the court declines to reevaluate plaintiff’s
travel expense claims.

IV. Conclusion

For the foregoing reasons, plaintiff’s motion for reconsideration is DENIED.

The Clerk of the Court is directed to ENTER JUDGMENT for defendant. No
costs.

IT IS SO ORDERED.

15 As correctly noted by defendant, plaintiff does not state a claim for the situation described
in Thurman. Def.’s Resp. at 8.
 Croman Corp.
v.
United States

49 Fed.Cl. 776
July 12, 2001

Alan I. Saltman, Washington, DC, for plaintiff. Richard W. Goeken, Washing-

ton, DC, of counsel. John S. Groat, with whom were Kathryn A. Bleecker, As-
sistant Director, David M. Cohen, Director, and Stuart E. Schiffer, Acting As-
sistant Attorney General, Civil Division, Department of Justice, Washington,
DC, for defendant. Leslie Lagomarcino and Jamie Rosen, Department of Ag-
riculture, and Susan Cook, Environmental and Natural Resources Division,
Department of Justice, Washington, DC, of counsel.

Opinion and Order

HEWITT, Judge.

This is a suit for damages alleged to have resulted from the suspension of a
timber sale contract. The performance of the contract was delayed following
the listing by the Fish and Wildlife Service of the United States Department
of the Interior (Fish and Wildlife) of the marbled murrelet as a threatened
species and the resulting investigation of a portion of the Klamath National
Forest in California to determine whether that area was a murrelet habitat.
Plaintiff, Croman Corporation (Croman), argues that it temporarily lost the
benefit of its contract for the logging of the land in question and sustained
damages as a result. Defendant, the United States, acting through the Forest
Service of the Department of Agriculture (Forest Service), argues that plain-
tiff voluntarily suspended its own contract and that, even if the government
were responsible for the suspension of the contract, plaintiff is not entitled to
damages. The matter is before the court on the parties’ cross- motions for
summary judgment on Counts II and III of the Amended Complaint. Count II
alleges that defendant breached its duty not to hinder the performance of
plaintiff’s contract by unreasonably suspending logging operations, and
Count III alleges that the contract constituted property that was taken by
defendant in violation of the Fifth Amendment to the United States Constitu-
tion.

This is the second set of dispositive motions that the court has considered in
this case. Plaintiff moved for summary judgment on liability on December 22,
1998, and defendant cross-moved for summary judgment and moved to dis-
miss on May 11, 1999. Defendant argued in its motion to dismiss that plain-
tiff’s claim of a July 1992 suspension of contract operations had not been
submitted to the contracting officer and was therefore outside the court’s ju-
risdiction. Defendant’s Motion to Dismiss, Opposition to Plaintiff’s Motion for
Summary Judgment, and Cross Motion for Summary Judgment (Def.MTD) at
9-14. In an opinion filed on October 1, 1999, the court agreed and dismissed
plaintiff’s July 1992 suspension claim.1 Croman Corp. v. United States, 44
Fed.Cl. 796, 808 (1999). The court then examined whether a suspension of
contract operations from October 9, 1992 to August 28, 1995 was unauthor-
ized or unreasonable. Id. at 804-07. The court determined that the listing of
the marbled murrelet on September 28, 1992 constituted a sovereign act and
that the application of the sovereign acts doctrine authorized the suspension
of operations in October 1992. Id. at 807. For that reason, the court granted
summary judgment to defendant on Count I of plaintiff’s Amended Complaint
(Am.Compl.), which alleged an unauthorized suspension of the contract. Id.
The court declined to rule on the question of whether the steps taken by de-
fendant after the initial suspension were unreasonable and constituted a
breach of an implied duty not to unduly hinder plaintiff’s performance. Id.

On October 18, 1999, plaintiff sought reconsideration of the court’s October 1,

1999 opinion insofar as the court found the sovereign acts doctrine applicable.
Plaintiff’s Motion for Reconsideration (Pl.Mot.Reconsid.) at 1. The court de-
nied the motion for reconsideration on October 28, 1999. By order of February
13, 2001, after briefing on the current set of dispositive motions, the court re-
opened consideration of its October 1, 1999 opinion and invited further brief-
ing of the sovereign acts issue. After review of the parties’ further briefing,
the court WITHDRAWS the portion of subsection II.B.1 of its October 1, 1999
opinion holding that the sovereign acts doctrine authorized the suspension of
operations on plaintiff’s contract because of the listing of the marbled murre-
let as a threatened species. See Croman, 44 Fed.Cl. at 804-07. For the rea-
sons discussed in section I.B below, however, the court’s conclusion in its Oc-

1 Plaintiff first contended that its operations were suspended in September or October of
1992 as a result of the listing of the marbled murrelet as a threatened species. Croman, 44
Fed.Cl. at 799. In connection with its prior motion for summary judgment, plaintiff sub-
mitted Supplemental Proposed Findings of Uncontroverted Fact alleging that its opera-
tions were suspended in July 1992. Id. On January 22, 2001, plaintiff filed a separate suit
in this court, docketed as case number 01-40 C, contending that the Forest Service sus-
pended operations on plaintiff’s contract in July 1992. By order dated March 1, 2001, the
court stayed all proceedings in that case pending the final resolution of this matter.
tober 1, 1999 opinion that defendant is entitled to summary judgment on
Count I of the Amended Complaint is undisturbed.

With respect to the current motions and for the following reasons, plaintiff’s
motion for summary judgment with respect to Count II is GRANTED in part
and DENIED in part, and plaintiff’s motion for summary judgment with re-
spect to Count III is DENIED. Defendant’s motion for summary judgment is
GRANTED in part and DENIED in part with respect to Count II. Defend-
ant’s motion for summary judgment with respect to Count III is GRANTED.

I. Background

A. The Dispute
The contract is for the sale and harvest of timber located on the Happy Camp
Ranger District of the Klamath National Forest (Klamath) in California.
Plaintiff’s Corrected Proposed Findings of Uncontroverted Fact in Support of
its Motions for Summary Judgment as to Counts II and III of the Amended
Complaint,2 filed on February 9, 2001 (Pl. Second PFUF) ¶11.3 When the dis-
pute arose, the contract was one of the oldest timber contracts still not fully
performed. Pl.App. at 243. Standard Veneer and Timber Company was
awarded the contract in 1970 and transferred all rights and obligations under
the contract to Standard Plywood Corporation in 1973. Plaintiff’s Proposed
Findings of Uncontroverted Fact (Pl. First PFUF) ¶¶1, 6. Plaintiff purchased
the contract in 1979. Id. 28.

The original contract was to terminate on March 31, 1974. Pl. Second PFUF
¶13. Prior to plaintiff’s purchase of the contract, the contract termination date
was extended many times by agreement of the parties. Id. ¶¶14-15, 17- 21, 24.
The contract contained a standard provision, Paragraph C8.22, allowing for
adjustments to the contract termination date in certain circumstances. Ap-
pendix to Defendant’s Corrected Motion to Dismiss, Opposition to Plaintiff’s

2 Plaintiff’s original complaint alleged that defendant had suspended operations on the con-
tract unreasonably and without authorization and thereby breached the contract. Com-
plaint ¶¶38, 71-73. Plaintiff filed an Amended Complaint on September 15, 1998
(Am.Compl.), pleading in the alternative that its contractual rights were taken without
just compensation. Am. Compl. ¶¶75-77. The taking claim was added as Count III. Id. The
original complaint was not otherwise changed.
3 None of the statements cited to one party’s Proposed Findings of Uncontroverted Facts has
been controverted by the other party.
Motion for Summary Judgment, and Cross Motion for Summary Judgment
(Def.App.) at 77. The relevant portion of ¶C8.22 provided as follows:

“Contract Term Adjustment” means an extension under a writ-

ten permit to delay ... for any of the three circumstances de-
scribed in this Subsection. Under said circumstances, the con-
tract term shall be adjusted in writing to include additional
calendar days in one or more Normal Operating Seasons equal
to the actual time lost ....

... The three circumstances qualifying for a Contract Term Ad-

justment are:

(a) Purchaser experiences delay in starting scheduled opera-

tions or interruption in active operations either of which stops
removal of Included Timber from Sale Area through curtail-
ment in felling and bucking, yarding, skidding and loading,
hauling or road construction, as scheduled in B6.31, of 10 or
more consecutive calendar days during a Normal Operating
Season due to causes beyond Purchaser’s control, including but
not limited to acts of God, acts of the public enemy, acts of Gov-
ernment, labor disputes, fires, insurrections or floods.4

Id. at 76-77. After plaintiff’s purchase of the contract, several Contract Term
Adjustments were granted, extending the contract termination date. Pl. Se-
cond PFUF ¶¶28-32.

On June 20, 1991, after the termination date of the contract had been ex-
tended to December 31, 1993, Fish and Wildlife published a proposed rule to
list the marbled murrelet5 as a threatened species under the Endangered
Species Act (ESA), 16 USC §1531. Am. Compl. 20. The regional forester for
the Pacific Southwest Region issued a management direction on May 8, 1992,
directing the forest supervisors for various forests, including the Klamath

4 Paragraph C8.22 also provided for Contract Term Adjustments in the event that causes
beyond plaintiff’s control “substantially affect the disposition or processing of Included
Timber during Normal Operating Season through their effects on primary timber pro-
cessing facilities,” or in the event that plaintiff consents to a Forest Service delay request
or is forced to suspend operations because of a “fire emergency closure.” Def.App. at 77.
None of those provisions is applicable here.
5 The marbled murrelet is a small bird that lives in both marine and inland forested envi-
ronments along the North American Pacific coast. Am. Compl. ¶12. The marbled murrelet
travels inland to nest, typically between April and September. Am. Compl. ¶12.
National Forest, to conduct surveys to detect the presence of marbled murre-
lets. Plaintiff’s Supplemental Appendix (Pl.Supp.App.) at 512, 518. The man-
agement direction noted the proposed listing of the marbled murrelet, and
stated that forests should conduct surveys for timber sales within 35 miles of
the Pacific coast in which there was standing timber volume on June 20,
1992. Id. at 512. The Clearview sale was located within 35 miles of the coast.
Def.App. at 385.

The forest supervisors for the Klamath National Forest responded to the re-
gional forester on May 21, 1992, outlining their plans to survey several tim-
ber sales. Pl. Supp.App. at 518-21. The forest supervisors stated that there
was an “almost harvested” sale within 35 miles of the coast that would not be
surveyed.6 Id. at 518. No surveys were done on the Clearview site in 1992. Pl.
Second PFUF ¶42. Unconfirmed sightings of marbled murrelets were report-
ed on the site of a proposed timber sale approximately 35 miles from the
coast, not then under contract, in the Happy Camp Ranger District in the
Klamath National Forest. Defendant’s Renewed Proposed Findings of Uncon-
troverted Fact (DPFUF) ¶8; Pl. Second PFUF ¶41.

Effective September 28, 1992, Fish and Wildlife listed the marbled murrelet
of Washington, Oregon, and California as a threatened species under the
ESA. 57 Fed.Reg. 45,328, 45,330 (1992). The regional forester issued a state-
ment on September 29, 1992, stating that no felling was permitted on any
timber sale contract in marbled murrelet habitat until after consultation with
the Fish and Wildlife Service. Pl. Supp.App. at 603. The statement also noted
that any project that “may affect” the marbled murrelet “should be suspended
and no irreversible or irretrievable commitment of resources made until con-
sultation with the Fish and Wildlife Service is completed.” Id.

The Forest Service submitted a biological assessment of sales within 35 miles

of the coast, including the Clearview sale, to Fish and Wildlife on October 7,
1992 and requested formal consultation. Defendant’s Supplemental Appendix
(Def.Supp.App.) at 922. The biological assessment concluded that the Clear-
view sale “May Affect, and [is] Likely to Adversely Affect the marbled murre-
let.” Id. at 926. Between October 1992 and July 1993, there were numerous
inconclusive communications and discussions between the Forest Service and
Fish and Wildlife regarding the procedures for conducting surveys on the
Clearview site and on other sites. See id. at 943-50. Surveys were conducted

6 The reference to an “almost harvested” sale may refer to plaintiff’s timber contract, alt-
hough the Clearview sale was not explicitly identified.
from July 15, 1993 through August 13, 1993, but those surveys were insuffi-
cient to satisfy the applicable protocol. Plaintiff’s Reply in Support of its Mo-
tion for Summary Judgment as to Count III, Response in Opposition to De-
fendant’s “Renewed” Motion for Summary Judgment as to Count II and Cross
Motion for Summary Judgment as to Count II (Pl.Opp.) Exh. 1 at 16(a); Pl.
First PFUF ¶54. Plaintiff and defendant agreed, on May 26, 1994, that plain-
tiff would conduct the surveys and would be reimbursed for its costs. Def.
Supp.App. at 951-53. The surveys were completed on August 24, 1995. Id. at
961. On August 28, 1995, the Forest Service informed plaintiff that it was
free to resume operations on the Clearview site, no marbled murrelets having
been detected. Id. at 962. Plaintiff completed the harvesting of the sale in
June of 1996. Def.App. at 569.

On May 1, 1997, plaintiff filed a claim with the contracting officer seeking
damages of $4,854,884.95 allegedly sustained “as a result of the Forest Ser-
vice’s wrongful suspension of [plaintiff’s] operations from September 28, 1992
through August 28, 1995.” Def.App. at 554. On September 11, 1997, the con-
tracting officer issued a final decision denying plaintiff’s claim and finding
that the “Forest Service acted properly and in accordance with federal law
when the operations under the Clearview contract were delayed as a result of
the listing of the marbled murrelet.” Id. at 572. The contracting officer fur-
ther held that the Forest Service did not breach the Clearview contract, since
the listing of the marbled murrelet was a sovereign act. Id. Plaintiff brought
suit in this court on April 24, 1998.

B. Prior Proceedings and Grant of Motion for Reconsideration

[1] In an initial round of motions, plaintiff moved for summary judgment that
the suspension of the contract following the listing of the marbled murrelet
was unauthorized and in breach of its contract. Plaintiff’s Memorandum in
Support of its Motion for Summary Judgment on the Issue of Liability as to
Count I at 1-2. Defendant cross-moved for summary judgment that any sus-
pension was consistent with the contract and that defendant had not sus-
pended operations, and moved to dismiss claims not presented to the con-
tracting officer. Def. MTD at 9-10, 16-21. The court held in its first opinion in
this matter that the implementation by the Forest Service of the listing of the
marbled murrelet as a threatened species under the Endangered Species Act
was a sovereign act for which defendant cannot be held liable for breach of
contract. Croman, 44 Fed.Cl. at 807.

Plaintiff raised an objection to that holding in its Motion for Reconsideration,

filed on October 18, 1999, and its briefing on the present cross-motions for
summary judgment. Pl. Mot. Reconsid. at 1; Pl. Opp. at 1- 2. Specifically,
plaintiff argues that the sovereign acts doctrine cannot excuse a suspension
of the contract because the parties foresaw the possibility of those events and
allocated the risks in the contract. Pl. Mot. Reconsid. at 2-3; Pl. Opp. at 1-2.
Plaintiff cites United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432,
135 L.Ed.2d 964 (1996) (plurality opinion of Souter, J.), see Pl. Mot. Reconsid.
at 2, in which a plurality of the Supreme Court held that the government
must show that the impossibility defense is applicable to invoke the sovereign
acts doctrine. 518 U.S. at 904-06, 116 S.Ct. 2432. In Winstar, the governmen-
tal act in question was the passage of a law abrogating the government’s
agreements with various thrifts. Id. at 855, 870, 116 S.Ct. 2432. The Supreme
Court found that the contract, by providing for particular regulatory treat-
ment, had “allocate[d] the risk of regulatory change.” Id. at 906, 116 S.Ct.
2432. The Supreme Court inferred the allocation of the risk of a sovereign act
despite the absence of contract language addressing that possibility. Id. at
905-06, 116 S.Ct. 2432. In this case the terms of contract — in ¶C8.22 — in
fact directly addressed the risk of a sovereign act (“acts of Government,” see
Def.App. at 77) and specifically provided for a time adjustment in that event.
Def.App. at 77. The court finds plaintiff’s argument persuasive.

In a timber sale case involving a more recently drafted contract, this court
found that the listing of the marbled murrelet as a threatened species cannot
be considered a sovereign act when the timber sale contract at issue specifi-
cally allocated the rights and responsibilities of the parties in the event of the
suspension of contract operations due to environmental protection concerns.
Scott Timber Co. v. United States, 40 Fed.Cl. 492, 508 (1998), vacated on oth-
er grounds, 44 Fed.Cl. 170 (1999). The Scott Timber contract was more specif-
ic than plaintiff’s in its allocation of risks in connection with suspension of
work for the protection of endangered species. See 40 Fed.Cl. at 508
(“[C]lauses C6.01 and C6.25 of the contracts between plaintiff and the Forest
Service show that the parties specifically foresaw the possibility that ... per-
formance of the contracts might threaten the existence of protected species ...
[and] specifically set[ ] forth the rights and responsibilities of the parties, if
any, if those contingencies should arise”). The court finds here that the gen-
eral provision in ¶C8.22 for a Contract Term Adjustment in plaintiff’s con-
tract was sufficient to indicate that the nonoccurrence of sovereign govern-
ment action was not a “basic assumption” of the contract. See Winstar at 904,
116 S.Ct. 2432 (plurality opinion of Souter, J.).

Defendant argues that Winstar does not bind this court, since the main opin-
ion was a plurality rather than a majority. Def. Opp. Reconsid. at 11. The
court notes, however, that Justice Souter’s plurality opinion has been quoted
and relied on extensively in decisions of this court and of the Federal Circuit
addressing the sovereign acts doctrine. See, e.g., Yankee Atomic Elec. Co. v.
United States, 112 F.3d 1569, 1574-75 (Fed.Cir. 1997), cert. denied, 524 U.S.
951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998); Castle v. United States, 48
Fed.Cl. 187, 217 n. 23 (2000); General Dynamics Corp. v. United States, 47
Fed.Cl. 514, 534 (2000).

Because the risk of “acts of Government” was addressed and allocated by the
contract, the court finds that its application of the sovereign acts doctrine to
this case in its opinion and order of October 1, 1999 was incorrect. The court
therefore GRANTS plaintiff’s Motion for Reconsideration. The court with-
draws its holding in subsection II.B.1 of its October 1, 1999 opinion that
“[t]he implementation by the Forest Service of ESA requirements with re-
spect to the marbled murrelet” constituted a sovereign act. Croman, 44
Fed.Cl. at 807. The enactment of the ESA and the listing of the marbled
murrelet as a threatened species were acts of Government binding on both
the Forest Service and plaintiff. The risks of those acts of Government were
contemplated by and allocated by ¶C8.22 of the contract.

The court notes, however, that it granted summary judgment to defendant in

its earlier opinion on Count I of the Amended Complaint, which alleged an
unauthorized suspension of operations on the contract. Croman, 44 Fed.Cl. at
807. The court found that the ESA required the Forest Service to suspend op-
erations upon the listing of the marbled murrelet as a threatened species. Id.
at 806-07. The court’s withdrawal of its holding regarding the applicability of
the sovereign acts doctrine does not change the court’s conclusion regarding
the authorization for the suspension of the contract after the September 28,
1992 listing of the marbled murrelet as a threatened species. Accordingly, the
court’s conclusion in its October 1, 1999 opinion that defendant is entitled to
summary judgment on Count I of the Amended Complaint is not affected by
the court’s revision of its view of the applicability of the sovereign acts doc-
trine.

II. Discussion of Current Motions

A. Summary Judgment
Summary judgment is appropriate when “there is no genuine issue of materi-
al fact and ... the moving party is entitled to judgment as a matter of law.”
Rule of the Court of Federal Claims (RCFC) 56(c); Southfork Sys., Inc. v.
United States, 141 F.3d 1124, 1131 (Fed.Cir. 1998). A fact that may affect the
outcome of the suit is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must construe all facts
in the light most favorable to the nonmovant. Id. at 255, 106 S.Ct. 2505. The
movant bears the initial burden of showing that there is no genuine issue of
material fact; if the movant satisfies that standard, the burden shifts to the
nonmovant to show, for each issue on which it will bear the burden of proof at
trial, that there is a “genuine issue for trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the case is be-
fore the court on cross-motions for summary judgment, each motion is evalu-
ated under the same standard. Cubic Defense Sys., Inc. v. United States, 45
Fed.Cl. 450, 457 (1999). Contract interpretation is a question of law appro-
priately resolved on summary judgment. Gov’t Sys. Advisors, Inc. v. United
States, 847 F.2d 811, 812 n. 1 (Fed.Cir. 1988).

B. Defendant’s Initial Suspension of Contract Operations Was Not a Breach

of Contract
Plaintiff contends that defendant breached the contract by suspending con-
tract work. Pl. Opp. at 9-11. While defendant continues to assert that plain-
tiff suspended its own operations in July 1992, see Defendant’s Response to
Plaintiff’s November 13, 2000 Cross Motion for Summary Judgment as to
Count II and Reply to Plaintiff’s Opposition to Defendant’s Motion for Sum-
mary Judgment (Def.Reply) at 3-4, defendant now acknowledges, that “had
Croman been operating in September and October 1992 ... the Forest Service
would have been required to suspend its operations.” Defendant’s Response to
the Court’s February 13, 2001 Order and Plaintiff’s Motion for Reconsidera-
tion (Def.Opp.Reconsid.) at 14.

The record, consistent with defendant’s acknowledgment, shows that plaintiff

was not free to resume work after the listing. An internal message among
Forest Service employees dated July 17, 1993 discussed the Clearview sale,
along with another sale, and referred to “continuing the suspension on these
sales until survey and consultation are completed.” Def. Supp.App. at 950(j).
Plaintiff wrote to the Happy Camp Ranger District on December 1, 1993,
stating that plaintiff had been notified in early 1993 that the timber sale
would be suspended and requesting a one-year Contract Term Adjustment on
the contract. Def.App. at 490. The parties entered into an agreement in May
of 1994 that stated that plaintiff “has been delayed from harvesting timber
until such time as the impacts of the sale to marbled murrelet populations
and habitat can be accessed,” and provided that plaintiff would conduct the
surveys and would be reimbursed upon the completion of the surveys. Def.
Supp.App. at 952. Defendant’s August 28, 1995 letter to plaintiff stated that
plaintiff was “now authorized to proceed with harvest operations on the sale.”
Plaintiff’s Appendix (Pl.App.) at 240.

Plaintiff, as the movant for summary judgment on this issue, has furnished
or pointed to evidence sufficient to show that it was not free to carry out con-
tract operations after the listing of the marbled murrelet as a threatened spe-
cies.7 See, e.g., Def. Supp.App. at 950(m), 952; Pl.App. at 240. Upon that
showing, the burden shifts to defendant to point to specific facts that preclude
the entry of summary judgment in plaintiff’s favor. See Rule 56(f) of the Unit-
ed States Court of Federal Claims (“When a motion for summary judgment is
made and supported as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of such party’s pleading, but such par-
ty’s response ... must set forth specific facts showing that there is a genuine
issue for trial.”). Defendant has not made a factual showing to rebut the evi-
dence that plaintiff’s contract was effectively suspended after the listing.

The court found in its earlier opinion that the enactment of the ESA and the
listing of the marbled murrelet as a threatened species were acts taken in the
government’s sovereign capacity. Croman, 44 Fed.Cl. at 807. The court then
concluded that the sovereign acts doctrine excused the suspension. Id. The
court’s reconsideration of that decision is based not on a finding that the gov-
ernment was not acting as a sovereign when Fish and Wildlife listed the
marbled murrelet as a threatened species, but rather on its determination
that the contract allocated the risk of delay caused by “acts of Government.”
Def.App. at 77. The ESA requires that an agency “ insure that any action” it
“authorize[s], fund[s], or carrie[s] out ... is not likely to jeopardize the contin-
ued existence of any endangered species or threatened species.” 16 USC
§1536(a)(2) (2000). To that end, the ESA requires that the agency consult
with the Department of the Interior and refrain from any “irreversible or ir-
retrievable commitment of resources ... which has the effect of foreclosing the
formulation or implementation” of any approach that might avoid harm to
the species in question. Id. §1536(a)(2), (d). Since the initial suspension of
sale operations was required by the ESA and by the listing of the murrelet as
a threatened species, the court finds that the suspension following the listing
was an “act of Government” contemplated by the contract.8 The initial sus-
pension was therefore not in breach of the parties’ contract.

7 The court notes that it is not relevant for purposes of this question whether plaintiff’s op-
erations were ongoing at the time when operations were suspended.
8 The court notes that the Ninth Circuit Court of Appeals recently held, in Envtl. Prot. Info.
Ctr. v. Simpson Timber Co., 255 F.3d 1073, (9th Cir. 2001), that once one round of consul-
C. Whether an Unreasonable Delay Followed the Initial Suspension
The court must now determine whether defendant’s conduct in implementing
the listing was a breach of contract. Plaintiff alleges that defendant’s conduct
magnified the effect of the suspension of contract operations and thereby
caused damages that were not caused by the listing itself. Pl. Opp. at 11-13.

1. Legal Basis for Remedy for Unreasonable Delay

In an analogous context, the Supreme Court has held that, when a contract
clause reserved the government’s right to make specific changes and gave the
contractor a right to an extension of time should the government exercise
that right, the contractor is not entitled to delay damages unless specifically
provided for elsewhere in the contract. United States v. Rice, 317 U.S. 61, 65-
66, 63 S.Ct. 120, 87 L.Ed. 53 (1942). The clause at issue in Rice directed that
“any increase or decrease of cost and (or) difference in time resulting from
such changes shall be adjusted,” and the court found that the provision for
cost adjustment referred to structural changes necessitated by the changed
plans, rather than damages. Id. at 67 & n. 1, 63 S.Ct. 120. The Rice doctrine
is now rarely applied, since most government contracts expressly provide for
equitable adjustments when conditions change. See Merritt-Chapman & Scott
Corp. v. United States, 192 Ct.Cl. 848, 429 F.2d 431, 444-45 (1970) (distin-
guishing Rice on the ground that the “Changed Conditions” clauses in Mer-
ritt-Chapman expressly provided for an equitable adjustment and stating
that “the so-called ‘Rice’ problem has now been eliminated, by revisions of the
‘Changes’ and ‘Changed Conditions’ clauses”).

The Rice doctrine applies with even greater force where, as here, the super-
vening events (“acts of Government”) are beyond the control of the contract-
ing agency. Many government contracts now include a “Suspension of Work”
clause requiring that the government grant the contractor a price adjustment
when it unilaterally suspends operations. See, e.g., Merritt-Chapman, 429
F.2d at 445. The contract at issue here, however, did not contain a “Suspen-

tation regarding a threat to one species has been completed, Fish and Wildlife had no duty
to reinitiate consultation affecting the exercise of an “incidental take permit” upon the list-
ing of different species as threatened. Id. at 1074, 1079-85. The Ninth Circuit’s decision
turned on its finding that the federal agency had not retained sufficient discretionary in-
volvement or control over the permit to trigger reinitiation of consultation. Id. at 1080-81;
see 50 CFR §402.16 (“Reinitiation of formal consultation is required and shall be requested
by the Federal agency or by [Fish and Wildlife], where discretionary Federal involvement
or control over the action has been retained or is authorized by law.”). This case does not
involve the exercise of control through a permit or the reinitiation of consultation.
sion of Work” clause, and the “Changed Conditions” clause referred only to a
“substantial change in the physical conditions of Sale Area or Included Tim-
ber since the date of this contract.” Def.App. at 59. The court therefore be-
lieves that the Forest Service here is entitled to the benefit of the rights and
remedies provided by its contract to at least the same extent as the govern-
ment contracting entity in Rice.

The Rice doctrine is not absolute, however. The Supreme Court has stated
that the effectiveness of a contract remedy to exclude other remedies is sub-
ject to a reasonableness requirement. See United States v. Utah Constr. and
Mining Co., 384 U.S. 394, 402, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) (“[W]hen
only partial relief is available under the contract ... the contractor may secure
damages in breach of contract if the Government’s conduct has been unrea-
sonable.”). The Court of Claims has also noted that the character of the gov-
ernment’s conduct is a consideration in determining whether Rice applies.
Laburnum Constr. Corp. v. United States, 163 Ct.Cl. 339, 325 F.2d 451, 458
(1963) (“This exculpatory rule is not applicable to a situation in which unrea-
sonable delays were the ... fault of the Government.”). See also Kop-
pers/Clough v. United States, 201 Ct.Cl. 344, 363, 1973 WL 21338 (1973)
(stating that contractor may recover damages despite contract’s provision for
equitable adjustment as exclusive remedy, but that “the predicate for recov-
ery has always been that the Government has been at fault or is responsible”
and that “[m]ere proof of delay or of loss has not been enough”); Gardner Dis-
plays Co. v. United States, 171 Ct.Cl. 497, 346 F.2d 585, 588-89 (1965) (stat-
ing that Rice “does not apply to preclude monetary damages for that part of a
delay found to be unreasonable”); Kehm Corp. v. United States, 119 Ct.Cl.
454, 93 F.Supp. 620, 624 (1950) (holding that the government had been “far
from diligent,” and distinguishing Supreme Court case in which the govern-
ment had exhibited” ‘great, if not unusual, diligence’”) (quoting United States
v. Howard P. Foley Co., 329 U.S. 64, 67, 107 Ct.Cl. 710, 67 S.Ct. 154, 91 L.Ed.
44 (1946)).

Courts have also commonly read into contracts an implied duty to cooperate
and not to hinder, which is violated when a party “unreasonably cause[s] de-
lay or hindrance to contract performance.” C. Sanchez & Son, Inc. v. United
States, 6 F.3d 1539, 1542 (Fed.Cir. 1993); see also Malone v. United States,
849 F.2d 1441, 1445 (Fed.Cir. 1988); Lewis-Nicholson, Inc. v. United States,
213 Ct.Cl. 192, 550 F.2d 26, 32 (1977). When the original cause of a delay is
not under a party’s control, therefore, but the party’s conduct exacerbates the
delay, that party may be found to have breached the implied duty of coopera-
tion. Lewis-Nicholson, 550 F.2d at 31-32 (finding breach of implied duty when
government discovered instability in hillside but unreasonably delayed de-
sign changes).

Plaintiff cites Yankee Atomic Elec. Co. v. United States, 42 Fed.Cl. 223, 232-
33 (1998), aff’d, 225 F.3d 1336 (Fed.Cir. 2000), for the proposition that a con-
tractual remedy is exclusive only if the parties clearly so agreed. Plaintiff’s
Corrected Reply in Support of its Motion for Summary Judgment on Count II
(Pl.Reply) at 12-13. The court noted in that case, however, that “[a] contractor
is required to prove that the government’s conduct has been ‘unreasonable’
when it alleges a breach of either the implied duty not to hinder or unreason-
ably delay performance or the implied duty of good faith and fair dealing.” 42
Fed.Cl. at 232 n. 4. Even if the remedy of contract extension contained in
¶C8.22 is not exclusive, the breach plaintiff alleges here is a breach of an im-
plied duty. Plaintiff must show that the government’s conduct subsequent to
the suspension was unreasonable or wrongful.

Plaintiff also cites Cedar Lumber, Inc. v. United States, 5 Cl.Ct. 539 (1984),
for the proposition that clauses providing for time adjustments in the event of
disruptions by forces outside the parties control do not thereby exclude other
remedies. Pl. Reply at 13. This court recognized in Cedar Lumber, however,
that “[i]n the absence of a specific warranty, fault is a necessary ingredient to
an action for breach of the duty of cooperation.” 5 Cl.Ct. at 550. This court
also noted that contract language providing solely for a time adjustment in
the event of a delay, and shielding the government from all other contract
liability when the delay is caused by a breach of contract, must be “clear and
express.” Id. at 552. The exception to the Rice doctrine recognized in Cedar
Lumber turns on whether the government’s conduct breaches the contract.
See id. (“The pertinent clause provides for an extension of time for events ‘be-
yond the Purchaser’s control’ so that an extension of time would be appropri-
ate for an ‘act of the government,’ an event beyond plaintiff’s control. This
language does not, however, preclude damages for an act of the government
which constitutes a breach of contract. When the government intends to dis-
claim liability for breach of contract, it must employ clear and express lan-
guage to effectuate its intent.”). Accordingly, to obtain relief other than the
relief of an extension of contract term specified in ¶C8.22, plaintiff here must
show that defendant’s conduct violated the implied duty of cooperation or was
otherwise unreasonable or wrongful.
2. Genuine Issues of Material Fact Exist Concerning Reasonableness of
Delay
Plaintiff argues that defendant was required to minimize the impact of the
suspension on plaintiff, see Pl. Opp. at 11-13, and that “most of the three-year
delay was caused by Forest Service actions which were not consistent with
[defendant’s] fulfilling its obligations under the ESA.” Id. at 13. Defendant
contends that it “acted in a reasonable and responsible manner” in its imple-
mentation of the listing. Def. Opp. Reconsid. at 14.

The survey protocol governing the detection of marbled murrelets, prepared

by the Pacific Seabird Group and adopted by Fish and Wildlife, see Pl.App. at
231, 236, established a method for conducting marbled murrelet surveys. Id.
at 230-35. The protocol required two consecutive years of surveys before an
area could be determined to be a marbled murrelet habitat. Id. at 234. The
protocol also stated that the season during which surveys must be conducted
for California sites extends from April 15 to August 5. Id. at 231.

The record also shows that the Forest Service wrote to Fish and Wildlife on
October 6, 1992, stating that the Forest Service would “[p]rovide a biological
opinion through formal consultation on the sales under contract within 35
miles of the coast on the Klamath National Forest.”9 Def. Supp.App. at 920.
The Forest Service submitted a biological assessment to Fish and Wildlife on
October 7, 1992 and requested formal consultation.10 Id. at 922. The biologi-
cal assessment concluded that the Clearview sale “May Affect, and [is] Likely
to Adversely Affect the marbled murrelet.” Id. at 926. On November 16, 1992,
the Forest Service wrote to Fish and Wildlife again, requesting consultation
on the effects of thirteen additional timber sales on the marbled murrelet. Id.
at 937. The Forest Service requested that Clearview and three other sales be
given a higher priority in Fish and Wildlife’s review. Id. at 938. Fish and
Wildlife responded to the Forest Service on February 22, 1993, recommend-
ing a ground inspection “to determine [the] suitability for marbled murrelet

9 After an agency undergoes “consultation” with the Department of the Interior under the
ESA, 16 USC §1536(b), the Secretary of the Interior is required to produce a “biological
opinion” regarding “whether the action, taken together with cumulative effects, is likely to
jeopardize the continued existence of listed species or result in the destruction or adverse
modification of critical habitat.” 50 CFR §402.14(g)(4) (2001).
10 The ESA requires that federal agencies “request of the Secretary [of the Interior] infor-
mation whether any species which is listed or proposed to be listed may be present in the
area” of proposed agency action, and “conduct a biological assessment” if the Secretary
finds that “such species may be present.” 16 USC §1536(c)(1). The biological assessment
process is undertaken “to facilitate compliance” with the consultation requirement. Id.
nesting” on the Clearview site before formal consultation, and offering the
services of a Fish and Wildlife representative to assist with the ground in-
spection. Id. at 943. A visit was scheduled for March 25 and 26, 1993. Id. at
950(g). The Fish and Wildlife representative’s visit was canceled, though the
reasons for the cancellation are unclear. See id. at 950(g) (July 1, 1993 letter
stating that visit was canceled due to snow); Pl. Reply Exh. 1 at 1 (May 19,
1993 e-mail stating that visit was canceled due to “other priorities”).

The Forest Service wrote to Fish and Wildlife on March 30, 1993, requesting
a biological opinion for the Clearview sale. Def. Supp.App. at 944. Fish and
Wildlife wrote to the Forest Service on April 9, 1993, recommending formal
consultation for twelve sales, although it is unclear whether the Clearview
sale was included among those sales. Id. at 950(b) (minutes of April 21, 1993
meeting, referring to letter of April 9, 1993). An internal Forest Service memo
on April 12, 1993 addressed unconfirmed murrelet sightings in the summer
of 1992, see Def.App. at 424, and stated that a Fish and Wildlife representa-
tive “wanted to treat the unconfirmed sighting [on the site of another sale] as
a confirmed sighting.” Id. at 427. The same memo also stated that the author
had been contacted by a Fish and Wildlife employee on March 19, 1993, re-
garding whether the Clearview site was suitable habitat for marbled murre-
lets, and that the author told the Fish and Wildlife representative that she
“had no doubts ... [that] the habitat was suitable for marbled murrelets.” Id.
at 426. Forest Service and Fish and Wildlife representatives met on April 21,
1993, and discussed, inter alia, the need for formal consultation on specific
sales. Def. Supp.App. at 950(b). It is unclear whether Clearview was dis-
cussed. Id. The participants in the meeting also acknowledged the sightings
of marbled murrelets in the Happy Camp Ranger District in the summer of
1992 and discussed whether the sightings should be treated as confirmed or
unconfirmed. Id. Forest Service and Fish and Wildlife representatives met
again on June 9, 1993 and discussed where within the Clearview site a sur-
vey should be conducted. Id. at 950(c-f).

On July 1, 1993, Fish and Wildlife wrote to the Forest Service regarding two
timber sales, including the Clearview sale, stating that the Forest Service at
that time did not have “adequate information to insure that the proposed pro-
jects are not likely to jeopardize the marbled murrelet” and directing that the
Forest Service conduct a survey with informal consultation from Fish and
Wildlife. Def. Supp.App. at 950(g-h). A Forest Service internal e-mail on July
17, 1993 acknowledged the July 1, 1993 letter and requested that a Forest
Service employee contact plaintiff regarding the survey. Id. at 950(j). Surveys
were conducted by Forest Service employees between July 15, 1993 and Au-
gust 13, 1993. Pl. Opp. Exh. 1 at 16(a). The surveys conducted in the summer
of 1993 were not sufficient to satisfy the protocol. Pl. Opp. Exh. 1 at 16(a). On
August 20, 1993, plaintiff requested permission to conduct further surveys.
Def. Supp.App. at 952. Plaintiff and defendant agreed, on May 26, 1994, that
plaintiff would conduct the survey and would be reimbursed for its costs. Id.
at 951-53. The two-year survey was conducted by an independent contractor
hired by plaintiff with defendant’s approval, and was completed on August
24, 1995. Id. at 959. The survey detected no marbled murrelets. Id. at 965.
On August 28, 1995, the Forest Service informed plaintiff that it was free to
resume operations on the Clearview site, since no marbled murrelets had
been detected. Id. at 962.

Plaintiff contends that defendant’s failure to follow a management direction

in 199211 and then to conduct adequate surveys in the summer of 1993 neces-
sitated surveys in 1994 and 1995 and prevented plaintiff from resuming op-

11 Fish and Wildlife issued a management direction in May 1992, noting that the marbled
murrelet had been proposed for listing as a threatened species and ordering forest super-
visors to conduct surveys in the summer of 1992 for sales within 35 miles of the coast. Pl.
Supp.App. at 512. The Forest Service did not, however, conduct surveys on the Clearview
site in 1992. Pl. Second PFUF ¶42. Plaintiff contends that the Forest Service’s failure to
conduct surveys on the Clearview site in 1992 was a breach of defendant’s implied duty to
cooperate. Pl. Opp. at 17.
Plaintiff brought suit under the Contract Disputes Act, 41 USC §609(a)(1) (2001). Am.
Compl. 1. The Contract Disputes Act states that “[a]ll claims by a contractor against the
government relating to a contract shall be ... submitted to the contracting officer for a de-
cision.” 41 USC §605(a) (2001). The court has no jurisdiction of Contract Disputes Act
claims not presented to the contracting officer. Santa Fe Eng’rs, Inc. v. United States, 818
F.2d 856, 858 (Fed.Cir. 1987). New claims, for purposes of this requirement, are claims not
arising from the same set of operative facts as the claims submitted to the contracting of-
ficer. Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307, 1312 (Fed.Cir. 2000). Claims do not
arise from the same set of operative facts when each claim “necessitate[s] a focus on a dif-
ferent or unrelated set of operative facts.” Id. In this case, plaintiff did not raise the al-
leged failure to conduct surveys in the summer of 1992 in its claim submitted to the con-
tracting officer. See Def.App. at 554-59. The evidence that this court would have to review
to determine whether that alleged failure was a breach of defendant’s implied duty to co-
operate is unrelated to the evidence for plaintiff’s other claims regarding defendant’s sus-
pension of the contract in September 1992 and defendant’s failure to conduct surveys after
the suspension. The court therefore finds that plaintiff’s claim regarding defendant’s fail-
ure to conduct surveys on the Clearview site in the summer of 1992 is not within the
court’s jurisdiction. See Croman, 44 Fed.Cl. at 802 (“Because the contracting officer was
only presented with governmental acts surrounding the listing of the marbled murrelet as
threatened under the ESA on or around September 28, 1992 as the basis for Croman’s
claim, this court has jurisdiction to consider only that claim.”); see also supra n. 1 and ac-
companying text.
erations on the Clearview sale until after the completion of the 1995 survey.
Pl. Opp. at 13-14. Plaintiff also contends that, because the duration of the de-
lay was much longer than the 90-day period for consultation anticipated by
the ESA, defendant’s conduct was presumptively unreasonable. Pl. Reply at
15-17. The ESA provides that consultation shall be completed either within
90 days or “within such other period of time as is mutually agreeable to the
Secretary and the Federal agency.” 16 USC §1536(b)(1)(A) (2000). It is not
clear whether the length of the delay was “mutually agreeable” to the Secre-
tary of the Interior and the Forest Service.12

The court cannot determine at this time whether defendant’s failure to con-
duct surveys in conformance with the protocol on the Clearview site in 1993
was sufficiently unreasonable that it constituted a breach of contract. The
reasons for the delaying until July 15, 1993 to begin the survey are not clear-
ly explained in the record. The record refers to various discussions between
Fish and Wildlife and the Forest Service regarding the initiation of consulta-
tions, but it does not explain why no surveys were conducted until July 15,
1993. Nor does the record indicate why the surveys that the Forest Service
did conduct were insufficient to satisfy the survey protocol. Whether the de-
lay violated the ESA’s requirements regarding the length of the consultation
period is also unclear.

The court notes that plaintiff has not argued that requiring two years of
marbled murrelet surveys before permitting a timber sale to go forward was
improper. See Pl. Opp. at 13 (arguing that, had defendant conducted surveys
in the summer of 1992, “all surveying could have been completed by the end
of the 1993 survey season”). There is a genuine issue of material fact, howev-
er, with respect to the Forest Service’s failure to conduct surveys sufficient to
satisfy the protocol on the Clearview site in 1993. If defendant had conducted
surveys under the protocol in the summer of 1993, plaintiff would, presuma-
bly, have been able to resume its operations as early as the end of the sum-
mer of 1994, rather than at the end of the summer of 1995. If a failure to con-
duct adequate surveys was a violation of defendant’s implied duty not to

12 The ESA does provide that the consultation period will only be extended past 150 days for
a “permit or license applicant” upon the applicant’s consent. 16 USC §1536(b)(1)(B) (2001).
Plaintiff has not alleged that plaintiff is a permit or license applicant, and the court does
not address that possibility. The court notes, moreover, that the protocol for marbled
murrelet surveying requires two years of surveys before a site may be considered free of
marbled murrelet habitat, which clearly goes well beyond the ESA’s default consultation
period of 90 days. Pl.App. at 234. The period of the consultation does not by itself establish
that defendant’s conduct was unreasonable.
hinder or unreasonably delay performance and therefore a breach of contract,
defendant may be liable for any damages caused by any period of unreasona-
ble delay.

For the foregoing reasons, the court DENIES summary judgment to both
plaintiff and defendant on Count II with respect to defendant’s failure to con-
duct surveys sufficient to satisfy the protocol between September 28, 1992
and August 5, 1993.13

D. Defendant’s Actions Did Not Effect a Taking

Plaintiff argues in Count III of its Amended Complaint that defendant’s sus-
pension of operations on plaintiff’s contract constituted a taking of private
property without just compensation, in violation of the Fifth Amendment to
the U.S. Constitution. Am. Compl. ¶77. When the government acts as a con-
tractor, its breaches of contract are governed by contract law. Winstar, 518
U.S. at 895, 116 S.Ct. 2432 (plurality opinion of Souter, J.). When the gov-
ernment deprives a private party of property rights created by a contract, the
deprivation is usually classified as a breach of contract, not as a taking. See,
e.g., Sun Oil Co. v. United States, 215 Ct.Cl. 716, 572 F.2d 786, 818 (1978)
(stating that “the concept of a taking as a compensable claim theory has lim-
ited application” to contractual rights and that “interference with such con-
tractual rights generally gives rise to a breach claim not a taking claim”);
Sunrise Village Mobile Home Park, L.C. v. United States, 42 Fed.Cl. 392, 404
(1998) (“[I]f the government’s actions allegedly breached a contract, the ap-
propriate remedy is a breach of contract claim, not a claim for compensation
pursuant to the Takings Clause.”).

A takings claim may be appropriate when the scope of the alleged taking dif-
fered from the scope of the property right created by the contract. See Inte-
grated Logistics Support Sys. Int’l, Inc. v. United States, 42 Fed.Cl. 30, 34
(1998), appeal docketed, No. 01-5003 (Fed.Cir. Oct. 17, 2000). The property
alleged to have been taken here is “the rights granted to plaintiff under the
Clearview contract.” Am. Compl. 76. Plaintiff’s takings claim is specifically
pled in the alternative, applicable in the event that the court finds that the
government “act[ed] solely in its sovereign capacity.” Pl. Opp. at 20. The court
has already found that the sovereign acts doctrine does not apply to the is-
sues involved in this case because the contract itself addressed the subject of
the dispute. See supra subsection I.B. The court notes in addition that plain-
tiff had no property right in the timber itself, since, under section B8.11 of

13 The protocol defined the end of the survey season as August 5 of each year. Pl.App. at 231
the contract, defendant retained title to the timber until it was “cut, scaled,
and paid for.” Def.App. at 59. Plaintiff’s only property interest lay in its right
to performance under the contract. See Buse Timber & Sales, Inc. v. United
States, 45 Fed.Cl. 258, 263 (1999) (finding that, in light of a similar clause,
“the property interest allegedly taken was the right to performance under the
contract rather than title to the unharvested timber”). Accordingly, plaintiff’s
sole remedy in these circumstances is for breach of contract. Defendant’s Mo-
tion for Summary Judgment is GRANTED with respect to Count III of the
Amended Complaint.

E. Plaintiff Did Not Waive Any Breach

Defendant argues that plaintiff waived any breach of contract claim for the
suspension of its operations in 1992 by failing to assert its rights in a timely
fashion. Def. Reply at 13-14. Waiver of a contract breach may be found when
the nonbreaching party fails to terminate the contract “within a reasonable
time after the default under circumstances indicating forbearance” and the
breaching party “reli[es] ... on the failure to terminate and continue[s][to] per-
form[ ] ... with the [nonbreaching party’s] knowledge and implied or express
consent.” DeVito v. United States, 188 Ct.Cl. 979, 413 F.2d 1147, 1154 (1969).
Defendant has not argued, and the court does not find, that the Forest Ser-
vice relied on plaintiff’s failure to terminate the contract after the suspension,
or that the Forest Service continued to perform with plaintiff’s consent. De-
fendant’s reliance on J.A. Ross & Co. v. United States, 126 Ct.Cl. 323, 115
F.Supp. 187 (1953), is inapposite, since Ross involved a breach of which de-
fendant was unlikely to be aware and which plaintiff did not bring to defend-
ant’s attention. Ross, 115 F.Supp. at 190 (noting that “[c]ontracting officers
are rarely on the ground where the work is going on” and that “[p]laintiff
never protested” the alleged breach). Because defendant has failed to show
any evidence on at least two elements of waiver, plaintiff is entitled to sum-
mary judgment that it has not waived defendant’s alleged breach.

III. Conclusion

For the foregoing reasons, defendant’s Motion for Summary Judgment on

Count II of the Amended Complaint is GRANTED with respect to the asser-
tion that the initial suspension of the contract following the listing of the
marbled murrelet as a threatened species was not a breach of contract. De-
fendant’s Motion for Summary Judgment on Count II is otherwise DENIED.
Defendant’s Motion for Summary Judgment is GRANTED with respect to
Count III of the Amended Complaint. Plaintiff’s Motion for Summary Judg-
ment on Count II is GRANTED with respect to the following assertions: (a)
that defendant suspended the contract after the listing of the marbled murre-
let as a threatened species on September 28, 1992, (b) that the contract and
not the sovereign acts doctrine governs the parties’ rights in connection with
the suspension; and (c) that plaintiff has not waived defendant’s breach.
Plaintiff’s Motion for Summary Judgment on Count II is otherwise DENIED.
Plaintiff’s Motion for Summary Judgment on Count III is DENIED.

On or before July 31, 2001, the parties shall file a joint statement proposing
further proceedings in this matter. If the parties cannot agree on further pro-
ceedings, they shall file separate statements. The parties shall address
whether this case should be consolidated with the case docketed as 01-40 C
for further proceedings.

IT IS SO ORDERED.
 D.L. Braughler
v.
West

127 F.3d 1476

October 27, 1997

Adrian L. Bastianelli, III, Bastianelli, Brown, Touhey & Kelley, Chtd., Wash-
ington, DC, argued for appellant. With him on brief was Lori Ann Lange.
Steven E. Gordon, Trial Attorney, Commercial Litigation Branch, Civil Divi-
sion, Department of Justice, Washington, DC, argued for appellee. With him
on brief were Frank W. Hunger, Assistant Attorney General, David W. Co-
hen, Director, and Sharon Y. Eubanks, Deputy Director.

Before NEWMAN, CLEVENGER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

D.L. Braughler Company, Inc. (“Braughler”) appeals from the November 28,
1995 decision of the Corps of Engineers Board of Contract Appeals (“Board”)
dismissing as untimely Braughler’s appeal of a contracting officer’s final deci-
sion. D.L. Braughler Co., ENGBCA No. 6121, 96-1 BCA 28,110 (1995). We
affirm.

Background

On April 16, 1982, Braughler and the United States Army Corps of Engineers
(“Corps”) entered into a contract for remedial work at the R.D. Bailey Dam,
Guyandot River, West Virginia. Braughler, 96-1 BCA at 140,310. In addition
to its specific provisions, the contract contained various standard clauses
from the Defense Acquisition Regulations (“DAR”).1

During contract performance, a dispute arose, in which Braughler asserted

that the Corps had unreasonably delayed approving its cofferdam shop draw-
ings. Id. In response to Braughler’s request for an extension of the contract
completion date, the Corps issued Modification P00013. Id. at 140,310-11.
The modification extended the contract completion date by 180 days. Id.

1 The contract was executed before the Federal Acquisition Regulations (“FAR”) were prom-
ulgated.
Braughler executed the modification but reserved the right to file a claim for
compensable delay costs. Braughler, 96-1 BCA at 140,311.

On February 10, 1988, Braughler sent a letter to the Corps’ resident engineer
for the project. The letter bore the subject title “Claim for Delay Caused by
Untimely Approval of the Existing Stilling Basin Cofferdam.” Id. In the let-
ter, Braughler stated that it was seeking $137,648.04 in compensable delay
costs, as well as additional delay time. Id. Accompanying the letter were
eighteen separate exhibits containing supporting data for the claim. In addi-
tion, Braughler informed the resident engineer that its books and records
were available for review. In the final paragraph of the letter, Braughler
stated that “Attached as Exhibit 19 is our Certification of our claim.” The cer-
tification read:

I, David L. Braughler, certify that the claim submitted by our

letter dated 10 February 1988 and its attachments for the De-
lay Caused by Untimely Approval of the Existing Stilling Basin
Cofferdam in the amount of $137,648.04 is made in good faith,
that the supporting data are accurate and complete to the best
of my knowledge and belief, and the amount requested accu-
rately reflects the contract adjustment for which the contractor
believes the government is liable.

The resident engineer was designated as the authorized representative of the

contracting officer. In that capacity, he had authority to “take any or all ac-
tions in connection with contract administration which could be lawfully tak-
en by [the contracting officer], except the execution of or agreement to any
contract modification.”

On February 16 and August 19, 1989, Braughler contacted the resident engi-
neer in order to inquire about the status of the claim. Eventually, on Febru-
ary 22, 1990, representatives of Braughler met with the resident engineer to
discuss the claim. Braughler, 96-1 BCA at 140,311. The parties were unable
to reach agreement, however, and by letter dated March 14, 1990, the resi-
dent engineer wrote Braughler concerning the claim. Id. In his letter, the res-
ident engineer stated: “I find that your claim is not justifiable. The provisions
for obtaining a Contracting Officer’s Decision are contained in General Provi-
sion 6, ‘Disputes’ of the contract.” Id.

By letter dated April 3, 1990, Braughler contacted the contracting officer con-
cerning its claim. Id. The letter read:
 This letter is written with regard to our claim for Untimely
Approval of the Existing Stilling Basin Cofferdam, which was
submitted by our letter of 10 February 1988. By letter dated 14
March 1990, [the resident engineer] denied the claim. We be-
lieve his decision is incorrect and request that a final decision
be issued on the claim. However, prior to issuance of a final de-
cision, we would like to have the opportunity to meet with you
and try to resolve the claim short of litigation. Please let us
know if you are willing to meet with us and if so please set an
acceptable date for the meeting.

Braughler did not provide a new claim certification with its April 3rd letter.
Braughler, 96-1 BCA at 140,311. After further correspondence and a meeting
between the parties, in a final decision dated November 16, 1990, the con-
tracting officer denied Braughler’s claim. Id. at 140,311-12. The final decision
opened with the following paragraph:

By letter dated February 10, 1988, you submitted a certified

claim to the Resident Engineer in the amount of $137,648.04
for additional costs allegedly resulting from a delay caused by
untimely approval of your cofferdam proposal (shop drawings).
By letter dated March 14, 1990, the Resident Engineer re-
sponded by stating that the claim was not justified and re-
ferred you to the Contracting Officer for a Contracting Officer’s
final decision. By letter dated April 3, 1990, you requested a
Contracting Officer decision on your claim and a meeting with
me prior to issuance of the decision.

Id. at 140,312 (citations omitted).

The contracting officer advised Braughler that it could appeal the final deci-
sion to the Board within ninety days or within twelve months could bring an
action in the United States Claims Court, the predecessor of the Court of
Federal Claims. Braughler did not pursue either of these avenues. Id.

On October 30, 1992, the Corps informed Braughler that it wanted to close
out the contract because the time for appealing the final decision had expired.
Braughler, 96-1 BCA at 140,312. By letter dated November 30, 1992,
Braughler responded that its “submittal of February 10, 1988 did not consti-
tute a ‘claim’ under the Contract Disputes Act, and therefore the Contracting
Officer’s final decision of November 28[sic], 1990 was not valid.” Braughler
requested that the contracting officer issue a final decision, and it submitted
a new claim certification dated December 7, 1992 with the letter. Braughler,
96-1 BCA at 140,312. The certification recited as follows:

I, David L. Braughler, certify that the claim submitted by our

letter dated 10 February 1988 and its attachments for the De-
lay Caused by Untimely Approval of the Existing Stilling Basin
Cofferdam in the amount of $137,648.04 is made in good faith,
that the supporting data are accurate and complete to the best
of my knowledge and belief, and the amount requested accu-
rately reflects the contract adjustment for which the contractor
believes the government is liable.

Id. No other materials were enclosed with the letter. Id.

The contracting officer did not issue a final decision. Id. Subsequently, on
January 18, 1994, pursuant to section 605(c)(5) of the Contract Disputes Act
(“CDA”), 41 USC §605(c)(5) (1988), Braughler appealed the deemed-denial of
its claim to the Board. Braughler, 96-1 BCA at 140,312. In due course, the
Corps filed a motion to dismiss, arguing that the Board lacked jurisdiction
because the appeal was untimely. Id. at 140,309. The Board granted the mo-
tion in its November 28, 1995 decision. Id. at 140,312. The Board determined
that Braughler had failed to timely appeal the contracting officer’s November
16, 1990 final decision, and that therefore jurisdiction was lacking. Id. at
140,313. Regarding Braughler’s argument that it had not requested a final
decision in its February 10, 1988 letter to the resident engineer, the Board
stated that it could “only wonder why [Braughler] certified the claim if it did
not intend to present a CDA claim at that time.” Braughler, 96-1 BCA at
140,313. The Board further stated that “it offends logic if [Braughler’s] specif-
ic request for a [contracting officer’s decision] following its certified claim did
not establish a CDA claim.” Id. Braughler’s appeal to this court followed.

Discussion

I.
Pursuant to the CDA, 41 USC §§601-613 (1994),2 we review decisions of the
Board under the following standard:

the decision of the agency board on any question of law shall

not be final or conclusive, but the decision on any question of

2 Where appropriate, we indicate differences between the present version of the CDA and
the version that was in effect during the period of time relevant to this case.
 fact shall be final and conclusive and shall not be set aside un-
less the decision is fraudulent, or arbitrary, or capricious, or so
grossly erroneous as to necessarily imply bad faith, or if such
decision is not supported by substantial evidence.

41 USC §609(b). We have stated that “[w]hether a motion to dismiss for lack
of jurisdiction has been properly granted is a question of law subject to com-
plete and independent review on appeal.” Gould, Inc. v. United States, 67
F.3d 925, 928 (Fed.Cir. 1995); see also Arnold M. Diamond, Inc. v. Dalton, 25
F.3d 1006, 1010 (Fed.Cir. 1994) (noting that the issue of whether the Board
has jurisdiction is a question of law, which we review de novo).

II.
Under the CDA, “[a]ll claims by a contractor against the government relating
to a contract shall be in writing and shall be submitted to the contracting of-
ficer for a decision.” 41 USC §605(a). “[A] final decision by a [contracting of-
ficer] on a ‘claim’ is a prerequisite for Board jurisdiction.” Reflectone, Inc. v.
Dalton, 60 F.3d 1572, 1575 (Fed.Cir. 1995) (in banc). Following receipt of a
contracting officer’s final decision, a contractor has ninety days to appeal the
decision to the appropriate agency board of contract appeals. 41 USC §606.3 If
a timely appeal is not lodged, the contracting officer’s decision on the claim
“shall be final and conclusive and not subject to review by any forum, tribu-
nal, or Government agency.” 41 USC §605(b). If no appeal to the Board is
taken within the ninety day statutory period set forth in section 606, the
Board has no jurisdiction to hear the claim. Cosmic Constr. Co. v. United
States, 697 F.2d 1389, 1390 (Fed.Cir. 1982).

The CDA does not define the term “claim.” However, Braughler’s contract
with the Corps contained the standard disputes clause of DAR §7-103.12.
That clause defined “claim” in pertinent part as “a written demand or asser-
tion by one of the parties seeking, as a matter of right, the payment of money,
adjustment, or interpretation of contract terms, or other relief, arising under
or relating to this contract.” DAR 7-103.12(c)(1).4 The three basic require-
ments for a “claim” are: (i) a written demand, (ii) seeking, as a matter of

3 Pursuant to 41 USC §609(a)(1), as an alternative to appealing to the agency board or con-

tract appeals, the contractor may file suit in the United States Court of Federal Clams.
Any such action must be filed within twelve months from the date of receipt of the con-
tracting officer’s final decision. 41 USC §609(a)(3).
4 The relevant FAR provision, 48 CFR §33.201, addressed by the court in Reflectone, defines
“claim” in a similar manner.
right, (iii) the payment of money in a sum certain. Reflectone, 60 F.3d at
1575.

During the relevant period of time, for claims in excess of $50,000, the CDA
imposed the additional requirement that the contractor “certify that the
claim is made in good faith, that the supporting data are accurate and com-
plete to the best of his knowledge and belief, and that the amount requested
accurately reflects the contract adjustment for which the contractor believes
the government is liable.” 41 USC §605(c)(1) (1988).5 Proper certification re-
quires that “a contractor must make a statement which simultaneously
makes all of the assertions required by 41 USC §605(c)(1).” W.H. Moseley Co.
v. United States, 230 Ct.Cl. 405, 677 F.2d 850, 852 (1982); see also Santa Fe
Eng’rs, Inc. v. Garrett, 991 F.2d 1579, 1583 (Fed.Cir. 1993), overruled on oth-
er grounds, Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir. 1995) (in banc).
If a contractor’s submission fails to meet all of the above requirements, it is
not a “claim,” and the contracting officer has no authority to issue a final de-
cision on the submission. Fidelity Constr. Co. v. United States, 700 F.2d 1379,
1384 (Fed.Cir. 1983). As a result, any subsequent proceedings on the submis-
sion have no legal significance. See Skelly & Loy v. United States, 231 Ct.Cl.
370, 685 F.2d 414, 419 (1982).6

Braughler contends (i) that the February 10, 1988 letter to the resident engi-
neer was not “submitted” to the contracting officer for decision as required by
41 USC §605(a), and (ii) that when it did submit a claim to the contracting
officer on April 3, 1990, the certification was defective because it was not exe-
cuted contemporaneously with the claim. As a result, Braughler argues, the
contracting officer was not authorized to issue a final decision. Consequently,
his decision of November 16, 1990 was a legal nullity. As such, it could not
start the running of the limitations period.

5 The current version of section 605(c)(1), 41 USC §605(c)(1) (1994), imposes an additional
requirement along with those required by the 1988 version. That additional requirement
is that the contractor certify “that the certifier is duly authorized to certify the claim on
behalf of the contractor.” Id. In addition, the threshold for invoking the certification re-
quirement has been raised to $100,000. Id.
6 The CDA currently provides that a defective certification “shall not deprive a court or an
agency of jurisdiction over the claim,” though the court or agency board must require that
the defective certification be corrected before entry of final judgment. 41 USC §605(c)(6)
(1994).
A.
Turning to Braughler’s first argument, we have described the “submit” lan-
guage of section 605(a) as “merely a requirement that once a claim is made,
the parties must ‘commit’ the claim to the contracting officer and ‘yield’ to his
authority to make a final decision.” Dawco Constr., Inc. v. United States, 930
F.2d 872, 880 (Fed.Cir. 1991), overruled on other grounds, Reflectone, Inc. v.
Dalton, 60 F.3d 1572 (Fed.Cir. 1995) (in banc). Furthermore, we have stated
that:

[t]he plain language of §605 requires claims against the Gov-

ernment to be submitted to the contracting officer. It does not,
however, require that the claims be sent only to the contracting
officer, or necessarily directly to that officer.... If ... the contrac-
tor sends a proper claim to its primary contact with a request
for a final decision of the contracting officer and a reasonable
expectation that such a request will be honored, and the prima-
ry contact in fact timely delivers the claim to the contracting of-
ficer, then we see no basis for finding that the claim was not
submitted to the contracting officer as required under §605(a).

Neal & Co. v. United States, 945 F.2d 385, 388-89 (Fed.Cir. 1991) (footnote
omitted).

Braughler argues that its February 10, 1988 letter was not submitted to the
contracting officer for a final decision. It notes that the letter was sent to the
resident engineer without a request that it be forwarded to the contracting
officer and that the letter did not request a final decision. It also notes that
the letter indicated that Braughler’s books and records were available for re-
view by the resident engineer and that Braughler would provide the resident
engineer with any further information he needed. Furthermore, Braughler
points out, during the two-year period following submission of the letter,
Braughler communicated only with the resident engineer concerning the
claim. In addition, Braughler points to the resident engineer’s March 14,
1990 letter, in which he stated that he found Braughler’s claim “not justifia-
ble” and in which he informed Braughler that “provisions for obtaining a
Contracting Officer’s decision are contained in General Provision 6, ‘Disputes’
of the contract.” Braughler maintains that this letter makes it clear that the
February 10, 1988 letter was not submitted to the contracting officer for a
final decision.

We agree with Braughler on this point. The “submit” requirement of section

605(a) would have been satisfied if the resident engineer had received
Braughler’s claim and, if so requested by Braughler, had passed it on to the
contracting officer for a final decision. See Neal & Co., 945 F.2d at 388-89
(stating that if “the contractor sends a proper claim to its primary contact
with a request for a final decision of the contracting officer and a reasonable
expectation that such a request will be honored, and the primary contact in
fact timely delivers the claim to the contracting officer, then we see no basis
for finding that the claim was not submitted to the contracting officer as re-
quired under §605(a)”). Although Braughler’s February 10, 1988 letter was
sent to an authorized representative of the contracting officer, the letter gave
no indication that Braughler was seeking a final decision from the contract-
ing officer, and the letter was not forwarded to the contracting officer.7 More-
over, Braughler sought to resolve the matter with the resident engineer. Un-
der these circumstances, the February 10, 1988 letter did not qualify as a
claim “submitted to the contracting officer for a decision” under section
605(a).

B.
Braughler argues next that its April 3, 1990 letter to the contracting officer
failed to qualify as a claim submission because it was not accompanied by a
contemporaneous certification. Rather, the letter simply referred to “our
claim for Untimely Approval of the Existing Stilling Basin Cofferdam, which
was submitted by our letter of 10 February 1988.” Braughler asserts that “[a]
contractor’s letter to the contracting officer requesting a final decision based
on a previous outdated certification is not sufficient to meet the CDA re-
quirements even if there is no change in the claim.” In making this argu-
ment, Braughler quotes the following statement in Santa Fe Engineers:

The three elements of the certification are all couched in the

present tense, not the future or the subjunctive. See 41 USC
§605(c)(1). Plainly, a contracting officer can have little assur-
ance that a claim submitted thirteen months after certifying
continues to be “made in good faith,” that the supporting data
still “are accurate and complete,” and that “the amount re-
quested accurately reflects” what is believed to be due.

7 The Corps argues that, after the February 10 letter was received by the resident engineer,
through standard operating procedures, the letter was forwarded to the contracting officer.
However, the Board made no finding that the contracting officer received the February 10
letter at any time before Braughler contacted the contracting officer by letter dated April
3, 1990, and we decline to make any such finding.
Santa Fe Eng’rs, 991 F.2d at 1583 (quoting Oman-Fischbach, Int’l, ASBCA
No. 41474, 91-2 BCA 24,018 at 120,269 (1991)). Braughler notes that in this
case, the certification was provided on February 10, 1988, but no claim was
submitted to the contracting officer until April 3, 1990, some twenty-six
months later.

In Santa Fe Engineers, a government contractor (“Santa Fe”) encountered

unstable soil conditions in an area in which it was doing construction work
for the Navy. Santa Fe Eng’rs, 991 F.2d at 1580. As a result, the parties en-
tered into negotiations for a change order. Id. On February 6, 1985, Santa Fe
sent a letter to the Navy in which it identified a change order proposal sub-
mitted on November 21, 1984 as a claim. Id. The February 6 letter included a
certification in compliance with the requirements of the CDA. Id. After the
February 6 letter was sent, Santa Fe provided additional supporting data for
its claim. Santa Fe Eng’rs, 991 F.2d at 1580. Eventually, by letter dated May
28, 1987, Santa Fe informed the Navy that it was seeking a final decision
from the contracting officer on its claim. Id. However, no new certification
was provided. Id. In due course, the contracting officer denied the claim and
Santa Fe appealed to the Board. Id. The Board, however, dismissed the ap-
peal for lack of jurisdiction. Santa Fe Eng’rs, 991 F.2d at 1583. It did so be-
cause Santa Fe had not executed a certification with its letter of May 27,
1987. Id. The Board held that although the May 27 letter referred to Santa
Fe’s certification of February 6, 1985, that certification was not effective at
the time it was submitted because it did not relate to an existing dispute be-
tween the parties. Id.

Santa Fe appealed the Board’s dismissal, and we affirmed. Addressing first

Santa Fe’s letter of February 6, 1985, which was accompanied by a certifica-
tion, we concluded that the letter did not meet the requirements for a claim
under the CDA. We did so based upon the determination that, at the time the
letter was written, Santa Fe and the Navy “had not reached an impasse” over
the issue of the change order for the unstable soil conditions. Id. at 1582-83.
Because there was no dispute between the parties at the time the letter was
written, there could be no claim under the CDA.8 Santa Fe Eng’rs, 991 F.2d

8 The dispute requirement grew out of the definition of “claim” found in FAR §33.201, which
states that a “claim” is “a written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a sum certain, the adjust-
ment or interpretation of contract terms, or other relief arising under or relating to the
contract.... A voucher, invoice, or other routine request for payment that is not in dispute
when submitted is not a claim.” 48 CFR §33.201 (1996). Under the dispute requirement,
known as the “pre-existing dispute” rule, in order for a CDA claim to arise, a request for
at 1583. We turned next to Santa Fe’s contention that the May 28, 1987 let-
ter, along with the certification sent with the February 6, 1985 letter, con-
verted the 1984 change order proposal into a claim. Rejecting this argument,
we concluded that no claim arose because the February 6, 1985 certification,
executed over two years prior to the May 27, 1987 letter, could not be consid-
ered a certification with respect to supporting data that was submitted after
it was made. Id. We stated that “Santa Fe had, over a period of two years,
submitted additional supporting data as a part of its proposal and none of the
additional data was ever certified.” Id.

The present case differs from Santa Fe Engineers. There, after making its
claim submission, the contractor submitted additional supporting data for
which it provided no certification, thus violating the requirement that “to
properly certify a claim a contractor must make a statement which simulta-
neously makes all the assertions required by 41 USC §605(c)(1).” W.H. Mose-
ley, 677 F.2d at 852. Here, Braughler’s February 10, 1988 letter referenced all
of the supporting data upon which Braughler was relying, and it contained a
certification that simultaneously spoke to all three requirements of section
605(c)(1) (that the claim is made in good faith, that the supporting data is ac-
curate and complete, and that the amount requested accurately reflects what
the contractor believes is due). Subsequently, during the period between Feb-
ruary 10, 1988 and Braughler’s April 3, 1990 letter to the contracting officer,
the claim was not altered.9 In addition, the April 3, 1990 letter did not refer
to any new supporting data. Braughler’s April 3, 1990 letter merely referred
to the February 10, 1988 claim submission to the resident engineer and re-
quested that the contracting officer issue a decision based upon that submis-
sion.

On February 10, 1988, Braughler submitted a claim with a proper certifica-

tion to an authorized representative of the contracting officer, but did not re-
quest a final decision from the contracting officer. Thereafter, the identical
claim submission and the identical supporting data were presented to the

payment had to be in dispute at the time the written demand or assertion was submitted
to the contracting officer. See Dawco Constr., 930 F.2d at 878. We overruled Dawco’s pre-
existing dispute rule in Reflectone, where we held that the “FAR 33.201 definition of
‘claim’ does not require a pre-existing dispute unless the submission is a ‘routine request
for payment.’” 60 F.3d at 1579.
9 That the claim remained the same is also evidenced by the fact that when Braughler con-
tacted the contracting officer by letter dated November 30, 1992 to argue that its February
10, 1988 letter did not meet all the CDA requirements for a claim, it referred to its Febru-
ary 10, 1988 letter as setting forth the substantive content of its claim.
contracting officer when Braughler sought a final decision on April 3, 1990.
We hold that, under these circumstances, no new certification was required.
As a result, the contracting officer was authorized to issue a final decision on
Braughler’s claim, and his November 16, 1990 final decision therefore was
valid. Because Braughler never appealed the final decision, pursuant to 41
USC §605(b), it became final and conclusive and no longer reviewable. There-
fore, the Board lacked jurisdiction to hear Braughler’s appeal of January 18,
1994.10

Conclusion

For the foregoing reasons, the decision of the Board that it lacked jurisdiction
to hear Braughler’s January 18, 1994 appeal is affirmed.

Costs

Each party shall bear its own costs.

10 As noted above, in Santa Fe Engineers, we quoted with approval the statement by the
Board in Oman-Fischbach, International (Joint Venture), that “a contracting officer can
have little assurance that a claim submitted thirteen months after certifying continues to
be ‘made in good faith,’ that the supporting data still ‘are accurate and complete,’ and that
‘the amount requested accurately reflects’ what is believed to be due.” Oman-Fischbach,
91-2 BCA 24,018 at 120,269. In Oman-Fischbach, the contractor, on November 14, 1988,
submitted a letter and claim certification to the contracting officer. Thereafter, on Decem-
ber 19, 1989, the contractor wrote the contracting officer requesting a final decision on the
claim submitted in November of 1988. The contracting officer declined to issue a decision,
however, taking the position that the contractor had failed to submit a properly certified
claim. Oman-Fischbach appealed to the Board on a deemed-denial basis. The Board dis-
missed for lack of jurisdiction because of failure to certify. In so doing, it rejected the ar-
gument that a properly certified claim was submitted in November of 1988 — on the
ground that, at that time, a dispute did not exist between the parties. The Board also re-
jected the argument that the December 1989 letter, which was not accompanied by a certi-
fication, represented a properly certified claim. It was in that context that the Board made
the statement which we quoted in Santa Fe Engineers. Significantly, in Oman-Fischbach,
the only certification that was made, the November 1988 certification, was made with re-
spect to a submission that, under the law as it then stood, could not form the basis for a
claim because there was no dispute between the parties. No such infirmity exists with re-
spect to Braughler’s February 1988 submission in this case. In any event, we decline to
impose on a contractor who submits a properly certified claim to the contracting officer’s
authorized representative the requirement to recertify the claim, when the claim is later
submitted to the contracting officer for a final decision after efforts to negotiate a settle-
ment with the authorized representative have proved unsuccessful and when the contrac-
tor relies on no new supporting data for the claim.
AFFIRMED.
 Double B Enterprises

01-1 BCA ¶31,396

April 24, 2001

Appearance for the Appellant: Zane E. Finkelstein, Esq., Carlisle, PA. Ap-
pearances for the Government: COL Michael R. Neds, JA, Chief Trial Attor-
ney; CPT Ryan M. Zipf, JA, Trial Attorney.

Opinion by Administrative Judge Tunks

These appeals arise from the termination for cause of a commercial items
contract. ASBCA No. 52010 is the appeal from the termination for cause.
ASBCA No. 52192 is the appeal from the assessment of excess reprocurement
costs. Entitlement only is at issue.

Findings of Fact

Termination for Cause

1. On 1 May 1998, the Government issued a solicitation for a commercial
items contract for 60 heavy tank target lifters. Contract Line Item (CLIN)
0001 required that the lifters be delivered to Ft. Riley, Kansas, within 60
days of award. CLIN 0002 was for installation and related items. No delivery
date was set for CLIN 0002. The acquisition was a 100 percent small busi-
ness set- aside. (R4, tab 1)

2. The solicitation incorporated the following clauses which are relevant, in

part, to these appeals:

FAR 52.212-4 CONTRACT TERMS AND CONDITIONS —

COMMERCIAL ITEMS (MAY 1997)
…
(c) Changes. Changes in the terms and conditions of this con-
tract may be made only by written agreement of the parties.
…
(f) Excusable delays. The Contractor shall be liable for default
unless nonperformance is caused by an occurrence beyond the
reasonable control of the Contractor and without its fault or
negligence …
…
 (m) Termination for cause. The Government may terminate
this contract … for cause in the event of any default by the
Contractor …
…
(s) Order of precedence. Any inconsistencies … shall be re-
solved by giving precedence in the following order:
(1) The schedule of supplies/services.
(2) [Enumerated contract clauses not relevant here].
(3) The clause at 52.212-5.
…
FAR 52.212-5 CONTRACT TERMS AND CONDITIONS
REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE
ORDERS — COMMERCIAL ITEMS (AUG 1996)

(a) The Contractor agrees to comply with … [FAR] 52.233-3,

Protest after Award …

FAR 52.233-3 PROTEST AFTER AWARD (AUG 1996)

(a) … Upon receipt of the final decision in the protest, the Con-
tracting Officer shall either —
(1) Cancel the stop-work order; or
(2) Terminate the work covered by the order …

(b) If a stop-work … is canceled … [t]he Contracting Officer

shall make an equitable adjustment in the delivery schedule or
contract price, or both … if —
(1) The stop work order results in an increase in the time …
or … costs properly allocable to … this contract;
(2) The Contractor asserts its right to an adjustment within
30 days [of the lifting of the stop work order] …
…
(R4, tab 1)

3. FAR 12.403 TERMINATION provided, in part, as follows:

a) General .… [T]he requirements of Part 49 do not apply when

terminating contracts for commercial items …

(b) Policy. The contracting officer should exercise the Govern-

ment’s right to terminate a contract for commercial items … for
cause only when such a termination would be in the best inter-
ests of the Government. The contracting officer should consult
with counsel prior to terminating for cause.
 (c) Termination for cause.
…
(2) The Government’s preferred remedy will be to acquire simi-
lar items from another contractor and to charge the defaulted
contractor with any excess reprocurement costs together with
any incidental or consequential damages …

4. Installation was to be performed as follows:

10. The contractor shall provide complete installation of all lift-

ers . . . on both ranges at Ft. Riley …14. Delivery is required 60
Days after award. Installation windows shall be coordinated
upon receipt of award with Ft. Riley …15.
…Inspection/Acceptance shall be accomplished by Ft. Riley’s
designated Range Officer for verification that the requirements
of this performance description have been met. Delivery is re-
quired 60 [days] after award.

5. The solicitation was formally advertised. The Government’s bidders’ mail-

ing list identified six potential offerors: ATA Defense Industries, Inc. (ATA),
Caswell International Corp. (Caswell), Marvin Land System, Inc., Centra In-
dustries, Inc., Advance Manufacturing Co., Inc., and Arcata Associates, Inc.
Of those companies, one was debarred and another had an invalid telephone
number. (R4, tab 133; tr. 13)

6. On 21 May 1998, the installation provisions were amended as follows:

The equipment is required to be shipped to Ft Riley within 60

days after award. The successful offeror will be given a three
weeks notice as to the actual installation window when it is de-
termined.… Installation shall be completed within 15 days
from the start of installation …

(R4, tab 1, Amendment A0001)

7. On 16 June 1998, Mr. Joseph J. Borbeck, Jr., appellant’s president, owner

and only employee, submitted his proposal. Although he had assembled and
installed lifters as a subcontractor on other Government contracts, this was
his first prime contract (tr. 183-84).
8. Bid opening was 19 June 1998. The Government received the following
bids:

Double B Enterprises $347,040.00

SES $447,480.00
ATA Defense Industries $469,291.68
Caswell Internation Corp. $539,100.00

(R4, tab 54)

9. The Government awarded the subject contract to appellant on 29 July 1998

at a price of $347,040. The delivery date for CLIN 0001AA was “30-SEP-
1998” and the delivery date for CLIN 0002AA was “30-SEP-1998
ESTIMATED.” (R4, tab 1)

10. On 30 July 1998, Caswell filed a protest, alleging that appellant was the
same entity as, or an agent of, another firm in violation of FAR 52.219-6(a)
NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE (JUL 1996). Caswell
also alleged that appellant planned to supply items made by Theissen Train-
ing Systems (Theissen), a German company, in violation of FAR 52.219-6(c),
which requires a small business to use “only end items manufactured or pro-
duced by small business concerns in the United States.” (R4, tab 8)

11. On 4 August 1998, ATA protested the award to the General Accounting
Office (GAO), alleging as follows: (1) appellant could not perform 50 percent
of the cost of manufacturing as required by FAR 52.219-14 LIMITATIONS
ON SUBCONTRACTING (DEC 1996); (2) the Government disclosed the out-
come of the competition to appellant six weeks before award; and (3) appel-
lant’s price was unachievable (R4, tab 10).

12. On 5 August 1998, the contracting officer issued a stop work order (R4,
tab 11).

13. The GAO dismissed the ATA protest on 6 August 1998 (R4, tab 13).

14. On 24 August 1998, the SBA found that appellant was a small business
and that it was independently owned and operated. The SBA did not make
any findings as to appellant’s capability to comply with FAR 52.219-14. (R4,
tab 15)
15. On 26 August 1998, the contracting officer lifted the stop work order and,
without consulting appellant, established a delivery date of 26 October 1998
(R4, tab 16; tr. 52-53). He did not lift the stop work order earlier because the
Caswell protest was still pending (tr. 19-20).

16. Appellant did not submit an equitable adjustment claim after the stop
work order was lifted (tr. 22, 214).

17. In September 1998, Mr. Joseph J. Borbeck, Sr., Mr. Borbeck’s father and
consultant, advised Mr. Vincent J. Runco, the Government’s equipment spe-
cialist, that appellant planned to transport the lifters to Ft. Riley on a semi-
trailer and asked if there was a place where the trailer could be stored until
installation could begin. Mr. Runco indicated that the trailer could be stored
behind a chain link fence outside the range maintenance office (tr. 114- 15,
125-27, 140-41). Mr. Borbeck, Sr., denied the conversation (tr. 270). Based on
our assessment of the demeanor and credibility of the witnesses, we find that
the conversation took place (R4, tabs 46, 47, 48).

18. On 14 September 1998, Caswell advised the contracting officer that it did
not believe appellant could comply with FAR 52.219- 14 LIMITATIONS ON
SUBCONTRACITNG because it did not have a facility or adequate personnel
(R4, tab 17).

19. On 22 September 1998, the contracting officer sent a letter to appellant

proposing to extend the delivery date until 17 November 1998 to compensate
for vendor delays caused by the stop work order. He asked appellant to sign
the letter as “acknowledgement [sic] and agreement” of the change. (R4, tab
3; tr. 23)

20. Mr. Borbeck, Sr., and the contracting officer discussed the proposed ex-
tension over the telephone. According to Mr. Borbeck, Sr., the contracting of-
ficer told him “that unless Double B executed this document … [the Govern-
ment] would have no choice other than … to exercise their right to terminate
the contract.” Mr. Borbeck, Sr., allegedly interpreted the statement as a
“threat.” (Tr. 264) The contracting officer denied threatening Mr. Borbeck, Sr.
(tr. 23-24). We find the contracting officer’s testimony credible.
21. Mr. Borbeck signed the letter on 29 September 1998, allegedly because
the contracting officer had threatened his father with termination (R4, tab 3;
tr. 219-20, 255- 56). The cover letter to the agreement stated as follows:

… I would like to suggest, that if, as informed during [several]

telcons, the government should decide to terminate our con-
tract, we are prepared to react accordingly. It is hard to under-
stand the intent of these threats since we are not the cause of
the delays.

This is to advise that … the protest filed against the govern-

ment, which Double B defended and provided the necessary in-
put, has resulted in a claim in the amount of $6,000. To defend
against the protest, we employed outside legal counsel to pre-
pare the necessary documentation …
…
…Since there is no progress payments [clause], our concern is
over the period of time from when the hardware is delivered
and the date of installation. Based on previous experience, in-
stallations have been delayed which directly causes financial
impact. Therefore we request that the contract be modified …
to [permit] payment for the hardware … on condition and count
only, when received at the destination, with final acceptance
based on installation and performance …

Attached, please find the executed … revised delivery schedule

… [which] is being executed solely for agreeing to the revised
delivery schedule and for no other reason.

(R4, tab 19)

22. On 13 October 1998, the contracting officer and members of his staff con-
ducted a post award visit. In particular, the contracting officer wanted to see
if appellant had a facility and planned to perform 50 percent of the cost of the
manufacturing. The visit lasted three or four hours and was conducted at the
home of Mr. Borbeck, Sr. The inspection team reviewed purchase orders for
about 25 to 35 percent of the parts. Appellant advised that it planned to use
its Tipton, Iowa, office or a facility in the Kansas City area, that it would use
its own employees to do the work and that none of the parts would be ob-
tained from Theissen. (R4, tabs 18, 20, 21, 121, 122; tr. 26-28, 32-33, 92- 96)

23. On 14 October 1998, the contracting officer extended the delivery dates
for CLIN 0001AA from “30-SEP-1998” to “17-NOV-1998” and CLIN 0002AA
from “30-SEP-1998 ESTIMATED” to “17-NOV-1998 (E)” (R4, tab 3 at Mod.
P00002).

24. On 15 October 1998, the contracting officer advised that range 18 would
be available 1 through 15 November 1998, 21 through 30 November 1998 and
1 through 13 December 1998, and that the MPRC range would be available 5
through 31 December 1998. The letter also stated that he wanted to “accom-
modate your request for a site visit” and requested appellant to propose
dates. The letter concluded by asking appellant for its “anticipated
timeframes for installation so that these dates can … be reserved with Ft.
Riley.” (R4, tab 23)

25. Appellant replied that it did “not have an interest in a site visit” and that
it would advise as soon as possible of its anticipated timeframe for installa-
tion (R4, tab 24).

26. On 21 October 1998, the contracting officer issued a cure notice, giving
appellant 10 days in which to advise of the steps it was taking to obtain a fa-
cility (R4, tab 25).

27. On 22 October 1998, the contracting officer advised appellant that range
18 had to be completed by 13 December 1998 due to Ft. Riley’s training
schedule, and that work on the MPRC range could not begin until range 18
was completed (R4, tab 26).

28. In reply to the cure notice, appellant provided the address of a facility in
Riverside, Kansas (R4, tabs 27, 28, 29).

29. On 4 November 1998, the contracting officer shortened the 1 through 13

December 1998 window for range 18 by four days. The new window was 4
through 13 December 1998. (R4, tab 30)

30. On 4 November 1998, Mr. Borbeck asked the contracting officer to issue a
“use certificate” so that a British vendor could obtain a license to export
arms-related material. The contracting officer rejected appellant’s certificate
because it referred to “Tank Target Mechanisms” instead of “Heavy Lifters”
and issued a corrected version on 6 November 1998 (R4, tabs 33, 144, 145; tr.
33- 35). Although appellant did not send the certificate to the vendor, the
vendor was able to ship the parts (tr. 257-60, 281-285).
31. On 5 November 1998, the contract specialist requested the Defense Con-
tract Management Center (DCMC) to verify that appellant had made ar-
rangements for the Riverside facility (R4, tabs 31, 32, 123). The DCMC repre-
sentative advised that appellant had not arrived as of 12 November 1998 and
that he had the following conversation with Mr. Borbeck, Sr.:

Mr. Borbeck stated, “I have some issues with the Contracting

Officer … and have prepared a letter to be sent November 13th
… I asked what the issues were? [He] stated, “If I deliver on
time … there will not be anyone to sign off so that I can be paid
until after the first of the year when the testing is complete. I
have no way to protect my $347,000 investment during the 6
week delay from delivery until the testing begins.

(R4, tab 130; tr. 42)

32. On 13 November 1998, appellant telefaxed a letter to the contracting of-

ficer requesting that the delivery date be extended to “on or after 4 December
1998” (tr. 227-28). The letter was transmitted to a proper number, but the
contract files do not contain a copy of the letter and neither the contracting
officer nor the contract specialist saw the letter prior to termination (tr. 35-
36, 75-77, 164- 66, 173-74, 178-81). Among other things, the letter stated as
follows:

We have independently verified that should we move compo-

nents of these lifters to the instillation [sic] point on or before
17 November 1998, they could not be finally assembled and in-
stalled until or after 4 December 1998. The title to these goods
and the risk of loss remains with us until acceptance, which
will not take place until after installation. Thus, not only would
the technology be at risk during the hiatus, but the operating
machinery and electronics as well. This is a risk we need not
take and you can not unilateral [sic] impose it upon us.

(Ex. A-2; R4, tab 131)

33. On 13 November 1998, the contracting officer denied appellant’s claim for
legal fees (R4, tab 37). The propriety of that denial is not before us.

34. On the same date, Theissen shipped a 40-foot container from Germany
containing 60 “Tank target lifer, cpl.” to appellant. The price of the compo-
nents was $184,934. (R4, tab 60)
35. Appellant failed to deliver the lifters on 17 November 1998. Mr. Borbeck
explained the reasons for the failure to deliver as follows:

I did not have the components in my facility because we had

delayed the shipments. If I take possession of them, I now start
running the clock on when I have to pay for the components. As
long as I keep it from being delivered, if I delay them, … I have
a longer period of time not to pay for them … As a matter of
fact … most of the components sat in the railroad yard in the
Davenport area for about five to seven days … We did not take
possession or come down because we had to pay Customs and
everything to take it out of [the yard]. So, the longer we could -
but we ended up using up the time period for how long we
could leave it down there, and that’s why we finally ended up
accepting the parts.

(Tr. 248-49)

36. Based on Mr. Borbeck’s testimony, we find that the following events did
not cause or contribute to the default: (1) the designation of separate windows
for range 18 and the MPRC range; (2) the failure to provide a window of 15
days in all cases; (3) the requirement that range 18 be completed before the
MPRC range; (4) revision of the installation windows; (5) the failure to pro-
vide three-weeks notice of windows in all cases; (6) the failure to lift the stop
work order when GAO dismissed the ATA protest; (7) the post award visit of
15 October 1998; and (8) the issuance of a revised use certificate (tr. 248- 49).

37. After consulting with counsel, the contracting officer terminated the con-
tract for cause on 18 November 1998 (tr. 37- 40 91; R4, tabs 39, 40, 41). In
reaching his decision, he did not specifically consider the factors at FAR Part
49 (tr. 78).

38. On 24 November 1998, Mr. Borbeck, Sr., contacted the contract specialist
by telephone and requested that the contract be reinstated. The contract spe-
cialist told him that requests for reinstatement had to be in writing. Appel-
lant did not submit a written request. (R4, tab 42; tr. 38-39, 170-71, 224-25,
268-69, 286)

39. On or about 25 November 1998, the container arrived in Montreal, Cana-

da, where it was shipped by rail to Davenport, Iowa (tr. 290).
40. The container arrived in Davenport, Iowa, on 7 December 1998, where it
sat in the rail yard for approximately a week (tr. 248-49, 290-91; R4, tab 67).

41. On 21 January 1999, appellant appealed the final decision terminating

the contract. The appeal was docketed as ASBCA No. 52010.

The Reprocurement
42. The resolicitation was not formally advertised. With the exception of ap-
pellant, all the original bidders were solicited by letter dated 4 December
1998. (R4, tabs 43, 44, 45).

43. The contracting officer did not solicit a bid from appellant for the follow-
ing reasons:

The primary issue … with … Double B is that they failed to …

deliver … the original 60 lifters, but I was also at the point
where I really had lost a lot of confidence in their ability to …
build the product or deliver it, based on not even showing …
customary progress to getting to where they can deliver.

It would have been different if they had … a variety of equip-

ment … in various stages of assembly or had some product
there, but … I really had lost confidence in their ability to go
ahead and do that.

(Tr. 41)

44. The contracting officer did not open the reprocurement to other bidders
for the following reasons:

A I didn’t … think that I would gain anything by going back

and reopening the procurement … to anyone else … I think the
four …companies that were originally there were the ones that
were probably going to be the most interested, even six months,
seven months later, [and] that they were the primary target
companies I would end up getting …

Q [B]ased on your experience as a contracting officer [in] tar-

geting systems, would you have expected many other offerors
to submit proposals?

A At that time, I don’t think so. I mean, maybe one, but I would
anticipate probably not, and again the primary companies that
 I had that were involved in this were the ones that would nor-
mally be supplying targetry equipment to the Government.

Q And this was a small business set-aside?

A This was a small business set- aside. There are other large
businesses out there, but obviously they’d be excluded entirely.
So, it narrows the field of acceptable companies.

(Tr. 43- 44)

45. The performance requirements and the testing and inspection require-
ments of the resolicitation were identical to those of the original contract and
the reprocured items had similar physical and mechanical characteristics and
served the same functional purpose as the original items (tr. 44-47, 108 149;
R4, tabs 1, 43, 44, 45, 50).

46. The resolicitation included the following changes in the terms and condi-
tions:

1. Award would be made on the basis of performance risk and

price inste ad of price alone.

2. The resolicitation explicitly stated that the delivery date

would remain constant regardless of range availability.

3. The delivery date was extended from 60 days to 120 days.

4. The resolicitation added a requirement for a “post award

conference/product demonstration.”

5. If installation was delayed, the resolicitation provided that

the lifters could be stored at Ft. Riley.

6. The resolicitation provided for progress payments if installa-

tion was delayed more than 60 days.

(R4, tabs 1, 50)

47. Appellant did not offer any evidence indicating that the foregoing changes
increased excess reprocurement costs.
48. Although the acquisition was not of such urgency that it would support
sole source treatment, the contracting officer indicated that the equipment in
use at Ft. Riley was out-dated and that the activity had been trying to get
new equipment for about 2 1/2 years (tr. 44).

49. The Government received three bids:

Caswell $541,600
ATA $545,900
SES $580,680

(R4, tab 49)

50. On 18 February 1999, the contracting officer awarded the reprocurement

contract to Caswell. The price of the contract was $541,600. The contracting
officer selected Caswell because it offered the lowest risk and the lowest
price. (R4, tab 50; tr. 155-56)

51. The reprocurement contract was mistakenly issued on a Standard Form

(SF) 26, which is used for noncommercial contracts, instead of a SF 1449,
which is the appropriate form for commercial items contracts. Since the con-
tract contained the standard FAR clauses for commercial items contracts, it
was still a commercial items contract. (Tr. 48; R4, tabs 1, 50)

52. Caswell completed the contract in June or July of 1999 and the Govern-
ment paid Caswell $541,600 (tr. 49-51; R4, tab 71).

53. On 5 May 1999, the contracting officer issued a final decision assessing
appellant $194,560 in excess reprocurement costs (R4, tab 53).

54. Appellant appealed the decision and it was docketed as ASBCA No. 52192
and consolidated with ASBCA No. 52010.

Motion for Summary Judgment

55. Shortly before the hearing, which was held on 3 and 4 October 2000, ap-
pellant filed a motion for summary judgment. We deferred ruling on the mo-
tion until after the hearing on the merits.
Decision

These appeals raise three issues. First, was the contracting officer justified in
terminating appellant’s contract for cause? Second, if the termination was
justified, was appellant’s failure to deliver excusable? Third, if the failure to
deliver was not excusable, is the Government entitled to recover excess repro-
curement costs?

The Government bears the burden of proving that a termination for cause is
justified. Cf. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 763-65
(Fed. Cir. 1987). The facts surrounding appellant’s failure to deliver are un-
disputed. The components required to assemble the lifters did not leave Ger-
many until 17 November 1998, the date specified for delivery, and did not ar-
rive at appellant’s facility in Davenport, Iowa, until 7 December 1998.
Accordingly, we conclude that the Government has established a prima facie
case that the termination for cause was proper. Once the Government has
established its prima facie case, the burden of going forward shifts to appel-
lant to prove that the default was excusable. Cf. FDL Technologies, Inc.,
ASBCA No. 41515, 93-1 BCA ¶25,518 at 127,098.

FAR 52.212-4(f) Termination sets forth the standard for excusable delay for
commercial items contracts:

The Contractor shall be liable for default unless nonperfor-

mance is caused by an occurrence beyond the reasonable con-
trol of the Contractor and without its fault or negligence …

Thus, in order to establish excusable delay under a commercial

items contract, the contractor must prove two elements: (1)
that the delay was beyond its reasonable control and without
its fault or negligence; and (2) that there was a causal connec-
tion between the delay and the failure to perform.

Appellant alleges numerous excuses: (1) no installation window was available

on 17 November 1998; (2) the contracting officer issued unilateral changes in
violation of FAR 52.212-4(c); (3) appellant’s consent to extend the delivery
date until 17 November 1998 was obtained by duress; (4) the contracting of-
ficer failed to consider appellant’s 13 November 1998 request for an exten-
sion; (5) the contracting officer failed to comply with FAR 12.403(b); (6) the
contracting officer failed to consider the factors at FAR Part 49; (7) the con-
tracting officer failed to consider appellant’s request for reinstatement; (8)
the contracting officer required appellant to install the lifters on more than
one range; (9) the contracting officer failed to provide installation windows of
15 days in all cases; (10) the contracting officer required appellant to com-
plete installation on range 18 before starting the MPRC range; (11) the con-
tracting officer revised the designated installation windows; (12) the contract-
ing officer failed to provide a full three-weeks notice of installation windows
in all cases; (13) the contracting officer did not lift the stop work order imme-
diately following GAO’s dismissal of the ATA protest; (14) the contracting of-
ficer failed to equitably adjust the contract after the stop work order was lift-
ed; (15) the contracting officer required appellant to submit to a post award
inspection on 15 October 1998; and (16) the contracting officer substituted a
different use certificate for the one submitted by appellant. We consider ap-
pellant’s excuses seratim.

First, appellant argues that it was not in default because there was no instal-
lation window available on 17 November 1998, the required delivery date.
This argument is based on the premise that the contract required simultane-
ous delivery and installation. Thus, if no installation window was available
on 17 November 1998, appellant asserts that the delivery date automatically
migrated to the next available window, which was 4 December 1998. As a re-
sult, appellant concludes that it was not in default.

In interpreting a contract, we are guided by the following principles:

[T]he intention of the parties must be gathered from the whole

instrument. (Citations omitted) Also, an interpretation which
gives a reasonable meaning to all parts of an instrument will
be preferred to one which leaves a portion of it useless, inexpli-
cable, inoperative, void, insignificant, meaningless or superflu-
ous; nor should any provision be construed as being in conflict
with another unless no other reasonable interpretation is pos-
sible.

Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, 978 (1965).

Applying the foregoing principles to this contract, we conclude that appellant

was required to deliver the lifters by 17 November 1998 whether or not an
installation window was available. The contract schedule established a deliv-
ery date of “30-SEP-1998” for the lifters and a delivery date of “30-SEP-1998
ESTIMATED” for installation. The only reasonable interpretation of these
provisions is that delivery of the lifters was required by 30 September 1998
and that installation would begin on an unspecified date thereafter. Those
dates were later extended to “17-NOV-1998” and “17-NOV-1998 (E)” respec-
tively. The contract neither implied nor stated that an installation window
would be available when the lifters were delivered. Moreover, the contract
specifically stated that installation was to be completed within 15 days of
starting installation, not within 15 days of delivery, meaning that delivery
and installation would not necessarily take place simultaneously.

Second, appellant argues that its default should be excused because the con-
tracting officer unilaterally extended the delivery date from 30 September to
26 October 1998. Relying on FAR 52.212-4(c), appellant argues that changes
to a commercial items contract may “be made only by written agreement of
the parties.” This argument overlooks FAR 52.212-4(s), the order of prece-
dence clause in the contract. The order of precedence clause states that the
clauses at FAR 52.212-5 take precedence over the clauses at FAR 52.212-4 in
the event of inconsistency. FAR 52.212-5 includes FAR 52.233-3 PROTEST
AFTER AWARD, which authorizes the contracting officer to unilaterally is-
sue and lift stop work orders and reestablish a delivery date in conjunction
with a bid protest. To the extent there was an inconsistency between FAR
52.212-4(c), which required bilateral changes, and FAR 52.233-3, which per-
mitted unilateral changes, FAR 52.233-3 took precedence. Accordingly, we
conclude that the contracting officer’s unilateral reestablishment of a delivery
date after lifting the stop work order did not violate FAR 52.212-4(c).

Third, appellant argues that the contracting officer obtained its signature on
a bilateral agreement extending the delivery date from 26 October to 17 No-
vember 1998 under duress. In order to establish duress, appellant must prove
that: (1) it did not voluntarily sign the bilateral agreement extending the de-
livery date; (2) it had no other reasonable alternative but to sign the agree-
ment; and (3) that the Government’s behavior violated “notions of fair deal-
ing.” Systems Technology Associates, Inc. v. United States, 699 F.2d 1383,
1388 (Fed. Cir. 1983).

We are not persuaded that appellant’s consent to the extension was obtained
through duress. The contracting officer denied threatening appellant with
termination. Assuming arguendo, that the contracting officer did threaten
appellant with termination, that does not ipso facto violate “notions of fair
dealing.” It is only when the contracting officer uses wrongful conduct to ob-
tain agreement that pressure becomes duress. Systems Technology, 699 F.2d
at 1387. Under the circumstances of this case, the contracting officer’s threat,
if any, did not cross that line.
Fourth, appellant argues that the default should be excused because the con-
tracting officer did not consider its request to extend the delivery date until 4
December 1998. Appellant telefaxed its request to the Government on 13 No-
vember 1998, but neither the contracting officer nor the contract specialist
saw the request until after the termination. This argument must be rejected
because appellant could not have delivered the lifters on 4 December 1998
any more than it could have delivered them on 17 November 1998. The com-
ponents did not arrive from Germany until 7 December 1998 and appellant
did not take delivery of them for another week for financial reasons. Assum-
ing that appellant could have taken delivery on 7 December 1998, the lifters
still had to be assembled and transported from Davenport, Iowa, to Ft. Riley,
Kansas. Since appellant could not have delivered the lifters on 4 December
1998, we conclude that the contracting officer’s failure to consider appellant’s
request for an extension does not invalidate the termination for cause.

Fifth, appellant argues that the termination is invalid because the contract-
ing officer did not consider the factors at FAR Part 49. FAR 12.403(a) states
that the “requirements of FAR Part 49 do not apply when terminating con-
tracts for commercial items.” This argument is without merit.

Sixth, appellant argues that the termination is invalid because the contract-
ing officer failed to comply with FAR 12.403(b), which sets forth Government
policies for terminating a commercial items contract. Paragraph (b) states
that the contracting officer “should” exercise the right to terminate only when
it is in the best interests of the Government and consult with counsel prior to
terminating for cause. The record indicates that the contracting officer did
consult counsel prior to terminating the contract. Moreover, under the facts
and circumstances of this case, the contracting officer did not abuse his dis-
cretion by terminating the contract for cause.

Seventh, appellant argues that the contracting officer’s failure to act on its
request for a reinstatement, rendering the termination ineffectual. On 24
November 1998, Mr. Borbeck, Sr., telephoned the contract specialist and re-
quested that the contract be reinstated. The contract specialist told Mr. Bor-
beck, Sr., that requests for reinstatement had to be in writing and addressed
to the contracting officer. She prepared a memorandum of the call and put it
in the file. Appellant did not submit a written request. As a result, the con-
tracting officer did not take any action on appellant’s request.

Appellant’s remaining excuses fail because there is no proof that they caused
or contributed to the failure to deliver. The evidence establishes that appel-
lant failed to deliver because the components were not shipped until 17 No-
vember 1998 and did not arrive at its Davenport, Iowa, facility until 7 De-
cember 1998. Accordingly, arguments (8) through (12) which relate to the in-
stallation windows, arguments (13) and (14) which relate to the
Government’s stop work order, argument (15) which relates to the post award
inspection, and argument (16) which relates to appellant’s request for a use
certificate, do not excuse appellant’s failure to deliver.

After completion of the reprocurement contract, the Government assessed

appellant $194,560.00 in excess costs, the difference between the price of the
original contract and the reprocurement contract. To recover excess costs, the
Government must prove three things: (1) that the reprocured supplies are the
same as or similar to those involved in the termination; (2) that the Govern-
ment actually incurred excess costs; and (3) that the Government acted rea-
sonably to minimize excess costs. Cascade Pacific International v. United
States, 773 F.2d 287, 294 (Fed. Cir. 1985). Although appellant does not dis-
pute that the Government incurred excess costs, it argues that it is not liable
for those costs because the two contracts were not similar and the Govern-
ment failed to properly mitigate its damages.

While the Government does not have to prove that the reprocured items and
the original items are identical in order to satisfy the requirement for simi-
larity, it must show that the items have similar physical and mechanical
characteristics and that they serve the same functional purpose. If the Gov-
ernment fails to prove that the items are similar, it loses its right to excess
costs. In contrast, changes that do not go to “the heart of the procurement,”
such as the correction of inadvertent errors and omissions, updating of speci-
fications or changes in terms and condition such as progress payment and
first article pricing provisions, do not vitiate the Government’s right to excess
costs. Increased costs caused by such changes may not be charged to appel-
lant, however, and will be used to reduce the amount of the Government’s re-
covery. Meyer Labs, Inc., ASBCA No. 19525, 87-2 BCA ¶19,810 at 100,219-
20; Guenther Systems, Inc., ASBCA Nos. 18343, 20363, 77-1 BCA ¶12,501 at
60,591.

There is no dispute that the performance requirements and the inspection

and testing requirements of the original contract were identical to those of
the reprocurement contract and that the reprocured items had similar physi-
cal and mechanical characteristics and served the same functional purpose as
the original items. Thus, the Government has met its burden of proving simi-
larity. The burden of going forward now shifts to appellant to show that the
changes which the Government made to the reprocurement contract in-
creased its price and the amount of the increase. Puroflow Corp., ASBCA No.
36058, 93-3 BCA ¶26,191 at 130,392 and cases cited therein. To the extent
appellant can show that the changes increased the Government’s excess
costs, it is entitled to a reduction of its liability.

When it issued the resolicitation, the Government made the following chang-
es: (1) award was to be made on the basis of performance risk and price ra-
ther than price alone; (2) the resolicitation explicitly stated that the delivery
date would remain constant regardless of range availability; (3) the delivery
date was extended from 60 days to 120 days; (4) the resolicitation added re-
quirement for a “post award conference/product demonstration;” (5) if instal-
lation was delayed, the resolicitation indicated that the lifters could be stored
at Ft. Riley; and (6) the resolicitation provided for progress payments if in-
stallation was delayed more than 60 days. Appellant did not present any evi-
dence regarding how these changes affected the price of the reprocurement
contract. Absent such evidence, appellant is not entitled to a reduction of its
excess cost liability.

Appellant next argues that the Government failed to mitigate damages be-
cause there was inadequate competition. This duty has been described as fol-
lows:

The Government is not obligated, in reprocuring services after

a default termination, to solicit every known source of supply
or to contact all bidders in the original procurement. The test
for determining the adequacy of a reprocurement is rather one
of reasonableness, and the principal criterion is that a suffi-
cient number of potential contractors are solicited to assure
competitive prices and there by mitigate the excess cost liabil-
ity of the defaulted contractor.

Advance Building Maintenance Co., ASBCA Nos. 27183, 28219, 85-2 BCA
¶18,076 at 90,750; see also Barrett Refining Corp., ASBCA Nos. 36590, 37093,
91-1 BCA ¶23,566 at 118,145, aff’d., 937 F.2d 623 (Fed. Cir. 1991) (table).

We are satisfied that there was adequate competition for the reprocurement
contract. The Government solicited bids from the original bidders except ap-
pellant, which we discuss infra. The contracting officer did not formally ad-
vertise the reprocurement because, in his opinion, he would not obtain any
additional bids. He testified that Caswell, ATA and SES “were the ones that
were probably going to be the most interested, even six months, seven
months later [because] they were the … ones that would normally be supply-
ing targetry equipment to the Government.” Appellant has not offered any
evidence to the contrary. In addition, the contracting officer testified that,
although the requirement for the lifters was not such that it would justify a
sole source procurement, the Government had been trying to obtain new lift-
ers for Ft. Riley for at least 2 1/2 years.

Appellant next argues that in order to mitigate its damages, the Government
must allow the defaulted contractor an opportunity to bid on the reprocure-
ment. Contrary to appellant’s assertion, this is not the law. See Z.A.N. Com-
pany, ASBCA Nos. 23860, et al., 86-1 BCA ¶18,700 at 94,003, Tyco Air Spec
Division, ASBCA No. 16534, 73-1 BCA ¶9951 at 46,681. The case cited by ap-
pellant, World-Wide Development Co., Inc., ASBCA No. 16717, 74-1 BCA
¶10,474, is inapposite. In that case, we held that the Government failed to
mitigate damages after it terminated a contract for rental of a tugbo at and
reprocured the incumbent’s services because the defaulting contractor could
have provided a boat at a lower price within thirty days and the incumbent
might have agreed to a short extension. Given appellant’s demonstrated lack
of responsibility — its inability to manage the contract, its lack of a facility
and employees with which to assemble, deliver and install the lifters and its
apparent financial distress — we conclude that the contracting officer’s deci-
sion to exclude appellant from bidding on the reprocurement contract was
reasonable.

We have considered all the other arguments advanced by appellant in its

briefs and its motion for summary judgment and find them to be without
merit.

The appeals are denied. Appellant’s motion for summary judgment is moot.
ASBCA No. 52192 is remanded to the parties to finalize quantum.

ELIZABETH A. TUNKS
Administrative Judge

We concur
MARK N. STEMPLER
Administrative Judge, Acting Chairman

EUNICE W. THOMAS
Administrative Judge, Vice Chairman
 E.R. Mitchell Construction

98-1 BCA ¶29,632

March 16, 1998

Appearance for the Appellant: Stan Barnett, Esq.; Smith, Bundy, Bybee &
Barnett, P.C.; Charleston, SC. Appearances for the Government: Arthur H.
Hildebrandt, Esq., Navy Chief Trial Attorney; Audrey Van Dyke, Esq., Trial
Attorney; Naval Facilities Engineering Command; Washington, DC.

Opinion by Administrative Judge Dicus

This appeal is taken from a contracting officer’s final decision denying the
claim of appellant E.R. Mitchell Construction Company, Inc. (E.R. Mitchell),
filed on behalf of its subcontractor Clontz-Garrison Mechanical Contractors,
Inc. (Clontz-Garrison). The claim asserts entitlement to $17,478.00 in unab-
sorbed overhead resulting from alleged Government-caused delays. The par-
ties have waived hearing under Board Rule 11. Only entitlement is before us
for decision. We deny the appeal.

Findings of Fact

1. Contract No. N62467-89-C-0173 was awarded to E.R. Mitchell on 27 April

1992 for the construction of a clothing issue building at the Marine Corps Re-
cruit Depot, Parris Island, South Carolina. The work included the demolition
of two existing buildings. The contract incorporated the following standard
clauses: FAR 52.212-12, SUSPENSION OF WORK (APR 1984) [now FAR
52.242-14], FAR 52.244-1, SUBCONTRACTS (Fixed-Price Contracts) (APR
1991) [now FAR 52.244-2, SUBCONTRACTS], and FAR 52.233-1, DISPUTES
(APR 1988). (R4, tab 1)

2. The original contract schedule required completion as follows: Phase A,

contract submittals, was to begin 5 May 1992, with a completion date of 2
September 1992; Phase B, construction of the new clothing issue building,
was to begin 5 May 1992, with a completion date of 20 May 1993; and Phase
C, demolition, was to begin 19 June 1993, with a completion date of 18 Au-
gust 1993. (R4, tab 1)

3. On 29 May 1992, E.R. Mitchell entered into a subcontract with Clontz-

Garrison to perform mechanical work for Phase B of the contract in accord-
ance with the contract drawings and specifications. Clontz-Garrison was to
perform the following work: heating, ventilation, air conditioning (HVAC),
plumbing, steam, exterior sanitary sewer, and water distribution. On 22 Sep-
tember 1992, E.R. Mitchell entered into a second subcontract with Clontz-
Garrison to perform the following work: exterior water distribution system,
exterior shallow trench heat distribution (piping only), chilled water piping,
ductwork and ductwork accessories, and related tasks. (Exh. G-1)

4. A schedule for completing the project was developed by E.R. Mitchell and
its subcontractors and was approved by the Government (compl.; answer).
Clontz-Garrison’s subcontract work was scheduled to be completed by 8
March 1993. Clontz-Garrison did not complete its subcontract work until 6
May 1993. (Exh. A-2)

5. On 8 October 1992, Clontz-Garrison informed E.R. Mitchell that it discov-

ered design conflicts in the specifications and drawings. Specifically, prob-
lems existed with regard to the routing of plumbing, HVAC piping, ducts,
sprinkler piping, and electrical work. (R4, tab 11) The Government does not
dispute that the contract contained design defects that needed to be corrected
(Gov’t br. at 1).

6. Formal discussions between the parties on correcting the defects began at

a 14 October 1992 meeting attended by representatives of E.R. Mitchell,
Clontz-Garrison, and the Government. Discussions centered upon the ques-
tion of how to install the electrical, sprinkler piping, and duct above the ceil-
ings on the second floor. (R4, tab 11)

7. The Assistant Resident Officer in Charge of Construction (AROICC) be-

came aware of the design problems at a meeting with E.R. Mitchell and
Clontz-Garrison on 22 October 1992 (exh. G-2). On 23 October 1992, E.R.
Mitchell submitted Clontz-Garrison’s written request for information (RFI)
37 to the Resident Officer in Charge of Construction (ROICC). With the RFI,
Clontz-Garrison submitted sketches as a partial solution to these problems.
On 2 November 1992 the Government approved the sketches as a solution to
the second floor conflicts and directed actions to be taken in order to resolve
the first floor conflicts. (R4, tab 4)

8. After a meeting between the parties on 9 November 1992 (R4, tab 11), on
18 November 1992 E.R. Mitchell submitted Clontz-Garrison’s written RFI 37-
A to the ROICC. With this RFI, Clontz-Garrison included drawings to resolve
“ducting/piping conflicts [and] interferences.” The RFI stated that it was a
“continuation of RFI No. 37 of 10/23/92.” The Government approved the
drawings on 27 November 1992 and E.R. Mitchell received this approval on 2
December 1992. (R4, tab 5) Clontz-Garrison received a copy of the approval
from E.R. Mitchell on 7 December 1992 (R4, tab 11). Soon thereafter Clontz-
Garrison accepted delivery of additional materials and began “serious instal-
lation” of above grade plumbing and HVAC work (exh. A-2).

9. The length of time that would be required by the Government to resolve

the design defects was impossible for Clontz-Garrison to predict (exh. A-3).
During the period from 8 October 1992 to 7 December 1992, Clontz-Garrison
performed some work on the project. However, the planned use of manpower
was substantially disrupted. (Complaint enclosure) The employees who had
been otherwise scheduled to work on the subject contract were moved to work
on other contracts (exhs. A-2, -3).

10. On 27 April 1993, the contracting officer issued Modification No. P00037.
It granted an increase in the contract price of $13,946.00 as compensation to
“[r]evise the ductwork system, chilled water piping, seismic bracing, and
AHUs as shown in approved submittal 37-A.” It provided that

[t]his modification provides full compensation for the cost of the

changed work and an appropriate adjustment of the contract
completion date for that changed work. However, the contrac-
tor may request additional compensation for other work and
further time extensions, which, in the future, may be justified
as the indirect result of this modification….

The contract’s completion dates, which at the time of Modification No.

P00037 called for completion of Phase A on 17 September 1992, completion of
Phase B on 4 June 1993, and Phase C on 2 September 1993, were unchanged.
(R4, tab 2)

11. By letter of 18 May 1993 E.R. Mitchell forwarded the signed modification.
The letter states, in part:

We have signed this modification document as issued in order

to expedite this work. It is understood that time related cost
[sic] have not been addressed in this modification. The time is-
sue will be addressed at a later date.... It is further understood
that our signing of this modification in no way waives Contrac-
tor rights to adjustments in time and related monies for phased
work. (Exh. G-4)
12. By letter dated 11 June 1993, the AROICC indicated that, as of 6 May
1993, “all work for phase [B] [was] complete in accordance with plans and
specifications with the exception of the punchlist items” (R4, tab 9). We con-
clude that Phase B was completed on 6 May 1993, in advance of the 4 June
1993 contract completion date.

13. By letter dated 25 June 1993, Clontz-Garrison, through E.R. Mitchell,

submitted a request for equitable adjustment for unabsorbed overhead in the
amount of $17,478.00 due to the alleged delay from 8 October 1992 to 7 De-
cember 1992. This request was denied by the AROICC on 1 June 1994. The
AROICC stated that the Government made it clear that the contractor could
meet with Government officials for clarification purposes, but that the resolu-
tion of the problems did not start until the problem had been submitted in
writing to the ROICC. According to the AROICC, once the submittals were
received by the ROICC, the ROICC’s responses were timely. (R4, tab 11)

14. On 7 November 1994, E.R. Mitchell filed a claim on behalf of Clontz-

Garrison for $17,478.00 in unabsorbed overhead (R4, tab 11). By letter dated
22 March 1995, the contracting officer issued a final decision denying the
claim. In that decision, the contracting officer asserted that E.R. Mitchell was
not delayed in progress on the critical path and that E.R. Mitchell was fully
compensated by Modification 37 for costs incurred due to the defective speci-
fications. (R4, tab 12) The final decision was appealed by letter of 15 May
1995.

Decision

Appellant contends that it is entitled to damages for unabsorbed overhead in

accordance with Eichleay Corp., ASBCA No. 5183, 60-2 BCA ¶2688, aff’d on
recon., 61-1 BCA ¶2894 (“Eichleay damages”). The Government argues that a
subcontractor is not entitled to Eichleay damages as a result of Government-
caused delay when the prime contractor completes the contract within the
time prescribed by the contract and there is no contention that the contract
could have been completed ahead of schedule. As there is no claim of early
completion here, respondent argues we should deny the appeal.

The three elements necessary to recover Eichleay damages are: (1) a Gov-
ernment-imposed delay; (2) the Government requirement that the contractor
“stand by” during the delay; and (3) while “standing by,” the contractor was
unable to take on additional work. Satellite Electric Co. v. Dalton, 105 F.3d
1418, 1421 (Fed. Cir. 1997); Interstate General Government Contractors v.
West, 12 F.3d 1053, 1056 (Fed. Cir. 1993). After the contractor proves that
there was compensable delay and that it was required to “stand by,” it has
established a prima facie case of entitlement. Orbas & Associates, ASBCA No.
48260, 97-2 BCA ¶29,281. The burden then shifts to the Government to pre-
sent rebuttal evidence or argument showing that the contractor did not suffer
or should not have suffered any loss because it was able to either reduce its
overhead or take on other work during the delay. Satellite Electric Co., 105
F.3d at 1421. Despite the shift in the burden of production, the burden of
proof remains on the contractor to prove that it was unable to take on other
work during the delay. Id.; Orbas & Associates, ASBCA No. 48260, 97-2 BCA
¶29,281.

In this “pass-through” appeal, the real party in interest is the mechanical

subcontractor, with whom the Government has no privity of contract. Clontz-
Garrision was not, therefore, party to the agreement between the Govern-
ment and E.R. Mitchell which established the contract performance period
that formed the period for absorbing home office overhead. The Federal Cir-
cuit Court of Appeals has held that if the contract deadline originally bar-
gained for is not extended, neither is the period for absorbing home office
overhead costs. Unless the ability to finish early is proved, the contractor is
not entitled to recovery:

Where a contractor is able to meet the original contract dead-

line or, as here, to finish early despite a government-caused de-
lay, the originally bargained for time period for absorbing home
office overhead through contract performance payments has
not been extended. Therefore, in order to show that any portion
of the overhead was unabsorbed, such a contractor must prove
that the bargained for ratio of performance revenue to fixed
overhead costs during the stipulated performance period, not
just the delay period as the Board erroneously stated, has been
adversely affected by the delay. This can only be established if
such a contractor shows that from the outset of the contract it:
(1) intended to complete the contract early; (2) had the capabil-
ity to do so; and (3) actually would have completed early, but
for the government’s actions. Board decisions in Elrich Con-
tracting, Inc. v. General Services Admin., GSBCA No. 10936,
93-1 BCA ¶25,316 at 126,142, 1992 WL 181692 (July 27, 1992)
and Appeal of Frazier-Fleming Co., ASBCA No. 34537, 91-1
BCA ¶23,378 at 117,287-88, 1990 WL 173258 (Sept. 18, 1990)
so held and we today adopt that three part-test. [sic]

Interstate General Government Contractors, 12 F.3d at 1058-59.

We have found that Phase B was completed in advance of the contract com-
pletion date (finding 12) and there is no contention that Phase B could have
been completed even earlier. Therefore, since the performance period to
which both contracting parties agreed was met, the period for absorbing
home office overhead was not extended.

Accordingly, Eichleay damages for unabsorbed overhead cannot be granted

here. Id.; Minority Enterprises, Inc., ASBCA Nos. 45549, 45553, 45683,
45696, 95-1 BCA ¶27,461. Finally, although not argued by the parties, we
have found that Clontz-Garrison shifted employees to work on other contracts
while the design defects were being resolved (finding 9). We have denied re-
covery of Eichleay damages where a contractor reassigns direct labor employ-
ees to other ongoing work during a delay. Belleville Shoe Manufacturing Co.,
ASBCA No. 46036, 95-2 BCA ¶27,680 at 138,010.

The appeal is denied.

CARROLL C. DICUS, JR.

Administrative Judge

We concur
MARK N. STEMPLER,
Administrative Judge, Acting Chairman

RICHARD SHACKLEFORD
Administrative Judge, Acting Vice Chairman
 Elrich Contracting

02-2 BCA ¶31950

August 7, 2002

Appearances for the Appellant: Robert G. Watt, Esq., Robert K. Cox, Esq.,
Watt, Tieder, Hoffar & Fitzgerald L.L.P., McLean, VA. Appearances for the
Government: Fred A. Phelps, Esq., Navy Chief Trial Attorney; Ellen M. Ev-
ans, Esq., Trial Attorney; Engineering Field Activity Chesapeake, Washing-
ton, DC.

Opinion by Administrative Judge Thomas on an Application for an

Award under the Equal Access to Justice Act

Applicant Elrich Contracting, Inc., seeks attorney’s fees and other expenses
under the Equal Access to Justice Act (EAJA), 5 USC §504. Elrich appealed
pursuant to section 6 of the Contract Disputes Act of 1978 (CDA), 41 USC
§605, from a contracting officer’s decision terminating its contract for default.
After the contracting officer confirmed on the first day of the hearing that he
was willing to convert the termination for default to one for convenience, the
Board issued an order signed by the presiding judge dismissing the appeal as
moot. We decide that under Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.
Ct. 1835 (2001) ( Buckhannon), Elrich does not qualify for an award because
it is not a prevailing party. Because this issue is dispositive, we do not reach
any other issues relating to the application.

Factual and Procedural Background

On 9 September 1996, the Navy awarded Elrich Contract No. N62477-94-C-

0140 for the renovation of Building 1, Naval Research Laboratory, Washing-
ton, D.C. The contract included standard clauses FAR 52.249-2 Termination
For Convenience Of The Government (Fixed-Price) (Apr 1984) — Alternate I
(Apr 1984) And FAR 52.249-10 Default (Fixed-Price Construction) (Apr
1984). The Default clause provides that “[i]f, after termination of the Con-
tractor’s right to proceed, it is determined that the Contractor was not in de-
fault, or that the delay was excusable, the rights and obligations of the par-
ties will be the same as if the termination had been issued for the
convenience of the Government.” (R4, tab 1)
On 2 July 1997, the contracting officer terminated the contract for default for
“failure to make progress in the work and for default in performance” (R4, tab
60). Appellant’s subsequent appeal from the termination for default was
docketed as ASBCA No. 50867. In its complaint, appellant asked “that its ap-
peal be sustained and that the termination for default be converted to a ter-
mination for the convenience of the Government.” (Compl. at 2)

Appellant had separately appealed from the denial of a claim for an equitable
adjustment, and that appeal was docketed as ASBCA No. 50789. On 7 De-
cember 1999, the Board set both appeals for hearing at the Board starting 1
February 2000 (corres. file).

On 1 February 2000, before the start of the hearing, the Government stated
that it was willing to convert the termination for default to one for the con-
venience of the Government. After convening the hearing, the presiding judge
confirmed on the record that the contracting officer agreed to the conversion
and was authorized to make that agreement. Elrich stated that it was willing
to accept the Government’s authorized offer to convert the termination for
default to one for convenience. (Tr. 4) Both sides reserved their rights with
respect to the quantum which might be due as a result of the conversion (tr.
5-6).

The presiding judge continued that “[s]ince we have made this disposition of
the appeals, then I propose that the board will dismiss the appeal [ASBCA
No. 50867] by reason of the conversion, and I think we’ll dismiss it without
prejudice, pending the outcome of the negotiations” on the quantum which
would be due as a result of the conversion. Government counsel responded
that she did not understand that, “because the only thing before the board is
the propriety of the default, so that’s now moot.” (Tr. 6) The presiding judge
replied “I suppose if the conversion is final, then we can — the appeal would
be dismissed with prejudice.” The Government and Elrich each stated that
dismissal with prejudice was satisfactory. (Tr. 7) Neither party raised the
possibility of the Board’s sustaining the appeal or rendering a decision in the
nature of a consent judgment. The presiding judge then concluded the hear-
ing without taking evidence or commenting on the merits of ASBCA No.
50867 (tr. 8).

On 2 February 2000, the Board issued the following order, signed by the pre-
siding judge:
 Order of Dismissal
At a hearing with respect to ASBCA Nos. 50867 and 50789,
convened on 1 February 2000, pursuant to a statement made
on the record by the contracting officer, Mr. Jon F. Soderstrom,
the termination of the contract for default was converted by the
Government to a termination for the convenience of the Gov-
ernment. Appellant did not object to that action and consented
to the dismissal of ASBCA No. 59867 by reason thereof.

The conversion of the default termination to one for the conven-

ience of the Government moots the appeal in ASBCA No.
50867. The appeal is accordingly dismissed.

On 3 February 2000, the Board sent a copy of the order to each of the parties.
Neither party took exception to the form of the order or requested a different
disposition.

On 2 March 2000, Elrich filed an EAJA application for its attorney’s fees and
other expenses relating to ASBCA No. 50867. The Government responded to
the application, and Elrich subsequently amended it. These exchanges are
immaterial for present purposes.

Decision

The EAJA provides in relevant part that:

An agency that conducts an adversary adjudication shall

award, to a prevailing party other than the United States, fees
and other expenses incurred by that party in connection with
that proceeding, unless the adjudicative officer of the agency
finds that the position of the agency was substantially justified
or that special circumstances make an award unjust.

5 USC §504(a)(1). An adversary adjudication includes any appeal of a con-

tracting officer’s decision pursuant to section 6 of the CDA, 41 USC §605, be-
fore an agency board of contract appeals. 5 USC §504(b)(1)(C). The issue be-
fore the Board is whether, in light of Buckhannon, Elrich was a prevailing
party.

In Buckhannon, petitioners brought suit against the State of West Virginia

seeking declaratory and injunctive relief that two provisions of the West Vir-
ginia Code violated the Fair Housing Amendments Act of 1988 (FHAA), 42
USC §3601 et seq., and the Americans with Disabilities Act of 1990 (ADA), 42
USC §12101 et seq. While the case was in discovery, the West Virginia legis-
lature eliminated the provisions. The district court dismissed the case as
moot and subsequently denied a request for attorney’s fees. The Fourth Cir-
cuit affirmed the denial of attorney’s fees. 121 S. Ct. at 1838-39.

Before the Court, petitioners “argued that they were entitled to attorney’s
fees under the ‘catalyst theory,’ which posits that a plaintiff is a ‘prevailing
party’ if it achieves the desired result because the lawsuit brought about a
voluntary change in the defendant’s conduct.” 121 S. Ct. at 1838. The Court
rejected the catalyst theory. It said that it was established that “enforceable
judgments on the merits and court-ordered consent decrees create the ‘mate-
rial alteration of the legal relationship of the parties’ necessary to permit an
award of attorney’s fees.” 121 S. Ct. at 1840, quoting Texas State Teachers
Ass’n. v. Garland Independent School Dist., 489 U.S. 782, 792-93 (1989) (Tex-
as State Teachers). It continued ( id.):

We think, however, the “catalyst theory” falls on the other side

of the line from these examples. It allows an award where there
is no judicially sanctioned change in the legal relationship of
the parties.

It concluded that petitioners did not qualify as “prevailing parties” because:

A defendant’s voluntary change in conduct, although perhaps

accomplishing what the plaintiff sought to achieve by the law-
suit, lacks the necessary judicial imprimatur on the change.
Our precedents thus counsel against holding that the term
“prevailing party” authorizes an award of attorney’s fees with-
out a corresponding alteration in the legal relationship of the
parties.

In Brickwood Contractors, Inc. v. United States, 288 F.3d 1371 (Fed.Cir.

2002), rev’g 49 Fed. Cl. 738 (2001), the Federal Circuit decided three issues
about the applicability of Buckhannon, the first two of which are relevant to
the case before us. Plaintiff had filed a bid protest in the Court of Federal
Claims and a hearing was held on its request for a temporary restraining or-
der (TRO). Before the court issued a decision on the TRO request, the Navy
canceled the solicitation. The court dismissed the protest without reaching
the merits. Subsequently, the court awarded attorney’s fees under the EAJA.
The Federal Circuit reversed. First, the Federal Circuit held that the Su-
preme Court’s construction of the term “prevailing party” applied to the use
of that term in the EAJA. Second, the Federal Circuit held that the Court’s
ruling applied to cases in which a defendant’s voluntary change in conduct
resulted from the litigation itself as opposed to legislation. The Federal Cir-
cuit said that the lower court had erroneously suggested that:

the “catalyst theory” might be alive and well-even under FHAA

and the ADA-if litigation rather than legislative action is found
to cause a change. We reject such an analysis. In our view, the
Supreme Court in Buckhannon unambiguously rejected the
“catalyst theory” except in instances where there is an enforce-
able judgment on the merits or a court-ordered consent decree,
both of which create a material alteration in the legal relation-
ship of the parties.

288 F.3d at 1380. Third, the Federal Circuit held that the lower court’s “very
preliminary” remarks at the TRO hearing on the possible merit of the pro-
tester’s position, which may have led to the withdrawal of the solicitation,
were “clearly not sufficient to establish a judicial imprimatur.” 288 F.3d at
1380.

In applying these precedents, we start from the premise that the equivalents
of an enforceable judgment on the merits and a court-ordered consent decree
at the Board are a decision sustaining (or denying) an appeal and a decision
in the nature of a consent judgment. The CDA provides that “[a]n agency
board ... shall issue a decision in writing or take other appropriate action on
each appeal submitted....” 41 USC §607(e). Under our practice, the Board is-
sues decisions in the nature of a consent judgment upon request of the par-
ties. Pursuant to our charter, the Board reaches decisions by the “majority
vote of the members of a division participating and the chairman and a vice-
chairman.” 48 CFR Ch. 2, App. A, Pt. 1, ¶4 (2001). Normally the majority con-
sists of three judges. A single judge has the authority to order the dismissal
of an appeal with the consent of the parties, as was done here. A single judge
does not have the authority (except in limited circumstances, such as an ex-
pedited appeal) to render a decision for the Board.

In the case before us, appellant appealed from the contracting officer’s termi-
nation of its contract for default. In its complaint, appellant asked that the
appeal be sustained and the termination for default be converted to a termi-
nation for the convenience of the Government. The Board set the appeal for
hearing. Prior to the start of the hearing, the Government announced that
the contracting officer was willing to convert the termination for default to
one for the convenience of the Government. The presiding judge confirmed
this statement on the record and Elrich stated that it was willing to accept
the Government’s authorized offer. The parties agreed to dismissal of the ap-
peal with prejudice. Neither party raised the possibility of the Board’s sus-
taining the appeal or rendering a decision in the nature of a consent judg-
ment. The presiding judge concluded the hearing without taking evidence or
commenting on the merits of the appeal. The Board issued an order of dis-
missal signed by the presiding judge dismissing the appeal as moot. Neither
party took exception to the order as issued.

It seems clear to us, on these facts, that Elrich is not a prevailing party.
Brickwood establishes that Buckhannon applies to the EAJA and that it does
not matter that a voluntary change in conduct resulted from the litigation
rather than legislation. The Board dismissed Elrich’s appeal as a result of the
Government’s voluntary change in conduct, viz., its conversion of the termi-
nation for default to one for convenience. We assume for the sake of argument
that the Government may have concluded that its litigation position was
weak and that appellant’s appeal left it little choice but to convert the termi-
nation for default to one for convenience. Nonetheless, the change was volun-
tary in the sense that it was not ordered by the Board. The Board neither is-
sued a decision on the merits or a decision in the nature of a consent
judgment. Rather, as requested by the parties, it issued an order of dismissal.
The case is similar in this respect to Poly Design, Inc., ASBCA Nos. 48591 et
al., 01-2 BCA ¶31,644, in which the Board held that where an appellant set-
tled its appeals in advance of the hearing, and the parties requested that the
appeals be dismissed, the appellant was not a prevailing party.

In a supplemental brief dated 17 May 2002 addressing Brickwood, Elrich ar-

gues that it is a prevailing party for two reasons: first, that the Board’s 2
February 2000 dismissal order is the equivalent of a consent decree, and se-
cond, that the Board’s dismissal order incorporated the terms of the agree-
ment with the Government. Elrich assumes in each case that there was a set-
tlement as opposed to a unilateral conversion by the Government. We
address each argument in turn. Because the Federal Circuit has not yet de-
cided a number of the issues under Buckhannon, we turn for guidance on
some issues to others of the circuit courts which have.

1. Equivalence to a Consent Decree

On the first point, Elrich argues that “this Board’s Order of Dismissal, incor-
porating and reciting the terms of the parties’ settlement on the first day of
the appeal hearing, (and as also recorded in the hearing record transcript), is,
in effect, a consent decree as set forth in prior ASBCA decisions” (supp. br. at
2, footnote omitted). Elrich emphasizes the presiding judge’s statement quot-
ed above that “[s]ince we have made this disposition of the appeals, then I
propose that the board will dismiss the appeal by reason of the conversion ...”
(id. at 6). Elrich cites J.B. Engineering Contractors, Inc., ASBCA No. 33390,
88-2 BCA ¶20,621 at 28419 (should be 104,217), and Reid Associates, Inc.,
ASBCA No. 44633, 98-1 BCA ¶29,657 at 146,942, both of which were con-
cerned with the timeliness of EAJA applications. As Elrich points out, J.B.
Engineering Contractors contains dictum, quoted in Reid, that a Board order
of dismissal following a settlement is, “in effect, nothing more than a consent
decree based upon a contract between the parties” (supp. br. at 6-7). This dic-
tum must, however, give way to more current law on the issue before us.

In Buckhannon, the Court stated that “court-ordered consent decrees” permit

an award of attorney’s fees. The Court explained that “[a]lthough a consent
decree does not always include an admission of liability by the defendant, …
it nonetheless is a court-ordered ‘chang[e] [in] the legal relationship between
[the plaintiff] and the defendant.”‘ 121 S. Ct. at 1840, quoting Texas State
Teachers, 489 U.S. at 792. Prior cases also make clear that consent decrees
include an element of court-ordered change. See, e.g., Rufo v. Inmates of Suf-
folk County Jail, 502 U.S. 367, 378 (1992) (a consent decree is “an agreement
that the parties ... expect will be reflected in, and be enforceable as, a judicial
decree”); Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO v. Cleveland, 478
U.S. 501, 519 (1986) (consent decrees are hybrids, with attributes both of con-
tracts and judicial decrees).

The 2 February 2000 order does not state that it is a consent decree or in the
nature of a consent judgment, the usual formulation at the Board. Buckhan-
non does not require, however, that an order state explicitly that it is a con-
sent decree. A party may be a prevailing party if an order containing an
agreement reached by the parties is functionally the equivalent of a consent
decree. American Disability Association, Inc. v. Chmielarz, 289 F.3d 1315,
1320 (11th Cir. 2002) (American Disability Ass’n); Smyth v. Rivero, 282 F.3d
268, 281 (4th Cir. 2002) (Smyth). (We discuss these cases in connection with
appellant’s second argument.)

Two recent appellate authorities decide with different results whether an or-
der qualified as a consent decree under Buckhannon. In Oil, Chemical and
Atomic Workers Int’l Union, AFL-CIO v. Department of Energy, 288 F.3d 452
(D.C. Cir. 2002) (Oil, Chemical and Atomic Workers), a FOIA case, the circuit
court reversed an award of attorney’s fees. The district court had signed a 10
December 1999 Stipulation and Order which stated that “[i]n light of defend-
ant’s production of substantial amounts of material responsive to plaintiff’s
claim for relief in this action, the action is hereby dismissed with prejudice ...”
(288 F.3d at 457). The district court also awarded attorney’s fees. On appeal,
plaintiff claimed that the Stipulation and Order was a court-ordered consent
decree. The circuit court rejected this argument. It pointed out that under
FRCP 41(a)(1), an action may be dismissed without order of the court by fil-
ing a stipulation of dismissal. It said that:

The December 10 Stipulation and Order of Dismissal did not

meaningfully alter the legal relationship of the parties. Its only
effect was to dismiss the union’s lawsuit with a court order
when no court order was needed. That cannot represent “judi-
cial relief” for the union.... This contrasts with the consent de-
cree in Maher v. Gagne, 448 U.S. 122, 126 ..., which increased
AFDC allowances and gave recipients the right to prove that
their individual expenses exceeded the standard levels. The de-
cree in Maher constituted “judicial relief” that “materially al-
tered” the rights of the parties....

288 F.3d at 458.

In Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3d Cir. 2002)
(Truesdell), a housing rights case, the circuit court allowed an award of at-
torney’s fees. On 24 January 2000, the district court issued an order which
included the terms of the parties’ settlement, such as that the housing au-
thority (PHA) was required to provide rental assistance. The district court
denied attorney’s fees. On appeal, the housing authority argued that the 24
January 2000 order “was a stipulated settlement--not a court approved con-
sent decree.” 290 F.3d at 164-65. The circuit court rejected this argument. It
said, “under Buckhannon, attorney’s fees may be awarded based on a settle-
ment when it is enforced through a consent decree.” It concluded that the or-
der qualified as a consent decree:

On its face, the January 24th Order (1) contains mandatory

language ( e.g., “The [PHA] shall provide ...”), (2) is entitled
“Order,” and (3) bears the signature of the District Court judge,
not the parties’ counsel. Moreover, the January 24th Order
gave Truesdell the right to request judicial enforcement of the
settlement against PHA.... For these reasons, we hold that the
January 24th Order is a proper vehicle for rendering one side a
“prevailing party”....

290 F.3d at 165, brackets in the original.

The Board’s 2 February 2000 dismissal of Elrich’s appeal recites that at the
hearing convened on 1 February 2000, pursuant to a statement of the con-
tracting officer, “the termination of the contract for default was converted by
the Government to a termination for the convenience of the Government.” It
further recites that appellant did not object to that action and consented to
the dismissal of the appeal. It concludes that the conversion “moots the ap-
peal” and that “[t]he appeal is accordingly dismissed.” Like the order in Oil,
Chemical and Atomic Workers, and unlike the order in Truesdell, the order
does not provide “judicial relief” or contain “mandatory language.” The order
would not itself, as opposed to the contracting officer’s conversion of the ter-
mination for default, give appellant the right to request judicial or Board en-
forcement of its entitlement to recovery pursuant to the Termination for Con-
venience clause. Like the order in Truesdell, the order is entitled “order” and
bears the signature of the presiding judge, but we believe that these two fac-
tors are less important than the others. We conclude, therefore, under these
authorities that the 2 February 2000 order is not the equivalent of a consent
decree as that term is used in Buckhannon.

2. Incorporation of the Terms of the Agreement

In its supplemental brief, appellant continues that:

There is also a second, independent basis by which Elrich qual-

ifies as a “prevailing party” under Buckhannon for purposes of
EAJA. This Board’s Order of Dismissal, incorporating and re-
citing the parties’ settlement terms, converting the Govern-
ment’s default termination to a termination for convenience, is
a final order of this Board subject to enforcement.

(at 2, footnote omitted) Appellant again cites J.B. Engineering and Reid. It
concludes “[c]onsequently, the Order constitutes a judicially sanctioned
change in the legal relationship of the parties; thereby qualifying Elrich as a
‘prevailing party’ for purposes of recovery under EAJA” (id.). Elrich cites
Buckhannon at n.7; Poly Design, 01-2 BCA at 156,303; United States v. One
1997 Toyota Land Cruiser, 248 F.3d 899, 904 (9th Cir. 2001); and Sacco v.
Department of Justice, DC-0752-99-0219-A-1, 90 MSPR 37, 41, 2001 MSPB
LEXIS 918 (2001).

In Buckhannon at note 7, the Court said that:

Private settlements do not entail the judicial approval and

oversight involved in consent decrees. And federal jurisdiction
to enforce a private contractual settlement will often be lacking
 unless the terms of the agreement are incorporated into the or-
der of dismissal. See Kokkonen v. Guardian Life Ins. Co. of
America, 511 US 375, 128 L Ed 2d 391, 114 S Ct 1673 (1994).

121 S. Ct. at 1840. In Poly Design, the order of dismissal stated that “[t]he
disputes in the above-referenced appeals having been settled by the parties,
the appeals are dismissed with prejudice” (01-2 BCA at 156,302). In holding
that Poly Design was not a prevailing party, we concluded that “[t]he Board
did not approve or assume oversight of the settlement or incorporate the
terms of the settlement agreement in the order of dismissal” (01-2 BCA at
156,303).

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994), cited in
note 7, is the leading case standing for the proposition that a dismissal order
must incorporate the terms of a settlement agreement in order for it to be en-
forceable in the same action. (Alternatively, the order may include a provi-
sion retaining jurisdiction over the agreement.) The issue before the Court
was whether a district court had jurisdiction to enforce a settlement agree-
ment following dismissal of the underlying action. The district court had dis-
missed the action based upon a Stipulation and Order of Dismissal with
Prejudice which, although it arose from a settlement, did not refer to the set-
tlement agreement. Defendant sought to compel the return of files pursuant
to the agreement. The Court held that the district court did not have jurisdic-
tion to compel their return, stating that:

The situation would be quite different if the parties’ obligation

to comply with the terms of the settlement agreement had been
made part of the order of dismissal — either by separate provi-
sion (such as a provision “retaining jurisdiction” over the set-
tlement agreement) or by incorporating the terms of the set-
tlement agreement in the order. In that event, a breach of the
agreement would be a violation of the order, and ancillary ju-
risdiction to enforce the agreement would therefore exist. That,
however, was not the case here. The judge’s mere awareness
and approval of the terms of the settlement agreement do not
suffice to make them part of his order.

511 U.S. at 381.

Since the Supreme Court’s citation to this case in Buckhannon, a number of

circuit courts have grappled with whether particular dismissal orders incor-
porated the terms of settlement agreements in accordance with Kokkonen. In
Smyth, supra, the court denied fees. The action concerned welfare recipients’
entitlement to “TANF” benefits. The district court dismissed the action as
moot, following an 11 September agreement, inter alia, that the Government
would not seek repayment of TANF benefits from the named plaintiffs. 282
F.3d at 273. In its order, the court found that the parties had agreed there
would be no repayments. 282 F.3d at 284. The district court also awarded at-
torney’s fees. On appeal to the Fourth Circuit, plaintiffs argued that they
could be considered prevailing parties under Buckhannon “by virtue of the
September 11 agreement, which they assert was incorporated in the district
court’s order and thus stamped with judicial imprimatur.” 282 F.3d at 278.
The Fourth Circuit rejected this argument:

The obligation to comply with a settlement’s terms must be ex-

pressly made part of a court’s order for jurisdiction to enforce
the settlement after dismissal of the action to exist. See Kokko-
nen.... Where a court merely recognizes the fact of the parties’
agreement and dismisses the case because there is no longer a
dispute before it, the terms of the agreement are not made part
of the order and consequently will not serve as a basis of juris-
diction.

282 F.3d at 283. The Court concluded that “[n]othing in this [dismissal] order
suggests that the terms of the parties’ agreement are ‘incorporated’ into the
order by a clear indication that they must be complied with pursuant to the
order itself, as opposed to the principles of contractual obligation. The court’s
findings are most properly read as noting and reciting the agreement in ques-
tion as a component of its analysis of the mootness of the case....” 282 F.3d at
284.

In American Disability Ass’n, supra, where attorney’s fees were allowed, the
district court had “entered a Final Order of Dismissal in which it specifically
‘approved, adopted and ratified’ the [parties’] Stipulation of Voluntary Dis-
missal With Prejudice, dismissed the case with prejudice, and expressly ‘re-
tain[ed] jurisdiction solely for the purpose of enforcing the Settlement
Agreement.’” 289 F.3d at 1318. The Eleventh Circuit said that “[w]hen read
together with Buckhannon, the case cited by the Court in its footnote regard-
ing private settlements, Kokkonen, easily resolves this case.” 289 F.3d at
1319-20. The Court explained that:

In this case, the district court, in the order of dismissal, not on-
ly specifically “approved, adopted and ratified” the parties’ set-
tlement, but also expressly retained jurisdiction to enforce its
 terms. The formal entry of a consent decree was wholly unnec-
essary and would not affect the status of the parties or the dis-
trict court’s power to enforce the terms of the settlement.

289 F.3d at 1320-21. See also Schaefer Fan Co. v. J&D Manufacturing, 265
F.3d 1282 (Fed.Cir. 2001) (a dismissal “pursuant to a confidential settlement
agreement” which, in turn, gave either party the right to bring a motion be-
fore the district court to enforce the settlement agreement, qualified as an
enforceable judgment under Kokkonen).

Elrich’s second argument is not tenable under these authorities. It is correct

that there is a point of distinction between its case and Poly Design in that
the order of dismissal in its case referred to the terms of the settlement,
namely that the termination for default was converted by the Government to
a termination for the convenience of the Government, and the order of dis-
missal in Poly Design merely referred to the appeals “having been settled by
the parties.” This distinction is not important. The key is whether, as stated
in Smyth, the terms of the agreement (conversion of the termination for de-
fault) must be complied with pursuant to the order itself. We have no difficul-
ty in concluding that the order did not require conversion of the termination
for default; rather, as in Smyth, the order recites that the termination was
converted to one for the convenience of the Government as part of the expla-
nation for why the appeal was being dismissed. The order falls far short of
the order in American Disability Ass’n, which specifically ratified the parties’
agreement and retained jurisdiction to enforce its terms.

Elrich’s two other citations, United States v. One 1997 Toyota Land Cruiser,
supra, and Sacco v. Department of Justice, supra, do not change this result.
The former, although it includes arguably favorable dictum, did not concern
the requirement that an applicant be a prevailing party since the claimant
had dropped its claim for attorney’s fees under 28 USC §2412(d)(1)(A), which
is comparable to 5 USC §504, and only sought attorney’s fees under 28 USC
§2412(d)(1)(D). In Sacco, the MSPB denied attorney’s fees. The MSPB stated
that the appeal was dismissed as moot and that there was “no consent decree,
judgment, order, or settlement agreement by which the Board could enforce
any relief arising from the appeal or through the agency’s action.” 2001
MSPB LEXIS 918 at *11. This general language adds little to the argument.
Conclusion

As stated by the Eleventh Circuit in the American Disability Ass’n case, in

Buckhannon, the Supreme Court “changed the landscape of the ‘prevailing
party’ inquiry,” 289 F.3d at 1318. Buckhannon insists “that a plaintiff must
obtain formal judicial relief, and not merely ‘success,’ in order to be deemed a
prevailing party....” Crabill v. Trans Union, L.L.C., 259 F.3d 662, 667 (7th
Cir. 2001). Elrich obtained success, but not formal judicial relief. Accordingly,
we must deny its application for attorney’s fees and expenses.

Eunice W. Thomas
Vice Chairman, Administrative Judge

I concur
Mark N. Stempler
Administrative Judge, Acting Chairman

Edward G. Ketchen
Administrative Judge

I dissent (see separate opinion)

Carol N. Park-Conroy
Administrative Judge

Dissenting Opinion by Administrative Judges Moed and Park-

Conroy

The majority rejects the arguments advanced by Elrich supporting its status
as a prevailing party under EAJA. The Government did not brief the issue.
The majority concludes that Elrich does not qualify as a prevailing party be-
cause the conversion of the termination for default into one for the conven-
ience of the Government was effected by a Board order dismissing the appeal,
instead of either a Board decision sustaining the appeal or a Board-ordered
consent judgment. We believe that disqualification on that basis is unjustifi-
able under the facts and circumstances of this appeal and fails to
acknowledge the informal flexibility attendant to Board practice. Further, the
majority’s decision produces a result which is contrary to Congress’ intent in
passing EAJA, with a scope so unnecessarily far-reaching as to potentially
close the door to recovery of EAJA fees and expenses for other contractors,
who, like Elrich, have obtained the full measure of relief from a termination
for default.
The Government has the burden of proof on the default termination. Lisbon
Contractors, Inc. v. United States, 828 F.2d 759 (Fed.Cir. 1987). The Default
clause of the contract, FAR 52.249-10(c), states that, where there is a finding
that “the contractor was not in default, or that the delay was excusable, the
rights and obligations of the parties will be the same as if the termination
had been issued for the convenience of the Government.” Thus, the contract-
ing officer’s decision at the hearing of this appeal to convert the default ter-
mination into one for convenience was an admission that it could not carry its
burden of proof and that the default termination was improper. E.g., Alta
Construction Co., PSBCA Nos. 1463, 2920, 94-3 BCA ¶27,053. Elrich succeed-
ed in obtaining all of the relief it sought when the contracting officer made
this admission and, therefore, was entitled to a Board decision on the merits
sustaining its appeal. Electronic Systems & Equipment, Inc., ASBCA No.
44056, 97-2 BCA ¶29,198; Information Systems & Network Corp., ASBCA No.
41514, 92-3 BCA ¶25,049; Telimed Health Systems, Inc., ASBCA No. 42886,
92-1 BCA ¶24,401. As we stated in AIW-Alton, Inc., ASBCA No. 47439, 96-2
BCA ¶28,399 at 141,809, when the contracting officer unilaterally converted
the default termination into one for the Government’s convenience:

[A]ppellant received the full measure of the relief available

through this appeal. In effect, the appeal was sustained, leav-
ing no justiciable matter for judicial review.

Our view that Elrich is entitled to have its appeal sustained is consistent
with our decisions sustaining appeals from Government monetary claims
where the contracting officer decisions asserting such claims have been with-
drawn. Grumman Aerospace Corp., ASBCA Nos. 35941, 35942, 35943, 90-3
BCA ¶23,205; McDonnell Douglas Astronautics Co., ASBCA No. 36770, 89-3
BCA ¶22,253; Texas Instruments, Inc., ASBCA Nos. 28918, 33898, 89-3 BCA
¶21,934.

The majority says that Elrich is not a prevailing party because it did not re-
quest that the appeal be sustained. On 1 February 2000, however, when the
hearing on Elrich’s appeal from the default termination commenced, it was
governing Board precedent that a contractor was a prevailing party for EAJA
purposes if it obtained the relief it sought. Building Services Unlimited, Inc.,
ASBCA No. 33283, 88-2 BCA ¶20,611 at 104,151. The method of disposition
was irrelevant. When the appeal was dismissed, the Buckhannon decision
had not yet been issued and there was no reason for Elrich to ask for a Board
decision sustaining the appeal. This was not required for Elrich to qualify as
a prevailing party.

The majority opines that the dismissal order issued here cannot be deemed to
be a Board decision because it does not bear the signatures of three Board
members, as is normally required under our Charter. The majority notes,
however, that dismissal orders are properly issued by a single member of the
Board, upon consent of the parties, as occurred here. The procedure is one of
administrative efficiency. The present order was issued in conformity with
Board practice and is not objectionable simply because it amounts to a deci-
sion on the merits of the appeal.

The majority is of the view that the Board’s order does not qualify as a con-
sent judgment because it “does not refer to judicial (or Board) enforcement.”
Under that criterion, none of our orders or decisions would qualify as consent
judgments for the obvious reason that none of them contain such a recitation.
In any event, the criteria for determining what qualifies as a consent judg-
ment should reflect the Board’s practice. None of the cases relied upon by the
majority address established Board practice which permits an agreement by
the parties to resolve a challenge to a termination for default by converting it
into one for the Government’s convenience to be effected either by an order of
dismissal or by issuance of a consent decision. Thus, for example, in Arapaho
Communications, Inc./Steele & Sons, Inc., Joint Venture, ASBCA No. 48235,
98-1 BCA ¶29,563, the parties requested that we issue an order sustaining
the appeal, instead of dismissing it on the merits. We did so in a decision “in
the nature of a consent judgment.” Id. at 146,544. The substance of the facts
and circumstances in the present appeal likewise qualified for consent judg-
ment disposition.

Our practice of dismissing an appeal does not mean that the disposition does
not satisfy the criteria for issuance of a consent judgment. On the contrary,
the Federal Circuit defines a consent judgment as one “the provisions and
terms of which are settled and agreed to by the parties to the action.” Kearns
v. Chrysler Corp., 32 F.3d 1541, 1546 (Fed.Cir. 1994). The definition is widely
held:

Consent judgments entered upon settlement by the parties

may assume forms that range from simple orders of dismissal
without prejudice to detailed decrees. Whatever form is taken
the central characteristic is that the court has not actually re-
solved the substance of the issues presented.
18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§4443 at 383 (1981).

Thus, to conclude that appellant has not prevailed upon the merits of the ap-
peal solely because of the manner of the disposition, as the majority has done,
is to ignore the substance of the dismissal and its effect. This is improper. We
are to “look to the substance of the litigation to determine whether an appli-
cant has substantially prevailed in its position, not merely to the technical
disposition of the case or motion. In effect, substance should prevail over
form.” Schultz v. United States, 918 F.2d 164, 166 (Fed.Cir. 1990), cert. de-
nied, 500 U.S. 906 (1991), quoting Devine v. Sutermeister, 733 F.2d 892, 898
(Fed.Cir. 1984) (emphasis in original). See Hallco Mfg. Co., Inc. v. Foster, 256
F.3d 1290 (Fed.Cir. 2001) (no legally dispositive difference for claim preclu-
sion purposes between consent judgments and dismissal with prejudice based
upon settlements). The dismissal here “operated as an adjudication on the
merits, barring any further consideration of the merits of the default termi-
nation of the contract.” Carolina Security & Fire, Inc., ASBCA No. 46154, 95-
2 BCA ¶27,712 at 138,112. It is the judicial imprimatur required by Buck-
hannon and Brickwood..

Moreover, the artificial distinction made by the majority between the Board’s
dismissal order and a consent judgment conflicts squarely with the goals of
EAJA. In enacting EAJA, Congress expressed its concern that “certain ... or-
ganizations may be deterred from seeking review of, or defending against,
unreasonable governmental action because of the expense involved in the
vindication of their rights.” H.R. REP. NO. 96-1418, at 5 (1980), reprinted in
1980 USCCAN 4984. It attempted to “reduce the deterrents and disparity by
entitling certain prevailing parties to recover an award of attorney fees, ex-
pert witness fees and other expenses against the United States.” Id., at 6.
Thus, Congress made “those persons and small businesses for whom costs
may be a deterrent to vindicating their rights” eligible for EAJA fees and ex-
penses. Id., at 15; See 5 USC §504(b)(1)(B). That purpose would be frustrated
if success were made to depend upon the form, rather than the substance of
the vindication obtained. Yet, that is precisely the result here inasmuch as
Elrich is disqualified from relief under EAJA simply because its success in
overturning the default termination was recorded in a dismissal order.

Finally, the majority relies upon dicta from Buckhannon, just as it did in Poly
Design. In doing so, the majority has effectively denied contractors who suc-
cessfully challenge a default termination the opportunity to obtain an EAJA
award of fees and expenses. Disturbingly, the majority has placed the Gov-
ernment, the losing party, in the position of precluding an EAJA award when
it capitulates and admits the default sanction was improper. The majority
has thus promoted the very deterrence from seeking review of unreasonable
Government action that Congress sought to remove when enacting EAJA.

The Buckhannon case involved the resolution of social health care issues, a
concern wholly different from resolving the propriety of the drastic sanction
against a small business occasioned by the Government’s termination for de-
fault, which is to be imposed only for good cause in the presence of solid evi-
dence. Lisbon Contractors, 828 F.2d at 765. The use, in both Poly Design and
Brickwood, of the dicta in Buckhannon regarding enforceable judgments and
consent decrees in order to expand the Court’s narrow holding has the unset-
tling result of transforming every lawsuit into a catalyst. It leads the majori-
ty here to conclude that an appellant cannot qualify as a prevailing party
where there is a belated, unilateral decision to withdraw the contracting of-
ficer’s sanction decision from which the appeal was taken. The majority thus
gives the Government power to arbitrarily prevent a small business contrac-
tor from obtaining recovery of the attorneys’ fees and costs it has incurred
and which Congress intended for it to recover. Surely the decisions in Buck-
hannon and Brickwood do not require such a result.

We respectfully dissent.

Peniel Moed
Administrative Judge

Carol N. Park-Conroy
Administrative Judge
 Fire Security Systems

02-2 BCA ¶31,939

July 24, 2002

Appearance for the Appellant: Terrence M. O’Connor, Esq., Alexandria, VA.

Appearances for the Government: Fred A. Phelps, Esq., Navy Chief Trial At-
torney; Wilson J. Campbell, Esq., Trial Attorney; Engineering Field Activity
Chesapeake; Litigation Headquarters; Washington, DC.

Opinion by Administrative Judge Moed on Appellant’s Motion for

Reconsideration

Appellant Fire Security Systems, Inc. (FSS) seeks reconsideration of the ini-
tial decision on this appeal, dated 26 March 2002 and published at 02-1 BCA
¶31,806. Familiarity with that decision is presumed in the text, which follows.

The issue in this appeal is whether the Government is entitled to a down-

ward equitable adjustment of the contract price as the result of the issuance
of unilateral Contract Modification No. P00003 which deleted value housing
enclosure (VHE) structures required by the contract drawings. FSS does not
contest the holding of the initial decision that Contract Modification No.
P00003 was an effective deductive change order. 02-1 BCA at 157,126. FSS
asserts, however, that the Government is not entitled to a price reduction for
that change order inasmuch as FSS “did not save much if anything since [it]
did not include much if anything for the [VHE’s] in its bid” (motion, 2).

In compiling its bid price for the present contract, FSS assumed that, after
contract award, the Government would implement a series of design changes
developed by FSS under Contract No. 1. One of these (referred to as Change
No. 4) called for the deletion of the VHE’s enclosing the vertical fire system
riser sections which would be relocated from the exterior to the interior of the
buildings under Change No. 3 (findings 3-5). Based on the above assumption,
FSS did not price the VHE work on the basis of the solicitation drawings. In-
stead, in pricing that work, FSS omitted the costs of required work which it
expected to be deleted upon implementation of Change No. 4. (Finding 10)

The decision of FSS to omit costs of required work in the expectation of its
later deletion could not deprive the Government of entitlement to a price re-
duction when the deletion was actually effected subsequent to contract
award. This rule was stated and explained in Knight’s Piping, Inc., ASBCA
Nos. 46985, 46987, 94-3 BCA ¶27,026 at 134,716, as follows:

The integrity of the competitive procurement process obliges

bidders to base their bid prices on the specified contract re-
quirements as solicited and not substitute their subjective ex-
pectations about what work will need to be performed. There-
fore, the amount the contractor actually bid for later deleted
work is irrelevant to the computation of the downward adjust-
ment due the Government. Accordingly ... the Government is
entitled to a credit for the deletion of [specified work], based on
the amount the work would have cost if it had not been deleted.

We have reconsidered the initial decision in the light of the matters set forth
in the motion. On the foregoing basis, the initial decision is affirmed in all
respects.

PENIEL MOED
Administrative Judge

I concur
EUNICE W. THOMAS
Administrative Judge, Vice Chairman
 Fire Security Systems

97-2 BCA ¶29240

September 11, 1997

Appearances: For the Appellant: Terrance M. O’Connor, Esq.; Attorney at

Law; Alexandria, Virginia. For the Respondent: William P. Donovan, Jr.;
Commercial Litigation Branch; Civil Division; U.S. Department of Justice;
Washington, D.C.

Decision on Respondent’s Motion to Dismiss and Appellant’s

Opposition Thereto

Pursuant to Board Rule 34 (48 CFR 6302.34) respondent has moved to dis-
miss this appeal on the ground that the Board lacks subject matter jurisdic-
tion, based upon the failure of the contracting officer to issue a final decision.
For the reasons given below in our findings and discussion, we grant re-
spondent’s motion to dismiss the appeal.

Findings of Fact

1. By contract No. J187C-098 the U.S. Department of Justice, Federal Bureau

of Prisons (“BOP”), awarded appellant, Fire Security Systems, Inc., (“FSS”)
the subject contract to upgrade the fire detection system at the Federal Cor-
rectional Institution at Phoenix, Arizona. The contract required appellant to
furnish all materials, equipment, and labor necessary to remove and replace,
to a new state of repair, any interior or exterior part of the institution requir-
ing removal or modification in order to install the new fire detection system.
The new system was to be installed in strict accordance with all applicable
local, state and federal codes and regulations. (Notice of Appeal, Attachment
A)

2. The contract specifications required appellant to “use existing system de-

sign and as-build drawings as reference for placement of new equipment as
long as current drawings and/or equipment position [sic] are within NFPA
(National Fire Protection Agency) standards. In the event that current
placement is not correct, the contractor shall place the new system equipment
so as to conform to all present regulations as stated in the NFPA standards.
Requests for modifications by the contractor to the existing design and/or
these specifications shall be submitted in writing for approval to the contract-
ing officer by the Contractor.” (Id.)
3. After work began appellant submitted to the BOP a material brochure and
a copy of drawings to which some notes already had been added by the BOP
and the Arizona State Fire Marshal. (Notice of Appeal) By letter to appellant
dated March 28, 1996, BOP contract specialist, Roy Franklin, reminded ap-
pellant of earlier communications to it advising that the “touch screen
graphics annunciator” called for in the specifications was not shown in the
material brochure or on the drawings submitted for Building A. (Id. at At-
tachment B) Although the letter stated that the fire alarm drawings and ma-
terial brochures would be approved as submitted, it reminded appellant that
the graphics annunciator was a part of the contract statement of work and
the BOP expected full compliance with the contract. (Id.)

4. In a letter to BOP contracting officer, James Cook, dated May 12, 1997,
appellant’s president, W.R. Hayes, expressed disappointment over a recent
letter the contracting officer had sent, dated May 9, 1997, requiring extensive
revisions to the drawings appellant submitted in March of 1996 without re-
turning those drawings. Mr. Hayes’ letter reminded the contracting officer
that the BOP had failed to provide FSS, as promised, annotations on vellum
drawings describing the use classification of each BOP building that was a
part of the project. It asked the contracting officer to return the vellums with
BOP markings showing building use classifications and material brochures to
allow appellant to make the necessary changes. (Id. at Attachment C) Addi-
tionally, appellant’s president expressed both surprise and dissatisfaction
with a BOP requirement for Class A wiring for smoke detectors in each cell
as well as BOP’s refusal to allow FSS to shut down existing systems for work
as it deemed necessary. Appellant indicated it would seek additional compen-
sation for these alleged changes. (Id.) Appellant’s letter concluded:

On the fire suppression contract, you have given until May 27,
1997, for the presentation of revised drawings. When this job
was bid, FSS assumed that it would have the benefit of prose-
cuting both fire detection and fire suppression system construc-
tion simultaneously. We need to discuss that timing so that the
entire detection and suppression systems are in place and func-
tioning in tandem as soon as possible but without needless loss
for FSS.

As soon as we have in hand the revised drawings, I feel it im-

portant that we meet face to face accompanied by our fire de-
tection consultants and your technical people, particularly Mr.
 Neuner and the Arizona State Fire Marshall, in order to be cer-
tain that the work we will do is the work you intend to be done.

With kind regards, I remain,

Very truly yours

(Id.)

5. Two days later, in a letter dated May 14, 1997, the contracting officer re-
sponded to appellant’s president’s letter. He requested appellant to deliver a
copy of the drawings to him no later than the close of business May 21, 1997,
and suggested that in view of “all the reworks” appellant had made to the
drawings, “there should be no problem with the drawings and review and ap-
proval should be a matter of routine.” (Notice of Appeal, Attachment A) The
letter continued “[T]here should be no more major areas of disagreement, if
there is another major area, please call me immediately.” (Id.) In a conclud-
ing statement, the contracting officer advised appellant’s president that if
FSS had any questions please call him at a number stated in the letter. (Id.)

6. There is no evidence to indicate that at the time the contracting officer

prepared his responsive letter of May 14, 1997, appellant had submitted to
him any communications other than its letter of May 12, 1997, and a copy of
drawings and brochures in March 1996. There was no formal claim submitted
pursuant to the Contract Disputes Act. (41 USC §605(a)) Nor did the con-
tracting officer’s letter of May 14, 1997 purport to address a claim or dispute
or grant or deny any relief requested under the contract. The contracting of-
ficer did not assert in his letter of May 14, 1997 that it was a final decision of
the contracting officer or include language in the final paragraph advising
appellant of its appeal rights as prescribed by Paragraph 33.211(a)(v) of the
Federal Acquisition Regulations (FAR) (February 1, 1992). (Id.) The contract-
ing officer’s letter of May 14, 1997, clearly appears to have been intended as
nothing more than a routine response to appellant’s letter of May 12, 1997.

7. By notice of appeal dated May 16, 1997, appellant appealed “the decision”
of the contracting officer “on May 14, 1997, under contract number J187C-
098.” The appeal stated “[I]n the interest of time, Fire Security waives formal
notification by the contracting officer of Fire Security’s appeal rights.” (Notice
of Appeal) Appellant based its appeal upon the failure and refusal of the BOP
to return to appellant the approved original drawing submittals and product
data, marked up with BOP notes and the Fire Marshal’s comments, so that
appellant might prepare revised drawings as required by the contracting of-
ficer. (Id.) It asks the Board to compel the contracting officer to return these
drawings and documents to appellant. (Id.)

Discussion

In its motion to dismiss, respondent argues that the Board lacks subject mat-
ter jurisdiction to decide this appeal under the Contract Disputes Act (“CDA”)
(41 USC §601 et seq.) because the CDA requires a contracting officer’s final
decision as a prerequisite to the assertion of Board jurisdiction over an ap-
peal, and there is an absence of a final decision in this case. The motion
quotes the statutory requirement that “[a]ll claims by a contractor against
the government relating to a contract shall be in writing and shall be submit-
ted to the contracting officer for a decision. All claims by the government
against a contractor relating to a contract shall be the subject of a decision by
the contracting officer. The contracting officer shall issue his decision in writ-
ing, and shall mail or otherwise furnish a copy of the decision to the contrac-
tor. The decision shall state the reasons for the decision reached, and shall
inform the contractor of his rights as provided in this Act.” (41 USC §605 (a))
We have held that this language of the CDA enunciates the basic prerequisite
to our jurisdiction. Delta Industries, Inc., DOTBCA No. 2767, 94-3 BCA
¶27,255. The view that a contracting officer’s final decision is a jurisdictional
prerequisite to action by this Board also has been confirmed by the Court of
Appeals for the Federal Circuit in Sharman Co. v. United States, 2 F.3d 1564
(Fed. Cir. 1993) The question, then, is whether the contracting officer issued
a final decision within the purview of the CDA which appellant appealed in
commencing this action. The burden of establishing that a final decision was
issued is upon the appellant. National Surety Corp. v. United States, 20 Cl.
Ct. 497, 409 (1990); Paso Enterprises v. United States, 13 Ct. Cl. 302, 305
(1987). Appellant contends that the contracting officer’s letter of May 14,
1997 constituted a final decision in response to the claim set forth in its letter
to the contracting officer of May 12, 1997. Nothing in the record, however,
supports the assertion that appellant’s letter of May 12 constituted a CDA
claim or that the contracting officer’s response to that letter two days later,
on May 14, 1997, was intended as a final decision on a claim.

In relevant part, FAR 33.201 defines a CDA “claim” as a “written demand or

assertion by one of the contracting parties seeking, as a matter of right, the
payment of money in a sum certain, the adjustment or interpretation of con-
tract terms, or other relief arising under or relating to the contract.” Appel-
lant’s letter of May 12, 1997, clearly did not state it was a CDA claim, and
gave no indication that it was intended as a claim within the purview of the
quoted language. It neither requested a final decision nor implied that appel-
lant sought a contracting officer’s final decision. The text of the letter ex-
pressed dissatisfaction with the contracting officer’s request for revised draw-
ings, since the contracting officer allegedly had failed to return to appellant
drawings it submitted several months earlier for BOP mark-up to show build-
ing use classifications. The letter also expressed surprise with certain BOP
wiring requirements, requirements for smoke detectors in each prison cell, as
opposed to the re-use of existing smoke detectors, and BOP’s refusal to allow
appellant to shut down certain systems as necessary during the work. Indi-
cating its disagreement, particularly with the requirement to install new
smoke detectors, appellant’s letter stated FSS would prepare a change order
“for work beyond the scope of the contract.” The only other matters expressed
in the letter were the need for BOP to return marked-up drawings in order
for appellant to timely prosecute the work, and the need for a face-to-face
meeting between the parties to discuss certain aspects of the work. Although
the Federal Circuit’s decision in Reflectone Inc. v. Dalton, 60 F. 3d 1572 (Fed.
Cir. 1995) enunciated an expansive definition for a CDA “claim,” the court
made clear that a CDA claim, at a minimum, requires a written demand
seeking as a matter right the payment of money in a sum certain, or other
relief. (Id. at 1575-1576) Even giving a liberal construction to the matters
stated in appellant’s May 12, 1997, letter as we are inclined to do (see Essex
Electro Engineer’s Inc, DOTBCA Nos. 1025, 1119, 81-1 BCA ¶74,747), we find
that the expressions therein fail to satisfy the criteria for a CDA claim or
demonstrate a claim was intended. And since that letter did not constitute a
claim pending before the contracting officer, the contracting officer’s response
to it on May 14, 1997, could not have constituted a final decision. In fact, the
substance of the contracting officer’s letter did not state or indicate it was in-
tended as a final decision; neither did it apprise appellant of its procedural
and appeal rights in accordance with Section 6(a) of the CDA (41 USC
§605(a)) and FAR 32.2119(a)(4)(v), but, rather, it merely made suggestions on
effecting approval of the drawings and resolving other matters of appellant’s
concern. Additionally, the contracting officer’s letter of May 14 invited appel-
lant to call him in case there were further questions or major disagreements.
These are not the definitive terms in which a contracting officer’s final deci-
sion normally are written. In the circumstances, we agree with respondent’s
assertion that the contracting officer’s letter of May 14, 1997, did not consti-
tute an appealable final decision essential to confer jurisdiction upon this
Board. (We emphasize, however, that the critical factors here are not only the
failure of the contracting officer’s letter of May 14, 1997, to conform to the
statutory and regulatory requirements of a contracting officer’s final decision,
but also the fact that the letter did not respond to a cognizable CDA claim
pending before the contracting officer. See Victor Wilburn Associates,
DOTBCA No. 1900, 87-3 BCA ¶19,979)

Appellant argues in the alternative that if the Board should find that the
contracting officer’s letter of May 14, 1997, did not constitute a final decision
on its “claim,” then the Board should treat its claim as “deemed denied” un-
der Section 605(c)(5) of the CDA, due to the long pendency of the claim before
the contracting officer. Section 605(c)(5) of the CDA provides:

(5) Any failure by the contracting officer to issue a decision on a

contract claim within the period required will be deemed to be
a decision by the contracting officer denying the claim and will
authorize the commencement of the appeal or suit on the claim
as otherwise provided in this Act. However, in the event an ap-
peal or suit is so commenced in the absence of a prior decision
by the contracting officer, the tribunal concerned may, at its
option, stay the proceedings to obtain a decision on the claim by
the contracting officer. (41 CFR §605(c)(5))

Appellant’s argument begs the question. It assumes there was a pre-existing

submitted CDA claim pending before the contracting officer either for an un-
reasonable period of time or for a period beyond that set forth in the Act or
imposed by the Board. However, since we have found there was no claim
submitted and pending before the contracting officer, there is no predicate for
a deemed denial as envisaged by Section 605(c)(5), i.e., based upon the con-
tracting officer’s failure to issue a final decision on a claim within the period
required.

For the reasons stated, we grant respondent’s motion and dismiss the appeal.

THADDEUS V. WARE
Chief Administrative Judge, Chairman

JAMES L. STERN
Deputy Chief Administrative Judge, Vice-Chairman

EILEEN P. FENNESSY
Administrative Judge
 Frazee
v.
United States Forest Service

97 F.3d 367
October 2, 1996

John B. Crowell, Jr., Lane, Powell, Spears, Lubersky, Portland, OR, for plain-
tiffs-appellants. Judith D. Kobbervig, Assistant United States Attorney, Port-
land, OR, for defendants-appellees.

Before: PREGERSON, BOOCHEVER and T.G. NELSON, Circuit Judges.

Opinion

PREGERSON, Circuit Judge:

Plaintiffs-Appellants James E. and Joann P. Frazee, doing business as High

Lakes Contractors (collectively, the “Frazees”) challenge an administrative
agency decision to release information under the Freedom of Information Act
(“FOIA”), 5 USC §552. The United States Forest Service, United States De-
partment of Agriculture, John E. Lowe, Regional Forester, Pacific Northwest
Region, and Sally Collins, Supervisor of Deschutes National Forest (collec-
tively, “Forest Service”) decided to disclose the Frazees’ Operating Plan for
managing two Forest Service recreational facilities in response to a FOIA re-
quest. The Frazees filed suit in district court to prevent this disclosure, alleg-
ing their Operating Plan was exempt from disclosure as confidential infor-
mation protected by §(b)(4) of FOIA, 5 USC §552(b)(4). On cross motions for
summary judgment, the district court granted summary judgment in favor of
the Forest Service and dismissed the Frazees’ complaint. We have jurisdic-
tion under 28 USC §1291. We affirm.

I.

Through a Solicitation for Offers dated November 16, 1993 (“Solicitation”),

the Forest Service sought proposals for qualified applicants to operate the
Cascade Lakes Complex of recreational campgrounds and day-use areas in
the Bend District of the Deschutes National Forest. The Solicitation provided
that the Forest Service would issue a Special Use Permit (“Permit”) to the
successful applicant for a twelve-month period. This Permit is a public docu-
ment.
The Solicitation required applicants to submit the following: verification of
financial responsibility, including a cash flow analysis, financial statement,
payment history, and verification of accounts for each financial institution;
estimated income and expenses; three business references; a detailed descrip-
tion of applicable business experience; and a proposed operating plan. The
proposed operating plan required a description of operating seasons, equip-
ment, supplies, storage, personnel management, cleaning and maintenance,
law enforcement and security, fee collection, public information, and health
and safety. The Solicitation also served as a guideline for drafting a proposal.

The Solicitation assured applicants that “All Information Derived From This
Review Is Confidential And For Official Use Only.” A Forest Service repre-
sentative repeated this assurance of confidentiality at public pre-application
meetings held on November 2, and November 29, 1993. But the Solicitation
also stipulated that the selected applicant’s final operating plan would be at-
tached to and made a part of the Permit, a public document. At the same two
November meetings, a Forest Service representative informed applicants that
those portions of documents that become public information would be availa-
ble to the public through FOIA requests.

The Frazees responded to the Solicitation with a proposal which included a

proposed operating plan. The Forest Service selected the Frazees’ application
and awarded them the Permit for the Cascades Lakes Complex for the period
effective March 16, 1994 through December 31, 1994. Following the award of
the Permit, the Frazees, as required by the Forest Service, modified their
proposed operating plan. This modified plan, once approved by the Forest
Service, became a final operating plan (“Plan”) and was attached to and made
a part of the Permit.

The previous year, the Frazees had unsuccessfully bid for the 1993 Permit.
After the bid was rejected, the Frazees filed a FOIA request with the Forest
Service, seeking to obtain full copies of all the proposals submitted, successful
and unsuccessful. That FOIA request also sought copies of the Forest Ser-
vice’s “evaluation sheets completed by the evaluation team as part of the re-
view and selection process.” The Forest Service denied the Frazees’ request
on the ground that the proposals and the evaluations were derived from the
application review process and thus were confidential, as the Forest Service
had assured prospective applicants in the Solicitation and in public meetings.
On June 3, 1994, pursuant to FOIA, an attorney for a competitor requested a
copy of the Frazees’ Plan from the Forest Service.1 Upon receiving the FOIA
request, the Supervisor of the Deschutes National Forest gave the Frazees an
opportunity to object to the release of any financial or confidential infor-
mation contained in the Plan. The Frazees objected to the disclosure of the
Plan or any portion thereof.

On July 15, 1994, the FOIA request and the Frazees’ objection were forward-
ed to the Regional FOIA Coordinator for the Forest Service’s Pacific North-
west Region. On July 29, 1994, the Coordinator notified the Frazees that, “Af-
ter a thorough review, it has been determined [that the Plan is] public
information.” The Coordinator explained that when the Permit was issued to
the Frazees, the Plan became a part of the Permit available to the public as a
public document. After receiving this disclosure notification, the Frazees filed
a reverse FOIA action in district court to enjoin the Forest Service from re-
leasing the Plan.

On cross motions for summary judgment, the district court upheld the Forest
Service’s decision to release the Plan and dismissed the Frazees’ complaint.
The district court, after reviewing the documents in question in camera,
found that most of the information contained in the Plan was publicly availa-
ble and/or was taken directly from the Solicitation, from the Guidebook for
Establishing and Managing Campground Concession Operations,2 or from
other sources. The district court determined that based on the record, the
Forest Service had adequate factual basis for its decision to disclose, that it
had not abused its discretion in deciding to disclose, and that it had not acted
arbitrarily, capriciously, or otherwise not in accordance with law. The district
court therefore determined that the Plan was not protected from disclosure
under Exemption 4 of FOIA nor under the Trade Secrets Act, with the excep-
tion of two items in the Plan.3

1 The attorney represented Northwest Land Management, the recipient of the 1993 Permit
but an unsuccessful applicant for the 1994 Permit. Northwest Land Management is the
Frazees’ direct competitor and a party to an administrative appeal contesting the award of
the 1994 Permit to the Frazees.
2 Pacific Northwest Region’s Guidebook for Establishing and Managing Campground Con-
cession Operations outlines the process by which the Forest Service solicits, assesses, and
selects an applicant to manage Forest Service recreation facilities under the terms of a
Special Use Permit.
3 The two excepted items are confidential financial information generally not available to
the public regarding the form of ownership and existence of encumbrances on equipment
The Frazees appeal the district court’s grant of summary judgment. On ap-
peal, the Frazees claim that: (1) the district court clearly erred by failing to
analyze whether disclosure of the Plan would likely cause the Frazees sub-
stantial competitive harm; (2) this circuit should adopt the District of Colum-
bia Circuit’s test for protecting information volunteered to the government;
(3) the Forest Service is bound by its promise to keep proposals confidential
and should be held to its 1993 “precedent” where it refused to release to the
Frazees all bidders’ proposals and the Forest Service’s evaluations of these
proposals; and (4) alternatively, the Trade Secrets Act prohibits release of the
Plan. The Forest Service agreed not to release the Plan during the pendency
of this appeal.

II.

This circuit employs a special standard to review factual issues arising in an

appeal from the grant of summary judgment in a FOIA case. “Instead of de-
termining whether a genuine issue of material fact exists, we employ the fol-
lowing two-step standard. We inquire whether an adequate factual basis
supports the district court’s ruling. If such a basis exists, we overturn the rul-
ing only if it is clearly erroneous.” Rosenfeld v. United States Dep’t of Justice,
57 F.3d 803, 807 (9th Cir. 1995).

The parties do not dispute that the district court had an adequate factual ba-
sis for its decision. Therefore, our only inquiry in this case is whether the dis-
trict court’s decision was clearly erroneous. GC Micro Corp. v. Defense Logis-
tics Agency, 33 F.3d 1109, 1112 (9th Cir. 1994). “Under this standard, we will
reverse only if we are left with a definite and firm conviction that the district
court has erred.” National Wildlife Fed’n v. United States Forest Serv., 861
F.2d 1114, 1116 (9th Cir. 1988).

III.

Section (a) of FOIA, 5 USC §552, “places a general obligation on the [govern-
ment] agency to make information available to the public....” Pacific Archi-
tects & Eng. v. United States Dep’t of State, 906 F.2d 1345, 1346 (9th Cir.
1990). FOIA contains nine exceptions to this presumption of disclosure “that
are to be narrowly construed by the courts.” GC Micro, 33 F.3d at 1112. Ex-

used by the Frazees at the campsites. The district court ordered that this information be
redacted from the Plan prior to disclosure.
emption 4 of FOIA, 5 USC §552(b)(4), exempts from disclosure commercial or
financial information that is “privileged or confidential.”4 See Id. at 1112. Be-
cause the parties agree that the Plan is commercial information, the only is-
sue on appeal is whether the information is privileged or confidential.

The leading case on Exemption 4 sets out the test for exempting commercial
information from FOIA disclosure as follows:

Commercial or financial matter is “confidential” for purposes of

[Exemption 4] if disclosure of the information is likely to have
either of the following effects: (1) to impair the Government’s
ability to obtain necessary information in the future; or (2) to
cause substantial harm to the competitive position of the per-
son from whom the information was obtained.

National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770
(D.C.Cir. 1974) (footnote omitted). We adopted this test in GC Micro, 33 F.3d
at 1112. The parties further agree that this case turns on the second prong of
the National Parks confidentiality test — whether disclosure would cause
substantial competitive harm.

The party seeking to withhold information under Exemption 4 has the bur-
den of proving that the information is protected from disclosure under FOIA.
GC Micro, 33 F.3d at 1113. While a party need not show actual competitive
harm, it must present specific “evidence revealing (1) actual competition and
(2) a likelihood of substantial competitive injury” in order to prove that the
information falls under Exemption 4. Id.

“If the information is freely or cheaply available from other sources ..., it can
hardly be called confidential” and government agency disclosure is unlikely to
competitively harm the submitter. GC Micro, 33 F.3d at 1112 n. 3. (quoting
Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51 (D.C.Cir. 1981)).

The identity of the requestor, even if a competitor, is irrelevant in determin-

ing whether the information sought is exempt from disclosure under FOIA.

4 Section 552(b)(4) provides in pertinent part:

(b) This section [requiring disclosure of information] does not apply to mat-
ters that are —
....
(4) trade secrets and commercial or financial information obtained from a
person and privileged or confidential.... 5 USC §552(b)(4).
See U.S. Dept. of Justice v. Reporters Comm., 489 U.S. 749, 771-72, 109 S.Ct.
1468, 1480-81, 103 L.Ed.2d 774 (1989).

IV.

The Frazees argue that the district court failed to determine whether release
of the Plan would likely cause them substantial competitive harm. The
Frazees contend that they expended considerable effort and cost in preparing
the Plan. The Frazees explain that the information in the Plan is their indi-
vidual and unique response to the Solicitation requirements. The Frazees al-
so claim that disclosure of the Plan would enable a competitor to copy and
improve the Plan and thus put the Frazees at a competitive disadvantage in
subsequent bidding competitions. Their argument is without merit.

In its analysis, the district court considered the cost of acquiring the infor-
mation in the Plan through other sources. Because the information contained
in the Plan is freely or cheaply available from other sources, the district court
determined that the Forest Service’s disclosure of the Plan is unlikely to
cause substantial competitive harm to the Frazees. We agree with the district
court’s reasoning.

The district court viewed in camera all the information contained in the Plan
and determined that a large portion of the information, such as details re-
garding collection and handling of fees, operating season dates, rules, and
law enforcement, is available to anyone using or visiting the facilities. Other
information in the Plan, such as employee uniforms, maintenance equipment,
and signs, is in public view daily. Furthermore, the district court noted that
most of the general description of the campground management methods was
taken directly from the Solicitation, or from the Guidebook for Establishing
and Managing Campground Concession Operations, or is readily obtainable
from other sources. Based on our independent review of the in camera infor-
mation, we agree with the district court that because the information con-
tained in the Plan is freely or cheaply available from various sources other
than the Plan itself, the Plan cannot be considered protected confidential in-
formation. See GC Micro, 33 F.3d at 1112 n. 3 (finding that disclosure of
agency information “freely or cheaply available from other sources” is unlike-
ly to cause substantial competitive harm to submitter). The district court’s
decision was therefore not clearly erroneous.
V.

The Frazees next argue that we should follow an expanded confidentiality

test set out in Critical Mass Energy Project v. Nuclear Regulatory Comm’n,
975 F.2d 871 (D.C.Cir. 1992) (en banc). In this decision, the D.C. Circuit reaf-
firmed the two-prong National Parks confidentiality test, holding that the
substantial competitive harm test was to be applied to information mandato-
rily provided to the government. The court then established a separate test to
be applied to information voluntarily submitted to the government. The court
concluded that information that is voluntarily provided to the Government is
“‘confidential’ for the purpose of Exemption 4 if it is of a kind that would cus-
tomarily not be released to the public by the person from whom it was ob-
tained.” Id. at 879.

As the Frazees point out, this circuit has not yet addressed the Critical Mass
distinction between voluntary and mandatory information. But, we need not
address that distinction here. The Critical Mass distinction between volun-
tary and mandatory information becomes relevant only when information is
submitted to the government voluntarily. If the information is required by
the government, then the substantial competitive harm prong of the National
Parks confidentiality test still applies.

In the present case, the Frazees’ submission of the Plan was not voluntary,
but was required by the Forest Service. The Solicitation specified that the se-
lected applicants would be required to present a final Plan which would then
be attached to and be made a part of the Permit. It is this very Plan that was
requested pursuant to FOIA and is the subject of this case. Because submis-
sion of this Plan was required by the Forest Service, the Critical Mass test for
volunteered information is irrelevant. Thus, the only relevant question is
whether disclosure of the Plan is likely to cause the Frazees substantial com-
petitive harm. As explained above, the district court’s finding that disclosure
of the Plan is not likely to harm the Frazees was not clearly erroneous.

VI.

Next, the Frazees argue that the Forest Service is bound by its promise to
keep proposals confidential. The Frazees also argue that they relied on the
Forest Service’s 1993 “precedent,” where the Forest Service denied their
FOIA request for all proposals submitted during the 1993 bidding process
and the Forest Service’s internal evaluations of these proposals.
When the Forest Service stated “All Information Derived From This Review
Is Confidential” on the Solicitation and at the pre-application meetings, clear-
ly it was referring to the applicants’ proposals and not the final Plan attached
to the Permit. The Forest Service promised to keep the proposals confidential
and thus when the Frazees requested copies of proposals in 1993, the Forest
Service properly denied their request.

The Forest Service’s decision to deny the Frazees’ 1993 FOIA request was
consistent with its confidentiality statement and its later decision to release
the Frazees’ Plan. In 1993, the Frazees asked for far more and different types
of material from the FOIA request at issue here. The Frazees wanted the
proposals of all the applicants, both successful and unsuccessful, as well as
the Forest Service’s review and selection process evaluation notes. In con-
trast, the only document at issue here is the final, modified Plan attached to
and made a part of the Permit, a public exhibit.

Although the Frazees’ proposal submitted during the application process was
confidential, once the Forest Service issued the Permit to the Frazees, their
final Plan became a public record available through FOIA. The Permit specif-
ically provides that the portion of the proposal consisting of the Plan is to be
attached to and made a part of the Permit, a public document. The Frazees
were present at two meetings at which the Forest Service announced that
portions of documents would become public information and would be availa-
ble through FOIA. Therefore, the Frazees were advised that the Plan, unlike
their proposal, would become a public document.

The Frazees claim that attaching the Plan to the Permit, a public document,
does not make the Plan public information when the original proposal re-
mains confidential. This argument fails because a proposal and a final Plan
are different documents. A proposal includes private financial information
provided by the individual bidding for the Permit. A final Plan, in contrast,
does not contain the same kind of private financial information. The Plan is
merely a guideline for operation and maintenance. Although the financial in-
formation in the proposal may qualify as confidential information likely to
cause competitive harm if disclosed, the operation and maintenance infor-
mation in the Plan — the information at issue here — is not similarly sensi-
tive. It is only after a proposal is selected that the amended operation and
maintenance Plan in the selected proposal is attached to the Permit. Once
the Frazees’ proposal was chosen, only their Plan, and not their internal fi-
nancial documents, became public information.
VII.

The Frazees argue that the Plan is confidential information protected from
release to the public by the Trade Secrets Act, 18 USC §1905.5 We have held,
however, that the Trade Secrets Act and Exemption 4 of FOIA are coexten-
sive. Pacific Architects, 906 F.2d at 1347. Furthermore, the Frazees give no
reason as to why the Trade Secrets Act should, in their case, provide protec-
tion from disclosure broader than the protection provided by Exemption 4 of
FOIA. Because we find that the Plan was not protected from disclosure under
Exemption 4 of FOIA, we also find that the Plan is not exempt from disclo-
sure under the Trade Secrets Act.

VIII.

For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of the Forest Service. As a result of our affirmance, the
Frazees are not a prevailing party and thus are not entitled to attorneys’ fees
under 28 USC §2412.

AFFIRMED.

5 The Trade Secrets Act imposes criminal sanctions on government agents who disclose, in
any way “not authorized by law,” certain confidential information submitted to the gov-
ernment. 18 USC §1905.
 Furash & Company
v.
United States

252 F.3d 1336

June 13, 2001

Jed Lloyd Babbin, Tighe, Patton & Babbin, PLLC, of Washington, DC, argued
for plaintiff-appellant. With him on the brief was Sharon L. Babbin. Armando
O. Bonilla, Attorney, Commercial Litigation Branch, Civil Division, Depart-
ment of Justice, of Washington, DC, argued for defendant-appellee. With him
on the brief were David M. Cohen, Director; and Bryant G. Snee, Assistant
Director. Of counsel on the brief was John C. Mantini, Senior Attorney Advi-
sor, Office of General Counsel, Federal Housing Finance Board, of Washing-
ton, DC.

Before MAYER, Chief Judge, RADER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Furash & Company appeals the decision of the United States Court of Feder-
al Claims dismissing its contract suit against the United States for lack of
jurisdiction. Furash & Co. v. United States, 46 Fed. Cl. 518 (2000). Because
we conclude that the non-appropriated funds doctrine bars the Court of Fed-
eral Claims from exercising jurisdiction in this case, we affirm.

In 1997, Furash entered into a contract with the Federal Housing Finance
Board (“Finance Board”). Under the contract, Furash was to provide consult-
ing services directed toward assessing the value that federal home loan banks
perceive in belonging to the federal home loan bank system, which the Fi-
nance Board administers. After a dispute developed over Furash’s timely
completion of its report, the Finance Board terminated the contract for de-
fault.

Furash then filed suit against the United States in the Court of Federal
Claims, seeking to have the default termination converted to a termination
for the convenience of the government. In addition, Furash contended that it
was entitled to retain progress payments previously made and to be paid for
additional work performed at the Finance Board’s direction. The government
moved to dismiss Furash’s complaint on the ground that the Finance Board is
a non-appropriated funds instrumentality (“NAFI”) and that the Court of
Federal Claims lacks jurisdiction over claims arising from contracts entered
into by the Finance Board. The court agreed and dismissed the action, hold-
ing that the non-appropriated funds doctrine precluded the court from exer-
cising jurisdiction under either the Tucker Act, 28 USC §1491, or the Con-
tract Disputes Act of 1978, 41 USC §§601-613 (“CDA”). This appeal followed.

II

Furash argues that the trial court erred when it concluded that the non- ap-
propriated funds doctrine bars the court from exercising jurisdiction under
the Tucker Act. Through the Tucker Act, Congress waived the federal gov-
ernment’s sovereign immunity and defined the jurisdiction of the Court of
Federal Claims with respect to claims “against the United States founded ei-
ther upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the Unit-
ed States.” 28 USC §1491; see United States v. Mitchell, 463 U.S. 206, 212,
103 S.Ct. 2961, 77 L.Ed.2d 580 (1983).

The jurisdictional grant in the Tucker Act is limited by the requirement that
judgments awarded by the Court of Federal Claims must be paid out of ap-
propriated funds. 28 USC §2517. Based on that requirement, it has been held
that absent some specific jurisdictional provision to the contrary the Court of
Federal Claims lacks jurisdiction over actions in which appropriated funds
cannot be used to pay any resulting judgment. See L’Enfant Plaza Props., Inc.
v. United States, 229 Ct.Cl. 278, 668 F.2d 1211 (Ct.Cl.1982); Kyer v. United
States, 177 Ct.Cl. 747, 369 F.2d 714 (1966); see also United States v. Hopkins,
427 U.S. 123, 125-26, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976) (recognizing the
jurisdictional limitation for non-appropriated fund instrumentalities, but
holding that disputes over contracts with military exchanges could be adjudi-
cated by the Court of Claims because of a specific grant of jurisdiction).

Congress addressed the non-appropriated funds doctrine in 1970, when pro-

posals were made to abolish the doctrine by legislation. Rather than abolish
the doctrine altogether, however, Congress chose to create a narrow exemp-
tion from the doctrine for certain entities, the military post exchanges and
the exchange councils of the National Aeronautics and Space Administration.
See McDonald’s Corp. v. United States, 926 F.2d 1126, 1129-33 (Fed.Cir.
1991). Accordingly, Congress amended the Tucker Act and the “judgment
fund” statute, 31 USC §1304, to give the Court of Federal Claims jurisdiction
over actions against those non-appropriated fund instrumentalities. Pub.L.
91-350, 84 Stat. 449 (1970). The legislative history of the 1970 Act makes
clear that Congress intended to leave the doctrine intact for all other non-
appropriated fund instrumentalities unrelated to the post exchanges and ex-
change councils. See McDonald’s Corp., 926 F.2d at 1132-33; Swiff-Train Co.
v. United States, 443 F.2d 1140, 1142-43 (5th Cir. 1971). As explained in the
House report on the legislation,

complete removal of sovereign immunity for all nonappropriat-

ed fund activities would be undesirable.... Clearly, Congress
ought not to expose the Federal Government to liability for all
nonappropriated fund activities unless [data regarding poten-
tial liability] is assembled. Under the [bill as enacted] the sov-
ereign immunity of the United States would be removed only
with respect to the post exchange types of operations which are
conducted within the Defense Department and the National
Aeronautics and Space Administration.

H.R.Rep. No. 91-933 (1970), reprinted in 1970 USCC.A.N. 3477, 3478-79.

In applying the non-appropriated funds doctrine, this court has held that the
Court of Federal Claims must exercise jurisdiction absent a clear expression
by Congress that it intended to separate the agency from general federal rev-
enues. See L’Enfant Plaza, 668 F.2d at 1212. To establish jurisdiction, the
plaintiff need not show that appropriated funds have actually been used for
the agency’s activities, but only that “under the agency’s authorizing legisla-
tion Congress could appropriate funds if necessary.” Id. Thus, the fact that an
agency such as the Finance Board has been financially self-sufficient is not
dispositive. Instead, “Congress must have intended that the activity resulting
in the claim was not to receive or be funded from appropriated funds”; that is,
there must be a “firm indication by Congress that it intended to absolve the
appropriated funds of the United States from liability for acts” of the agency.
Id.

We agree with the trial court that there has been a clear expression by Con-
gress that the Finance Board’s operations are to be funded through assess-
ments against federal home loan banks, not from general fund revenues, and
that the Court of Federal Claims therefore lacks Tucker Act jurisdiction over
this case. The Finance Board’s assessment authority is granted at 12 USC
§1438(b), which provides:

(1) In general
 The Board may impose a semiannual assessment on the Feder-
al Home Loan Banks, the aggregate amount of which is suffi-
cient to provide for the payment of the Board’s estimated ex-
penses for the period for which such assessment is made.

(2) Deficiencies

If, at any time, amounts available from any assessment for any
semiannual period are insufficient to cover the expenses of the
Board incurred in carrying out the provisions of this chapter
during such period, the Board may make an immediate as-
sessment against the Banks to cover the amount of the defi-
ciency for such semiannual period.

(3) Surpluses

If, at the end of any semiannual period for which an assess-

ment is made, any amount remains from such assessment,
such amount will be deducted from the assessment on the
Banks by the Board for the following semiannual period.

To be sure, section 1438 does not expressly prohibit congressional appropria-

tion of funds to the Finance Board. The absence of such an express statement
in the authorizing statute, however, does not end the inquiry. Under the test
set forth in L’Enfant Plaza, what matters is whether the agency’s authorizing
legislation makes clear that Congress intends for the agency — or the partic-
ular activity that gave rise to the dispute in question — to be separated from
general federal revenues.

Denkler v. United States, 782 F.2d 1003 (Fed.Cir. 1986), provides an example
of an agency that was held to be a non-appropriated funds instrumentality
even though its separation from appropriated funds was not made explicit. In
that case, the court held the Board of Governors of the Federal Reserve Sys-
tem to be a non-appropriated fund instrumentality after concluding that
Congress intended the Board to be self-sufficient and not to use appropriated
funds to defray its expenses. Although the Board’s authorizing statute con-
tained no express statement that appropriated funds could not be used to
support the Board’s operations, the court found a “clear expression” to sepa-
rate the Board from general federal revenues in light of “the combination of
designation of assessments on banks as the source of funds for salaries, and
the absence of the conventional language authorizing funds to be appropriat-
ed.” 782 F.2d at 1005. See also Research Triangle Inst. v. Bd. of Governors of
the Fed. Reserve Sys., 132 F.3d 985, 988 (4th Cir. 1997) (similarly concluding
that the Board of Governors of the Federal Reserve System is a non-
appropriated fund instrumentality to which Tucker Act jurisdiction does not
apply).

The same analysis applies to the closely parallel language in the authorizing
legislation for the Finance Board. Section 1438 provides a scheme that in-
cludes not only a standard assessment but also an immediate assessment
that may be used to make up deficiencies. Absent statutory amendment,
there is therefore no situation in which appropriated funds would be used to
make up a deficiency. The Finance Board’s funds are similarly isolated from
general fund revenues in the event that the assessments result in a surplus,
as the statute provides that any surplus will be credited to the assessed
banks rather than to the general fund of the Treasury.

The scheme set out in section 1438 distinguishes this case from L’Enfant Pla-
za. In that case, the authorizing legislation did not provide a means for the
Comptroller of the Currency to make special assessments in response to fi-
nancial deficiencies, and Congress had periodically financed the Comptrol-
ler’s operations through appropriation when the funds received by the Comp-
troller from regulated banks were insufficient to cover expenses. 668 F.2d at
1212. The funding mechanism for the Finance Board is also distinguishable
from the funding mechanism at issue in South Louisiana Grain Services, Inc.
v. United States, 1 Cl.Ct. 281 (Cl.Ct. 1982), on which Furash relies. The court
in that case held the non-appropriated funds doctrine inapplicable because,
although Congress clearly wanted the agency to be as self-supporting as pos-
sible, the authorizing legislation recognized that appropriated funds would be
needed for the agency to function properly, and provision was made for the
authorization of such funds. Id. at 287.

The conclusion that the non-appropriated funds doctrine applies in this case
is further supported by 12 USC §1422b(c), which addresses the character of
the funds received by the Finance Board:

Receipts of the Board derived from assessments levied upon the

Federal Home Loan Banks and from other sources ... shall be
deposited in the Treasury of the United States. Salaries of the
directors and other employees of the Board and all other ex-
penses thereof may be paid from such assessments or other
sources and shall not be construed to be Government Funds or
appropriated monies, or subject to apportionment for the pur-
poses of chapter 15 of Title 31, or any other authority.
That statute not only directs that Finance Board funds are to be maintained
distinct from general funds even when deposited with the Treasury, but also
adds the proviso that the funds are not to be construed as appropriated mon-
ies. We do not agree with Furash’s argument that the reference to “appropri-
ated monies” means only that the funds used to pay the Board’s expenses are
not considered appropriated monies for apportionment purposes. Rather, we
read the statutory language, particularly in light of the use of a comma and
the word “or” before the words “subject to apportionment,” to mean that the
funds used to pay the Board’s expenses are (1) not construed to be govern-
ment funds or appropriated monies; and (2) not subject to the apportionment
rules in chapter 15 of title 31 of the United States Code.

Finally, the Finance Board’s authorizing statute contains a specific exception

to the scheme under which Finance Board expenses are not paid by appropri-
ated funds. In 12 USC §1438a, the statute provides that studies or investiga-
tions directed by law or requested by Congress “shall be considered as non-
administrative expenses.” As the trial court explained, that means that those
costs will be paid for from appropriated funds. We agree with the trial court
that that statute does not alter the status of the Finance Board as a non-
appropriated fund instrumentality. Instead, it confirms that, except with re-
spect to that specific activity, which is not at issue in this case, the Finance
Board’s expenses are not expected to be defrayed by appropriated funds.

The statutory provisions governing the funding of the Finance Board’s opera-
tions thus make clear that, with the single narrow exception discussed above,
Congress intended the Finance Board to be a financially self-sufficient in-
strumentality designed to operate without the benefit of general appropriated
funds. Accordingly, the Tucker Act does not give the Court of Federal Claims
jurisdiction over this case.

III

Furash next argues that even if jurisdiction under the Tucker Act is barred
by the non-appropriated funds doctrine, the Court of Federal Claims still has
jurisdiction under the CDA. The CDA applies “to any express or implied con-
tract (including those of the non-appropriated fund activities described in sec-
tions 1346 and 1491 of title 28) entered into by an executive agency for — ...
(2) the procurement of services.” 41 USC §602. The parties agree that the Fi-
nance Board is an executive agency as defined by the CDA. Accordingly,
Furash argues, the Court of Federal Claims has jurisdiction over the dispute
in this case even if the Finance Board is a non-appropriated fund instrumen-
tality.

In support of its argument, Furash relies on a passage from this court’s deci-
sion in United States v. General Electric Corp., 727 F.2d 1567, 1570 (Fed.Cir.
1984), in which the court stated that “[n]othing in the Contract Disputes Act
of 1978 limits its application to appropriated funds.” While it is true that the
CDA contains no express provision limiting it to agencies supported by ap-
propriated funds, we do not interpret General Electric to mean that the non-
appropriated funds doctrine, as developed under the Tucker Act, is inapplica-
ble to cases brought under the CDA. Indeed, immediately following the pas-
sage cited by Furash, the court recited the principle, developed in Tucker Act
cases, that “[t]he non-appropriated funds doctrine applies only if the activity
was ‘specifically intended to operate without using appropriated funds.’” Id.
(quoting Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 534 F.2d 889,
907 (Ct.Cl. 1976)). The court in General Electric went on to analyze the case
under the conventional non-appropriated funds doctrine, applying L’Enfant
Plaza and similar cases, and ultimately concluded that the Claims Court had
jurisdiction because “[i]t is clear that [the agencies in question] have authori-
ty to use appropriated funds to the extent appropriated, and ‘that is sufficient
to avoid the non-appropriated funds exclusion.’” General Electric, 727 F.2d at
1570 (quoting McCarthy v. United States, 229 Ct.Cl. 361, 670 F.2d 996, 1002
(1982)). Accordingly, we interpret General Electric to mean that for CDA ju-
risdiction to be foreclosed, Congress must make clear that the activity in
question was intended to operate without appropriated funds, the same
standard that is used under the Tucker Act.

That conclusion is consistent with other court and Board of Contract Appeals
decisions holding the non-appropriated funds doctrine applicable to CDA cas-
es. See Research Triangle Inst. v. Bd. of Governors of the Fed. Reserve Sys.,
132 F.3d 985, 988 & n. 15 (4th Cir. 1997); Wolverine Supply, Inc. v. United
States, 17 Cl.Ct. 190 (1989); Trent Jones, Inc., 99-1 BCA (CCH) ¶30,196
(Ag.BCA 1998); Frontlook Promotions, Inc., 99-1 BCA (CCH) ¶30,175
(A.S.BCA 1998); Computer Valley Int’l, Ltd., 94-1 BCA (CCH) ¶26,297
(A.S.BCA 1993). It is also consistent with the language and legislative history
of the CDA itself, which make clear that Congress did not intend for the CDA
to obviate the non-appropriated funds doctrine, but instead intended for the
CDA to be subject to the principle set forth in 28 USC §2517, that unless oth-
erwise provided, all judgments of the Court of Federal Claims are to be paid
from appropriated funds.
Section 2517, by its terms, applies to all judgments of the Court of Federal
Claims “[e]xcept as provided by the Contract Disputes Act of 1978.” In the
CDA, as in the Tucker Act, Congress did not create a general exception for
non-appropriated fund instrumentalities, but instead incorporated the lan-
guage from the Tucker Act that created an exception for the post exchange
non-appropriated fund instrumentalities that were the subject of the 1970
Tucker Act amendments. Thus, in 41 USC §602, Congress provided that the
Act applied to any express or implied contract “including those of the nonap-
propriated fund activities described in [the Tucker Act].”

The provenance of that limited exception to the non-appropriated funds doc-

trine strongly supports the government’s argument that the doctrine applies
in the same fashion to the CDA as it does to the Tucker Act. Furash argues
that the purpose of the parenthetical language in section 602 of the CDA was
not to identify non-appropriated fund instrumentalities covered by the CDA,
but rather to identify non-executive agencies that are so covered. The more
natural reading of the text, however, suggests that the parenthetical lan-
guage was intended to make an exception to the non-appropriated funds limi-
tation and not to the executive agency limitation. The parenthetical language
describes the military exchanges as “the nonappropriated fund activities de-
scribed in [the Tucker Act],” which implies that other non-appropriated fund
activities are not included.

The language of the CDA supports the government’s position in another re-
spect as well. The CDA provides that judgments entered under the Act will
be paid in accordance with the provisions of 31 USC §1304, the “judgment
fund” statute. 41 USC §612(a). That statute, in turn, provides that the judg-
ment fund can be used to pay judgments arising from contracts with the mili-
tary exchanges and NASA exchange councils, but that those entities must
reimburse the government for the amount paid from the judgment fund. 31
USC §1304(c). The CDA has a similar reimbursement provision, but it ap-
plies only to “agencies whose appropriations were used for the contract,” 41
USC §612(c), which would not apply to non-appropriated fund instrumentali-
ties. Thus, under Furash’s interpretation of the CDA, reimbursement of the
judgment fund would be required of all appropriated fund instrumentalities
and those non-appropriated fund instrumentalities specifically identified in
the Tucker Act, but not other non-appropriated fund instrumentalities. That
result is so anomalous that it seems plain that the CDA was not intended to
reach non-appropriated fund instrumentalities other than the military ex-
changes and the NASA exchange councils.
Any lingering doubt on this score is dispelled by the legislative history of the
CDA, which makes clear that Congress did not intend for the CDA to apply to
non-appropriated fund instrumentalities except for those specifically identi-
fied in the Act. As explained in the Senate report:

The bill expressly states its applicability to those nonappropri-

ated fund activities over which the courts presently have juris-
diction under 28 USC 1346 and 1491. Consideration was given
to including all nonappropriated fund activities. However, since
the court’s present jurisdiction over nonappropriated fund con-
tracts is limited to certain post exchanges, and as there ap-
pears to be no problem with remedies relating to other nonap-
propriated fund activities, it was deemed unnecessary to
include all or any additional nonappropriated fund activities
within the scope of the bill.

S.Rep. No. 95-1118, at 18 (1978), reprinted in 1978 USCC.A.N. 5235, 5252.

That language is squarely contrary to Furash’s position. Based on the lan-

guage of the statute, as explicated by the legislative history, we regard it as
inescapable that Congress was aware of the non-appropriated funds doctrine
and that it did not intend for the CDA to expand the court’s jurisdiction to
reach non-appropriated fund activities other than those specifically identified
in the Tucker Act and incorporated by reference in the CDA.

In sum, we agree with the government that the statutes governing the Fi-
nance Board’s funding make it clear that Congress intended the Finance
Board to operate free from appropriated funds. Accordingly, the Court of Fed-
eral Claims properly concluded that it lacks jurisdiction under either the
Tucker Act or the CDA to adjudicate Furash’s claims in this case.

AFFIRMED.
 Grinnell
v.
United States

71 Fed.Cl. 202
April 27, 2006.

Sean D. Magenis, Belfast, ME, counsel of record for Plaintiff. Sean B.

McNamara, Trial Attorney, United States Department of Justice, Civil Divi-
sion, Commercial Litigation Branch, Washington, D.C., counsel of record for
Defendant, with whom were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Brian M. Simkin, Assistant Director.

Opinion and Order

DAMICH, Chief Judge.

I. Introduction

Plaintiff Edward Grinnell filed a complaint in this court under the Contract
Disputes Act on March 24, 2006. On March 30, 2006, Plaintiff filed a Motion
to Stay Proceedings, wherein he requests that the court stay the case and
remand it to the United States Postal Service Board of Contract Appeals
(“BCA”) pursuant to Rule 56.2 of the Rules of the United States Court of Fed-
eral Claims (“RCFC”). Defendant opposes Plaintiff’s motion asserting that
Plaintiff may pursue his appeal with the BCA or this court, but not with
both. For the reasons discussed below, Plaintiff’s motion is GRANTED in-
part and DENIED in-part.

II. Background

This lawsuit arises from a service contract between Plaintiff Edward Grinnell
and the United States Postal Service (“USPS”). Am. Compl. ¶1. The facts
Plaintiff provided to the court are, at best, sketchy. Plaintiff alleges that in a
May 20, 2005, letter the Transportation Contracting Officer of the USPS in-
formed Plaintiff that representatives of the District of Maine Performance
Cluster investigated an allegation that Plaintiff had created a hostile work
environment. Id. (citing Ex. A). Based upon the investigation, the contracting
officer informed Plaintiff that he “made an administrative determination that
[Plaintiff] be denied access to the mail, [sic] and all Postal facilities.” Id. ¶2
(citing Ex. A). On May 24, 2005, Plaintiff appealed the contracting officer’s
determination to the Manager of Surface Transportation, Russell A. Sykes,
who denied his appeal on August 8, 2005. Id. ¶¶4-5 (citing Ex. B). On March
24, 2006, Plaintiff filed suit in this court under the Contract Disputes Act
(“CDA”), 41 USC §§606, 609, appealing the contracting officer’s decision.

On March 30, 2006, Plaintiff filed a Motion to Stay Proceedings in this case
for six months while he pursues a prior-filed appeal with the BCA. Plaintiff’s
BCA appeal was filed on February 27, 2006 — more than nine months after
the contracting officer’s decision.1 Id. Plaintiff recognizes that a contractor
normally has 90 days to appeal a contracting officer’s decision to the BCA and
one year to appeal to this court. Id. at 1-2. Here, however, Plaintiff asserts
that the untimeliness of his BCA appeal was due to the fact that the contract-
ing officer’s May 20, 2005, letter did not apprise him of his appeal rights as
required under 41 USC §605. Id. at 2. Plaintiff asserts that since his failure
to file a timely appeal is a result of “detrimental reliance on the contracting
officer’s failure to comply with Section 605 …” of the CDA, the BCA may al-
low his appeal to continue. Id. Because it is unclear how the BCA will rule,
Plaintiff asserts that he filed suit in this court to preserve his appeal rights
with the hope that the court would stay proceeding in the case and remand it
to the BCA for a determination on subject matter jurisdiction.

Defendant opposes Plaintiff’s motion asserting that the “Election Doctrine”

allows Plaintiff to pursue his appeal before this court or the BCA — not both.
Def.’s Mot. at 1. Defendant also asserts that, in any event, “it is questionable
… whether [Plaintiff] raises a valid claim under the Contract Disputes Act.”
Id.

III. Discussion

It is well-established that a contractor who wishes to contest a contracting

officer’s final decision may appeal to the appropriate board of contract ap-
peals or bring a direct action on the claim in this court. 41 USC §606 (stating
that “[w]ithin ninety days from the date of receipt of a contracting officer’s
decision under section 605 of this title, the contractor may appeal such deci-
sion to an agency board of contract appeals, as provided in section 607 of this
title”); Id. §609(a)(1) (stating that “in lieu of appealing the decision of the con-
tracting officer under section 605 of this title to an agency board, a contractor
may bring an action directly on the claim in the United States Court of Fed-
eral Claims, notwithstanding any contract provision, regulation, or rule of

1 The BCA has not yet ruled on whether to allow Plaintiff’s appeal to proceed there.
law to the contrary”). The contractor’s right to elect the forum of his choice
has given rise to a “body of jurisprudence known as the Election Doctrine.”
Nat’l Neighbors, Inc. v. United States, 839 F.2d 1539, 1541-42 (Fed.Cir. 1988)
(holding that the Claims Court erred in dismissing Plaintiff’s complaint be-
cause the case was not ripe in light of the fact that the applicable board of
contract appeals had not yet determined whether the appeal was timely).

Under this doctrine, once the contractor makes a binding election, that deci-
sion must stand. The contractor thereby relinquishes his right to pursue an
appeal with the alternative forum. Id. at 1542. However, an election does not
become binding until the selected forum determines that it has jurisdiction
over the appeal. Id. “The mere filing … of an appeal with the appropriate
board of contract appeals was not a binding election … and did not bar the
subsequent filing of a claim with the Claims Court if it was determined by
the board that the contractor’s appeal to the board was untimely.” Id. (Cita-
tions omitted) (emphasis in original). Accordingly, under this doctrine, “a con-
tractor’s choice to pursue an appeal in a forum lacking jurisdiction is not a
binding election.” Id.

In the instant matter, Plaintiff asserts that he filed his appeal with the BCA
on February 27, 2006 — outside the requisite 90 days. Pl.’s Mot. at 1-2. How-
ever, Plaintiff hopes that the BCA will not dismiss his appeal on timeliness
grounds since this defect was the result of a failure on the part of the con-
tracting officer. Pl.’s Reply at 2; 41 USC §605(a) (stating that “[t]he contract-
ing officer shall issue his decisions in writing, and shall mail or otherwise
furnish a copy of the decision to the contractor. The decision shall state the
reasons for the decision reached, and shall inform the contractor of his rights
as provided in this chapter.”) (Emphasis added). In light of the fact that the
BCA has not yet rendered a decision on the timeliness of Plaintiff’s appeal,
the court finds that Plaintiff has not made a binding election. Nat’l Neigh-
bors, 839 F.2d at 1542. Accordingly, a stay of the case is appropriate at this
juncture as it will preserve Plaintiff’s right to select the forum of his choice
while securing “the just, speedy, and inexpensive determination” of this ac-
tion. RCFC 1.

Plaintiff also requests that the court remand the case to the BCA to deter-
mine whether it has jurisdiction to hear his appeal. In light of the fact that
Plaintiff has already filed his appeal with the BCA and because the BCA is
likely to confront this issue in the immediate future, the court does not be-
lieve it is proper or necessary to remand the matter. RCFC 56.2(a).
IV. Conclusion

For the aforementioned reasons, Plaintiff’s Motion to Stay Proceedings is

GRANTED in-part and DENIED in-part. If the BCA determines that Plain-
tiff’s appeal is timely and on that basis determines that it has jurisdiction,
then under the Election Doctrine Plaintiff’s decision to appeal the contracting
officer’s decision to the BCA is a binding election — precluding his suit in this
court under the CDA. Nat’l Neighbors, 839 F.2d at 1543. In the event this oc-
curs, the court will dismiss Plaintiff’s claim. However, if the BCA finds that it
lacks jurisdiction over Plaintiff’s appeal, then Plaintiff’s decision to appeal to
the BCA was not a binding election, and Plaintiff’s appeal in this court may
continue. Id.

Accordingly, the case is hereby stayed until June 27, 2006. The parties shall
file a joint status report (“JSR”) on or before June 20, 2006, or within 14 days
after the BCA renders a decision on whether it has jurisdiction-whichever is
sooner. The JSR shall inform the court of: the status of proceedings before the
BCA; when the parties expect that the BCA will resolve the jurisdictional
question; and how the parties propose to proceed.
 Keene Corp.
v.
United States

508 U.S. 200, 113 S.Ct. 2035

Argued March 23, 1993
Decided May 24, 1993

Richard G. Taranto, Washington, DC, for petitioner. Lawrence G. Wallace,

Washington, DC, for respondent.

SOUTER, J., delivered the opinion of the Court, in which REHNQUIST,

C.J., and WHITE, BLACKMUN, O’CONNOR, SCALIA, KENNEDY, and
THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion.

Justice SOUTER delivered the opinion of the Court.

Keene Corporation has been sued by thousands of plaintiffs alleging injury

from exposure to asbestos fibers and dust released from products made by
Keene and by a company it acquired. In trying to recoup some of the money it
was paying to litigate and settle the cases, Keene filed two complaints
against the United States in the Court of Federal Claims.1 When it filed each
complaint, however, Keene had a similar claim pending against the Govern-
ment in another court. We hold that 28 USC §1500 consequently precludes
Court of Federal Claims jurisdiction over Keene’s actions and affirm the dis-
missal of its complaints.

Through its subsidiary Keene Building Products Corporation, Keene manu-

factured and sold thermal insulation and acoustical products containing as-
bestos, as did a company it acquired in 1968, Baldwin-Ehret-Hill, Inc. In the
mid-1970’s, plaintiffs began suing Keene in tort, alleging injury or death from
exposure to asbestos fibers. In a typical case filed against Keene and other

1 Keene actually filed its complaints in the old Court of Claims. Soon thereafter, Congress
transferred the trial functions of the Court of Claims to a newly created “United States
Claims Court.” Federal Courts Improvement Act of 1982, §133, 96 Stat. 39-41. The Claims
Court has just been renamed the “United States Court of Federal Claims.” See Court of
Federal Claims Technical and Procedural Improvements Act of 1992, §902, 106 Stat. 4516.
To avoid confusion, we will refer to the trial court in this case by its latest name.
defendants in the District Court for the Western District of Pennsylvania,
Miller v. Johns-Manville Products Corp., No. 78-1283E, the plaintiff alleged,
on behalf of the estate of one Dzon, that the decedent had died of lung cancer
caused by asbestos fibers and dust inhaled during employment in 1943 and
1944. In June 1979, Keene filed a third-party complaint against the United
States, alleging that any asbestos products to which Dzon was exposed had
been supplied to the Government in accordance with specifications set out in
Government contracts, and seeking indemnification or contribution from the
Government for any damages Keene might have to pay the plaintiff. This
third-party action ended, however, in May 1980, when the District Court
granted Keene’s motion for voluntary dismissal of its complaint.

In the meantime, in December 1979, with the Miller third-party action still
pending, Keene filed the first of its two complaints in issue here, seeking
damages from the United States in the Court of Federal Claims “for any
amounts which have been, or which may be recovered from Keene by the
claimants, by settlement or judgment.” Keene Corp. v. United States, No. 579-
79C (Keene I), App. to Pet. for Cert. H15. The “claimants” are defined as the
plaintiffs in the more than 2,500 lawsuits filed against Keene “by persons al-
leging personal injury or death from inhalation of asbestos fibers contained in
thermal insulation products” manufactured or sold by Keene or its subsidiar-
ies. Id., at H3. Keene alleges conformance with Government specifications in
the inclusion of asbestos within the thermal insulation products Keene sup-
plied to Government shipyards and other projects funded or controlled by the
Government, and Keene further claims that the Government even sold it
some of the asbestos fiber used in its products. Keene’s theory of recovery is
breach by the United States of implied warranties in contracts between the
Government and Keene, a theory only the Court of Federal Claims may en-
tertain, given the amount of damages requested, under the Tucker Act, 28
USC §1491(a)(1).

Keene’s next move against the Government came the following month when
it filed a 23-count complaint in the District Court for the Southern District of
New York. Keene Corp. v. United States, No. 80-CIV-0401(GLG). The plead-
ings tracked, almost verbatim, the lengthy factual allegations of Keene I, but
the action was recast in terms of various tort theories, again seeking damag-
es for any amounts paid by Keene to asbestos claimants. Keene also added a
takings claim for the Government’s allegedly improper recoupment, under
the Federal Employees’ Compensation Act (FECA), 5 USC §8132, of money
paid by Keene to claimants covered by the Act. For this, Keene sought resti-
tution of “the amounts of money which have been, or which may be, recouped
by [the United States] from claimants from judgments and settlements paid
by Keene,” App. 37, as well as an injunction against the Government’s collec-
tion of FECA refunds thereafter. This suit suffered dismissal in September
1981, on the basis of sovereign immunity, which the court held unaffected by
any waiver found in the Federal Tort Claims Act, the Suits in Admiralty Act,
and the Public Vessels Act. The Court of Appeals affirmed, Keene Corp. v.
United States, 700 F.2d 836 (CA2 1983), and we denied certiorari, 464 U.S.
864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983).

Only five days before the Southern District’s dismissal of that omnibus ac-
tion, Keene returned to the Court of Federal Claims with the second of the
complaints in issue here. Keene Corp. v. United States, No. 585-81C (Keene II)
Although this one, too, repeats many of the factual allegations of Keene I, it
adopts one of the theories raised in the Southern District case, seeking pay-
ment for “the amounts of money that [the United States] has recouped” under
FECA from asbestos claimants paid by Keene. App. to Pet. for Cert. F10-F11.
Again, the recoupments are said to be takings of Keene’s property without
due process and just compensation, contrary to the Fifth Amendment. See 28
USC §1491(a)(1) (covering, inter alia, certain claims “founded ... upon the
Constitution”).

After the Court of Federal Claims raised the present jurisdictional issue sua
sponte in similar actions brought by Johns-Manville, the Government invoked
28 USC §1500 in moving to dismiss both Keene I and Keene II, as well as like
actions by five other asbestos product manufacturers. With trial imminent in
the Johns-Manville cases, the Court of Federal Claims initially granted the
motion to dismiss only as to them. Keene Corp. v. United States, 12 Cl.Ct. 197
(1987). That decision was affirmed on appeal, Johns- Manville Corp. v. Unit-
ed States, 855 F.2d 1556 (CA Fed. 1988) (per curiam), cert. denied, 489 U.S.
1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989), and the Court of Federal
Claims then entered dismissals in Keene I and Keene II, among other cases,
finding that when Keene had filed both Keene I and Keene II, it had the same
claims pending in other courts. 17 Cl.Ct. 146 (1989). While a panel of the
Court of Appeals for the Federal Circuit reversed on the ground that § 1500
was inapplicable because no other claim had been pending elsewhere when
the Court of Federal Claims entertained and acted upon the Government’s
motion to dismiss, UNR Industries, Inc. v. United States, 911 F.2d 654 (1990),
the Court of Appeals, en banc, subsequently vacated the panel opinion, 926
F.2d 1109 (1990), and affirmed the trial court’s dismissals, 962 F.2d 1013
(1992). We granted certiorari. 506 U.S. 939, 113 S.Ct. 373, 121 L.Ed.2d 285
(1992).
II

The authority cited for dismissing Keene’s complaints for want of jurisdiction
was 28 USCA. §1500 (Supp.1993):

The United States Court of Federal Claims shall not have ju-
risdiction of any claim for or in respect to which the plaintiff or
his assignee has pending in any other court any suit or process
against the United States or any person who, at the time when
the cause of action alleged in such suit or process arose, was, in
respect thereto, acting or professing to act, directly or indirectly
under the authority of the United States.2

When Keene filed its complaints, §1500 referred to the “Court of Claims” ra-
ther than the “United States Court of Federal Claims.” See 28 USC §1500
(1976 ed.). Section 1500 has since been amended twice, first to substitute
“United States Claims Court” for “Court of Claims,” Federal Courts Im-
provement Act of 1982, §133(e)(1), 96 Stat. 40, and then to substitute “Court
of Federal Claims” for “Claims Court,” Court of Federal Claims Technical and
Procedural Improvements Act of 1992, §902(a), 106 Stat. 4516. See also n. 1,
supra.

The lineage of this text runs back more than a century to the aftermath of the
Civil War, when residents of the Confederacy who had involuntarily parted
with property (usually cotton) during the war sued the United States for
compensation in the Court of Claims, under the Abandoned Property Collec-
tion Act, ch. 120, 12 Stat. 820 (1863). When these cotton claimants had diffi-
culty meeting the statutory condition that they must have given no aid or
comfort to participants in the rebellion, see §3 of the Act, they resorted to
separate suits in other courts seeking compensation not from the Govern-
ment as such but from federal officials, and not under the statutory cause of
action but on tort theories such as conversion. See Schwartz, Section 1500 of
the Judicial Code and Duplicate Suits Against the Government and Its
Agents, 55 Geo.L.J. 573, 574-580 (1967). It was these duplicative lawsuits

2 Keene actually filed its complaints in the old Court of Claims. Soon thereafter, Con gress
transferred the trial functions of the Court of Claims to a newly created “United States
Claims Court.” Federal Courts Improvement Act of 1982, §133, 96 Stat. 39-41. The Claims
Court has just been renamed the “United States Court of Federal Claims.” See Court of
Federal Claims Technical and Procedural Improvements Act of 1992, §902, 106 Stat. 4516.
To avoid confusion, we will refer to the trial court in this case by its latest name.
that induced Congress to prohibit anyone from filing or prosecuting in the
Court of Claims “any claim ... for or in respect to which he ... shall have com-
menced and has pending” an action in any other court against an officer or
agent of the United States. Act of June 25, 1868, ch. 71, §8, 15 Stat. 77. The
statute has long outlived the cotton claimants, having been incorporated with
minor changes into §1067 of the Revised Statutes of 1878; then reenacted
without further change as §154 of the Judicial Code of 1911, Act of Mar. 3,
1911, ch. 231, §154, 36 Stat. 1138, 28 USC §260 (1940 ed.); and finally adopt-
ed in its present form by the Act of June 25, 1948, ch. 646, 62 Stat. 942, 28
USC §1500.

Keene argues it was error for the courts below to apply the statute by focus-
ing on facts as of the time Keene filed its complaints (instead of the time of
the trial court’s ruling on the motion to dismiss) and to ignore differences said
to exist between the Court of Federal Claims actions and those filed in the
District Courts. Neither assignment of error will stand.

A
Congress has the constitutional authority to define the jurisdiction of the
lower federal courts, see Finley v. United States, 490 U.S. 545, 548, 109 S.Ct.
2003, 2006, 104 L.Ed.2d 593 (1989), and, once the lines are drawn, “limits
upon federal jurisdiction ... must be neither disregarded nor evaded,” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403,
57 L.Ed.2d 274 (1978). In §1500, Congress has employed its power to provide
that the Court of Federal Claims “shall not have jurisdiction” over a claim,
“for or in respect to which” the plaintiff “has [a suit or process] pending” in
any other court. In applying the jurisdictional bar here by looking to the facts
existing when Keene filed each of its complaints, the Court of Federal Claims
followed the longstanding principle that “the jurisdiction of the Court de-
pends upon the state of things at the time of the action brought.” Mollan v.
Torrance, 9 Wheat. 537, 539, 6 L.Ed. 154 (1824) (Marshall, C.J.); see
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S.
49, 69, 108 S.Ct. 376, 387, 98 L.Ed.2d 306 (1987) (opinion of SCALIA, J.); St.
Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-290, 58 S.Ct.
586, 590-591, 82 L.Ed. 845 (1938); Minneapolis & St. Louis R. Co. v. Peoria &
P.U. R. Co., 270 U.S. 580, 586, 46 S.Ct. 402, 405, 70 L.Ed. 743 (1926).

While acknowledging what it calls this “general rule” that subject- matter
jurisdiction turns on the facts upon filing, Keene would have us dispense with
the rule here. Brief for Petitioner 33. Assuming that we could,3 however,
Keene gives us nothing to convince us that we should. Keene argues that if §
1500 spoke of “jurisdiction to render judgment” instead of “jurisdiction” pure
and simple, the phrase would “all but preclude” application of the time-of-
filing rule. Id., at 34. But, without deciding whether such a change of terms
would carry such significance, we have only to say that § 1500 speaks of “ju-
risdiction,” without more, whereas some nearby sections of title 28 use the
longer phrase. This fact only underscores our duty to refrain from reading a
phrase into the statute when Congress has left it out. “‘[W]here Congress in-
cludes particular language in one section of a statute but omits it in another
..., it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.’” Russello v. United States, 464 U.S. 16,
23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (citation omitted).

Keene’s next appeal, to statutory history, is no more availing. The immediate

predecessor of §1500, §154 of the Judicial Code of 1911, provided that “[n]o
person shall file or prosecute in the Court of Claims ... any claim for or in re-
spect to which he ... has pending in any other court any suit or process....” Act
of Mar. 3, 1911, ch. 231, §154, 36 Stat. 1138. With this express prohibition
against filing claims for which another suit was pending, there could, of
course, have been no doubt that at least a time-of-filing rule applied. See
Shapiro v. United States, 168 F.2d 625, 626 (CA3 1948) (§154 “forbids the fil-
ing” of a Little Tucker Act claim when a related suit is pending); British
American Tobacco Co. v. United States, 89 Ct.Cl. 438, 439 (1939) (per curiam)
(dismissing a claim under §154 where, “[a]t the time the petition was filed in
this court, the plaintiff ... had pending in the District Court ... a suit based
upon the same claim”), cert. denied, 310 U.S. 627, 60 S.Ct. 974, 84 L.Ed. 1398
(1940); New Jersey Worsted Mills v. United States, 80 Ct.Cl. 640, 641, 9
F.Supp. 605, 606 (1935) (per curiam) (“[W]e think it clear that the plaintiff
was not permitted even to file its claim in this court”). Although Keene urges
us to see significance in the deletion of the “file or prosecute” language in fa-
vor of the current reference to “jurisdiction” in the comprehensive revision of
the Judicial Code completed in 1948, we do not presume that the revision
worked a change in the underlying substantive law “unless an intent to make

3 On this score, Keene cites Newman-Green, Inc. v. Alfonzo- Larrain, 490 U.S. 826, 109 S.Ct.
2218, 104 L.Ed.2d 893 (1989), for the proposition that the Court can rely on practical con-
siderations to create exceptions to the time-of-filing rule. Brief for Petitioner 35-36. We
need not decide whether Keene’s reading is accurate, for Keene has not shown that we
should, even if we could. We do note, however, that Newman-Green reiterated the princi-
ple that “[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist
when the complaint is filed.” 490 U.S., at 830, 109 S.Ct. at 2222.
such [a] chang[e] is clearly expressed.” Fourco Glass Co. v. Transmirra Prod-
ucts Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957) (foot-
note omitted); see Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831,
n. 4, 109 S.Ct. 2218, 2222, n. 4, 104 L.Ed.2d 893 (1989); Finley v. United
States, supra, 490 U.S., at 554, 109 S.Ct., at 2009; Tidewater Oil Co. v. Unit-
ed States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375 (1972). On the
point in issue here, there is no such clear expression in the shift from specific
language to the general, and the Reviser’s Note to § 1500 indicates nothing
more than a change “in phraseology,” see H.R.Rep. No. 308, 80th Cong., 1st
Sess., A140 (1947); cf. Newman-Green, supra, 490 U.S., at 831, 109 S.Ct. at
2222. Since Keene, indeed, comes up with nothing to the contrary, we read
the statute as continuing to bar jurisdiction over the claim of a plaintiff who,
upon filing, has an action pending in any other court “for or in respect to” the
same claim.4

The statutory notion of comparable claims is more elusive. By precluding ju-

risdiction over the claim of a plaintiff with a suit pending in another court
“for or in respect to” the same claim, §1500 requires a comparison between
the claims raised in the Court of Federal Claims and in the other lawsuit.
The exact nature of the things to be compared is not illuminated, however, by
the awkward formulation of §1500. Nor does it advance the ball very far to
recognize from the statute’s later reference to “the cause of action alleged in
such suit or process,” that the term “claim” is used here synonymously with
“cause of action,” see Black’s Law Dictionary 247 (6th ed. 1990) (defining
“claim” as “cause of action”), since, as both parties admit, “cause of action,”
like “claim,” can carry a variety of meanings. See Brief for Petitioner 18; Brief
for United States 15; see also Johns- Manville Corp., 855 F.2d, at 1560.

Fortunately, though, we can turn to earlier readings of the word “claim” as it

appears in this statute. The phrase “any claim ... for or in respect to which”
has remained unchanged since the statute was first adopted in 1868, see Act
of June 25, 1868, ch. 71, §8, 15 Stat. 77, and prior encounters with §154 of the
Judicial Code of 1911, the immediate predecessor to §1500, shed some light
on the issue. Corona Coal Co. v. United States, 263 U.S. 537, 44 S.Ct. 156, 68

4 We do not decide whether the statute also continues to bar a plaintiff from prosecuting a
claim in the Court of Federal Claims while he has pending a later-filed suit in another
court “for or in respect to” the same claim. Cf. Tecon Engineers, Inc. v. United States, 170
Ct.Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468
(1966). As the dissenting judge noted below, this case does not raise that issue. UNR In-
dustries, Inc. v. United States, 962 F.2d 1013, 1030, n. 5 (CA Fed. 1992) (Plager, J., dis-
senting).
L.Ed. 431 (1924), was an action brought against the United States in the
Court of Claims, seeking compensation for coal requisitioned by the Govern-
ment. Before bringing its appeal to this Court, the plaintiff sued the Presi-
dent’s agent in Federal District Court, “the causes of action therein set forth
being the same as that set forth in the [Court of Claims] case.” Id., at 539, 44
S.Ct. at 156. After noting that the causes of action “arose out of” the same
factual setting, we applied § 154 and dismissed the appeal. Id., at 539-540, 44
S.Ct. at 156. Later that year, we had the case of a plaintiff seeking a writ of
mandamus to stop the Court of Claims from reinstating a suit it had dis-
missed earlier, without prejudice, on the plaintiff’s own motion. Ex parte
Skinner & Eddy Corp., 265 U.S. 86, 44 S.Ct. 446, 68 L.Ed. 912 (1924). Skin-
ner & Eddy had sued the United States in the Court of Claims for nearly
$17.5 million; “[t]he largest item of the claim was for anticipated profits on 25
vessels” covered by an order, later canceled, by the United States Emergency
Fleet Corporation. Id., at 91, 44 S.Ct. at 447. After the Court of Claims had
granted its motion to dismiss, Skinner & Eddy sued the Emergency Fleet
Corporation in state court “on substantially the same causes of action as
those sued for in the Court of Claims.” Id., at 92, 44 S.Ct., at 447. There was
no question that the factual predicate of each action was the same, except for
the omission from the state court action of any demand for anticipated prof-
its, thus limiting the damages sought to $9.1 million. We issued the writ of
mandamus, holding that § 154 prevented the Court of Claims from exercising
jurisdiction over the claims it had dismissed earlier, given the intervening
state court suit.5

A few years later, the Court of Claims settled a key question only foreshad-
owed by Skinner & Eddy: whether §154 applied when the Court of Claims
action and the “other” suit proceeded under different legal theories. In British
American Tobacco Co. v. United States, 89 Ct.Cl. 438 (1939) (per curiam), af-
ter the plaintiff had surrendered his gold bullion to the Government (in com-
pliance with executive orders and regulations that took this country off the
gold standard), he sued in the Court of Claims on allegations that he had
been underpaid by more than $4.3 million. Earlier the same day, the plaintiff

5 We have had one other encounter with this statute, in Matson Navigation Co. v. United
States, 284 U.S. 352, 52 S.Ct. 162, 76 L.Ed. 336 (1932), where we relied on the plain words
of §154 to hold that the statute did not apply where the Court of Claims plaintiff had
brought suit in another court against the United States, rather than against an agent of
the United States, for the same claim. When Congress reenacted the statute in 1948, it
added the phrase “against the United States” to close this loophole. See Act of June 25,
1948, ch. 646, 62 Stat. 942; Johns-Manville Corp. v. United States, 855 F.2d 1556, 1566-
1567, and n. 15 (CA Fed. 1988).
had filed a suit in Federal District Court “for the recovery of the same
amount for the same gold bullion surrendered.” Id., at 439. The Court of
Claims observed that “[t]he only distinction between the two suits instituted
in the District Court and in this court is that the action in the District Court
was made to sound in tort and the action in this court was alleged on con-
tract.” Id., at 440. Because the two actions were based on the same operative
facts, the court dismissed the Court of Claims action for lack of jurisdiction,
finding it to be “clear that the word ‘claim,’ as used in section 154, ... has no
reference to the legal theory upon which a claimant seeks to enforce his de-
mand.” Ibid.

These precedents demonstrate that under the immediate predecessor of

§1500, the comparison of the two cases for purposes of possible dismissal
would turn on whether the plaintiff’s other suit was based on substantially
the same operative facts as the Court of Claims action, at least if there was
some overlap in the relief requested.6 See Skinner & Eddy, supra; Corona
Coal, supra. That the two actions were based on different legal theories did
not matter. See British American Tobacco, supra. Since Keene has given us
no reason to doubt that these cases represented settled law when Congress
reenacted the “claim for or in respect to which” language in 1948, see 62 Stat.
942, we apply the presumption that Congress was aware of these earlier judi-
cial interpretations and, in effect, adopted them. Lorillard v. Pons, 434 U.S.
575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978); cf. United States v. Powell,
379 U.S. 48, 55, n. 13, 85 S.Ct. 248, 253-54 n. 13, 13 L.Ed.2d 112 (1964) (pre-
sumption does not apply when there is no “settled judicial construction” at
the time of reenactment). The decision in British American Tobacco strikes
us, moreover, as a sensible reading of the statute, for it honors Congress’s de-
cision to limit Court of Federal Claims jurisdiction not only as to claims “for
... which” the plaintiff has sued in another court, but as to those “in respect to
which” he has sued elsewhere as well. While the latter language does not set
the limits of claim identity with any precision, it does make it clear that Con-
gress did not intend the statute to be rendered useless by a narrow concept of
identity providing a correspondingly liberal opportunity to maintain two suits
arising from the same factual foundation.

6 Because the issue is not presented on the facts of this case, we need not decide whether
two actions based on the same operative facts, but seeking completely different relief,
would implicate §1500. Cf. Casman v. United States, 135 Ct.Cl. 647 (1956); Boston Five
Cents Savings Bank, FSB v. United States, 864 F.2d 137 (CA Fed. 1988).
Keene nonetheless argues, for the first time in its merits brief,7 that “[a]
claim brought outside the [Court of Federal Claims] is ‘for or in respect to’ a
claim in the [Court of Federal Claims only] when claim-splitting law would
treat them as the same — ie., require them to be joined in a single suit — if
the two claims were both brought against the United States.” Brief for Peti-
tioner 20. Under this theory, §1500 would not apply to a Court of Federal
Claims plaintiff unless his suit pending in the other court rested on a legal
theory that could have been pleaded (as Keene’s could not have been) in the
Court of Federal Claims. But this reinterpretation of §1500 is bound to fail,
not because novelty is always fatal in the construction of an old statute, but
because the novel proposition in Keene’s suggested reading would have ren-
dered the statute useless, in all or nearly all instances, to effect the very ob-
ject it was originally enacted to accomplish. Keene fails to explain how the
original statute would have applied to the cotton claimants, whose tort ac-
tions brought in other courts were beyond the jurisdiction of the Court of
Claims, just as tort cases are outside the jurisdiction of the Court of Federal
Claims today.8 Keene’s theory was squarely rejected in British American To-
bacco9, and it must be rejected again this time.

7 Keene argued in its petition for certiorari that the claim it raised in its third-party action
in Miller was not based on the same facts as its complaint in Keene I. Keene did not press
this argument after we granted the writ, and, in any event, we see no reason to disturb the
rulings to the contrary by both courts below. See 962 F.2d, at 1024 (“[W]e have no quarrel
with the [Court of Federal Claims] determination that the underlying facts in Miller and
Keene I are the same”).
8 It is not that Keene has not tried to meet the objection. Keene assumes, contrary to the
plain text, that the statute here is not jurisdictional, arguing instead that it was meant to
supplement the formalistic 19th-century concept of res judicata. According to Keene, res
judicata would not have barred a cotton claimant from instigating an action against a fed-
eral officer who had acted for the Government, even though the claimant had lost an oth-
erwise identical action against the Government itself (and vice versa), the difference be-
tween the named defendants being significant at that time. On the assumption that the
statute eliminated nonidentity of parties defendant as a barrier to the application of res
judicata, Keene then argues that causes of action were treated as identical in those days if
the same evidence was used to prove multiple claims. On this view of the law, Keene con-
cludes, multiple cotton claims would have been treated as the same, and the statute would
have barred the Court of Claims suit, just as Congress intended. Reply Brief for Petitioner
7. Even on its own terms, however, this argument fails, for the Court of Claims in 1868
had no jurisdiction to try a tort action for conversion, however similar it might have been
for res judicata purposes to the statutory action within that court’s jurisdiction. According-
ly, under Keene’s claim-splitting theory, the conversion action would not have been treat-
ed as identical with the statutory action; each would have survived, leaving the statute
useless to solve the problem Congress was addressing.
9 Keene claims that its view represents “well-established law,” citing Allied Materials &
Equipment Co. v. United States, 210 Ct.Cl. 714 (1976) (per curiam) and Casman v. United
III

Finally, Keene takes the tack that if we adopt the Court of Appeals’s con-
struction of § 1500, we will be announcing “a new rule of law” that ought to
be applied only prospectively under the test set out in Chevron Oil Co. v. Hu-
son, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Brief for Petitioner 42-
43. Even assuming that this call for “pure prospectivity,” see James B. Beam
Distilling Co. v. Georgia, 501 U.S. 529, 544, 111 S.Ct. 2439, 2448, 115
L.Ed.2d 481 (1991) (opinion of SOUTER, J.), might fairly fall within the ques-
tions presented,10 there is no need to address it because, as the Government
points out, Keene’s claims were dismissed under well-settled law.

The Court of Appeals, to be sure, announced that it was overruling five cases:
Tecon Engineers, Inc. v. United States, 170 Ct.Cl. 389, 343 F.2d 943 (1965),
cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966); Casman v.
United States, 135 Ct.Cl. 647 (1956); Boston Five Cents Savings Bank, FSB v.
United States, 864 F.2d 137 (CA Fed. 1988); Brown v. United States, 175
Ct.Cl. 343, 358 F.2d 1002 (1966) (per curiam); and Hossein v. United States,
218 Ct.Cl. 727 (1978) (per curiam). And while Keene contends that nothing
less than these repudiations of precedent would have sufficed to dismiss its
suits, we read the five cases as supporting neither Keene’s position that the
Court of Federal Claims had jurisdiction over its cases nor its plea for pure
prospectivity of the overruling decision.

States, supra. Brief for Petitioner 15. In Casman, however, the plaintiff was seeking com-
pletely different relief in the Court of Claims and the District Court, and later cases have
read Casman as limited to that situation. See Johns-Manville Corp., 855 F.2d, at 1566-
1567; Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d, at 139. Although it
is not clear whether the plaintiff in Allied Materials was seeking completely different re-
lief in the District Court, the Court of Claims simply applied Casman without much ex-
planation. Neither Casman nor Allied Materials discussed, much less purported to over-
rule, British American Tobacco Co. v. United States, 89 Ct.Cl. 438 (1939), a case that
undoubtedly is well established. See, e.g., Johns-Manville Corp., supra, at 1562-1563; Los
Angeles Shipbuilding & Drydock Corp. v. United States, 138 Ct.Cl. 648, 652, 152 F.Supp.
236, 238 (1957); Hill v. United States, 8 Cl.Ct. 382, 386-388 (1985). Accordingly, Keene’s
appeal to “well-established law” is misplaced.
10 The questions on which we granted certiorari contain no direct mention of prospectivity,
see Pet. for Cert. i, although Keene did argue in its petition that Tecon Engineers should
be overruled only prospectively, see Pet. for Cert. 13, and the Court of Appeals did consid-
er, and reject, the argument that its ruling should only be prospectively applied, see 962
F.2d, at 1025.
In applying §1500 to the facts of this case, we find it unnecessary to consider,
much less repudiate, the “judicially created exceptions” to §1500 found in
Tecon Engineers, Casman, and Boston Five. See 962 F.2d, at 1021. Tecon En-
gineers held that a later filed action in another court does not oust the Court
of Federal Claims of jurisdiction over an earlier filed complaint; our decision
turns on Keene’s earlier filed District Court actions, and even Keene now
concedes it to be “unnecessary for the Court to address the Tecon question” in
ruling on the dismissal of Keene’s claims. Reply Brief for Petitioner 14, n. 14;
see n. 4, supra. The Casman court recognized an exception (followed in Boston
Five) for plaintiffs who seek distinctly different types of relief in the two
courts; here, Keene had sought monetary relief in each of the cases pending
when it filed the complaints seeking monetary relief in Keene I and Keene II.
See n. 6, supra. In Brown, the Court of Claims reinstated a claim after the
plaintiff’s District Court action for the same claim had been dismissed, on the
grounds that the other suit was “no longer ‘pending’” and had itself been dis-
missed because jurisdiction lay exclusively in the Court of Claims. 175 Ct.Cl.,
at 348, 358 F.2d, at 1004. Brown’s narrow reasoning, that § 1500 does not
apply after dismissal of an earlier filed District Court suit brought in deroga-
tion of the Court of Federal Claims’s exclusive jurisdiction, was echoed in
Hossein, a per curiam order citing neither Brown, nor any other case, on this
point.11 See also Boston Five, supra, at 139-140 (following Hossein). Since
Keene’s District Court actions were not, and could not have been, dismissed
on the ground of falling within the exclusive jurisdiction of the Court of Fed-
eral Claims, Keene gets no support from Brown and Hossein.12 Thus, there is
no “new principle of law” at work in ruling against Keene, see Chevron Oil,
supra, 404 U.S., at 106, 92 S.Ct., at 355, and no need to plunge into retroac-
tivity analysis.13

11 We note that both the Brown and Hossein courts failed to consider the possibility that the
District Court, in such a situation, could transfer the case to the Court of Federal Claims
under a statute first adopted in 1960. See Act of Sept. 13, 1960, §1, 74 Stat. 912 (codified
at 28 USC §1406(c) (1964 ed.)); Act of Apr. 2, 1982, §301(a), 96 Stat. 55 (codified at 28 USC
§1631).
12 Brown and Hossein do not survive our ruling today, for they ignored the time-of-filing rule
discussed in Part II-A, supra.
13 Keene also asks the Court to “make clear that, if Keene refiles the same claims, equitable
tolling would be available to eliminate any limitations bar.” Brief for Petitioner 45. But
any response to this request would be an advisory opinion.
IV

We have said nothing until now about Keene’s several policy arguments, and
now can only answer that Keene addresses the wrong forum. It may well be,
as Keene argues, that § 1500 operates in some circumstances to deprive
plaintiffs of an opportunity to assert rights that Congress has generally made
available to them “under the complex legal and jurisdictional schemes that
govern claims against the Government.” Brief for Petitioner 15. The trial
judge in this case was not the first to call this statute anachronistic, see 12
Cl.Ct., at 205; A.C. Seeman, Inc. v. United States, 5 Cl.Ct. 386, 389 (1984),
and there is a good argument that, even when first enacted, the statute did
not actually perform the preclusion function emphasized by its sponsor, see
Schwartz, 55 Geo.L.J., at 579. But the “proper theater” for such arguments,
as we told another disappointed claimant many years ago, “is the halls of
Congress, for that branch of the government has limited the jurisdiction of
the Court of Claims.14” Smoot’s Case, 15 Wall. 36, 45, 21 L.Ed. 107 (1873). We
enjoy no “liberty to add an exception ... to remove apparent hardship,” Corona
Coal, 263 U.S., at 540, 44 S.Ct., at 156, and therefore enforce the statute.

The judgment of the Court of Appeals is

Affirmed.

Justice STEVENS, dissenting.

In my opinion, 28 USC §1500 does not require the Court of Federal Claims to
dismiss an action against the United States simply because another suit on
the same claim was once, but is no longer, pending in district court. Rather,
the plaintiff may continue to pursue his claim so long as there is no other suit
pending when the Court of Federal Claims decides the motion to dismiss.
Neither the text nor the history of the statute demands more of the plaintiff
than that he make an “election either to leave the Court of Claims or to leave
the other courts” at that time.1

14 A recent attempt to repeal §1500 failed in Congress. See S. 2521, 102d Cong., 2d Sess.,
§10(c) (1992); 138 Cong.Rec. S4830- S4832 (Apr. 2, 1992).
1 Senator Edmunds explained the purpose of the provision that is now §1500, as follows:

The object of this amendment is to put to their election that large class of
persons having cotton claims particularly, who have sued the Secretary of the
Treasury and the other agents of the Government in more than a hundred
suits that are now pending, scattered over the country here and there, and
who are here at the same time endeavoring to prosecute their claims, and
Section 1500 is not itself a grant of jurisdiction to the Court of Federal
Claims. That function is performed by other sections of the Judicial Code
immediately preceding § 1500, which give the court “jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive de-
partment, or upon any express or implied contract with the United States,”
28 USC §1491(a)(1), and “jurisdiction to render judgment upon any claim by a
disbursing officer of the United States ...,” 28 USC §1496 (emphases added).
See also §§1497 and 1499 (granting jurisdiction to “render judgment” over
other claims).2 Section 1500, by contrast, “takes away jurisdiction even
though the subject matter of the suit may appropriately be before the Claims
Court.” UNR Industries, Inc. v. United States, 962 F.2d 1013, 1028 (CA
Fed.1992) (Plager, J., dissenting) (emphasis deleted). It is only reasonable to
assume that the “jurisdiction” §1500 takes away is the same as the “jurisdic-
tion” surrounding Code provisions bestow: the jurisdiction to enter judgment.

The text of §1500 simply provides that the Court of Federal Claims “‘shall not
have jurisdiction’ over a claim ‘... which’ the plaintiff ... ‘has pending’ in any
other court....” Ante, at 2040 (emphasis added). Accordingly, so long as a
plaintiff has pending another suit in another court, the Court of Federal
Claims may not adjudicate the plaintiff’s claim, even though its subject mat-
ter would otherwise bring it within the court’s jurisdiction. The Government
may invoke this exception by putting such a plaintiff to his choice: either
“leave the other courts,” n. 1, supra, or forgo further proceedings in the Court
of Federal Claims. If the plaintiff declines to leave the other courts, then the
Court of Federal Claims is without jurisdiction to proceed with the case be-
fore it, though it may retain the case on its docket pending disposition of the
other action. Hossein v. United States, 218 Ct.Cl. 727 (1978). But if the plain-
tiff does dismiss his other action, then the Court of Federal Claims is free to
decide his case. Section 1500 was so construed over a quarter of a century

have filed them in the Court of Claims, so that after they put the Government
to the expense of beating them once in a court of law they can turn around
and try the whole question in the Court of Claims. The object is to put that
class of persons to their election either to leave the Court of Claims or to
leave the other courts. I am sure everybody will agree to that. UNR Indus-
tries, Inc. v. United States, 962 F.2d 1013, 1018 (CA Fed.1992) (quoting 81
Cong. Globe, 40th Cong., 2d Sess., 2769 (1868).
2 Sections immediately following §1500 use similar language with respect to other types of
claims. See 28 USC §§1503, 1508.
ago, see Brown v. United States, 175 Ct.Cl. 343, 358 F.2d 1002 (1966),3 and I
see no reason to interpret it now as a broader prohibition on pretrial proceed-
ings.

It is true that an earlier version of §1500 provided that a claimant may not
“file or prosecute” an action in the Court of Federal Claims while another ac-
tion is pending. Ante, at 2041. That original text, however, did not prescribe
the consequences of a prohibited filing. In view of the fact that the text did
not then mention the word “jurisdiction,” there is nothing to suggest that
pendency of another action would have to be treated as a defect warranting
automatic dismissal.4 Instead, given the plain statement of the legislation’s
sponsor that he intended to force an election of remedies before trial, see n. 1,
supra, this earlier language is fairly construed as giving the Government the
right to avoid duplicative litigation by having the Court of Claims action dis-
missed if the plaintiff chose not to abandon the claim pending elsewhere.

In any event, when the text of §1500 was revised in 1948, Congress removed
the prohibition on filing. The Court nevertheless assumes that the section
should be construed as originally drafted, because Congress did not intend
the 1948 revisions of the Judicial Code to make substantive changes in the
law. See ante, at 2041. In fact, the 1948 revision did work a significant sub-
stantive change by enlarging the class of suits subject to dismissal to include
suits against the United States, as well as suits against its agents. See ante,

3 At the present time, therefore, the only claim for just compensation pending
in a court is that stated in the plaintiffs’ petition in this court.
In these circumstances we grant the motions for rehearing, vacate our prior
order dismissing the petition, and now deny the defendant’s motion to dis-
miss. Our earlier order of dismissal was predicated on the fact that the other
“claim remains pending in the said District Court.” That is no longer true,
and the claim is no longer ‘pending in any other court.’ In this situation, we
do not believe that 28 USC §1500 requires us to deprive plaintiffs of the only
forum they have in which to test their demand for just compensation. Brown,
175 Ct.Cl., at 348, 358 F.2d, at 1004.
See also Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d 137, 139 (CA
Fed.1988) (staying Court of Federal Claims action while district court action pending);
Prillman v. United States, 220 Ct.Cl. 677, 679 (1979) (same).
4 As Justice Holmes pointed out, in a similar context, “no one would say that the words of
the Mississippi statute of frauds, ‘An action shall not be brought whereby to charge a de-
fendant,’ go to the jurisdiction of the court. Of course it could be argued that logically they
had that scope, but common sense would revolt.” Fauntleroy v. Lum, 210 U.S. 230, 235, 28
S.Ct. 641, 642, 52 L.Ed. 1039 (1908) (internal citation omitted).
at 2043, n. 6; Matson Navigation Co. v. United States, 284 U.S. 352, 355-356,
52 S.Ct. 162, 164-165, 76 L.Ed. 336 (1932); see also Schwartz, Section 1500 of
the Judicial Code and Duplicate Suits Against the Government and Its
Agents, 55 Geo.L.J. 573, 579-580 (1967). But even if it were the case that
Congress intended no substantive change in 1948, that would mean only that
the present text is the best evidence of what the law has always meant, and
that the language of the prior version cannot be relied upon to support a dif-
ferent reading.

In my judgment, the Court of Claims properly construed §1500 in 1966 when

it held that the provision merely requires claimants to choose between alter-
native pending claims before proceeding to trial. See Brown, 175 Ct.Cl., at
348, 358 F.2d, at 1004. The statute limits the power of the Court of Federal
Claims to render judgments, and thus the ability of a plaintiff to prosecute
simultaneous actions against the Government, but it does not prevent the
Court of Federal Claims from allowing a case to remain on its docket until
the claimant has made the required election. Even if I did not agree with this
interpretation of §1500, however, I would nevertheless endorse it here, as lit-
igants have a right to rely on a longstanding and reasoned judicial construc-
tion of an important statute that Congress has not seen fit to alter. See
McNally v. United States, 483 U.S. 350, 376-377, 107 S.Ct. 2875, 2890-2891,
97 L.Ed.2d 292 (1987) (STEVENS, J., dissenting) (citing cases). Whether or
not “novelty is always fatal in the construction of an old statute,” ante, at
2043, the overruling of a consistent line of precedent raises equitable con-
cerns that should not be disregarded.5

Admittedly, this is a badly drafted statute. Viewed against a legal landscape

that has changed dramatically since the days of the cotton claimants, see
ante, at 2040-2039, it does not lend itself easily to sensible construction.
Moreover, the Court’s interpretation of §1500 today may have the salutary
effect of hastening its repeal or amendment. Nevertheless, a reading that is

5 The Court seeks to minimize these concerns by suggesting that the Brown line of cases on
which petitioner relies would not in any event apply here, because petitioner’s district
court action was not dismissed on the grounds that it fell within the exclusive jurisdiction
of the Court of Federal Claims. Ante, at 2043. In my view, Brown, and cases like it, do not
warrant such a narrow reading, but stand instead for the broader proposition that a for-
mer district court action, once dismissed, no longer bars adjudication in the Court of Fed-
eral Claims. See n. 2, supra; National Steel & Shipbuilding Co. v. United States, 8 Cl.Ct.
274, 275-276 (1985) (in case of concurrent jurisdiction, providing for automatic reinstate-
ment of Court of Federal Claims action upon dismissal of district court suit). That the
Court of Appeals felt it necessary to overrule Brown on the facts of this case, see UNR In-
dustries, 962 F.2d, at 1022, suggests a similar understanding of Brown’s scope.
faithful not only to the statutory text but also to the statute’s stated purpose
is surely preferable to the harsh result the Court endorses here. Accordingly,
I respectfully dissent.
 Keydata Systems
v.
Department of the Treasury

97-2 BCA ¶29330

October 10, 1997

Thomas S. Dann of Hewes, Gelband, Lambert & Dann, Washington, DC,

counsel for Petitioner. Lori R. Larson, office of Chief Counsel, Internal Reve-
nue Service, Department of the Treasury, Washington, DC, counsel for Re-
spondent.

Before Board Judges DANIELS (Chairman), VERGILIO, and WILLIAMS.

DANIELS, Board Judge.

The Department of the Treasury, respondent, moves us to dismiss a petition

filed by Keydata Systems, Inc., which asks the Board to direct an agency con-
tracting officer to issue a decision on two claims made by Keydata. The claims
arose under a contract between the parties for the provision of technical sup-
port services for the editing, data transcription, and verification of the agen-
cy’s Currency Transaction Report.

For the reasons explained below, we grant the motion in part and deny the
petition.

Background

The contract contains (or includes by reference) Federal Acquisition Regula-

tion (FAR) clause 52.222-43, “Fair Labor Standards Act and Service Contract
Act — Price Adjustment (Multiple Year and Option Contracts) (May 1989).”
This clause provides for the adjustment of the contract price to reflect chang-
es the contractor makes in applicable wages and fringe benefits, consistent
with wage determinations issued by the Department of Labor.

On October 12, 1995, Keydata submitted to the contracting officer what it la-
beled a “claim for cost reimbursement and rate adjustment” pursuant to a
contract modification and the provisions of this clause. The contractor said
that it “claims reimbursement of the following incurred costs:... $407,354.57.”
Keydata said that “[e]ffective February 1, 1995, [it had] effected all retroac-
tive wage and benefit increases required by [its] adoption of” two Department
of Labor wage determinations. Petition, Exhibit A at 1 (unnumbered). Includ-
ed with this document was an invoice, dated October 13, 1995, in the same
amount, which bears the following certification: “I certify that the above ser-
vices have been performed in accordance with the contract, and that person-
nel, hours and/or other costs are correct and have not been previously. billed.”
This invoice is signed by an individual who is identified as Keydata’s vice
president of finance. Id. at 8 (unnumbered).

On December 5, 1995, Keydata sent to the contracting officer a similar

“claim,” in the amount of $23,839.99. This letter referenced different versions
of the wage determinations. Included with it was an invoice, dated December
5, 1995, which bears the same certification as the one contained in the Octo-
ber correspondence. This invoice is signed by an individual who is identified
as Keydata’s vice president — contracts. Petition, Exhibit B.

On February 7, 1996, and again on March 21 of that year, an agency con-

tracting officer reported to Keydata that the October “claim” was being eval-
uated. Petition, Exhibits C, D. In April, Keydata’s president complained
about the delay. Referencing the FAR, she asserted that within sixty days of
receipt of each claim, the contracting officer should have issued a decision or
notified the contractor when a decision would be forthcoming. See 48 CFR
33.211(c)(1), (2) (1995). Again referencing the FAR, 48 CFR 33.211(e), (f), she
threatened that if a decision was not issued promptly, she would appeal to
this Board from the contracting officer’s deemed denials of the two “claims.”
Id., Exhibit E.

On May 17, 1996, the contracting officer wrote to the contractor:

I have determined that the IRS is unable to issue a “Final De-

cision of the Contracting Officer” at this time because:

1. Keydata Systems, Incorporated failed to submit a certified

claim request in the amount of $431,194.56 in accordance with
FAR 33.206 and 207 and;

2. Keydata Systems, Incorporated is hereby informed that an

investigation has been initiated in accordance with 31 USC
3729 False Claims Amendment Act of 1986. The amount of the
false claim exceeds the amount claimed under FAR 52.222-43.
This matter will be revisited on completion of this investiga-
tion.
Petition, Exhibit F. The Government says that it is continuing to investigate
the validity of Keydata’s payment request. Respondent’s Motion to Dismiss at
4.

Discussion

In docketing this case, the Board asked the parties to address two questions
which are critical to the issue of our jurisdiction over the petition: (1) Are the
letters that Keydata sent to the contracting officer in October and December
of 1995 actually “claims,” as that term is used in the Contract Disputes Act of
1978, 41 USC §§601-613 (1994)? (2) Was the October claim (if it was a
“claim”) “certified,” as that term is used in the Act? The agency then filed a
motion to dismiss, contending that we may not consider the petition because
both questions must be answered in the negative. Keydata opposes this re-
quest.

The Contract Disputes Act grants agency boards of contract appeals jurisdic-
tion over appeals from contracting officers’ decisions on claims. Case, Inc. v.
United States, 88 F.3d 1004, 1008-09 (Fed. Cir. 1996); James M. Ellett Con-
struction Co. v. United States, 93 F.3d 1537, 1542 (Fed. Cir. 1996); see 41
USC §§605(c), 607(d). A contractor may petition a board to direct a contract-
ing officer to issue a decision in a specified period of time. 41 USC §605(c)(4).
We construe the statute to limit our jurisdiction over petitions in a similar
way to the one in which it restricts our authority over appeals: a claim is a
prerequisite to any action by us.

As interpreted by the Court of Appeals for the Federal Circuit, the Act says
that a contractor’s request for money must meet at least three requirements
to qualify as a “claim”: it must be (1) a written demand (2) seeking, as a mat-
ter of right, (3) the payment of money in a sum certain. These are the only
three requirements that a “non-routine” request must meet to be considered a
“claim.” “A routine request for payment, on the other hand, must also be ‘in
dispute’ when submitted to meet the definition of a ‘claim.’ ” Ellett, 93 F.3d at
1542; see also Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed. Cir.
1995) (en banc).

Keydata’s October and December 1995 letters to the contracting officer clear-
ly comply with the three requirements that all requests must meet in order to
qualify as claims. There is no indication in the record, however, that the mat-
ters addressed in either of the letters were “in dispute” when submitted; thus,
neither of the letters constituted a “claim” if the request made in them was a
“routine” request for payment. The question we must resolve here, conse-
quently, is whether the request was routine or non-routine.

The Court has given us some guidance for resolving this issue: “A routine re-
quest for payment ... is made under the contract, not outside it. For example,
a voucher or invoice is submitted for work done or equipment delivered by the
contractor in accordance with the expected or scheduled progression of con-
tract performance.” Reflectone, 60 F.3d at 1577. The Court has also explained
that a request for equitable adjustment “is anything but a ‘routine request for
payment.’ It is a remedy payable only when unforeseen or unintended cir-
cumstances, such as government modification of the contract, differing site
conditions, defective or late-delivered government property or issuance of a
stop work order, cause an increase in contract performance costs.” Id. Dic-
tionary definitions may be helpful as well. The word “routine” is defined by
use of the words “regular,” “habitual,” “repetitive,” “hum-drum,” and “com-
monplace.” Webster’s Third New International Dictionary 1981 (1986 ed.).

Keydata’s letters do not fit neatly into either the “routine” or “non-routine”
category, as those classifications have been illustrated by the Court. The re-
quests are “routine” in that they are (or at least are supposed to be) demands
that the agency make payments which are the automatic consequence, dic-
tated by the contract, of the Department of Labor’s issuance of wage determi-
nations; the contract envisioned that such determinations would be made
during its multi-year life. Although Keydata characterizes the letters as re-
quests for equitable adjustment, the cause of those requests is not like any of
the examples of “unforeseen or unintended circumstances” that the Court
listed in Reflectone. On the other hand, the demands for payment are “non-
routine” in that they are priced outside “the expected or scheduled progres-
sion of contract performance.”

We conclude that even if a modification pursuant to a Department of Labor

wage determination may generally be considered “routine” (a matter we do
not decide here), Keydata’s claims are non-routine in that they seek retroac-
tive application of such determinations. This aspect of the claims makes in-
conceivable a conclusion that the demands pertain to work done “in accord-
ance with the expected or scheduled progression of contract performance.”
Because Keydata’s demands for payment are “non-routine,” even though the
matters raised in those demands were not in dispute when the letters were
written, each of the letters is properly deemed a “claim” for purposes of the
Contract Disputes Act. We have taken into consideration, in reaching this
conclusion, the Court of Appeals’ advice that a “claim” does “not ordinarily
require a pre-existing dispute.” Reflectone, 60 F.3d at 1583; see also id. at
1580-83.

This does not end our adventure into the jurisdictional quagmire, however.
For the Board to have jurisdiction over the petition for a contracting officer
decision on the first claim, an additional hurdle must be passed. Because the
claim is for more than $100,000, it is subject to action by the contracting of-
ficer only if “the contractor [certifies] that the claim is made in good faith,
that the supporting data are accurate and complete to the best of his
knowledge and belief, that the amount requested accurately reflects the con-
tract adjustment for which the contractor believes the government is liable,
and that the certifier is duly authorized to certify the claim on behalf of the
contractor.” 41 USC §605(c)(1).

Prior to the 1992 amendments to the Contract Disputes Act, a board of con-
tract appeals had no jurisdiction to hear a case involving a claim if the claim
was required to be so certified and had not been. United States v. Grumman
Aerospace Corp., 927 F.2d 575, 579 (Fed. Cir.), cert. denied, 502 U.S. 919
(1991). The amendments provide that “[a] defect in the certification of a claim
shall not deprive ... an agency board of contract appeals of jurisdiction over
that claim. Prior to the entry of a decision by [a board], the ... board shall re-
quire a defective certification to be corrected.” Pub. L. No. 102-572,
§907(a)(1), 106 Stat. 4506, 4518 (1992); 41 USC §605(c)(6).

Congress explained that in changing the law, it meant to retain the certifica-
tion requirement, so as “to insure that complete, clear, and honest claims are
presented to Federal contracting officers,” but to eliminate jurisdictional
questions resulting from “technically defective” certifications. H.R. Rep. No.
102-1006, 102d Cong., 2d Sess., at 28 (1992), reprinted in 1992 USCC.A.N.
3921, 3937. Toward that end, “a defect in the certification, discovered after a
claim is in litigation, may be cured by the contractor to avoid repetition of the
entire administrative claims process and waste of judicial or board re-
sources.” Id. The Congressional committee report states:

The term “technically defective” is intended to cover the full

range of defects found by the courts that do not involve a sub-
stantive defect, such as bad faith, fraud, or reckless and inten-
tional disregard of the statutory certification requirements.
Examples of “technically defective” certifications made curable
by this amendment include certification with each document
submitted as part of the claim when all claim documentation is
not submitted simultaneously, missing certifications when two
 or more claims not requiring certification are deemed by the
court or board to be a larger claim requiring certification, and
certification by the wrong or incorrect representative or the
contractor ....

It is the Committee’s belief that contractors whose certifica-

tions are defective as the result of innocent mistake or inad-
vertence should not be penalized where their claims are other-
wise meritorious and a good faith effort appears to have been
made to provide a responsive certification in the first instance,
including recertifications filed in response to contracting officer
inquiries after the initial claim was filed.

Id.

Keydata’s vice president of finance made the following certification as to this

claim: “I certify that the above services have been performed in accordance
with the contract, and that personnel, hours and/or other costs are correct
and have not been previously billed.” This certification, as Keydata now ad-
mits, is not the one required by the Contract Disputes Act. However, in light
of the 1992 amendments to the Act and Congress’s explanation of how those
amendments are to be implemented, we will decline jurisdiction over a case
involving a claim in excess of $100,000 only if the claim was not certified at
all, or if we find that the certification was made in bad faith, fraudulently, or
with reckless or intentional disregard of the statutory certification require-
ments. SAE/Americon — Mid-Atlantic, Inc. v. General Services Administra-
tion, GSBCA 12294, 94-2 BCA ¶26,890, at 133,852; Hamza v. United States,
31 Fed. Cl. 315, 324 (1994); Eurostyle Inc., ASBCA 45934, 94-1 BCA ¶26,458,
at 131,654 (1993) (as to no certification); Pevar Co. v. United States, 32 Fed.
Cl. 822, 825 (1995); Production Corp., ASBCA 28053, 96-1 BCA ¶28,053
(1995) (as to insufficient certification). The question now before us is whether
the certification submitted with the claim falls into one of these categories.

Keydata’s $407,354.57 claim is accompanied by a certification, so we must

determine whether that certification is sufficient for us to retain jurisdiction
over the portion of the case which involves that claim. The agency is not pre-
pared to contend that the certification was made in bad faith, fraudulently, or
in reckless disregard of the Act. One question remains: Was the certification
made in negligent disregard of the Act? The certification addresses, at best,
only one of the statute’s requirements; in stating that the “personnel, hours
and/or other costs are correct,” it might be read as saying that the supporting
data are accurate and complete.1 The certification is utterly bereft of even an
allusion to any of the other prongs of the requirement. The defects in the cer-
tification are thus far more substantial than any of the examples of “tech-
nical” defects given in the Congressional committee report or in any other
way in which we might stretch the meaning of the word “technical.”

Keydata showed by its correspondence that at least as early as April 1996, it

had a close understanding of the regulations governing Government contract
claim resolution. Those regulations contain the requirements for proper certi-
fication — as the contracting officer told the company in the following month.
Keydata was thus on notice well before it filed its petition as to the actions it
had to take to perfect the claim. In response, the contractor took no action
whatsoever.2 We find that this refusal to cure the substantial defects, in the
face of knowledge of what was required and the contracting officer’s pointed
comment, and before litigation began, constitutes negligent disregard of the
Contract Disputes Act requirement, not innocent mistake or inadvertence.
Because Keydata has not made the certification required by the Act, or even
a certification with a curable technical defect, insofar as the petition relates
to the claim for $407,354.57, it is premised on a claim that was not certified
for any Contract Disputes Act purpose. We cannot compel a contracting of-
ficer to issue a decision on such a claim.

All that remains before us, consequently, is Keydata’s petition that we direct
the contracting officer to issue a decision on the claim for $23,839.99. This
claim involves similar or identical issues to those involved in the much larger
claim. (Indeed, it may be that the two claims should be considered, as the
contracting officer believed, as pieces of a single matter.) To keep the tail
from wagging the dog, we decline to direct the contracting officer to issue a
decision on the smaller claim at this time. The contracting officer need not
address the issues raised by Keydata until the contractor places a properly
certified claim before her or indicates that it no longer seeks to pursue the
larger claim.

1 The fact that this statement lacks the qualifying language “to the best of [my] knowledge
and belief” is immaterial; the unqualified assurance is actually stronger than one would be
if it contained those words. P.J. Dick Inc. v. General Services Administration, GSBCA
11860, 93-1 BCA ¶25,411 (1992); see also Fischbach & Moore International Corp. v. Chris-
topher, 987 F.2d 759 (Fed. Cir. 1993).
2 As far as we know, even though Keydata now recognizes that it did not earlier make a
proper certification, it still has not made the necessary correction.
Decision

The petition is DENIED.

STEPHEN M. DANIELS
Board Judge

We concur:
JOSEPH A. VERGILIO
Board Judge

MARY ELLEN COSTER WILLIAMS

Board Judge
 Marine Industries Northwest

01-1 BCA ¶31,201

November 27, 2000

Appearance for the Appellant: John R. Spencer, Esq.; Victoria E. Hatch & As-
sociates, LLC; Tacoma, WA. Appearances for the Government: Arthur H.
Hildebrandt, Esq., Navy Chief Trial Attorney; James D. Beback, Esq., Coun-
sel Supervisor of Shipbuilding, Conversion and Repair Everett, WA.

Opinion by Administrative Judge Dicus

Marine Industries Northwest, Inc. (MINI or appellant), appeals from a con-

tracting officer’s final decision denying the contractor’s $166,580.32 certified
claim for equitable adjustment. MINI’S claim is based on additional work re-
quired to remove mill scale from the metallic surfaces of the shipping barge
NESTUCCA prior to repainting. MINI contends a prudent contractor would
not expect to find mill scale on a vessel already in service for the Navy; there-
fore, it was appropriate to omit the cost of mill scale removal from the con-
tract bid. The parties have waived a hearing pursuant to Board Rule 11. Only
entitlement is at issue. We deny the appeal.

Preliminary Matters

Respondent submitted evidence six months after the record was settled ac-
companied by a Motion to Reopen. Appellant objects to the receipt of the evi-
dence into the record. Respondent’s motion is untimely and it has not estab-
lished a compelling reason to reopen the record. The motion is denied.

Findings of Fact

1. In June of 1998, the United States Navy awarded appellant contract

N00024-92-H-8621 for dry-docking service and overhaul of the shipping barge
NESTUCCA (the barge) for the firm-fixed price of $991,571. The contract
contained, inter alia, FAR 52.233-1 DISPUTES (OCT 1995) and FAR
52.243-7 NOTIFICATION OF CHANGES (apr 1984). The contract did not
contain a “Differing Site Conditions” clause or equivalent. (R4, tab 1)

2. As part of the overhaul, the barge, including its tanks, was to be painted.
However, prior to painting, work item 123-16-001, for the preservation of the
tanks, required an abrasive blast to near-white metal in accordance with the
STEEL STRUCTURES PAINTING COUNCIL, SURFACE PREPARATION
SPECIFICATION No. 10 (SSPC-SP-10). (R4, tab 3) SSPC-SP-10 defines a
near-white blast as follows: “[a] near-white blast cleaned surface, when
viewed without magnification, shall be free of all visible... mill scale .... (R4,
tab 7 at 4) The contract makes no representation as to the existence or nonex-
istence of mill scale. The barge had been modified in 1995 to add strengthen-
ing elements in the tanks (hereinafter “Strengthening Modifications”) (ex.
G-5)

3. MINI subcontracted the cleaning, blasting, and painting of the barge to

Pioneer Industries, Inc. (Pioneer) (ex. A-3). Once the subcontractor began the
job of blasting the barge’s tanks, mill scale was found beneath the old layer of
paint (ex. A-4).

4. Mill scale is “[a] black scale of magnetic oxide of iron formed on iron and
steel when heated for rolling, forging, or other processing.” WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY (1961), s.v. “mill scale.”

5. Chuck Savage was the Senior Estimator for Pioneer. Mr. Savage stated in
his affidavit that he had 30 years of experience involving 15 naval vessels,
but had never encountered mill scale on any of these vessels. Therefore, Mr.
Savage stated that he did not anticipate mill scale, nor did he include the cost
of its removal in his bid. Mr. Savage also admitted that he did not inspect the
barge prior to bidding. He felt it was useless to try to inspect the inside of the
tanks because the tanks are not generally gas free. Further, the mill scale
was hidden beneath the paint. Appellant did not submit questions to the
Government concerning the history of the barge or the presence of mill scale.
(Ex. A-3)

6. According to respondent, if appellant had made a pre-bid inspection, it

would have seen that a portion of the barge was painted in commercial colors
that would have indicated it had not always been a vessel of the United
States Navy. Further, appellant would have been allowed to scrape paint off
to see the condition beneath the paint. (Ex. G-6) Employees of respondent
with experience in ship maintenance stated in affidavits that they had en-
countered mill scale on other naval vessels during overhaul work in tanks
and under paint (exs. G-l,-2,-4,-6). Appellant acknowledges at least one such
instance (app. br. at 6). Accordingly, we find that the condition encountered
by appellant was not commonplace but it does occur.
7. Pioneer reported to MINI that the contract took more time than originally
planned, and was completed at a greater cost due to mill scale. On behalf of
Pioneer, MINI requested a change order in the amount of $17,597.40 by FAX
of 10 August 1998. (R4, tab 11) This was rejected by letter dated 14 August
1998 (R4, tab 12).

8. Upon completion of the contract, MINI submitted a claim, certified on 2

October 1998, to the contracting officer for an equitable adjustment of
$166,580.32, the alleged additional cost of mill scale removal from the
strengthening modifications (R4, tabs 19,21). On 25 November 1998, the con-
tracting officer issued a decision denying MINI’S claim (R4, tab 23). This
timely appeal followed on 31 December 1998 (R4, tab 24).

9. Both parties have provided affidavits concerning whether respondent’s

employee in charge of its small fleet of barges, Joseph Jett, knew about the
existence of mill scale prior to award and failed to tell bidders. According to
Mr. Savage and another employee of Pioneer, Dennis Welchert, Mr. Jett dis-
closed at a Wednesday production meeting that strengthening modifications
to the barge’s tanks had been accomplished and painted without removing
mill scale. (Ex. A-3,-4) Mr. Jett denies any knowledge of mill scale on the
barge and states the first he heard about the condition was at production
meetings during contract performance (ex. G-5). Other employees of respond-
ent assert they have never heard Mr. Jett make such a statement (ex.
G-3,-6,-7). One of respondent’s affiants, Dennis Rosvall, further asserts, and
we find, that the strengthening modifications comprise no more than 12 per-
cent of the total area of the tanks (ex. G-6).

Decision

MINI argues that it was reasonable to assume that mill scale would not be
present on a naval vessel in current inventory, that respondent had
knowledge of the mill scale which it did not disclose, and that the situation
encountered is tantamount to a differing site condition. MINI’S logic is, in
part, that the vessel should have been previously prepared for painting in ac-
cordance with Government regulations and all mill scale should have been
removed prior to previous paintings. Respondent asserts, inter alia, that the
contract is unambiguous in its requirement for removal of mill scale.

We agree that the contract is unambiguous in its requirement for removal of

mill scale (finding 2). The presence of mill scale is not unprecedented in situ-
ations such as this (finding 6), and, in a fixed-price contract, appellant bears
the risk of its assumption that there would be no mill scale. Moreover, appel-
lant’s “differing site condition” analogy is negated by the fact that the con-
tract did not contain a “differing site conditions” clause (finding 1) which
would have allocated risk between the parties. On these facts, appellant as a
fixed-price contractor thus bears the risk of unanticipated costs of perfor-
mance unless it can establish that respondent had information which it
should have, but did not, disclose regarding the presence of mill scale. The
contract is silent as to whether mill scale is present, so if respondent had su-
perior knowledge and did not disclose it, appellant may be entitled to recover.
Helene Cvrtis Industries, Inc. v. United States, 312 F.2d 774 (Ct. Cl. 1963).
The burden of proof is on appellant. Teledyne McCormick-Selph v. United
States, 588 F.2d 808 (Ct. Cl. 1978).

To prove superior knowledge, appellant must first establish that respondent

possessed knowledge that mill scale was present. To do this, appellant has
presented affidavits in which it is asserted that Mr. Jett knew that mill scale
was present in the strengthening modifications. Mr. Jett denies this in an
affidavit, and his denial is supported by affidavits from several of respond-
ent’s employees. The parties are thus at a stalemate on this crucial issue, and
with the parties’ waiver of an oral hearing we are left without the benefit of
observation or cross-examination in resolving the conflict. We have, therefore,
carefully reviewed the parties’ positions for compelling logic or, conversely,
detractions such as contradiction, exaggeration, or inconsistency. We have
similarly reviewed the record to ascertain whether there is probative evi-
dence to corroborate or discredit either party’s position. We can find nothing
persuasive to support or detract from the affidavits.1 As the critical evidence
on superior knowledge is evenly balanced based on the conflicting affidavits,
appellant has failed to establish that it is more probable than not that Mr.
Jett knew of the mill scale. Appellant has not met its burden of proof. Cf.
General Electric Co. v. American Wholesale Co., 235 F.2d 606 (7th Cir. 1956)
(reversing the district court’s grant of an injunction based on conflicting affi-
davits). The appeal is denied.

CARROLL C. DICUS, JR.

Administrative Judge

1 We have found the strengthening modifications amounted to only 12 percent of the tanks
(finding 9), but this goes to the extent of the mill scale, not to whether respondent pos-
sessed knowledge of the mill scale.
We concur
MARK N. STEMPLER
Administrative Judge, Acting Chairman

EUNICE W. THOMAS
Administrative Judge, Vice Chairman
 McDonnell Douglas

97-2 BCA ¶29,199

September 3, 1997

Appearance for the Appellant: Peter T. Fagan, Esq.; Edward G. Becker, Esq.;
Bryan Cave LLP; Irvine, CA. Appearances for the Government: Kelly T.
McCracken, III, Esq., Chief Trial Attorney; Earl E. Baker, Esq., Trial Attor-
ney; Defense Contract Management Command (DLA); Downey, CA.

Opinion by Administrative Judge Dicus on Respondent’s Motion to

Dismiss

This appeal is taken from a contracting officer’s final decision disallowing

costs included in appellant McDonnell Douglas Corporation’s 1990 overhead
proposal. The costs were incurred for employee training. Respondent seeks
dismissal, alleging that neither appellant nor the Government has filed a
claim in accordance with the requirements of the Contract Disputes Act
(CDA), 41 USC §§601 et seq., as amended. Appellant agrees that it has not
filed a CDA claim but argues that the contracting officer’s final decision con-
stitutes a Government claim. We dismiss the appeal.

Findings of Fact

Appellant’s 1990 overhead proposal, dated 29 March 1991, included costs of

$79,308 for employee training at the Brookings Institution’s Congressional
Assistant Program. DCAA audit questioned $53,972 of those costs (R4, tabs
1, 2, 6). The parties were unable to resolve their differences and a 23 May
1996 contracting officer’s final decision was issued disallowing the costs ques-
tioned by DCAA (R4, tab 3). Appellant requested withdrawal of the final deci-
sion as it sought “to resolve this matter locally between the Contracting Of-
ficer and [appellant].” (R4, tab 5) When the parties were again unable to
negotiate their differences, a 27 November 1996 contracting officer’s final de-
cision was issued, disallowing costs of $53,972 for the Congressional Assis-
tant Program. The decision does not, either on its face or impliedly, seek the
adjustment or interpretation of contract terms. It simply disallows $53,972 of
1990 overhead costs sought in appellant’s proposal. (R4, tab 6) Appellant also
sought withdrawal of the 27 November 1996 decision (R4, tab 9). When the
decision was not withdrawn (15 July 1997 letter from respondent’s counsel)
an appeal was taken on 24 February 1997 (R4, tab 10).
Decision

The parties have not presented a dispute as to whether appellant’s overhead

proposal or some other writing is a contractor claim bestowing jurisdiction on
the Board under the CDA. Rather, appellant asserts that we have jurisdiction
because the contracting officer’s final decision disallowing certain overhead
costs is a Government claim seeking adjustment or interpretation of contract
terms. Respondent contends that the contracting officer’s final decision is not
a claim and the Board is without jurisdiction, inter alia, because the dispute
is not about contract terms, it is about money.

FAR 33.201 defines a claim as:

a written demand or written assertion by one of the contracting

parties seeking, as a matter of right, the payment of money in a
sum certain, the adjustment or interpretation of contract
terms, or other relief arising under or relating to the contract.
A claim arising under a contract, unlike a claim relating to that
contract, is a claim that can be resolved under a contract clause
that provides for the relief sought by the claimant.

Appellant argues that the Board has found jurisdiction based on a Govern-
ment claim in previous cases where the Government disallowed or sought re-
payment of costs. Appellant cites Litton Systems, Inc., Guidance & Control
Systems Division, ASBCA No. 45400, 94-2 BCA ¶26,895; PX Engineering
Company, Inc., ASBCA No. 40714, 90-3 BCA ¶23,253; LTV Aerospace & De-
fense Company, ASBCA No. 36036, 88-2 BCA ¶20,752; and General Dynamics
Corporation, ASBCA No. 31359, 86-3 BCA ¶19,008. Respondent counters that
in all the cited cases there were costs at issue that had already been paid by
the Government and the Government was initiating a recovery action. Re-
spondent cites The Boeing Company, ASBCA No. 36612, 89-1 BCA ¶21,421, in
which we explicitly stated that General Dynamics, supra, did not hold or offer
“support for the proposition that cases involving CAS noncompliance or cost
disallowance should automatically be deemed Government claims.” The Boe-
ing Company at 107,957. We recognize that the contracting officer’s decision
here was premature given the normal process of negotiating overhead rates,
and that it placed appellant in an awkward position. Nevertheless, it was not
a “demand or ... assertion ... seeking, as a matter of right, the payment of
money ....” It was instead notification that the Government will refuse to pay
a sum of money and, as such, does not meet the first criterion of FAR 33.201.
Thus, we cannot take jurisdiction on that basis.
The major focus of appellant’s argument is that the contracting officer’s final
decision is a Government claim seeking an interpretation of FAR cost princi-
ples under the affected contracts. Appellant relies on our decision in Robert-
Orr SYSCO Food Services Co., ASBCA No. 50183, 97-1 BCA ¶28,903. Howev-
er, in that case there is a significant factual difference in that the contractor’s
claim explicitly sought the interpretation of a contract provision. The “claim”
on which appellant relies in this appeal is the contracting officer’s final deci-
sion. We have found that the contracting officer’s final decision in this appeal
does not, on its face or impliedly, seek either an interpretation or adjustment
of contract terms. To be a claim seeking declaratory relief pursuant to FAR
33.201 the writing at issue must seek a contract interpretation or adjustment
of terms more explicitly than the writing at issue here. In short, the contract-
ing officer’s final decision simply does not seek declaratory relief.

Finally, respondent argues that the issue here is money. We agree. We have
refused to grant declaratory relief where we found the real issue was money.
Woodington Corporation, ASBCA No. 37272, 89-2 BCA ¶21,602.

Respondent’s motion is granted. The appeal is dismissed without prejudice

for lack of jurisdiction.

CARROLL C. DICUS, JR.

Administrative Judge

We concur
ALAN M. SPECTOR
Administrative Judge, Acting Chairman

MARK N. STEMPLER
Administrative Judge, Vice Chairman
 Midwest Properties
v.
General Services Administration

03-2 BCA ¶32,344

August 1, 2002

Donald L. Cox of Lynch, Cox, Gilman & Mahan, P.S.C., Louisville, KY, coun-
sel for Appellant. David M. Smith, Office of General Counsel, General Ser-
vices Administration, Washington, DC, counsel for Respondent.

Before Board Judges BORWICK, HYATT, and GOODMAN.

MOTION TO DISMISS GRANTED IN PART:

HYATT, Board Judge.

These consolidated appeals challenge the termination for default of a build-

to-suit lease awarded by respondent, the General Services Administration
(GSA), to appellant, Midwest Properties, LLC, for the construction of a facili-
ty in Chattanooga, Tennessee, to be occupied by the Immigration and Natu-
ralization Service (INS), and the subsequent assessment of $125,000 in liqui-
dated damages under the same lease. In its consolidated complaint, appellant
asserts that GSA wrongfully terminated the lease and imposed liquidated
damages (Counts I and III), and seeks reinstatement of the lease and damag-
es in excess of $375,000 (Count I) or, in the alternative, damages exceeding
the amount of $1,500,000 (Count II). Respondent has filed a motion to dis-
miss portions of these counts for lack of jurisdiction. For the reasons stated,
we grant respondent’s motion to dismiss the claims for reinstatement of the
lease and for money damages. We deny respondent’s motion to the extent it
seeks dismissal of the appeal of the assessment of liquidated damages.

Background

On January 25, 2000, lease number GS-04B-40024, for the rental of 3851 us-
able square feet of office and related space, to be constructed on a designated
parcel of land in Chattanooga, Tennessee, was awarded to Midwest Proper-
ties, LLC, of London, Kentucky. Appeal File, Exhibits 1-2.

On October 22, 2001, the GSA contracting officer terminated the lease for de-
fault. Appeal File, Exhibit 41. Appellant, asserting that the termination ac-
tion was unjustified, requested a meeting to discuss its position with the
Government. The Government asked appellant to identify specific items to be
discussed in such a meeting. In a letter dated November 1, 2001, appellant
provided a list of discussion topics. After considering appellant’s proposed
discussion topics, rather than convene a meeting, the contracting officer, in a
letter dated December 19, 2001, affirmed the Government’s decision to ter-
minate the lease for default. Id., Exhibits 42-44. Midwest’s timely appeal of
that decision is docketed as GSBCA 15822.

Subsequently, in a letter dated March 22, 2002, the contracting officer in-
formed Midwest that, pursuant to the default clause in the lease, GSA was
seeking $125,000 in liquidated damages for delay in delivery of the leased
space for occupancy. The letter explained how the amount claimed was calcu-
lated and stated that the damages “are hereby due and payable to the Gov-
ernment within thirty days following the date this notice is received.” Appeal
File, Exhibit 45. Midwest’s appeal of the assessment of liquidated damages is
docketed as GSBCA 15844.

On April 30, 2002, the Board consolidated the two appeals. On May 3, 2002,
appellant filed a consolidated complaint. In Count I of the complaint, appel-
lant claims that GSA wrongfully terminated the lease, alleges that it is enti-
tled to reinstatement of the lease, and seeks damages in excess of $325,000.
Count II of the complaint alleges in the alternative that Midwest is entitled
to damages in excess of $1.5 million. Count III challenges the assessment of
liquidated damages.

Discussion

GSA has filed a motion to dismiss GSBCA 15822 in part and GSBCA 15844
in its entirety for lack of jurisdiction over (1) appellant’s claims for monetary
relief; (2) appellant’s request for reinstatement of the lease; and (3) the ap-
peal of the assessment of liquidated damages. In support of its motion GSA
asserts that (1) the claims for monetary relief have not been presented to the
contracting officer for decision as required by the Contract Disputes Act of
1978 (CDA), 41 USC 601-613 (2000); (2) the Board has no authority to grant
the remedy of specific performance; and (3) there has been no final decision
issued by the contracting officer regarding the Government’s claim for liqui-
dated damages under the lease. GSA’s position is that the only issue properly
pending before the Board is the appellant’s challenge to the decision to ter-
minate the lease for default.
With respect to the claims for monetary damages, GSA points out that nei-
ther the claim for $325,000 nor the claim for $1.5 million have been certified
and submitted to the contracting officer for decision as required by the CDA.
41 USC 605-607. As such, the Board lacks jurisdiction to entertain these
claims. See, e.g., Sprint Communications Co., L.P. v. General Services Admin-
istration, GSBCA 15139, 01-2 BCA ¶31,464; Maritime Equipment & Sales,
Inc. v. General Services Administration, GSBCA 15266, 00-2 BCA ¶30,987. In
responding to GSA’s motion, Midwest concedes that these claims have not yet
been submitted to the contracting officer for decision and that they are prem-
ature.

Likewise, GSA contends that Midwest’s request for reinstatement of the lease
must also be dismissed because the Board lacks authority to grant relief of
this nature, which essentially seeks specific performance of the contract. See,
e.g., Maritime Equipment; Western Aviation Maintenance. Inc. v. General
Services Administration, GSBCA 14165.98-2 BCA ¶29,816. Again, in respond-
ing to GSA’s motion, Midwest agrees that the Board lacks jurisdiction to
grant this relief.

Where the parties disagree is with respect to whether the Board has jurisdic-
tion to entertain the appeal of GSA’s assessment of liquidated damages. As
respondent points out, the assessment of liquidated damages constitutes a
Government claim, which must, like a contractor’s claim, be the subject of a
contracting officer’s final decision before the contractor may take an appeal.
41 USC 605(a);1 see, e.g., McDonnell Douglas Corp. v. United States, 754 F.2d
365, 370 (Fed. Cir. 1985); Paragon Energy Corp. v. United States, 645 F.2d
966, 971 (Ct. Cl. 1981); Johnson Controls World Services. Inc. v. United
States, 43 Fed. Cl. 589, 592 (1999); Litton Systems. Inc. v. United States, 27
Fed. Cl. 306 (1992). GSA, without further explanation, contends that its let-
ter to the contractor asserting entitlement to liquidated damages did not
qualify as the requisite contracting officer “final decision” on a Government
claim; Midwest argues that it did.

Because the CDA does not define the term “claim,” any challenge to jurisdic-
tion based on whether a claim has been asserted should be evaluated in

1 The CDA provides that “[a]ll claims by the government against a contractor relating to a
contract shall be the subject of a decision by the contracting officer....” 41 USC 605(a). The
CDA further requires that “[t]he contracting officer ... issue his decisions in writing, and . .
. furnish a copy of the decision to the contractor. The decision shall state the reasons for
the decision reached, and shall inform the contractor of his rights as provided ... [under
the CDA]....” Id.
terms of the regulations implementing the Act, the relevant contract lan-
guage, and the facts of the case. E.g., Reflectone, Inc. v. Dalton, 60 F.3d 1572,
1575 (Fed. Cir. 1995); J. & E. Salvage Co. v. United States, 37 Fed. Cl. 256,
261 (1997); Volmar Construction, Inc. v. United States, 32 Fed. Cl. 746, 751
(1995). The Federal Acquisition Regulation (FAR) defines “claim” as “a writ-
ten demand or written assertion by one of the contracting parties seeking, as
a matter of right, the payment of money in a sum certain, the adjustment or
interpretation of contract terms, or other relief arising under or relating to
the contract....” 48 CFR 33.201 (1998) (FAR 33.201). The Disputes clause of
the lease also contains the definition set forth in the FAR. Appeal File, Exhib-
it 2 at 182.

Here, the Government has sent a letter to the contractor, unequivocally as-
serting entitlement to liquidated damages in the amount of $125,000 and
demanding that the contractor remit that amount forthwith. The issue we are
faced with is whether the contracting officer’s letter is tantamount to a con-
tracting officer decision within the meaning of the CDA so as to permit the
contractor to take an appeal.

When the Government issues a written demand for payment, specifying the
amount the Government asserts entitlement to and unequivocally informing
the contractor that payment is now due, the requirements for a contracting
officer decision are generally deemed to have been met such that the contrac-
tor may appeal. The Board has spoken to this issue previously, in the context
of a Government claim consisting of deductions taken under a fixed price con-
tract:

A contracting officer issues a decision on a government claim

for deduction when the contracting officer determines both lia-
bility and damages.... The decision is no less final because it
fails to include “boilerplate language usually present for the
protection of the contractor,” i.e., notification of appeal rights.
Sprint Communications Co. v. General Services Administra-
tion, GSBCA 13182, 96-1 BCA ¶28,068 (1995). There, the Board
held that a letter written to Sprint by the contracting officer,
asserting entitlement to a deduction of $50,000 as considera-
tion for “shortcomings in contract performance, followed by the
withholding of that amount from an invoice submitted for ser-
vices, served as a “final decision” on the Government claim suf-
ficient to permit the contractor to bring an appeal. Id.; see also
Hamilton Securities Advisory Services, Inc. v. United States, 43
Fed. Cl. 566 (1999); Volmar Construction; Outdoor Venture
Corp., ASBCA 49756, 96-2 BCA ¶28,490.
GSA does not explicitly say so, but presumably its position is premised on the
fact that the contracting officer’s letter does not actually state that it is the
contracting officer’s “final decision.” We recognize that there is at least one
decision in which the failure to characterize a written communication as a
“final decision” on the Government’s claim was a factor in determining that
no “final decision” giving rise to CDA jurisdiction had been issued. Sharman
Co. v. United States, 2 F.3d 1564 (Fed. Cir. 1993), overruled on other grounds.
Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1578-79 & n.10 (Fed. Cir. 1995). In
Sharman, however, the contracting officer asserted entitlement to a sum cer-
tain but then invited the contractor to submit a proposal for deferment of
payment or disputing the Government’s entitlement. Accordingly, the Court
reasoned that the written communication relied upon by the contractor was
simply a tentative determination of liability intended to trigger the negotia-
tion process. Id. The decision, thus, did not turn on the failure to denote the
letter a “final decision,” but rather on the lack of finality of the contracting
officer’s letter.

In contrast, nothing in the contracting officer’s letter to Midwest suggests

that the contracting officer’s assessment of $125,000 in liquidated damages is
tentative or open to negotiation. There is no suggestion that Midwest might
dispute the amount demanded by tendering a counterproposal or that the
contracting officer might be willing to change his mind. The previous dealings
of the parties in connection with the termination decision, in which the con-
tracting officer determined it was unnecessary to meet and negotiate with
Midwest, and instead simply reaffirmed his decision, would further support
the conclusion that the letter assessing liquidated damages was in essence a
final decision, ripe for appeal.

Decision

The Government’s motion to dismiss is GRANTED IN PART, in accordance

with the above discussion. The issues remaining before the Board are the
challenge to the decision to terminate the lease for default and the appeal of
the assessment of liquidated damages.

CATHERINE B. HYATT
Board Judge
We concur:
ANTHONY S. BORWICK
Board Judge

ALLAN H. GOODMAN
Board Judge
 NVT Technologies
v.
General Services Administration

03-2 BCA ¶32401

October 24, 2003

Appearance for Appellant: Jeffrey A. Lovitky, Washington, DC. Appearance

for Government: John C. Ringhausen, Office of Regional Counsel, General
Services Administration, Atlanta, GA.

Before Board Judges Daniels (Chairman), Neill, and Hyatt

Neill, Board Judge

Appellant, NVT Technologies, Inc. (NVT), has filed an application for attor-
ney fees in connection with an appeal filed with this Board in January of this
year. The appeal involved a claim by NVT for $13,447.42. This amount was
said to represent the cost of extra work NVT was directed to perform under
its contract to provide the General Services Administration (GSA) with me-
chanical maintenance services and other related services for a federal court-
house.

NVT elected to have its case decided using the Board’s small claims proce-
dure. On June 16, 2003, after review of the record before us, we concluded
that NVT’s position was far more persuasive than that of the Government.
On June 16, 2003, we rendered a decision in favor of NVT. NVT Technologies,
Inc. v. General Services Administration, GSBCA 16047, 03-2 BCA ¶32,285.

On July 14, 2003, NVT filed an application for fees under the Equal Access to
Justice Act (EAJA), 5 USC §504 (2000). Counsel for NVT states that he spent
a total of 17.1 hours working on NVT’s appeal and on preparing the applica-
tion for fees. The application seeks $2847.50, based upon an hourly rate of
$225. NVT claims entitlement to payment at this rate rather than at the
statutory rate of $125 per hour because legal counsel in the metropolitan ar-
ea of Washington, D.C., generally charge fees in excess of the statutory rate
and because the number of attorneys practicing in the specialized area of
government contracts is limited.
Discussion

To be eligible for recovery of fees under EAJA, NVT must meet the following
requirements:

1. have been a prevailing party in a proceeding against the

United States;

2. if a corporation, have had not more than $7,000,000 in net

worth and five hundred employees at the time the adversary
adjudication was initiated;

3. submit its application within thirty days of a final disposi-

tion in the adjudication;

4. in that application, (a) show that it has met the require-

ments as to having prevailed and size (numbers (1) and (2)
above) and (b) state the amount sought and include an itemized
statement of costs and attorney fees; and

5. allege that the position of the agency was not substantially

justified.

McTeague Construction Co. v. General Services Administration, GSBCA

15479-C (14765), 01-2 BCA ¶31,462, at 155,333; see 5 USC §504(a)(1), (2),
(b)(1)(B); Doty v. United States, 71 F.3d 384, 385 (Fed.Cir. 1995).

Considering these requirements in the order listed above, we find that NVT
was decidedly the prevailing party in this litigation. As to the size of NVT at
the time its case was filed, the application contains a credible declaration,
given under penalty of perjury by the president of NVT, attesting that, at
that time, his company employed no more than 130 persons and had a net
worth well below $7,000,000. Further, the application was timely filed within
thirty days of our decision.

As required, NVT’s application specifically addresses the issues of its status

as a prevailing party, a qualifying small business, and the timeliness of its
submission. Attached to the application is an itemized statement regarding
counsel’s services and fees.

Finally, the application notes that the position taken by the agency in this
case was not substantially justified and explains in some detail why the
agency will not be able to meet its burden of demonstrating otherwise. We
find applicant’s analysis persuasive. Based upon our own independent review
of the administrative record before us in NVT’s appeal, we too are convinced
that the agency’s position in this case was not substantially justified.

Indeed, GSA does not oppose the application on the ground that the agency’s
position was substantially justified. Rather, GSA’s concern is with NVT’s re-
quest to be reimbursed for attorney fees using an hourly rate of $225. After
some discussion, counsel for the parties have entered into the following stipu-
lation:

1. Applicant does hereby amend its fee application to a total of

$2,992.50 (17.1 hrs.  $175.00);

2. Respondent does hereby state that it has no objections to the

fee application as amended.

While government counsel in this case may believe that payment at an hour-
ly rate in excess of the statutory rate of $125 is appropriate, this in no way
justifies an award by this Board at the agreed-upon hourly rate of $175. The
EAJA provision regarding the recovery of fees and other expenses associated
with an agency’s conduct of an adversary adjudication is clear. It reads:

[A]ttorney or agent fees shall not be awarded in excess of $125

per hour unless the agency determines by regulation that an
increase in the cost of living or a special factor such as the lim-
ited availability of qualified attorneys or agents for the pro-
ceedings involved justifies a higher fee.

5 USC §504(b)(1)(A)(ii).

While a judicial tribunal is free to make the determination that a fee in ex-
cess of the statutory rate of $125 per hour is justified by an increase in the
cost of living or a special factor, an administrative tribunal, such as ours,
cannot do so in the absence of an agency regulation addressing that issue.
Compare 28 USC §2412(d)(2)(A) with 5 USC 504(b)(1)(A)(ii); see ABS
Baumaschinenvertrieb GmbH, ASBCA 48207, 01-2 BCA ¶31,549. Counsel for
the Government has referred us to no agency regulation, nor are we aware of
any GSA regulation, which determines that an increase in the cost of living
or some special factor justifies award of a fee based upon an hourly rate
greater than $125. In the absence of such a regulation, we decline to make an
award at the enhanced rate notwithstanding the stipulation entered into by
counsel. We are satisfied, however, that NVT has met the statutory require-
ments for award of fees under EAJA at the prescribed rate of $125 per hour.

Decision

NVT’s application for attorney fees is GRANTED IN PART. We award a total

of $2137.50 (17.1 hours at $125 per hour).

EDWIN B. NEILL
Board Judge

I concur:
STEPHEN M. DANIELS
Board Judge

Hyatt, Board Judge, concurring

In a dissenting opinion in Giancola & Associates v. General Services Admin-

istration, GSBCA 12305-C(12128), 93-3 BCA ¶26,146, I expressed reserva-
tions about the award of EAJA fees in the context of an appeal in which the
contractor has elected to proceed under the small claims procedures provided
under the Contract Disputes Act of 1978 (CDA). I continue to have concerns
about the application of EAJA to appeals processed under the small claims
election.

EAJA is intended to eliminate legal expenses as a barrier to a contractor’s

challenge to unreasonable Government action. See, e.g., Community Heating
& Plumbing Co. v. Garrett, 2 F.3d 1143, 1145 (Fed.Cir. 1993). The statute
seems to contemplate that the Government will have the opportunity to ap-
peal when it loses on the merits of a decision. 5 USC §504(a)(2) (2000). Under
the small claims election, the Government has no input into the election and
no right, in the absence of fraud, to appeal the decision of the single judge
ruling on the merits of the claim.1

The intent of the election is to encourage both parties to dispense with the
sometimes burdensome and costly cormalities of due process to obtain an ex-

1 This ambiguity inherent in the attempt to reconcile the two provisions is notable because
the award of attorney fees under EAJA represents a waiver of sovereign immunity and
thus “must be strictly construed in favor of the United States.” Ardestani v. INS¸502 U.S.
129, 137 (1991); Bazalo v. West, 150 F.3d 1380, 1382 (Fed.Cir. 1998); Levernier Construc-
tion, Inc. v. United States, 947 F.2d 497, 503 (Fed.Cir. 1991).
peditious, economical resolution of a small dollar value dispute. Thus, the
process, by definition, is intended to enable the contractor to pursue its claim
without the need to incur substantial attorney fees and other expenses —
thus independently achieving the objective of an award of fees under EAJA.
In the small claims context, then, an award of attorney fees should be unnec-
essary.

EAJA and the small claims election are inherently inconsistent in other ways
as well. The small claims process requires the Government to relinquish the
rigors of litigation in favor of encouraging a speedy, inexpensive, resolution of
the matter in issue. Havind done this, the Government could then be at a se-
rious disadvantage when it comes to proving its position was substantially
justified should the contractor pursue an award of attorney fees under EAJA.
If an EAJA application is contested, the result could be precisely the type of
proceedings the small claims election was intended to obviate. In my view,
the potential incompatibilities of the two remedies makes the availability of
an award of attorney fees in small claims proceedings problematic.

Nonetheless, having said all these things, the Board now has established
precedent permitting, when appropriate, the award of attorney fees under
EAJA in cases where the contractor has elected the small claims procedure.
On the facts of this case, the proposed award of fees is not objectionable. The
Government has not argued or suggested that its position in the underlying
proceedings was substantially justified nor does there appear to be any evi-
dence that an award of attorney fees would otherwise be unjust. Appellant’s
attorney seeks an award of fees for a relatively modest number of hours, de-
voted to his successful representation of the contractor. The fee award is not
unduly disproportionate when compared to the quantum award in the under-
lying case. The amount of quantum awarded in the underlying appeal, when
combined with the fee award, is still substantially less than the $50,000
overall ceiling on small claims. Since I do not disagree with the majority’s de-
termination that the standards enunciated under EAJA have been met, I
concur in the award.

CATHERINE B. HYATT
Board Judge
 Oroville-Tonasket Irrigation District
v.
United States

33 Fed.Cl. 14
March 14, 1995

Todd M. Nelson, Seattle, WA, for plaintiff. Ross D. Cooper, Washington, DC,
with whom was Asst. Atty. Gen. Frank W. Hunger, for defendant. Kathleen
Marion Carr, Field Solicitor’s Office, U.S. Dept. of Interior, of counsel.

Opinion

MEROW, Judge.

In this litigation Oroville-Tonasket Irrigation District (OTID), an entity or-

ganized under the laws of the State of Washington, seeks substantial sums
from the United States stemming from its obligations under the November
28, 1979 Repayment Contract No. 0-07-10-W0242 with the Department of the
Interior to operate and maintain the Oroville-Tonasket unit of the Chief Jo-
seph Dam project, Washington. OTID seeks to recover: $31,530,000 in over-
run operation and maintenance costs; $13,291,000 for remedial construction
work; $85,000 for costs of removing and repairing ruptured reinforced plastic
mortar (RPM) pipe; $37,875 for the cost of removing hazardous flume and ca-
nal; $12,900,000 to cover obligations to the United States or a declaratory
judgment of nonliability therefore; and, $42,332 for a consultant’s study.

This matter comes before the court on defendant’s motion, filed February 24,
1995, for an enlargement of time to respond to discovery and plaintiff’s mo-
tion, filed February 27, 1995, for an enlargement of time to file its initial pre-
trial submission. Also, submissions filed by each party on February 15, 1995
concerning the application of the Contract Disputes Act (CDA), 41 USC §601
et seq., to the contract at issue have been considered.

Facts

The pleadings and CDA submissions of February 15, 1995 disclose the follow-
ing undisputed facts.

By the Act of October 9, 1962, (76 Stat. 761) Congress authorized the Secre-
tary of the Interior to construct, operate and maintain the Oroville-Tonasket
unit of the Okanogan-Similkameen division, Chief Joseph Dam project,
Washington. The Act also provided that the repayment period for OTID to
reimburse Interior for a portion of the project construction costs, as required
by the Federal reclamation laws, 43 USC §485h, may be enlarged to fifty
years. The Act provided as follows (in part):

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That for the
purpose of furnishing a new and a supplemental water supply
for the irrigation of approximately eight thousand four hundred
and fifty acres of land in Okanogan County, Washington, for
the purpose of undertaking the rehabilitation and betterment
of existing works serving a major portion of these lands and for
conservation and development of fish and wildlife resources,
the Secretary of Interior is authorized to construct, operate,
and maintain the Oroville-Tonasket unit of the Okanogan-
Similkameen division of the Chief Joseph Dam project, in ac-
cordance with the provisions of the Federal reclamation laws
(Act of June 17, 1902, 32 Stat. 388, and Acts amendatory
thereof or supplementary thereto). The principal works of the
unit shall consist of: facilities to permit enlargement and utili-
zation of Palmer Lake storage; related canal, diversion dam,
pumping plants, and distribution systems; and necessary
works incidental to the rehabilitation of the existing irrigation
system.

Sec. 2. The basic period provided in subsection (d), section 9, of

the Reclamation Project Act of 1939, as amended (43 USC
485h), for repayment of the construction cost properly chargea-
ble to any block of lands may be extended to fifty years, exclu-
sive of any development period, from the time water is first de-
livered to that block. Power and energy required for irrigation
pumping for the Oroville-Tonasket unit shall be made available
by the Secretary from the Chief Joseph Dam powerplant and
other Federal plants interconnected therewith at rates not to
exceed the cost of such power and energy from the Chief Joseph
Dam taking into account all costs of the dam, reservoir, and
powerplant which are determined by the Secretary under the
provisions of the Federal reclamation laws to be properly allo-
cable to such irrigation pumping power and energy.

By the Act of September 28, 1976 (90 Stat. 1325), the general plan of the
Oroville-Tonasket unit authorized and constructed under the Act of October
9, 1962, quoted above, was modified to provide for construction, rehabilita-
tion, or enlargement of facilities, land drainage, and to provide fish passage
and propagation in the Similkameen River. The Act provided (in part) as fol-
lows:

Sec. 201. For purposes of supplying water to approximately ten

thousand acres of land and for enhancement of the fish re-
source of the Similkameen, Okanogan, and Columbia Rivers
and the Pacific Ocean, the Secretary of the Interior (hereinafter
referred to as the “Secretary”) is authorized to construct, oper-
ate, and maintain the Oroville-Tonasket unit extension, Oka-
nogan-Similkameen division, Chief Joseph Dam project, Wash-
ington, in accordance with the Federal reclamation laws (Act of
June 17, 1902, 32 Stat. 388, and Acts amendatory thereof or
supplementary thereto). The principal works of the Oroville-
Tonasket unit extension (hereinafter referred to as the project)
shall consist of pumping plants, distribution systems; neces-
sary works incidental to the rehabilitation or enlargement of
portions of the existing irrigation system to be incorporated in
the project; drainage works; and measures necessary to provide
fish passage and propagation in the Similkameen River. Irriga-
tion works constructed and rehabilitated by the United States
under the Act of October 9, 1962 (76 Stat. 761) and which are
not required as a part of the project shall be dismantled and
removed with funds appropriated hereunder and title to the
lands and right-of-way thereto which were conveyed to the
United States shall be reconveyed to the Oroville-Tonasket Ir-
rigation District. All other irrigation works which are a part of
the Oroville-Tonasket Irrigation District’s existing system and
which are not required as a part of the project or that do not
have potential as rearing areas for fish shall be dismantled and
removed with funds appropriated hereunder.

Sec. 202. The Secretary is authorized to terminate the contract

of December 26, 1964, between the United States and the
Oroville-Tonasket Irrigation District and to execute new con-
tracts for the payment of project costs, including the then un-
paid obligation under the December 26, 1964, contract. Such
contracts shall be entered into pursuant to section 9 of the Act
of August 4, 1939 (53 Stat. 1187). The term of such contract
shall be fifty years, exclusive of any development period au-
thorized by law. The contracts for irrigation water may provide
for the assessment of an account charge for each identifiable
ownership receiving water from the project. Such charge, to-
gether with the acreage or acre-foot charge, shall not exceed
the repayment capacity of commercial family-size farm enter-
 prises as determined on the basis of studies by the Secretary.
Project construction costs covered by contracts entered into
pursuant to section 9(d) of the Act of August 4, 1939, as deter-
mined by the Secretary, and which are beyond the ability of the
irrigators to repay shall be charged to and returned to the rec-
lamation fund in accordance with the provisions of section 2 of
the Act of June 14, 1966 (80 Stat. 200), as amended by section 6
of the Act of September 7, 1966 (80 Stat. 707). The aforesaid
contract shall provide that irrigation costs properly assignable
to privately owned recreational lands shall be repaid in full
within fifty years with interest.

Sec. 203. Power and energy required for irrigation water pump-
ing for the project, including existing irrigation works retained
as a part of the project, shall be made available by the Secre-
tary from the Federal Columbia River power system at charges
determined by him.

On September 28, 1979, pursuant to the authority of the Act of September 28,
1976, quoted above, the Department of Interior and OTID entered into Re-
payment Contract No. 0-07-10-W0242 which provided for the United States
to construct the relevant works for the Oroville-Tonasket unit consisting of:
pumping plants and discharge lines for pumping water into the distribution
system; relift pumping plants and booster plants as required to deliver water
to the project acres; a distribution system of corrosion-resistant pipe; drain-
age works; power transmission lines, switchyards and substations for pump-
ing plants; turnouts from the distribution system; wildlife mitigation facili-
ties; and required dismantling and removal work. Essentially, the contract
authorized the Secretary of the Interior to convert the existing gravity flow
water delivery system consisting of canals and wooden flumes to a modern
buried pipeline system providing irrigation to 10,000 acres in this apple pro-
ducing region of Washington state.

Contract No. 0-07-10-W0242 also incorporates provisions requiring OTID to

repay a portion of the cost incurred by the Secretary of the Interior in con-
structing the project and to pay for electric power furnished to OTID. As to
the operation and maintenance of the project, Contract No. 0-07-10-W0242
provides as follows:

Operation and Maintenance of Project Irrigation Works

18. (a) During the construction of the Project Irrigation Works,

the District will continue to operate and maintain the portions
of its existing irrigation system not directly involved at the
time in the construction of such works. Upon substantial com-
pletion of any portion of the Project Irrigation Works as deter-
mined by the Secretary after consultation with the District,
and after receipt of notice to do so, the District will assume con-
trol of and will operate and maintain such works at its expense.
On substantial completion of the Project Irrigation Works as
determined by the Secretary after consultation with the Dis-
trict, or on termination of the work thereon, after receipt of
proper notice, the District will operate and maintain the entire
Project irrigation system without expense to the United States.
The District shall be responsible for approving the installation
of new turnouts following completion of construction.

(b) The District shall promptly make any and all repairs to the
Project Irrigation Works being operated by it which are neces-
sary for proper care, operation, and maintenance. In case of ne-
glect or failure of the District to make such repairs within 60
days following written notification, the Contracting Officer may
cause the repairs to be made, and the cost thereof shall be paid
by the District as prescribed by the Contracting Officer.

(c) No substantial change shall be made by the District in any

of the major Project Irrigation Works without first obtaining
the written consent of the Contracting Officer.

(d) The District shall hold the United States, its officers,
agents, and employees harmless as to any and all damages
which may in any manner grow out of the care, operation, and
maintenance of any of the Project Irrigation Works.

(e) In the event the District is found to be operating the Project

Irrigation Works or any part thereof in violation of this con-
tract, then at the election of the Contracting Officer the United
States may take over from the District the care, operation, and
maintenance of such Project Irrigation Works by giving written
notice to the District of such election and of the effective date
thereof. Thereafter, during the period of operation by the Unit-
ed States, the District shall pay to the United States annually
in advance the cost of operation and maintenance of such
works as prescribed in notices from the Contracting Officer to
the District. Following written notification from the Contract-
ing Officer, the care, operation, and maintenance of such works
shall be transferred to the District.
 (f) In addition to all other payments to be made by the District
under this contract, the District shall pay to the United States
following the receipt of a detailed statement, the costs incurred
by the United States for work involved in the administration
and supervision of this contract.

As is required by 43 USC §498, Contract No. 0-07-10-W0242 incorporates as

a part of its Clause No. 24 that, “[T]itle to all works constructed under this
contract, together with the lands and interests specifically needed therefor,
shall be in and remain in the name of the United States until otherwise pro-
vided by the Congress.”

Plaintiff asserts that, commencing in March of 1991, representatives of the

United States Bureau of Reclamation (Bureau) asserted that the project cov-
ered by Contract No. 0-07-10-W0242 was “substantially complete” and began
to make assessments against OTID under the Repayment Contract. OTID
disputed that the project was substantially complete and refused to pay as-
sessments. Without submitting any claim to the Contracting Officer on Con-
tract No. 0-07-10-W0242, the instant suit was filed.

As noted previously, plaintiff’s complaint pleads entitlement to substantial

sums asserted to be required to carry out its contractual operating and
maintenance obligation for the project. These costs are alleged to stem from
the failure of the Bureau to develop and construct a system that can be oper-
ated and maintained within the repayment obligation established by congres-
sional authorization. Sums are sought by plaintiff to cover repairs asserted to
be needed and other items of required operation and maintenance activity.

Without pleading the existence of a Contracting Officer’s decision asserting

any claim against OTID, on February 15, 1995, defendant filed a counter-
claim containing two counts. In Count I, defendant pleads that it notified
OTID on October 18, 1990 that the work to be performed by defendant under
Contract No. 0-07-10-W0242 was substantially completed and that plaintiff’s
first payment, pursuant to its prepayment obligation, was due on June 15,
1991. Judgment is sought against OTID for $1,247,579.23, plus penalty and
interest, for accrued unpaid amounts. In Count II, defendant pleads entitle-
ment to $197,461.69, representing the asserted remaining unpaid construc-
tion charge owed by OTID for defendant’s work under the basic project Con-
tract No. 14-06-100-4442, dated December 26, 1964, as authorized by the Act
of October 9, 1962 quoted above.
A Pretrial Order was filed on January 31, 1995, requiring, among other
items, initial submissions by OTID identifying its proposed exhibits, witness-
es, and book and record entries to be used in support of claimed amounts. Al-
so, as the pleadings did not indicate compliance with the provisions of the
CDA, 41 USC §601 et seq., counsel were requested to file statements as to the
applicability of this legislation to the contract(s) at issue.

In statements, filed February 15, 1995, both parties have asserted that the
CDA does not apply to the contract(s) at issue although defendant asserted
its right to change its position at any stage in the litigation. By an unopposed
motion, filed February 27, 1995, OTID seeks an enlargement of one year in
the time set forth in the Pretrial Order, filed January 31, 1995, for its initial
pretrial submission. In support of its motion OTID states that:

The parties require an enlargement of time because this is a

complex case which will likely involve the discovery and review
of thousands of pages of documents located in the states of
Washington, Idaho, Colorado, and in other places where the de-
fendant maintains records pertaining to this project. This case
will also entail the depositions of a very substantial number of
witnesses who participated in designing, developing, negotiat-
ing, planning and constructing a project valued at nearly $100
million. Several of these witnesses may be difficult to locate be-
cause they have retired and/or moved to other jobs. An en-
largement of time may also promote settlement by allowing the
parties to negotiate before being pressed to complete all pretri-
al discovery.

Discussion

Plaintiff has not submitted its pleaded claims to the Contracting Officer on
Contract No. 0-07-10-W0242 for a decision(s). Defendant does not have a
Contracting Officer’s decision(s) on which to premise its pleaded counter-
claims. If the CDA is applicable to Contract No. 0-07-10-W0242, Contracting
Officer decisions are a jurisdictional prerequisite to litigation in this court.
Sharman Co., Inc. v. United States, 2 F.3d 1564, 1568 (Fed. Cir. 1993); Para-
gon Energy Corp. v. United States, 227 Ct.Cl. 176, 645 F.2d 966 (1981); Jo-
seph Morton Co., Inc. v. United States, 757 F.2d 1273, 1279 (Fed. Cir. 1985).

Thus, before proceeding with this complex litigation, it is necessary to resolve

the issue raised sua sponte as to the applicability of the CDA to Contract No.
0-07-10-W0242. Hambsch v. United States, 857 F.2d 763, 764 (Fed. Cir.
1988), cert. denied, 490 U.S. 1054, 109 S.Ct. 1969, 104 L.Ed.2d 437 (1989).
(“Nevertheless, we must determine jurisdiction for ourselves and, according-
ly, raise the issue sua sponte.”)

A. The Traditional Contract Disputes Procedure

There is a long tradition in federal government contracting of requiring the
submission of claims to the Contracting Officer before there can be resort to
litigation. From an early date this was accomplished by the insertion of a dis-
putes clause in government contracts. Anderson, The Disputes Article in Gov-
ernment Contracts, 44 Mich.L.Rev. 211 (1945); Kihlberg v. United States, 97
U.S. 398, 401, 24 L.Ed. 1106 (1878). Enforcing the disputes clause procedure,
the Supreme Court ruled:

But article 15 [the disputes clause] is something more than a

dead letter to be reviewed only at the convenience or discretion
of the contractor. It is a clear, unambiguous provision applica-
ble at all times and binding on all the parties to the contract.
No court is justified in disregarding its letter or spirit.

... It creates a mechanism whereby adjustments may be made

and errors corrected on an administrative level, thereby per-
mitting the Government to mitigate or avoid large damage
claims that might otherwise be created.

United States v. Holpuch Co., 328 U.S. 234, 239, 66 S.Ct. 1000, 1003, 90 L.Ed.
1192 (1946). See also United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288,
94 L.Ed. 256 (1950); United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154,
96 L.Ed. 113 (1951).

Dissatisfaction with the almost complete administrative finality afforded to

disputes clause decisions following the ruling in United States v. Wunderlich,
supra, led to the enactment of the Wunderlich Act, 41 USC §321-322. This
Act restored judicial review but was construed to require full exhaustion of
appellate administrative disputes clause remedies before litigation could be
initiated, except for claims where there was no relief available under a term
of the contract. United States v. Carlo Bianchi & Co. Inc., 373 U.S. 709, 83
S.Ct. 1409, 10 L.Ed.2d 652 (1963); United States v. Utah Construction & Min-
ing Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); United States v.
Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662
(1966).
Following an extensive examination, in 1972 the Commission on Government
Procurement submitted a Report containing a number of recommendations
with respect to improving government procurement. The Report consisted of
Parts A-J in four substantial volumes. It set forth recommendations on such
matters as the authorization of sole-source procurement in circumstances
where competition was not feasible. Report of the Commission on Govern-
ment Procurement, Vol. 1, Part A, Recommendation 6, p. 26. Part G of the
Report concerned “[L]egal and Administrative Remedies” and encompassed
several recommendations such as:

Recommendation 5. Empower contracting agencies to settle

and pay, and administrative forums to decide, all claims or dis-
putes arising under or growing out of or in connection with the
administration or performance of contracts entered into by the
United States.

******

Recommendation 6. Allow contractors direct access to the

Court of Claims and district courts.

Report of the Commission on Government Procurement, Vol. 4, Part G, pp.

22-23.

With respect to its Part G Recommendation No. 6, the Commission explained

that it “... would allow contractors, at their option, to bypass administrative
disputes-resolving forums and seek review of adverse contracting officer deci-
sions directly in either the Court of Claims or in a U.S. district court.” Ibid.

Following extensive congressional consideration, Public Law 95-563, 92 Stat.

2383, the Contract Disputes Act of 1978, was enacted on November 1, 1978
and codified as 41 USC §601 et seq. The CDA implemented, in part, several of
the recommendations set forth in Part G of the Report of the Commission on
government procurement. For contracts covered by the Act, all claims by a
contractor against the government had to be submitted to the Contracting
Officer for a decision, and all government claims against the contractor were
required to be the subject of a decision by the Contracting Officer. 41 USC
§605(a). Following a Contracting Officer’s decision, at the option of the con-
tractor, the CDA provided that the decision can be appealed to an agency
board of contract appeals or, alternatively, a direct access suit can be initiat-
ed in the Court of Claims (United States Court of Federal Claims). 41 USC
§606, 609(a)(1). The Commission on Government Procurement’s recommen-
dation for district court access was rejected. Instead, Section 14(a) of the
CDA, 92 Stat. 2389, amended 28 USC §1346(a) to rescind district court juris-
diction over contract claims subject to the CDA.1

With the enactment of the CDA, the administrative disputes resolution pro-
cess was no longer premised on the existence of a “disputes clause” in the
contract, but the Act still permitted an agency to include a contract clause
providing that, pending a final decision on an appeal, action, or final settle-
ment, a contractor was required to proceed with the performance of the con-
tract in accordance with the Contracting Officer’s decision. 41 USC §605(b).

Accordingly, it can be seen that one constant which has been retained
throughout the various changes which have occurred over the years in the
disputes resolution process for government contracts is the submission of a
contractor’s claim to the Contracting Officer prior to the initiation of litiga-
tion. For contracts covered by the CDA, Congress placed additional signifi-
cance on the submission of a claim to the Contracting Officer by adding a cer-
tification requirement. 41 USC §605(c)(1). This was intended to discourage
the submission of unwarranted contractor claims and to encourage settle-
ments. Paul E. Lehman, Inc. v. United States, 230 Ct.Cl. 11, 14, 673 F.2d 352,
354 (1982).2

1 S.Rep. No. 95-1118, 95th Cong., 2d Sess. 10, reprinted in 1978 U.S. Code Cong. & Ad-
min.News, 5235, 5244 explains this repeal of district court jurisdiction as follows:

Section 10(a) [of the CDA] is amended by allowing contractors with suits
against the Government ... to bring direct action only in the Court of Claims.
U[nited] S[tates] district court jurisdiction is eliminated from Government
contract claims. The committees believe that only one court jurisdiction is
needed to handle direct actions and that court should be the Court of Claims
which historically has been the court of greatest expertise in Government
contract claims.... This obviates the need for localized district courts to hear
cases.
2 The requirement for an initial administrative claim submission so that a government
agency has the opportunity to correct errors and resolve disputes to avoid costly and time
consuming litigation is also applicable in another major area of Court of Federal Claims
jurisdiction — tax refund matters. 26 USC §7422(a); Disabled American Veterans v. Unit-
ed States, 227 Ct.Cl. 474, 650 F.2d 1178 (1981). These procedures are in accord with the
general rule of long standing that, to promote judicial efficiency, parties must exhaust pre-
scribed administrative remedies before seeking relief from a federal court. See Myers v.
Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, and n. 9, 58 S.Ct. 459, 463-464, and n.
9, 82 L.Ed. 638 (1938); McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d
194 (1969).
B. CDA Applicability
Section 3 of the CDA provides as follow (in part):

§602 Applicability of law

(a) Executive agency contracts

Unless otherwise specifically provided herein, this chapter ap-

plies to any express or implied contract ... entered into by an
executive agency for —

(1) the procurement of property, other than real property

in being;

(2) the procurement of services;

(3) the procurement of construction, alteration, repair or

maintenance of real property; or,

(4) the disposal of personal property.

41 USC §602(a).

It has been ruled that the CDA is not applicable to all government contracts.
G.E. Boggs & Associates, Inc. v. Roskens, 969 F.2d 1023, 1026 (Fed. Cir.
1992).

Contracts not awarded by an executive agency, are not covered by the CDA.
Tatelbaum v. United States, 749 F.2d 729, 730 (Fed. Cir. 1984). The Depart-
ment of the Interior is an executive agency. 43 USC §1451.

Contract No. 0-07-10-W0242 was executed after the effective date of the CDA
so that a coverage election by OTID is not required. See Joseph Morton Co.,
Inc. v. United States, 757 F.2d 1273, 1279 (Fed. Cir. 1985).

Both parties assert that Contract No. 0-07-10-W0242 does not provide for the
procurement of property, other than real property in being. A “procurement”
is an acquisition by purchase, lease, or barter, of property or services for the
direct benefit or use of the federal government. Bonneville Associates v. Unit-
ed States, 43 F.3d 649, 653 (Fed. Cir. 1994). An examination of Contract No.
0-07-10-W0242 does not disclose any term which comprises a procurement of
property by the United States.
The parties also assert that Contract No. 0-07-10-W0242 does not involve the
procurement of services. In its statement, filed February 15, 1995, OTID
states that, “[C]ertainly, the Bureau is not purchasing any service from
OTID,....” However, as quoted above, the Acts of October 9, 1962 and Septem-
ber 28, 1976, authorized the Secretary of the Interior to construct, operate
and maintain the project unit in question to supply irrigation. As required by
43 USC §498, Contract No. 0-07-10-W0242 provides that ownership of the
project is retained by the United States. This contract also requires that the
works after construction by the government, be operated and maintained by
OTID at OTID’s expense. OTID is thus required by Contract No. 0-07-10-
W0242 to carry out the obligation placed by Congress on the Secretary of the
Interior to operate and maintain the project in question. If OTID does not
make all repairs to the works necessary for proper care, operation and
maintenance, Contract No. 0-07-10-W0242 (clause 18(b)) provides that the
Contracting Officer may cause the repairs to be made with the cost to be paid
by OTID. Clearly by the contract in question, the government has procured
the services of OTID to operate and maintain a government-owned facility.
This is a procurement of services. In fact, regulations implementing the Ser-
vice Contract Act of 1965, 41 USC §351-357, list typical “services” for which
the government contracts, including, “[O]peration, maintenance or logistic
support of a Federal facility.” 29 CFR §4.130(a)(38). See Menlo Service Corp.
v. United States, 765 F.2d 805, 808 (9th Cir. 1985).

Plaintiff’s claims pleaded in this matter directly relate to its obligation under
Contract No. 0-07-10-W0242 to operate and maintain the government-owned
project. OTID seeks to recover repair costs and a substantial overrun in its
costs to perform the operation and maintenance service required by the con-
tract.

Both parties assert that Contract No. 0-07-10-W0242 does not involve the
procurement of construction, alteration, repair or maintenance of real proper-
ty. However, the contract (clause 18(a)) does require OTID to maintain and
repair a government-owned facility. Plaintiff’s pleaded claims all relate to its
contractual obligation to operate, maintain and repair the government-owned
facility.

Both parties assert that Contract No. 0-07-10-W0242 does not involve the
disposal of personal property. Unless the government’s obligation under the
contract to sell electric power to OTID for the operation of the works consti-
tutes a disposal of personal property, a matter not briefed, the contract does
not otherwise provide for such disposal of personal property by the govern-
ment.

Accordingly, it is concluded that Contract No. 0-07-10-W0242 does constitute

a contract entered into by an executive agency for the procurement of services
and for the procurement of the repair or maintenance of real property. As
such, the contract fits within the categories set forth in 41 USC §602(a).
Bonneville Associates v. United States, supra. However, OTID asserts that
the United States Court of Appeals for the Federal Circuit has ruled that cer-
tain contracts, arguably within the categories listed in 41 USC §602(a), are
not covered by the CDA, when the purpose for the Act is considered. Plaintiff
argues that Contract No. 0-07-10-W0242 is similar to the contracts ruled not
covered by the CDA in: G.E. Boggs & Associates, Inc. v. Roskens, supra; New
Era Constr. v. United States, 890 F.2d 1152 (Fed. Cir. 1989); and Pasteur v.
United States, 814 F.2d 624 (Fed. Cir. 1987).

Contract No. 0-07-10-W0242 bears no similarity to the contract between G.E.

Boggs & Associates, Inc., and the Government of the Syrian Arab Republic
which was adopted by the United States for termination purposes pursuant
to legislative authorization. G.E. Boggs & Associates, Inc. v. Roskens, 969
F.2d at 1027. The contract involved in the instant litigation required the gov-
ernment to expend substantial appropriated funds and provides that plaintiff
operate and maintain the resulting government-owned facility for many
years.

In New Era Constr. v. United States, supra, CDA coverage was denied be-
cause there existed no direct contractual relationship between the govern-
ment and the contractor. In the instant case a direct contractual relationship
exists.

In Pasteur v. United States, supra, which involved a transfer of virus samples

from the Institute Pasteur to the National Cancer Institute, the court ruled
that the transaction “... was closer to being donative in nature than it was to
the contracts for procurement of property or services which Congress con-
templated including within the scope of the Contract Disputes Act.” 814 F.2d
at 628. The absence of competition in the virus transfer transaction also was
a factor in the court’s ruling. 814 F.2d at 627. In this regard, the court cited
the legislation establishing the Commission on Government Procurement
which was created by Congress to submit recommendations concerning the
acquisition of goods, services and facilities “... of the requisite quality and
within the time needed at the lowest reasonable cost, utilizing competitive
bidding to the maximum extent practicable....” 814 F.2d at 627 (quoting
Pub.L. No. 91-129, §1, 83 Stat. 269, as amended by Pub.L. No. 92-47, 85 Stat.
102).

As noted previously, the part of the Report of the Commission on Government

Procurement which was implemented by the CDA (Recommendations Nos. 5-
7, 9, 11, 12 of Part G, Vol. 4), was not concerned with the competitive or non-
competitive process of contract awards. Rather, Part G of the Report ad-
dressed a uniform procedure for resolving disputes arising under government
contracts, however awarded. Recommendations in Part A, Vol. 1 of the Report
of the Commission on Government Procurement concerning competition in
awarding contracts do not concern the disputes resolution process for matters
arising after award. Report of the Commission on Government Procurement,
Vol 1, Appendix H (List of Recommendations — Parts A-J).

Accordingly, while it is certainly logical that “[T]he way potential contractors

view the disputes — resolving system influences how, whatever, and at what
prices they compete for Government contract business,” this does not support
a conclusion that Congress did not intend the CDA to be applicable to all con-
tracts within the categories set forth in 41 USC §602(a).3 See Pasteur, supra,
814 F.2d at 627 (citing S.Rep. No. 1118, 95th Cong.2d Sess. (1978), reprinted
in 1978 U.S.Code Cong. & Admin.News, 5235, 5238).

The procurement regulations provide authority for the award of contracts

where there is other than full and open competition (48 CFR §6.300) and set
forth no indication that this is a factor with respect to CDA coverage. Cir-
cumstances exist where there is only one logical source to supply a product or
service to the government, and the CDA is still applicable if a contract is
awarded to such a source. See City of Tacoma, Department of Public Utilities
v. United States, 31 F.3d 1130 (Fed. Cir. 1994).

3 For example, absent CDA coverage, a contractor can usually not recover interest on a
claim. Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986);
Cedar Chemical Corp. v. United States, 18 Cl.Ct. 25, 32 (1989). Recommendation No. 11,
Part G, Vol. 4 of the Report of the Commission on Government Procurement that the gov-
ernment “[P]ay interest on claims awarded by administrative and judicial forums”, was
implemented in Section 12 of the CDA, 41 USC §611. A contract not subject to the CDA
would thus be viewed less favorably by a contractor concerned with the disputes resolution
process, because interest could not be recovered. This would be detrimental to competition.
If competition in government procurement is the policy to be encouraged, an all inclusive
approach with respect to CDA coverage of contracts within the categories set forth in 41
USC §602(a) is thus more consistent with Congressional intent.
In any event, Contract No. 0-07-10-W0242 bears no similarity to the “dona-
tive” virus transmittal transaction involved in the Pasteur case. No policy
reason has been cited for excluding the contract at issue from CDA coverage.

Absent CDA coverage, there exists no requirement for submission of OTID’s

claims to the Contracting Officer for a decision prior to initiating litigation.
OTID indicates that a reason for its one-year time enlargement request for its
initial pretrial submission, is the prospect of settlement. The CDA claim
submission process together with the requirement for claim certification was
intended by Congress to promote settlement. Paul E. Lehman, Inc. v. United
States, supra. As discussed previously in Section A, there is a tradition of
long standing for claims to be submitted to Contracting Officers before litiga-
tion is initiated. This promotes judicial efficiency in that the claim is substan-
tially developed before litigation is commenced, rather than consuming ex-
tended court time in this process such as plaintiff’s requested one-year time
enlargement.4 Prior claim submission also enables agencies and contractors
to avoid litigation in the many instances where a complete presentation to
the Contracting Officer will result in its resolution.

Accordingly, if CDA coverage of contracts within the categories set forth in 41

USC §602(a) also depends upon the application of established policy consid-
erations, these considerations firmly support application of the CDA to Con-
tract No. 0-07-10-W0242.

Conclusion

As the CDA is applicable to Contract No. 0-07-10-W0242, and it is admitted

by the parties that the Contracting Officer decisions required as a jurisdic-
tional prerequisite to a suit or counterclaim in this court have not been ob-
tained, this litigation cannot proceed.5 Also, as there exists no jurisdiction

4 To the extent that a contractor requires government documents in order to prepare its
claim for submission to the Contracting Officer, and the documents are not voluntarily
produced by the government, the expansive provisions of the Freedom of Information Act,
5 USC §552, are available to compel disclosure. See Grumman Aerospace Corp. v. United
States, 217 Ct.Cl. 285, 304, 579 F.2d 586, 595 (1978); National Presto Industries, Inc. v.
United States, 218 Ct.Cl. 696, 1978 WL 8475 (1978).
5 Given CDA applicability to Contract No. 0-07-10-W0242, the United States Court of Fed-
eral Claims would have exclusive jurisdiction over any direct access action brought on a
claim under this contract pursuant to 41 USC §609(a)(1), after compliance with the proce-
dures mandated by 41 USC §605. This is because United States district courts do not have
jurisdiction over contract claims against the United States exceeding $10,000, 28 USC
§1346(a)(2), and jurisdiction over CDA contract claims against the United States not ex-
over plaintiff’s pleaded claims, jurisdiction over the counterclaim filed by de-
fendant falls in any event. Somali Development Bank v. United States, 205
Ct.Cl. 741, 752, 508 F.2d 817, 822 (1974).

Accordingly, it is ORDERED that final judgment be entered dismissing the

complaint and counterclaim in this matter, without prejudice, as no claim
within the jurisdiction of this court has been pleaded. No costs shall be as-
sessed.

ceeding $10,000 was repealed by Section 14(a) of the CDA, 92 Stat. 2389, codified in 28
USC §1346(a)(2). Congress has waived sovereign immunity to give consent “... to join the
United States as a necessary party defendant in any suit to adjudicate, confirm, validate,
or decree the contractual rights of a contracting entity and the United States regarding
any contract executed pursuant to Federal reclamation law.” 43 USC §390uu. It is provid-
ed that, “[A]ny suit pursuant to this section may be brought in any United States district
court in the State in which the land involved is situated.” Id. This legislation has been
held to waive sovereign immunity for suits on a reclamation law contract against the
United States in a district court, when declaratory or equitable relief not comprising a
CDA claim is sought. See Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 673 (9th
Cir. 1993). However, the comprehensiveness and exclusivity of the CDA and the silence of
43 USC §390uu with respect to CDA claims, suggest that the later provision did not sup-
plant the former. See Cecile Industries, Inc. v. Cheney, 995 F.2d 1052, 1056 (Fed. Cir.
1993) (Subsequently enacted Debt Collection Act of 1982, 31 USC §3716, did not supplant
or restrict CDA procedures); Sharman Co., Inc. v. United States, 2 F.3d 1564, 1568, n. 6
(Fed. Cir. 1993); Richland-Lexington Airport v. Atlas Properties, 854 F.Supp. 400, 415-17
(D.So.Car. 1994); but see Sumner Peck Ranch, Inc. v. Bureau of Reclamation, 823 F.Supp.
715, 747 (E.D.Cal. 1993) (CDA applicability not considered). In any event, in the absence
of a decision(s) by the Contracting Officer on Contract No. 0-07-10-W0242, this court lacks
jurisdiction to proceed with the instant litigation. Sharman Co., Inc. v. United States, id.
at 1568; Paragon Energy Corp. v. United States, 227 Ct.Cl. 176, 645 F.2d 966 (1981).
 Rapid Movers & Forwarders

98-1 BCA ¶29339

October 14, 1997

Appearance for the Appellant: Luis A. Paredes, Esq.; Abaya & Associates
Law Offices; Manila, Philippines. Appearances for the Government: COL Mi-
chael J. Hoover, USAF, Chief Trial Attorney; LT COL Samuel J. Roser,
USAF, Trial Attorney.

Opinion by Administrative Judge James on Respondent’s Motion to

Dismiss for Lack of Jurisdiction

On 2 April 1997 respondent moved to dismiss the captioned appeal alleging

that the Board lacks jurisdiction to entertain such appeal because appellant
took no appeal from the contracting officer’s July 1996 final decision denying
the appellant’s 4 March 1996 “claim.” Despite repeated requests from the
Board, the appellant did not respond to the motion.

Statement of Facts

On 29 July 1988 the parties entered into contract F64719-88-D-0005 (con-

tract 5), a requirements type contract for transporting, loading, unloading
and storing Government-owned cargo at Clark Air Base in the Philippines
(R4, tab 1).

On 1 April 1992 the contracting officer terminated contract 5 in its entirety

for the convenience of the Government, effective 1 December 1991 (R4, tab 1).

On 14 February 1992 appellant submitted a final settlement proposal for

$552,983.54 on Standard Form 1436. Appellant’s General Manager, Nicanor
E. Jao, Jr., certified the proposal both on the Standard Form 1436 and, sepa-
rately, with the language then required by the Contract Disputes Act (CDA).
(R4, tab 3)

From 14 February 1992 to September 1993 the parties discussed and negoti-
ated appellant’s settlement proposal, but did not reach agreement (R4, tabs
4-14). Appellant’s 25 September 1993 letter to the contracting officer submit-
ted a revised termination settlement proposal for $125,121.70, with no
Standard Form 1436 or certification (R4, tab 15). Having reached no agree-
ment on the $125,121.70 termination settlement proposal, appellant’s 5 May
1994 letter to the contracting officer requested a “final determination” there-
on (R4, tab 19). The contracting officer’s 15 September 1994 final decision de-
nied appellant’s $125,121.70 termination settlement claim in its entirety (R4,
tab 20). On 13 December 1994 appellant sent notice of appeal of the foregoing
final decision to the ASBCA, stating that it had received the foregoing final
decision in “October 1994,” which appeal the Board docketed as ASBCA No.
48194.

Following a 27 February 1996 conference call among the parties and the
Board regarding the Board’s jurisdiction over ASBCA No. 48194 (motion, exh.
1), on 4 March 1996 appellant, as a protective measure, resubmitted its
$125,121.70 termination cost claim to the contracting officer with a “Claim
Certification” worded much the same as its February 1992 CDA certification
(motion, exh. 2). On 19 July 1996 the contracting officer issued another final
decision, again denying appellant’s termination claim in its entirety, which
decision appellant received on 1 August 1996 (motion, exh. 3). Appellant filed
no notice of appeal to the ASBCA from that 1996 final decision.

Movant’s Position

Movant argues that: (1) the Board lacks jurisdiction over ASBCA No. 48194
because appellant never appealed from the contracting officer’s 19 July 1996
final decision denying its 4 March 1996 claim resubmission; (2) appellant’s 25
September 1993 “Revised Termination Settlement Claim” superseded its
1992 termination cost submission and included no certification; (3) appel-
lant’s February 1992 termination settlement proposal, “although properly
certified,” did not ripen into a CDA claim; (4) appellant submitted no proof
that Nicanor E. Jao, Jr., appellant’s general manager, was either a senior
company official in charge at the contractor’s plant or an officer or general
partner having overall responsibility for the conduct of appellant’s affairs;
and (5) the contracting officer’s 15 September 1994 final decision on appel-
lant’s uncertified, 25 September 1993, revised termination settlement pro-
posal was issued erroneously.

Decision

We must decide whether appellant’s 14 February 1992 settlement proposal

ripened into a CDA claim over which this Board has jurisdiction. In Ellett
Const. Co. Inc. v. United States, 93 F.3d 1537 (Fed. Cir. 1996), Ellett submit-
ted a termination settlement proposal for $494,826 on Standard Form 1436
with a certification similar to a CDA certification. Negotiations between the
parties reached an impasse. On 12 January 1990 Ellett requested the con-
tracting officer to determine the amount of the termination costs. Between
March and June 1990 the parties rejected offers and counteroffers of
$120,649 (Government) and $250,000 (contractor). On 25 June 1990 the con-
tracting officer unilaterally determined $22,779.01 in termination costs pur-
suant to the FAR 52.249-2 convenience termination clause, which determina-
tion apparently was sent to the contractor. On 13 July 1990 the contractor
filed suit in the Court of Federal Claims. The court held that the termination
settlement proposal had ripened into a claim which the contracting officer
settled by determination.

Here, after submission of its initial, certified, termination settlement pro-

posal, Rapid submitted an uncertified, revised proposal in September 1993. A
contractor’s submission of uncertified revisions to its originally certified ter-
mination cost settlement claim does not preclude this Board from applying
the rule in Ellett. Mid-America Engineering and Manufacturing, ASBCA No.
48831, 96-2 BCA ¶28,558 at 142,584 (finding 13) and 142,585. As a protective
measure, in March 1996, while the ASBCA litigation was pending, Rapid re-
submitted a revised, certified, termination proposal, and did not appeal the
denial by the contracting officer’s final decision. Since under the court’s rul-
ing in Ellett a second appeal was unnecessary, we hold that appellant’s 14
February 1992 submission ripened into a valid CDA claim over which this
Board had and has jurisdiction.

On 29 October 1992 the Congress enacted Public Law 102-572, which, inter
alia amended the Contract Disputes Act of 1978. Section 907(a)(1)(B) thereof
provided that a defect in the certification of a claim shall not deprive an
agency board of contract appeals of jurisdiction over that claim. Section
907(a)(2) thereof provided that such amendment was effective with respect to
all claims filed before, on, or after the date of enactment of that amendment.
Therefore, if appellant’s 14 February 1992 certification by Nicanor E. Jao, Jr.
was not authorized or another official of appellant was required to sign that
certification, such correction can be made pursuant to PL 102-572. FAR
33.201; Loral Fairchild Corp., ASBCA No. 45719, 95-1 BCA ¶27,425 at
136,682 (defective misdated 21 April 1992 certification correctable under PL
102-572 after 11 January 1995).

We deny the motion to dismiss.

DAVID W. JAMES, JR.

Administrative Judge
We concur
ALAN M. SPECTOR
Administrative Judge, Acting Chairman

MARK N. STEMPLER
Administrative Judge, Vice Chairman
 Red Gold
v.
Department of Agriculture

2011 WL 2731759
July 6, 2011

Anson Keller of Olsson Frank Weeda Terman Bode Matz, PC, Washington,
DC, counsel for Appellant. Michael Gurwitz, Office of the General Counsel,
Department of Agriculture, Washington, DC, counsel for Respondent.

Before Board Judges Daniels (Chairman), Goodman, and Sheridan.

Sheridan, Board Judge.

This appeal arises out of a contract, awarded to Red Gold, Inc. (Red Gold) by
the Department of Agriculture (USDA), to provide cans of salsa for use in
child nutrition and other domestic food assistance programs. The correspond-
ence Red Gold submitted to the USDA about this matter does not rise to the
level of a proper claim. Moreover, there was no certification language con-
tained in the correspondence. Without a proper and certified claim submitted
to the contracting officer for a final decision, the Board is without jurisdiction
to decide this appeal. This appeal is therefore dismissed for lack of jurisdic-
tion.

Background

On March 3, 2010, USDA issued an invitation for bid (IFB) for canned vege-
tables, including salsa, for use in child nutrition and other domestic food as-
sistance programs. In response to that invitation, Red Gold bid on 97,584
cases of #10 size cans of salsa, packed six cans to a case. The bid included not
only the cost of the product but also the cost of shipment to the various recip-
ients. Red Gold won 92% of the total contracts in the IFB and was awarded
contract 120205348 on April 14, 2010. The contract required Red Gold to
begin delivery of the canned salsa to the various recipients by August 16,
2010, and continue through November 15, 2010. Red Gold began production
in July and early August to meet the shipment commencement dates.

On September 24, 2010, Red Gold determined that it had made a mistake in
its bid and notified the contracting officer at USDA, explaining that its fi-
nance/auditing department had determined that a clerical error was made
when a Red Gold employee “used the FOB [freight on board] price for the
6/#10 low sodium tomato sauce in error” instead of [the price] for salsa. Red
Gold also requested that USDA engage in discussions of possible remedies.

In a reply e-mail message sent the same day, the contracting officer asked for
a formal letter with an explanation of the alleged mistakes and supporting
documentation. Red Gold sent an explanation of the mistake, with supporting
documents, to the contracting officer on September 28. The documents in-
cluded, among other things, a breakdown of the bids Red Gold submitted
with corrections in pencil, an explanation of the error, and a request for a
remedy that would “at least” cover variable costs of “approximately $3.63 per
case.”

The contracting officer confirmed receipt of the documents on September 29,

2010, and asked for more information because she still could not “determine
the mistake because the amount written on the invitation (in pencil) is the
same amount that [Red Gold] submitted.” Red Gold explained that as to the
salsa, an employee mistakenly used the FOB price of $10.80 per case (the
correct price for low sodium tomato sauce), instead of the FOB price of $16.90
(for salsa) — a difference of $6.10. Red Gold clarified that it did not expect to
recover the full amount, but hoped for a “remedy price” that would “at least”
cover its variable costs of $3.63 per case, and indicated that it could provide
further explanations over a conference call.

A few days later, the contracting officer requested additional information for
each line item, to which Red Gold responded with an attachment that dis-
played an internal worksheet with the “intended prices” for its bid. On Octo-
ber 8, 2010, the contracting officer acknowledged to Red Gold that there were
“alleged mistakes in bids submitted by Red Gold,” but emphasized that
USDA could not accept the higher intended prices, especially since Red Gold
would not have been awarded the contract had it used those prices in its bids.
She further stated that USDA would cancel the remaining unshipped loads,
but pay Red Gold for the shipped products at the stipulated contract prices.
That same day, Red Gold responded by reiterating its “hope to settle at a
price that at least covers ... material costs, [if not] total variable costs.” How-
ever, on October 13, the contracting officer communicated that USDA was not
authorized by law to adjust the bid price upward, and that this constituted
her “final decision” on the matter.
Consequently, Red Gold filed an appeal of the contracting officer’s decision on
January 7, 2011, seeking to “amend the bid prices on the shipped cases as to
recover its costs,” in the amount of $240,000.

Discussion

The Contract Disputes Act of 1978 (CDA), 41 USC §§7101-7109 (previously

41 USC §§601-613 (2006)), provides that “each claim by a contractor against
the Federal Government relating to a contract [shall be in writing and] shall
be submitted to the contracting officer for a decision.” Id. §7103(a)(1). The
Federal Acquisition Regulation (FAR) defines “claim” as “a written demand
or written assertion by one of the contracting parties seeking, as a matter of
right, the payment in a sum certain, the adjustment or interpretation of con-
tract terms, or other relief arising under or relating to this contract.” 48 CFR
52.233-1(c) (2009). Interpreting the CDA and FAR, the Federal Circuit has
established that for jurisdictional purposes, a CDA claim exists for a nonrou-
tine contract adjustment if there is: (1) a written demand, (2) seeking, as a
matter of right, (3) the payment of money in a sum certain. Reflectone, Inc. v.
Dalton, 60 F.3d 1572, 1575 (Fed.Cir. 1995) (en banc). To comply with the sum
certain requirement of a valid claim, amounts must be stated with some spec-
ificity. G & R Service Co. v. General Services Administration, CBCA 1876, 10-
2 BCA ¶34,506 (a “not to exceed” amount is undefined and does not qualify as
a sum certain); Sandoval Plumbing Repair, Inc., ASBCA 54640, 05-2 BCA
¶33,072 (modifying phrases like “no less than” do not qualify as a sum cer-
tain).

While no particular wording is required for a claim, it must contain “a clear

and unequivocal statement that gives the contracting officer adequate notice
of the basis and amount of the claim.” Contract Cleaning Maintenance, Inc. v.
United States, 811 F.2d 586, 592 (Fed.Cir. 1987). Additionally, the claim
must indicate to the contracting officer that the contractor is requesting a fi-
nal decision. See Mingus Constructors, Inc. v. United States, 812 F.2d 1387
(Fed.Cir. 1987); James M. Ellett Construction Co. v. United States, 93 F.3d
1537, 1543 (Fed.Cir. 1996). The request may be either explicit or implicit, so
long as what the contractor desires by its submissions is a final decision. Id.
To make this determination, the Board looks at the totality of the corre-
spondence, including the submissions and the circumstances surrounding
them. See EBS/PPG Contracting v. Department of Justice, CBCA 1295, 09-2
BCA ¶34,208; Guardian Environmental Services, Inc. v. Environmental Pro-
tection Agency, CBCA 994, 08-2 BCA ¶33,938. The intent of the communica-
tion governs, and a common sense analysis must be used to determine
whether the contractor communicated his desire for a contracting officer’s de-
cision. Guardian Environmental Services, Inc., 08-2 BCA at 167,946.

The CDA also requires that:

For claims of more than $100,000 made by a contractor, the

contractor shall certify that —

(A) the claim is made in good faith;

(B) the supporting data are accurate and complete to the

best of the contractor’s knowledge and belief;

(C) the amount requested accurately reflects the contract

adjustment for which the contractor believes the Federal
Government is liable; and

(D) the certifier is authorized to certify the claim on behalf

of the contractor.

41 USC §7103(b)(1) (previously 41 USC §605(c)(1) (2006)); see also 48 CFR

33.207(c). Certification of a claim of more than $100,000 is not only a statuto-
ry requirement, but also a jurisdictional prerequisite for review of a contract-
ing officer’s decision before this Board. Fidelity Construction Co. v. United
States, 700 F.2d 1379, 1384 (Fed.Cir. 1983); see also W.M. Schlosser Co. v.
United States, 705 F.2d 1336 (Fed.Cir. 1983); Essex Electro Engineers, Inc. v.
United States, 702 F.2d 998 (Fed. Cir. 1983). Thus, lack of proper certification
deprives this Board of jurisdiction over this appeal. See B & M Cillessen Con-
struction Co. v. Department of Health and Human Services, CBCA 931, 08-1
BCA ¶33,753 (2007); V.I.C. Enterprises, Inc. v. Department of Veterans Af-
fairs, CBCA 1089, 09-2 BCA ¶34,205; K Satellite v. Department of Agricul-
ture, CBCA 14, 07-1 BCA ¶33,547. Furthermore, certification after an appeal
has been filed has no legal bearing on the Board’s jurisdiction and cannot
serve to cure a lack of jurisdiction. B & M Cillessen Construction Co., 08-1
BCA at 167,083.

Upon receipt of a proper and certified claim over $100,000, the contracting
officer must within sixty days issue a decision or notify the contractor of the
time within which a decision will be issued. 41 USC §7103(f)(2) (previously 41
USC §605(c)(2) (2006)). Only after these jurisdictional prerequisites have
been met can this Board review a contractor’s appeal. See England v. Sher-
man R. Smoot Corp., 388 F.3d 844, 852 (Fed.Cir. 2004).
Once sufficient facts are presented which bring into question the jurisdiction
of the Board to hear the dispute, it is incumbent upon appellant to come for-
ward with evidence establishing jurisdiction. Appellant bears the burden of
establishing subject matter jurisdiction by a preponderance of the evidence.
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reyn-
olds v. Army and Air Force Exchange Service, 846 F.2d 746, 748 (Fed.Cir.
1988).

We reviewed the facts of this case in the context of the aforementioned statu-
tory and regulatory framework and case law. We conclude that the Board is
without subject matter jurisdiction to decide the appeal. Reviewed together,
Red Gold’s correspondence does not rise to the level of a claim. Red Gold’s ini-
tial e-mail message to USDA on September 24, 2010, concerning the mistake
in bid, only briefly explained the error and requested further discussions to
explore possible remedies. The letter to the contracting officer, while includ-
ing a breakdown of the bids, an explanation of the error, and a request for a
remedy that would “at least” cover variable costs of “approximately $3.63 per
case,” contained no express request that the contracting officer make a final
decision. The e-mail messages that followed between Red Gold and the con-
tracting officer suggest no specific sum, and the repeated requests to further
discuss the matter indicate to us that it was Red Gold’s intent to continue to
engage in negotiations, as opposed to submitting a claim. That Red Gold did
not include a particular sum in any of its e-mail messages and simply re-
quested a figure that would cover its “variable costs” reinforces our conclusion
that Red Gold never requested payment of a “sum certain” from the contract-
ing officer.

We also note that none of Red Gold’s correspondence to the contracting officer
contained the required certification language to claim over $100,000. Red
Gold’s notice of appeal to this Board requested relief in the sum of $240,000.
This appears to be the first time Red Gold mentioned a definite sum in its
correspondence concerning this matter. As noted above, claims over $100,000
require certification. The lack of certification deprives the Board of jurisdic-
tion. Without a valid claim, the contracting officer’s “final decision” on Octo-
ber 13, 2010, cannot confer jurisdiction on the Board. Whiteriver Construc-
tion, Inc. v. Department of the Interior, CBCA 2045, 10-2 BCA ¶34,582. As the
Court of Appeals for the Federal Circuit has stated: “Unless the contractor
has submitted a properly certified claim to the contracting officer, there is no
valid claim, the denial of which is an appealable decision of the contracting
officer.” Ball, Ball & Brosamer, Inc. v. United States, 878 F.2d 1426, 1428
(Fed.Cir. 1989).

Red Gold’s right to pursue its claim remains in force so long as it follows the
prescribed rules for invoking our jurisdiction. To proceed in this matter, Red
Gold should submit a proper claim to the contracting officer, and if that claim
is over $100,000, provide certification. The contractor should await a final
decision on that claim. If the contracting officer does not render a timely deci-
sion, or Red Gold is unwilling to accept the decision, it is free to exercise its
right of appeal to this Board.

Decision

This appeal is DISMISSED FOR LACK OF JURISDICTION.

 Reflectone
v.
Dalton

60 F.3d 1572
July 26, 1995

Opinion for the court filed by Circuit Judge MICHEL. Concurring

opinion filed by Circuit Judge NIES.

MICHEL, Circuit Judge.

Reflectone, Inc. (Reflectone) appeals from the decision of the Armed Services
Board of Contract Appeals (Board) dismissing Reflectone’s appeal for lack of
subject matter jurisdiction. Reflectone, Inc., ASBCA No. 43081, 93-1 BCA
¶25,512, 1992 WL 302847 (1992). The Board held that Reflectone had not
submitted a “claim” within the meaning of the Contract Disputes Act of 1978
(CDA), 41 USC §§601-13 (1988 & Supp. V 1993), as interpreted in the Feder-
al Acquisition Regulation (FAR), because a dispute over the amount of money
Reflectone asserted it was owed did not predate Reflectone’s June 1, 1990 Re-
quest for Equitable Adjustment (REA), the purported claim. Board jurisdic-
tion is grounded in the CDA which authorizes Board review only of a con-
tracting officer’s final decision on a “claim.” The CDA, however, does not
define “claim.” Because we conclude that FAR 33.201 (1988), which alone de-
fines “claim” for purposes of the CDA, does not require a pre-existing dispute
as to either amount or liability when, as here, a contractor submits a non-
routine “written demand ... seeking, as a matter of right, the payment of
money in a sum certain,” FAR 33.201, we hold that Reflectone’s REA was a
CDA “claim” and, therefore, the Board has jurisdiction. Accordingly, we re-
verse the dismissal and remand for adjudication of Reflectone’s appeal from
the contracting officer’s decision on its merits.

Background

On April 15, 1988, Reflectone entered into a $4,573,559 fixed price contract
with the Naval Training Systems Center in Orlando, Florida, requiring Re-
flectone to update helicopter weapon system trainers. The contract called for
delivery of the first trainer on February 15, 1989, with the other three train-
ers to follow at three-month intervals. In a letter dated December 14, 1988,
Reflectone advised the contracting officer (CO) that delivery of certain
equipment was being delayed by late, unavailable or defective government-
furnished property. In response, the Navy denied responsibility for the delay
and issued a cure notice warning Reflectone that unless the condition endan-
gering timely delivery of the equipment was eliminated within thirty days,
the Navy might terminate the contract for default.

On January 17, 1989, Reflectone again wrote the CO that the delays were the
fault of the government and requested an extension of the contract delivery
schedule. Subsequently, the Navy modified two of the original four delivery
dates but reserved its right to seek additional compensation for delay. After
Reflectone advised the Navy that it would be unable to meet even the extend-
ed delivery dates due to faulty government-furnished property, the CO indi-
cated on May 5, 1989, that Reflectone was delinquent on the contract and
that the Navy would seek compensation for the delay. Between May 1989 and
April 1990, the contract delivery schedule was modified at least three more
times and each time the Navy reserved the right to make a claim against Re-
flectone for delay. In response, Reflectone continued to inform the Navy that
it considered the government to have caused all delays and that it would
claim relief once the full economic impact of the delay was known. On June 1,
1990, Reflectone submitted an REA to the CO demanding $266,840 for costs
related to government-caused delay with respect to twenty-one enumerated
items. Reflectone’s President and CEO certified the REA and requested a de-
cision from the CO. In the initial review of the REA, completed on January
15, 1991, the CO denied sixteen of the twenty-one items in their entirety, es-
timated entitlement in the remaining five items at $17,662, and advised Re-
flectone that a counterclaim and set-off, exceeding the amount requested by
Reflectone, was being prepared.1 On March 19, 1991, the CO rendered a final
decision indicating that the government’s position remained the same and
advising Reflectone of its right to appeal to the Board. Reflectone appealed
the CO’s final decision to the Board, which held that the REA was not a
“claim” within the meaning of the Contract Disputes Act and, therefore, it did
not have jurisdiction over the appeal. The Board relied on language from
Dawco Constr., Inc. v. United States, 930 F.2d 872, 878 (Fed.Cir. 1991), stat-
ing, “A contractor and the government contracting agency must already be in
dispute over the amount requested.” Dawco also states “The [CDA] and its
implementing regulation require that a ‘claim’ arise from a request for pay-
ment that is ‘in dispute.’ ” Id. The Board interpreted Dawco as holding that
no demand for payment could be a claim unless the amount of the payment
had been put in dispute. The Board reasoned that because Reflectone first

1 The CO forwarded a counterclaim to Reflectone for late and deficient contractor perfor-
mance totaling $657,388 on November 8, 1991.
requested a specific amount from the government in the REA, no dispute over
the amount existed prior to the REA and, therefore, the REA could not be a
claim according to its interpretation of Dawco. The Board explained:

[W]e need not determine whether these issues [presented in

the REA] had previously been submitted to the contracting of-
ficer and were in dispute. Dawco requires that the parties be in
dispute over the amount requested. Clearly in the appeal be-
fore us, [Reflectone] had not quantified the impact of the delays
on itself and communicated it to the government prior to the 1
June 1990 REA. The failure of [Reflectone] to request any
amount (and therefore a dispute could not exist over it) prior to
its REA, renders [Reflectone’s] 1 June 1990 REA incapable of
being considered a claim under the CDA in accordance with the
holding of Dawco.

93-1 BCA ¶25,512 at 127,056.

On appeal to this court, a divided, three-judge panel affirmed the Board’s

dismissal decision, accepting its interpretation of Dawco and its rationale, in
an opinion dated September 1, 1994, now vacated. Reflectone, Inc. v. Kelso, 34
F.3d 1031 (Fed.Cir.) (withdrawn from bound volume), vacated, 34 F.3d 1039
(Fed.Cir.1994). Due to the exceptional public importance of the issue of first
impression presented by this case concerning the proper definition of a CDA
“claim,” we granted Reflectone’s Suggestion for Rehearing In Banc.Fed.Cir.R.
35. We have jurisdiction pursuant to 28 USC §1295(a)(10) (1988) and Section
8 of the Contract Disputes Act, 41 USC §607(g)(1) (1988).

Standard of Review

The CDA dictates the standards this court applies in reviewing decisions of
agency contract appeal boards. 41 USC §609(b) (1988). A determination of
CDA jurisdiction and interpretation of applicable procurement regulations
present questions of law which we review de novo. Santa Fe Eng’rs, Inc. v.
Garrett, 991 F.2d 1579, 1581 (Fed.Cir.1993).
Analysis

I. A. FAR 33.201 Does Not Require That A Payment Demanded In A Non-

Routine Submission Be In Dispute Before The Submission To A Contracting
Officer Can Be A “Claim”
Under the CDA, a final decision by a CO on a “claim” is a prerequisite for
Board jurisdiction. Sharman Co. v. United States, 2 F.3d 1564, 1568-69
(Fed.Cir.1993) (reviewing jurisdictional scheme of CDA). Because the CDA
itself does not define the term “claim,”2 we must assess whether a particular
demand for payment constitutes a claim, based on the FAR implementing the
CDA, the language of the contract in dispute, and the facts of the case. Gar-
rett v. General Elec. Co., 987 F.2d 747, 749 (Fed.Cir.1993).3 The FAR defines
“claim” as:

[1] A written demand or written assertion by one of the con-

tracting parties seeking, as a matter of right, the payment of
money in a sum certain, the adjustment or interpretation of
contract terms, or other relief arising under or relating to the
contract. ...

[2] A voucher, invoice, or other routine request for payment

that is not in dispute when submitted is not a claim.

[3] The submission may be converted to a claim, by written no-

tice to the contracting officer as provided in 33.206(a), if it is
disputed either as to liability or amount or is not acted upon in
a reasonable time.

FAR (48 CFR §) 33.201. The issue is whether sentence [2] adds a requirement
to those stated in sentence [1] that applies to all submissions.

The government and the Board would require that before Reflectone’s REA
can qualify as a claim, it be preceded by a dispute over entitlement to and the

2 The CDA, 41 USC §605(a) (1988), states in relevant part:

All claims by a contractor against the government relating to a contract shall

be in writing and shall be submitted to the contracting officer for a decision.
All claims by the government against a contractor relating to a contract shall
be the subject of a decision by the contracting officer.
3 In this appeal, however, there are not unusual facts that would affect our decision. Nor is
there a contract clause that controls. Thus, the FAR determines whether Reflectone sub-
mitted a “claim” to the CO.
amount of a demand for payment. According to the government, this re-
quirement is mandated by the language of FAR 33.201. In order to explore
whether a CDA “claim” requires a dispute which pre-dates the submission to
the CO, we requested that the following question be addressed by the in banc
briefs.4

Did Dawco Constr., Inc. v. United States, 930 F.2d 872 (Fed.Cir.1991), proper-
ly conclude that a Contract Disputes Act (CDA) “claim” as defined in FAR
33.201 requires a pre-existing dispute between a contractor and the govern-
ment when the claim is in the form of a “written assertion ... seeking, as a
matter of right, the payment of money in a sum certain” or other contract re-
lief per the first sentence of the FAR definition, or does that requirement only
apply when the claim initially is in the form of a “routine request for pay-
ment”?

We answer the first half of this question in the negative and the second half
in the affirmative. We hold that sentence [1] of FAR 33.201 sets forth the only
three requirements of a non-routine “claim” for money: that it be (1) a written
demand, (2) seeking, as a matter of right, (3) the payment of money in a sum
certain. That sentence simply does not require that entitlement to the
amount asserted in the claim or the amount itself already be in dispute when
the document is submitted. The subsequent sentence does not add another
requirement to a non-routine submission.

FAR 33.201 does not mention a dispute until the fourth sentence, sentence
[2], which provides, “[a] voucher, invoice, or other routine request for pay-
ment that is not in dispute when submitted is not a claim.” Routine requests
for payment, too, are “written demand[s] ... seeking, as a matter of right,
payment of money in a sum certain” and, therefore, appear to fall within the
definition of claim recited in sentence [1] of FAR 33.201.5 However, the FAR
explicitly excludes from the definition of “claim” those “routine request[s] for
payment” that are not in dispute when submitted to the CO.6

4 We also requested that the in banc briefs address two additional, related questions. See
infra notes 15 and 16.
5 We need not resolve whether the author of the regulation intended to distinguish between
a “written demand “ and a “routine request.”
6 The distinction excluding routine requests for payment from the definition of “claim” re-
lieves COs from the requirement of issuing a CDA final decision on each and every vouch-
er that the government is obligated to pay under the express terms of the contract during
its ordinary progression, including “progress payments.” The process for converting such
Nevertheless, nothing in the definition suggests that other written demands
seeking payment of a sum certain as a matter of right, i.e., those demands
that are not “routine request[s] for payment,” also must be already in dispute
to constitute a “claim.” Moreover, that the regulation specifically excludes on-
ly undisputed routine requests for payment from the category of written de-
mands for payment that satisfy the definition of “claim” implies that all other
written demands seeking payment as a matter of right are “claims,” whether
already in dispute or not. The inclusion of only one exception to the definition
of “claim”— undisputed, routine requests — implies the exclusion of any oth-
ers. See United States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993) (applying
canon of statutory construction inclusio unius est exclusio alterius).

Our holding today that the FAR requires a “claim” to be a written demand
seeking a sum certain (or other contract relief) as a matter of right, but not
necessarily in dispute, is consistent with the ordinary meaning of the term
“claim”: “a demand for something due or believed to be due.” Webster’s Ninth
New Collegiate Dictionary 244 (1990). That the demand is made as a matter
of right constitutes the essential characteristic of a “claim” according to both
the FAR and the dictionary definitions. See Essex Electro Eng’rs, Inc. v. Unit-
ed States, 960 F.2d 1576, 1580-81 (Fed.Cir.) (“[T]he dictionary definition of
‘claim’ supports the reasonableness of the requirement that the money be
sought as a matter of right.”), cert. denied, — U.S. —, 113 S.Ct. 408, 121
L.Ed.2d 333 (1992). Nothing in the common definition of “claim,” however,
requires a pre-existing dispute before a demand as a matter of right can be a
claim. Indeed, everything suggests the contrary. Moreover, as Reflectone
points out, it is illogical to require a dispute before a demand for payment
rightfully due can be a “claim” because to have a dispute the contractor first
must make a demand as a matter of right, i.e., a claim, that is then refused.
Furthermore, neither the CDA, its legislative history, nor the FAR, nor its
history, suggests that a dispute must pre-date the contractor’s submission of
the claim to the CO when the claim is in the form of a non-routine demand as
of right.

The government argues, nevertheless, that a close reading of the regulation

demonstrates that a “claim” always requires a pre-existing dispute. The gov-
ernment’s analysis begins correctly by acknowledging that sentence [1] of the
FAR, defining “claim” as “a written demand ... seeking, as a matter of right,

routine requests, if disputed, into claims assures that only those submissions that need fi-
nal decisions will require them.
the payment of money in a sum certain” appears to include vouchers, invoices
and other routine requests for payment. According to the government, be-
cause the regulation later makes clear that the drafters intended to exclude
routine requests for payment from the definition of “claim” unless they are in
dispute, the question becomes one of distinguishing between non-routine
written demands seeking the payment of a sum certain as a matter of right
and “routine request[s] for payment.” The government next asserts, incorrect-
ly, that it is the existence of a dispute which distinguishes a non-routine
“claim” from a routine request for payment and, therefore, every “claim” must
involve a pre-existing dispute.

The government’s interpretation of the FAR must fail, as a matter of logic,

because it recognizes only two categories of potential claims, undisputed rou-
tine requests for payment, which do not satisfy the definition, and disputed
non-routine written demands seeking payment as a matter of right, which do.
This interpretation ignores a third category, undisputed, non-routine written
demands seeking payment as a matter of right. Under the literal language of
the FAR, however, the critical distinction in identifying a “claim” is not be-
tween undisputed and disputed submissions, but between routine and non-
routine submissions. To read the dispute requirement of sentence [2] of FAR
33.201 as applying to all submissions for payment, as the government sug-
gests, one would have to construe every demand for payment as a matter of
right as a “routine request for payment.” However, this is clearly not so. For
instance, an REA is anything but a “routine request for payment.” It is a
remedy payable only when unforeseen or unintended circumstances, such as
government modification of the contract, differing site conditions, defective or
late-delivered government property or issuance of a stop work order, cause an
increase in contract performance costs. Pacific Architects and Eng’rs Inc. v.
United States, 491 F.2d 734, 739, 203 Ct.Cl. 499 (1974). A demand for com-
pensation for unforeseen or unintended circumstances cannot be character-
ized as “routine.” The Supreme Court has confirmed the non-routine nature
of an REA by equating it with assertion of a breach of contract. Crown Coat
Front Co. v. United States, 386 U.S. 503, 511, 87 S.Ct. 1177, 1181, 18 L.Ed.2d
256 (1967) (“With respect to claims arising under the typical government con-
tract, the contractor has agreed in effect to convert what otherwise might be
claims for breach of contract into claims for equitable adjustment.”). Thus, an
REA provides an example of a written demand for payment as a matter of
right which is not “a routine request for payment” and, therefore, it satisfies
the FAR definition of “claim” whether or not the government’s liability for or
the amount of the REA was already disputed before submission of the REA to
the CO.7

A routine request for payment, on the other hand, is made under the con-
tract, not outside it. For example, a voucher or invoice is submitted for work
done or equipment delivered by the contractor in accordance with the ex-
pected or scheduled progression of contract performance. Similarly, progress
payments are made by the government when the contractor completes prede-
termined stages of the contract. An REA can hardly be compared to an in-
voice, voucher or progress payment.

Thus, we hold that FAR 33.201 does not require that “a written demand ...
seeking, as a matter of right, the payment of money in a sum certain” must
already be in dispute when submitted to the CO to satisfy the definition of
“claim,” except where that demand or request is a “voucher, invoice or other
routine request for payment.” This interpretation, based on the plain lan-
guage of the FAR, examines and reconciles the text of the entire regulation,
not simply isolated sentences. See Beecham v. United States, — U.S. —, —,
114 S.Ct. 1669, 1671, 128 L.Ed.2d 383 (1994) (“The plain meaning that we
seek to discern is the plain meaning of the whole statute, not of isolated sen-
tences.”). FAR 33.201, viewed as a whole, establishes a framework in which
written demands seeking a sum certain as a matter of right are CDA “claims”
with the only exception of “routine request[s] for payment” which may be
converted to claims by the existence of a dispute and compliance with other
requirements of conversion in FAR 33.206(a).8 Routine requests are a subset
of all written demands for payment. Special requirements apply to the sub-
set, but not to the rest of the set.

Reflectone’s REA is clearly “a written demand or written assertion by one of

the contracting parties seeking, as a matter of right, the payment of money in
a sum certain.” Reflectone, a contracting party, submitted a written docu-
ment to the CO demanding the payment of $266,840 which it asserted the

7 We do not hold, however, that every non-routine submission constitutes a “claim” under
the FAR. Those submissions which do not seek payment as a matter of right are not
claims, a definition which excludes, for example, cost proposals for work the government
later decides it would like performed. See Essex Electro Eng’rs, 960 F.2d at 1581-82 (ex-
cluding cost proposals and inspection reports from the FAR definition of a CDA “claim”).
8 We do not comment on those conversion requirements or any other requirements, that like
certification, a contractor may have to satisfy to submit a CDA “claim” the CO has juris-
diction to decide.
government owed for delaying performance of the contract by furnishing de-
fective goods. The submission was certified and requested a CO decision.
Consequently, Reflectone’s REA satisfies all the requirements listed for a
CDA “claim” according to the plain language of the first sentence of FAR
33.201. The REA is not a “routine request for payment” and, therefore, the
fourth sentence of the FAR definition does not apply here to require, inter
alia, a pre-existing dispute as to either liability or amount. Because we con-
clude that Reflectone’s REA is a “claim” according to the FAR, we further
conclude that the Board has jurisdiction to review the CO’s denial of Reflec-
tone’s REA.

B. Dawco’s Holding Is Overruled

The Board and the government relied on language in Dawco to support the
conclusion that a dispute as to amount is required before any demand for
payment can be a CDA “claim.” In that case, the Navy awarded Dawco Con-
struction, Inc. (Dawco) a contract for landscaping work at a Naval housing
project. The Navy then suspended work on the project, issued a change order
request and requested that Dawco submit a cost proposal for completing the
Navy’s suggested modifications. Dawco’s subcontractor responded by propos-
ing new costs in a May 21, 1984 letter which the Navy rejected. Dawco, 930
F.2d at 874. We held that the May 21, 1984 letter was merely a cost proposal9
and not a “claim” as defined by FAR 33.201 because it was not a “‘request for
payment in dispute’ as contemplated by the Act and explicitly required by the
regulation and [Dawco’s] contract.” Id. at 878. The court explained the origin
of the dispute requirement:

Clearly, the FAR mandates that, inter alia, a claim must seek
payment of a sum certain as to which a dispute exists at the
time of submission. Similarly, the contract’s disputes clause,
containing the standard language mandated by the Defense
Acquisition Regulations states that a “request for payment that
is not in dispute when submitted is not a claim for purposes of
the Act.” The language is not ambiguous and means what it
says: A contractor and the government contracting agency
must already be in dispute over the amount requested. Unilat-
eral cost proposals or correspondence suggesting disagreement
during negotiations, while they may ultimately lead to a dis-

9 The cost proposal could not have been a claim within the meaning of FAR 33.201 because
a cost proposal, by its nature as a negotiating position for unpriced work not yet done, is
not ordinarily “a written demand, ... seeking, as a matter of right, the payment of money
in a sum certain....” See Essex Electro Eng’rs, 960 F.2d at 1581-82.
 pute, do not, for purposes of the Act, satisfy the clear require-
ment that the request be in dispute. Mayfair Construction Co.
v. United States, 841 F.2d 1576, 1577 (Fed.Cir.), cert. denied,
488 U.S. 980, 109 S.Ct. 528, 102 L.Ed.2d 560 (1988) (“It is be-
yond cavil that under this clause, no claim exists unless it in-
volves a dispute.”).

Id.

Although Dawco first held that the requirement that a “claim” be in dispute
was explicit in that particular contract’s disputes clause, the opinion also
grounded that requirement in the language of the FAR. Id. (“The Act and its
implementing regulation require a ‘claim’ arise from a request for payment
that is ‘in dispute.’ ”). To the extent that Dawco and its progeny10 have been
read to also hold that, based on FAR 33.201, a “claim” (other than a routine
request for payment) must already be in dispute when submitted to the CO,
they are hereby overruled. See Texas Am. Oil Corp. v. Department of Energy,
44 F.3d 1557, 1561 (Fed.Cir. 1995) (prior panel decisions on an issue are con-
trolling until overruled in banc).

An examination of Mayfair, mistakenly cited in Dawco, further supports our

overruling the second holding of Dawco and instead holding today that the
FAR 33.201 definition of “claim” does not require a pre-existing dispute un-
less the submission is a “routine request for payment.” The Mayfair court in-
terpreted and applied an interim regulation drafted by the Office of Federal
Procurement Policy (OFPP) defining “claim” as:

10 Four of our cases followed Dawco by requiring that a CDA “claim” be in dispute when
submitted to the CO: Bill Strong Enters., Inc. v. Shannon, 49 F.3d 1541, 1544-45 (Fed.Cir.
1995); Sharman Co., 2 F.3d at 1571 (holding government letter to contractor seeking re-
payment of progress payments did not assert a government claim, in part because amount
specified was not yet in dispute); Santa Fe Eng’rs, 991 F.2d at 1582 (holding contractor’s
cost proposal was not in dispute and, therefore, not a CDA “claim” while parties continued
negotiations); Heyl & Patterson, Inc. v. O’Keefe, 986 F.2d 480, 485 (Fed.Cir. 1993) (holding
contractor submissions were not CDA claims where they suggested contractor and gov-
ernment were not in dispute but were still negotiating and where contractor had not re-
quested a final decision).
Other cases only acknowledged Dawco’s pre-existing dispute requirement but did not ad-
dress whether the contractor’s submission at issue satisfied that requirement:
Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1579 (Fed.Cir.1992) (acknowl-
edging a claim must be in dispute when submitted without citing Dawco); and Essex Elec-
tro Eng’rs, 960 F.2d at 1582.
 (1) a written request submitted to the contracting officer;
(2) for payment of money, adjustment of contract terms, or oth-
er relief;
(3) which is in dispute or remains unresolved after a reasonable
time for its review and disposition by the government; and
(4) for which a contracting officer’s decision is demanded.

Mayfair, 841 F.2d at 1577 (quoting 44 Fed.Reg. 12,524 (1979)). The statement
in Mayfair, mistakenly quoted in Dawco, that “[i]t is beyond cavil that under
this clause, no claim exists unless it involves a dispute,” was based on this
interim regulatory language incorporated into the contract’s disputes clause
explicitly requiring that a claim be in dispute when submitted. Mayfair did
not concern the current FAR definition of “claim” which was promulgated af-
ter the interim definition quoted above and, therefore, Mayfair provides no
support for requiring a pre-existing dispute in any case involving contracts
resulting from solicitations issued after June 1, 1980.11 Id. at 1578 (rejecting
Mayfair’s argument that revised regulation not requiring a dispute applied in
that case because revised regulation applied only to contracts resulting from
solicitations issued on or after June 1, 1980). Reflectone’s contract resulted
from a solicitation issued after that date. It had no such disputes clause in it.

Moreover, it does not appear that the drafters of FAR 33.201 intended it to
include a comprehensive pre-existing dispute requirement. First, the 1979
interim regulatory definition of “claim” at issue in Mayfair was ultimately
replaced with the current definition at issue here. If OFPP intended the cur-
rent regulation to require that a non-routine payment demand be in dispute
when submitted in order to be a “claim,” the agency could have easily written
the regulation to incorporate such a requirement, as had been done in the
past. Indeed, it could have retained the above quoted language of paragraph
3 of the old, interim regulation. It did not do so. Rather, it adopted a single
exclusion from what would otherwise be a “claim,” for routine requests, and
even then limited the exception to those routine requests not in dispute at the
time of submission. Cf. Trayco, Inc. v. United States, 994 F.2d 832, 836

11 Several commentators have criticized Dawco for misreading FAR 33.201 and erroneously
relying on Mayfair. E.g., Val S. McWhorter & Carl T. Hahn, Disputing the Meaning of a
Claim: The Fallout from Dawco Construction, 23 Pub.Cont.L.J. 451, 456 n. 3, 457 (1994).
Other articles critical of Dawco’s rationale for requiring a pre-existing dispute include:
Donald P. Arnavas, To Claim or Not to Claim, 8 Nash & Cibinic Rep. 63 (1994); Ralph C.
Nash, Jr., The Contract Disputes Act: No Claim, No Jurisdiction, 5 Nash & Cibinic Rep.
66 (1991); and Neil H. O’Donnell, A Process Gone Awry: The Increasing Procedural Re-
quirements for Government Contracts Disputes, 58 Fed.Cont.Rep. (BNA) 18 (1992).
(Fed.Cir. 1993) (if Congress had intended a particular meaning, it would have
explicitly said so).

Secondly, a formal response by the OFPP’s chief officer clearly indicated that
the OFPP, when it drafted the current FAR language, did not view that lan-
guage as always requiring a dispute, and furthermore, did not view a dispute
requirement as a proper implementation of the CDA. During the process of
revising the definition, Donald E. Sowle, Administrator of the OFPP, re-
sponded to a suggestion by the DAR (Defense Acquisition Regulation) Council
that the revised version explicitly incorporate a dispute requirement by stat-
ing: “The proposed DAR coverage does not properly implement the Contract
Disputes Act. The Act does not require that a claim be ‘disputed by the other
party,’ nor does it require that a claim be submitted under the Disputes
clause.” 1981-1983 New Developments, Gov’t Cont.Rep. (CCH) ¶92,682 (Jan.
28, 1983).

C. The Effect Of Dawco’s Holding That The FAR Always Requires A Dispute
Is Contrary To The Goals Of The CDA
The Dawco dispute requirement has proven to be inimical to at least two
goals of the CDA: providing for the efficient and fair resolution of contract
claims. See Report of the Senate Governmental Affairs Committee and the
Senate Judiciary Committee on the Contract Disputes Act of 1978, S.Rep. No.
1118, 95th Cong., 2d Sess. 4 (1978), reprinted in 1978 USCC.A.N. 5235, 5238.

Even where the parties proceed in a shared belief that they are in dispute,
and the CO issues a final decision on a contractor’s claim, as happened here,
the issue of whether the payment demand was actually in dispute when the
purported claim was submitted can be raised anytime, before the Board or
the Court of Federal Claims or on appeal to us. Since the court’s ruling in
Dawco in 1991, nearly two hundred Board, Court of Federal Claims, and
Federal Circuit decisions have addressed whether a particular contractor’s
demand for payment was “in dispute” before it filed its claim, according to
Donald P. Arnavas, To Claim or Not to Claim, 8 Nash & Cibinic Rep. 63
(1994). According to one Armed Services Board of Contract Appeals Judge,
one-half of all cases considered by the agency boards that concerned Dawco’s
dispute requirement resulted in dismissal for lack of jurisdiction. Half of All
Dawco Cases at Agency Boards Result in Dismissal, 61 Fed.Cont.Rep. (BNA)
18 (1994).

These judicial inquiries into whether a dispute pre-dated a submission are at

best an inefficient use of limited resources, given that before the Board or
court reaches this question there will necessarily have been a final CO’s deci-
sion denying the contractor’s submission or at least a deemed denial based on
the CO’s failure to respond. Moreover, in each case, the government contin-
ues to dispute the claim, because otherwise it would have settled the matter
and no appeal would be necessary. Because a dispute clearly exists at the
time an appeal is dismissed for lack of a dispute pre-dating submission of the
demand for payment to the CO, after dismissal the contractor need only re-
submit the identical demand to the CO. The resubmitted demand would now
indisputedly satisfy the pre-existing dispute requirement and, therefore, be a
CDA claim. The process of final decision and appeal would begin all over
again, but at great cost to the parties, the boards and the courts, and often
with no benefit because the disputed issues on the merits have already been
well defined by the course of litigation. Clearly, this repetitive and needlessly
drawn-out process can hardly be said to promote the “efficient” resolution of
claims.12 Nor is it “fair.” Requiring contractors to submit the identical claim
twice, as the government would have them do, is a waste of the contractor’s
time and money. The taxpayers’ money is likewise wasted when the agency
boards or the Court of Federal Claims must hear the same case on two differ-
ent occasions. Nor has the government shown how this process is not serious-
ly inefficient, unfair and wasteful.

The government argues, however, that the dispute requirement is a proper

judicial interpretation of a separate goal of the CDA: settlement of disputes
at the administrative level, short of litigation. As explained in the Report of
the Senate Governmental Affairs Committee and the Senate Judiciary Com-
mittee, “[t]he act’s provisions help to induce resolution of more contract dis-
putes by negotiation prior to litigation....” S.Rep. No. 1118, 95th Cong., 2d
Sess. 1 (1978), reprinted in 1978 USCC.A.N. 5235, 5235.13

The government contends that the dispute requirement gives the CO more
opportunity to request any additional information that the CO may need once

12 To avoid needless and wasteful procedural litigation, the American Bar Association Sec-
tion of Public Contract Law has called for the elimination of Dawco’s “dispute” require-
ment through amendment of the FAR. ABA Section Renews Plea for Regulatory Fix to
Dawco “in Dispute” Requirement, 60 Fed.Cont.Rep. (BNA) 9 (1993).
13 This policy is also articulated in FAR 33.204:

The government’s policy is to try to resolve all contractual issues in contro-

versy by mutual agreement at the contracting officer’s level. Reasonable ef-
forts should be made to resolve controversies prior to the submission of a
claim.
a demand for payment has been submitted without creating a claim which
necessitates a final decision. Once a contractor’s submission is deemed a
“claim,” it triggers the CO’s statutory duty to respond, within sixty days for
claims under $100,000 and within a reasonable time for claims over that
amount. 41 USCA §605(c) (West Supp.1995). At oral argument, the govern-
ment maintained that a CO would have insufficient time in which to request
additional information and evaluate a claim once the statutory time frame for
issuing a final decision was triggered. According to the government, the dis-
pute requirement provides two advantages under its view of the statutory
scheme. First, because the dispute requirement allows the CO to avoid crea-
tion of a CDA claim while requesting information, he will always have suffi-
cient time to get and evaluate a fully documented claim. Secondly, by pre-
venting contractors from withholding information in order to bypass
negotiations and by allowing the CO a means of gathering sufficient infor-
mation to evaluate the claim, the dispute requirement promotes negotiation
and settlement. The fact that a dispute requirement may be more convenient
for the government does not allow us to read such a requirement into the
CDA or the FAR where the plain language simply does not express it. If the
dispute requirement is of vital importance to the government’s negotiating
position with contractors, the government’s only option is to seek to change
the FAR.

Furthermore, the government’s rationale for requiring a dispute rings false,

for the CO can always request more information even if a non-routine written
demand for payment as a matter of right, whether or not disputed, were con-
sidered a claim when submitted. The contractor’s submission of a claim does
not prevent this, but simply starts the running of the clock within which a
CO must issue a final decision. For claims over $100,000, the absence of a
dispute requirement should have very little impact on the CO. He would be
quite “reasonable” in requesting additional information and delaying decision
pending response to his request and, therefore, still be within the statutory
time frame. For claims under $100,000, if the contractor has not proven enti-
tlement to the claimed sum, as is its burden, the CO may have no choice but
to deny the claim. See Servidone Constr. Corp. v. United States, 931 F.2d 860,
861 (Fed.Cir. 1991) (“To receive an equitable adjustment from the govern-
ment, a contractor must show three necessary elements — liability, causa-
tion, and resultant injury.”). Alternatively, the CO may request more infor-
mation and agree with the contractor to allow more time for final decision.
FAR 33.211(c) (requiring final decision on claims under $50,000 within sixty
days only when requested by contractor; otherwise decision must be rendered
within a “reasonable time”); S.Rep. No. 1118, 95th Cong., 2d Sess. 21 (1978),
reprinted in 1978 USCC.A.N. 5235, 5255 (sixty-day period for final decision
may be extended by written agreement between both parties).

But, the comprehensive dispute requirement the government advocates

would allow it to continually, indeed endlessly, seek information and prolong
negotiations without issuing an appealable decision merely by refusing to
acknowledge a dispute, thereby probably delaying rather than accelerating
any possible settlement. See Saco Defense, Inc., ASBCA Nos. 44792, 45171,
93-3 BCA ¶26,029 at 129,387, 1993 WL 130175 (illustrating CO’s refusal to
act on contractor’s submission). The government may have little incentive to
settle until the contractor’s submission becomes a claim and starts the clock
for issuing a decision and, if the contractor ultimately prevails, for the accru-
al of interest. 41 USC §611 (1988) (“Interest on amounts found due contrac-
tors on claims shall be paid to the contractor from the date the contracting
officer receives the claim....”). A dispute requirement that allows the govern-
ment to unilaterally designate when a submission becomes a “claim” disrupts
the balance of power between the government and contractors that the CDA
sought to establish. S.Rep. No. 1118, 95th Cong., 2d Sess. 1 (1978), reprinted
in 1978 USCC.A.N. 5235, 5235 (“The [CDA] provides a fair, balanced, and
comprehensive statutory system of legal and administrative remedies in re-
solving government contract claims.”). The purpose of awarding interest to
contractors from the submission date of a successful claim is to compensate
them for a legitimate cost incurred when required by the government to per-
form the additional work of a changed contract. Id. at 32, 1978 USCC.A.N. at
5266. Allowing the government to unilaterally determine a claim’s submis-
sion date would vitiate this purpose.

Moreover, the Dawco dispute requirement can actually stifle a contractor’s

incentive to negotiate to settlement rather than pursue litigation, contrary to
the goals of the CDA. Decisions following Dawco have held that until negotia-
tions between the parties have reached an “impasse,” no dispute exists, and,
therefore, a submission to the CO pending review cannot be a “claim.” Santa
Fe Eng’rs, 991 F.2d at 1582 (holding contractor’s cost proposal for proposed
change order was not in dispute and, therefore, not a CDA “claim” while par-
ties continued negotiations). As the Federal Circuit Bar Association argues in
its amicus brief, contractors are therefore motivated to by-pass or cut short
negotiations in an effort to create a dispute so they may proceed with their
legal remedies. Indeed, one commentator counsels contractors to avoid asking
the government to further consider negotiating a claim after the claim has
been submitted for fear of not meeting the “impasse” requirement. Victor J.
Zupa, When is a Claim Not a Claim?, 22 Pub.Cont.L.J. 654, 667 (1993). Judge
Bennett warned against just this effect of the dispute requirement in Mayfair
where he stated:

Maintenance of a predispute posture should be encouraged, not

penalized. Requiring a dispute before interest can accrue push-
es the parties that much closer to litigation and only serves to
encourage “creation” of a dispute in order to permit the pay-
ment of interest.

841 F.2d at 1582 (Bennett, J., dissenting). See Alan C. Brown, The New Time
Limits on Contract Claims Under the Federal Acquisition Streamlining Act of
1994, 63 Fed.Cont.Rep. (BNA) 31, 39 (1995) (maintaining dispute require-
ment is inconsistent with Congress’ intent to encourage settlement).

Finally, as we previously noted, “[t]here is no necessary inconsistency be-

tween the existence of a valid CDA claim and an expressed desire to continue
to mutually work toward a claim’s resolution.” Transamerica Ins. Corp. v.
United States, 973 F.2d 1572, 1579 (Fed.Cir.1992). The parties are not pre-
vented or discouraged from settling their differences because the first written
demand for payment as a matter of right that is not merely a routine request
for payment is recognized and treated as a CDA “claim.” If anything, such a
rule promotes settlement by preventing procrastination.

II.

Because we hold that a “claim” under FAR 33.201, and hence under the CDA,
does not ordinarily require a pre-existing dispute, the second question on
which we requested in banc briefing, whether that pre-existing “dispute
[must] also be as to amount, or is denial of liability sufficient,” is prudentially
moot and we need not and do not address it.14

Similarly, because we hold that Reflectone’s REA is a claim as defined in the

FAR, we do not address whether failure to satisfy that definition creates a
jurisdictional defect since we are not required to answer that question to dis-
pose of this appeal.15

14 The second question posed reads: “If a ‘claim’ requires a pre-existing dispute, and the
claim seeks, ‘as a matter of right, the payment of money in a sum certain,’ must that dis-
pute also be as to amount, or is denial of liability sufficient?”
15 The third question posed reads:

Does a contractor’s failure to comply with a provision of the Contract Dis-

putes Act (CDA) or the FAR, relating to submission of a claim to the Con-
Moreover, we neither decide nor comment on the issue of whether any other
FAR requirement, such as the one for certification discussed in United States
v. Grumman Aerospace Corp., 927 F.2d 575 (Fed.Cir.), cert. denied, 502 U.S.
919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991), is jurisdictional as it is not pre-
sented by this case. See Keene Corp. v. United States, — U.S. —, —, 113 S.Ct.
2035, 2044-45, 124 L.Ed.2d 118 (1993). Nor do we intimate any view on how
an in banc court might decide such questions if properly presented. In any
event, such questions might not be amenable to a simple “yes” or “no” answer.
The effect, purpose and statutory basis for each individual regulatory re-
quirement might have to be examined before determining whether it is juris-
dictional.

Conclusion

We hold that properly construed for its plain meaning, the language of FAR
33.201 does not require that a payment demand contained in a purported
CDA claim be in dispute before being submitted for decision to the CO unless
that demand is a “voucher, invoice or other routine request for payment.” To
the extent that Dawco and cases relying on Dawco can be read to suggest
otherwise, they are overruled. We further hold that Reflectone’s REA satisfies
the definition of “claim,” and, therefore, we reverse the Board’s dismissal for
lack of jurisdiction and remand this case to the Board for further proceedings
on Reflectone’s appeal consistent with this opinion.16

REVERSED AND REMANDED

tracting Officer, deprive a reviewing forum of subject matter jurisdiction over

a challenge to the Contracting Officer’s decision on the claim, or does non-
compliance merely raise the defense that the contractor has failed to state a
claim under the CDA upon which relief may be granted?
16 We, of course, take no position on whether there is any merit to Reflectone’s appeal.
 Renda Marine
v.
United States

71 Fed.Cl. 782
June 30, 2006.

Clarence T. Kipps, Jr., Washington, DC, for plaintiff. Lisanne E.S. Cotting-
ton, Washington, DC, and Brain W. Erikson, Dallas, TX, of counsel. John E.
Losloske, with whom were Peter D. Keisler, Assistant Attorney General, and
David M. Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, for defendant. P. Alex
Petty, Office of Counsel, Galveston District, United States Army Corps of En-
gineers, Galveston, TX, of counsel.

Opinion

Hewitt, Judge.

The court has before it Plaintiff’s Motion Request[i]ng the Court’s Modifica-
tion of Its April 19, 2005 Opinion and Order (Pl.’s Reconsid. Mot. or Motion
for Reconsideration);1 Defendant’s Response to Plaintiff’s Motion for Recon-
sideration of Court’s April 19, 2005 Opinion and Order (Def.’s Reconsid. Resp.
or Reconsideration Response) accompanied by an appendix (Def.’s Reconsid.
Resp.App.); Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for
Reconsideration of Court’s April 19, 2005 Opinion and Order (Pl.’s Reconsid.
Reply or Reply); Plaintiff’s Motion for Leave to File a Supplemental Brief in
Support of Its Motion to Modify the Court’s April 19, 2005 Opinion (Pl.’s Mot.
for Leave or Motion for Leave) with which was filed Plaintiff’s Supplemental
Brief in Support of Its Motion to Modify the Court’s April 19, 2005 Opinion
(Pl’s Supp. Br. or Supplemental Brief); and Defendant’s Response to Plain-
tiff’s Motion for Leave to Amend Plaintiff’s June 1, 2005 Motion to Modify the
Court’s April 19, 2005 Opinion and Order and to File a Supplemental Brief
(Def.’s Supp. Br. Resp. or Supplemental Brief Response). Plaintiff moves the
court “to modify its April 19, 2005 Opinion and Order … to hold that the con-
tracting officer’s November 26, 2002 ‘final decision’ … is a nullity to the ex-
tent [that] [the decision of the contracting officer] addresses or is premised on
denial of the certified claims included in Renda’s Complaint filed in this

1 The court found that this filing “is most appropriately construed as a Motion for Reconsid-
eration.” Order of June 6, 2005 at 2.
[c]ourt on April 11, 2002.” Pl.’s Reconsid. Mot. at 1. Plaintiff also “moves the
[c]ourt for leave to amend its Motion to Modify the Court’s April 19, 2005
Opinion … to file the attached supplemental brief in support thereof.” Pl.’s
Mot. for Leave at 1. The court hereby GRANTS plaintiff’s Motion for Leave
and considers plaintiff’s Supplemental Brief and defendant’s Supplemental
Brief Response in its disposition of plaintiff’s Motion for Reconsideration. For
the following reasons, plaintiff’s Motion for Reconsideration is DENIED.

I. Background

Between January and October of 2001, Renda Marine, Inc. (Renda) submit-
ted a number of certified claims to Thomas Benero, Contracting Officer, Chief
of the Contracting Division for the Army Corps of Engineers in Galveston,
Texas, related to Renda’s performance of Contract No. DACW64-99-C-0001,
known as the Upper Bayou Project Contract (Upper Bayou Contract or Con-
tract). See Def.’s Reconsid. Resp.App. (Final Decision) at 8; Renda Marine,
Inc.’s Memorandum of Contentions of Fact & Law (Pl.’s Memo.) at 2; PX 1614
(letter of November 6, 2001 from Mr. Benero to Renda acknowledging receipt
of certified claim); PX 1615 (same); PX 1617 (same); JX 92 (same); PX 1619
(same but dated November 7, 2001). As of April 2002, the contracting officer
had not yet issued a final decision on any of Renda’s certified claims. See
Complaint (Compl.) ¶17. Accordingly, on April 11, 2002, Renda filed suit
against the government under the Contract Disputes Act, 41 USC §§601-613
(2000) (CDA), seeking a total of $14,244,848 plus interest upon eight claims
related to Renda’s performance of the Upper Bayou Contract.2 See Complaint
(Compl.) at 1, 29. Defendant filed its answer to plaintiff’s complaint on July
25, 2002. See Answer (Ans.). On November 26, 2002 the contracting officer
(CO) for the Upper Bayou Contract issued a “Final Decision” (Final Decision)
upon six government counterclaims against Renda relating to the Upper
Bayou Contract in the total amount of $11,860,016. See Def.’s Reconsid.
Resp.App. (Final Decision) at 1-4. The Final Decision stated, in pertinent
part:

2 Section 605(a) of the Contract Disputes Act, 41 USC §§601-613 (2000) (CDA), requires that
“[a]ll claims by a contractor against the government relating to a contract … be in writing
and … be submitted to the contracting officer for a decision.” 41 USC §605(a). Where the
amount of a claim exceeds $100,000, the claim must be certified by the contractor. §605(c).
Section 605 also requires “[t]he contracting officer [to] issue his decisions in writing, and
… [to] furnish a copy of the decision to the contractor.” §605(a). If the CO fails to issue a
decision upon the contractor’s claim within sixty days, the CDA provides that the contract-
ing officer is deemed to have made a decision denying the claim, §605(c)(1), (5), and au-
thorizes the commencement of an appeal to an agency board of contract appeals (BCA),
§606, or an action brought directly in this court, §609.
 This is a final decision of the Contracting Officer. This decision
may be appealed to the Armed Services Board of Contract Ap-
peals…. If you decide to appeal, you must mail or … otherwise
furnish written notice thereof to the Armed Services Board of
Contract Appeals within 90 days from the date you received
this decision…. In lieu of appealing to the Armed Services
Board of Contract Appeals, you may bring an action directly in
the U.S. Court of Federal Claims … within 12 months of the
date you receive this decision.

Id. at 5. Renda did not appeal the CO’s Final Decision to Armed Services
Board of Contract Appeals (the Board), nor did it bring an action in this court
in lieu of filing an appeal with the Board within twelve months of its receipt
of the Final Decision on or around November 26, 2002. See Def.’s Reconsid.
Resp. at 3-4.

On July 1, 2004, more than nineteen months after the approximate date on
which Renda received the CO’s Final Decision, plaintiff filed a motion for
leave in this court, pursuant to Rule 15(a) of the Rules of the Court of Federal
Claims (RCFC), to amend its complaint in this case “to make the Contracting
Officer’s Final Decision ‘a subject of Renda’s complaint in this case.’ ” Motion
by Renda Marine, Inc., for Leave of Court to Amend Complaint (Mot. to
Amend or Motion to Amend) at 2. The Motion to Amend was accompanied by
an Appendix (Mot. to Amend App.). The Motion to Amend sought to amend
the plaintiff’s complaint with, inter alia, a count that “the Contracting Of-
ficer’s Final Decision of November 26, 2002, is a nullity or is otherwise inva-
lid” and requesting relief in the form of a declaration by the court to that ef-
fect. Mot. to Amend App. A ¶228. On July 30, 2004, the court denied
plaintiff’s Motion to Amend, finding that “[p]laintiff’s explanation for its be-
lated challenge to the contracting officer’s November 26, 2002 final decision is
… unpersuasive.” Order of July 30, 2004 at 7. The court noted that “[p]laintiff
does not dispute either that it timely received the final decision or that it de-
clined to exercise its appeal rights under the Contract Dispute[s] Act, in par-
ticular, to appeal the decision to an agency board of contract appeals or to in-
stitute a proceeding in this court upon that claim.” Id. (citing 41 USC §606,
609(a)(1), (3) (2000)). The court concluded: “Because plaintiff has failed to es-
tablish that ‘justice … requires’ the proposed amendment of the complaint,
plaintiff’s motion is DENIED.” Id. (quoting RCFC 15(a)); see also Forman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (recognizing
“undue delay … on the part of the movant” as a proper basis for denying a
motion to amend a complaint under correlative Federal Rule of Civil Proce-
dure (FRCP) 15(a)); Te-Moak Bands of W. Shoshone Indians of Nev. v. United
States, 948 F.2d 1258, 1262-63 (Fed.Cir. 1991) (“Delay alone, even without a
demonstration of prejudice, has thus been sufficient grounds to deny amend-
ment of pleadings [under FRCP 15(a)]…. [T]he party seeking to amend must
justify that request by more than invocation of the concept of the rule’s liber-
ality.”).

On April 6, 2005, one day before the close of trial in this case, Renda filed
Plaintiff’s Motion for Trial Amendment (Motion for Trial Amendment), which
the court construed as a motion to amend the complaint pursuant to RCFC
15(b). Renda Marine, Inc. v. United States (Renda I), 65 Fed.Cl. 152, 153
(2005). On April 19, 2005 the court denied plaintiff’s Motion for Trial
Amendment for lack of subject matter jurisdiction, finding that the motion
sought to insert a claim into this case that Renda had not previously submit-
ted as a certified claim to the contracting officer for decision. Id. at 162 The
court also stated that “[i]t is not clear whether plaintiff’s [Motion for Trial
Amendment] is, in part, another attempt to have the court review the No-
vember 2002 contracting officer’s decision.” Id. To the extent that plaintiff’s
Motion for Trial Amendment was such an attempt, the court rejected it, ex-
plaining that,

[a]t the close of trial, plaintiff’s counsel was again advised by

the court that the November 2002 contracting officer’s decision
was not before the court, whereupon plaintiff’s counsel retort-
ed, “Well, it should have been.” Trial Tr [anscript (Tr.)] at
5357:17. It may indeed be true that the claim “should have
been” before the court, but plaintiff has its own litigation strat-
egy to blame for the circumstance that it is not. Plaintiff’s
counsel admits that he was aware of the contracting officer’s
decision at or near the time it was issued. Arg[ument] Tr. at
17:12-13. Plaintiff’s counsel also admits that he expected de-
fendant to bring the decision before the court in a counterclaim
and that plaintiff made a conscious choice not to appeal the de-
cision within the twelve-month statutory timeframe. Id. at
16:22-17:1. Plaintiff itself failed timely to appeal the November
2002 contracting officer’s decision. That decision is now “final
and conclusive” and not reviewable by this court. 41 USC
§605(b).3

3 Section 605(b) of the CDA states, in pertinent part: “The contracting officer’s decision on
the claim shall be final and conclusive and not subject to review by any forum, tribunal, or
Government agency, unless an appeal or suit is timely commenced as authorized by this
chapter.” 41 USC §605(b).
Id. The court concluded, “R[CFC] 15(b) cannot be invoked to resurrect an oth-
erwise time-barred claim and bring it within this court’s jurisdiction. To the
extent that plaintiff’s motion seeks to amend its complaint to include a claim
involving the November 2002 final decision, that request is DENIED for lack
of jurisdiction.” Id.

On June 1, 2005 plaintiff filed its Motion for Reconsideration, requesting that
the court modify its April 19, 2005 Opinion and Order and “hold that the con-
tracting officer’s November 26, 2002 ‘final decision’ … is a nullity to the ex-
tent the [Final Decision] addresses or is premised on denial of the certified
claims included in Renda’s Complaint filed in this [c]ourt on April 11, 2002.”
Pl.’s Reconsid. Mot. at 1. After responsive briefing on plaintiff’s Motion for
Reconsideration had concluded, the court heard oral arguments on plaintiff’s
Motion for Reconsideration on July 14, 2005. On July 28, 2005 the court is-
sued its trial opinion in this case (Trial Opinion), finding that plaintiff “failed
to prove by a preponderance of the credible evidence that it is entitled to re-
cover on its [differing site condition] claims.” Renda Marine, Inc. v. Untied
States (Renda II), 66 Fed.Cl. 639, 721 (2005).4 On April 7, 2006, plaintiff ex-
plained in its Motion for Leave that,

[a]t the time it filed its [Motion for Reconsideration], Renda an-
ticipated that the [c]ourt would rule that Renda was entitled to
recover on the differing site conditions claims, and that Renda
would be able to raise the merits of the … issue [of whether the
contracting officer’s Final Decision is a nullity] when the Gov-
ernment asserted its claims as an offset.

However, in light of the views expressed by the [c]ourt at oral

argument, and in light of the [c]ourt’s July 28, 2005[ ] denial of
Renda’s differing site conditions claims, Renda now requests
that the [c]ourt decide the merits of whether the CO’s Letter is
a nullity, either because it was premised on issues already the
subject of litigation before this [c]ourt, or for one of the other
reasons that a purported CO final decision is not accorded fi-
nality under section 605(b) of the [CDA].

4 The Trial Opinion did not enter judgment for the United States, however. The court in-
stead suggested certain further proceedings to be based on the record at trial. Renda II, 66
Fed.Cl. at 721-722. In its opinion filed on June 29, 2006 in this matter, the court entered
its order terminating those further proceedings.
Pl.’s Mot. for Leave at 1. The court proceeds now to address plaintiff’s Motion
for Reconsideration and Supplemental Brief.

II. Discussion

A. Motions for Reconsideration

RCFC 59(a)(1) affords this court discretion to grant reconsideration “to all or
any of the parties and on all or part of the issues, for any of the reasons es-
tablished by the rules of common law or equity applicable as between private
parties in the courts of the United States.” RCFC 59(a)(1) (200); see Yuba
Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed.Cir. 1990). A
showing in support of the motion “must be based ‘upon manifest error of law,
or mistake of fact, and is not intended to give an unhappy litigant an addi-
tional chance to sway the court.’ ” Fru-Con Constr. Corp. v. United States, 44
Fed.Cl. 298, 300 (1999) (quoting Bishop v. United States, 26 Cl.Ct. 281, 286
(1992)). A party moving under RCFC 59 “does not persuade the court to grant
… a motion [for reconsideration] by merely reasserting arguments which
were previously made and were carefully considered by the court.” Coconut
Grove Entm’t, Inc. v. United States, 46 Fed.Cl. 249, 255 (2000); see also Gelco
Builders & Burjay Constr. Corp. v. United States, 177 Ct.Cl. 1025, 369 F.2d
992, 1000 n. 7 (1966). Moreover, RCFC 59 is not intended to allow a movant
to raise additional theories that it failed to advance in connection with the
underlying decision that it moves the court to reconsider. Corrigan v. United
States, 70 Fed.Cl. 665, 669 (2006); see Fru-Con, 44 Fed.Cl. at 301 (“Because
‘[t]he litigation process rests on the assumption that both parties present
their case once, to their best advantage,’ a strong public policy precludes a
reconsideration motion based on evidence that was readily available at the
time the original motion was heard.” (quoting Aerolease Long Beach v. United
States, 31 Fed.Cl. 342, 376 (1994))). “Litigants should not, on a motion for re-
consideration, be permitted to attempt an extensive retrial based on evidence
which was manifestly available at [the] time of the hearing.” Hill v. United
States, 69 Fed.Cl. 467, 468 (2006) (quoting Bishop, 26 Cl.Ct. at 286) see also
Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995) ( “It is not the purpose
of allowing motions for reconsideration to enable a party to complete present-
ing his case after the court has ruled against him.”).
B. The Parties’ Arguments
Plaintiff argues that “41 USC §605(c)(5)5 [ ] gives this [c]ourt … exclusive ju-
risdiction over the certified claims included in Renda’s Complaint and divests
the contracting officer of authority to take action with respect to those
claims.” Pl.’s Reconsid. Mot. at 2. Thus, according to plaintiff, the CO’s Final
Decision — issued over seven months after plaintiff filed its complaint in this
court — was not “final and conclusive” as the court found in its April 19, 2006
Opinion and Order, see Renda I, 65 Fed.Cl. at 156, but rather, was “invalid”
or a “nullity” because “the contracting officer lacked authority to issue a final
decision on Renda’s certified claims that were properly before this [c]ourt.”
Pl.’s Reconsid. Mot. at 9-10.

Without citing any authority directly supporting this proposition, plaintiff

argues that “Renda was not required to appeal an unauthorized contracting
officer’s decision.” Pl.’s Reconsid. Reply at 2. And, because plaintiff did not
appeal the CO’s Final Decision within the statutory period provided by 41
USC §609(a)93),6 plaintiff argues that “there are exceptions to the general
rule set forth in section 605(b) … that a CO’s final decision is accorded finali-
ty if not timely appealed.” Pl.’s Supp. Br. at 2. Thus, plaintiff contends that
the court “should examine whether any of the … exceptions applies to excuse
Renda’s failure to appeal the CO’s [Final Decision] within one year.” Id. Ac-
cording to plaintiff, “[t]he principal exception that applies to excuse Renda’s
failure to appeal the CO’s [Final Decision] within one year is based on the
Sharman case.” Id. at 4. In addition, plaintiff alleges that an “exception con-
cerning ‘gross mistake’ … applies to Renda.” Id. Finally, plaintiff contends
that an exception to the statutory period provided in section 605(b) for appeal
may apply here because “there is a serious question as to whether any of the
claims asserted in the CO’s [Final Decision] were actually the CO’s deci-
sions.” Id. at 5.

5 Section 605(c)(5) of the CDA states, in pertinent part: “Any failure by the contracting of-
ficer to issue a decision on a contract claim within the period required will be deemed to be
a decision by the contracting officer denying the claim and will authorize the commence-
ment of the appeal or suit on the claim as otherwise provided in this chapter.” 41 USC
§605(c)(5).
6 Section 609(a)(3) of the CDA states, in pertinent part, that actions in the Court of Federal
Claims in lieu of appealing the decision of the contracting officer to an agency board “shall
be filed within twelve months from the date of the receipt by the contractor of the decision
of the contracting officer concerning the claim.” 41 USC §609(a)(3).
Defendant responds that

the Government claims which are the subject of the November

2002 contracting officer’s decision are not the “mirror image” of,
or the same as, the equitable adjustment claims by Renda that
are the subject of the complaint in this litigation. Consequent-
ly, the filing of the complaint in this case did not divest the con-
tracting officer of the authority to issue the November 2002 fi-
nal decision.

Def.’s Reconsid. Resp. at 22. In addition, defendant argues that,

[o]n its face, 41 USC §605(b) has a preclusive effect upon any
contracting officer’s decision consonant with the criteria estab-
lished by 41 USC §605(a) for such decisions that is not the sub-
ject of a timely appeal to a board or action in this [c]ourt, in-
cluding a contracting officer’s decision alleged to have been
issued without the requisite authority…. Neither section 605(b)
nor, for that matter, section 605(a) mentions a contracting of-
ficer’s authority to issue a decision or otherwise distinguishes
between valid and invalid decisions. Under the CDA, a contrac-
tor who believes that a contracting officer’s decision is unau-
thorized must appeal the decision to a board of contract ap-
peals or commence an action in the Court of Federal Claims
within the time limits prescribed by the statute in order to
avoid the preclusive effect of section 605(b).

Def.’s Supp. Br. Resp. at 23-24.

As to plaintiff’s contention that an exception to the statutory period provided

in sections 605 and 609 exists where the CO’s final decision is based on “gross
mistake,” defendant responds that “Section 605(a) makes no exception for de-
cisions issued as the result of a gross mistake and [gross mistake] would not
be a recognized ground for tolling of the limitations period in 41 USC
§609(a)(3).” Id. at 26. Finally, defendant argues that the authorities on which
plaintiff relies do not support plaintiff’s contention that the statutory time
limit in sections 605 and 609 does not apply where the final decision of a CO
is allegedly not the CO’s “independent decision.” Id. at 29-30. Defendant con-
cludes:

The predicament in which plaintiff finds itself, i.e., the lack of

an opportunity to test the validity of the November 2002 con-
tracting officer decision in either of the fora designated by the
 CDA, is one of its own making. Plaintiff neglected to timely
challenge that decision either by an appeal to a board of con-
tract appeals or by a direct action in the Court of Federal
Claims. The [c]ourt, consequently, is now precluded by 41 USC
§605(b) from reviewing the contracting officer’s decision.

Id. at 30.

C. Analysis
In summary, the court agrees with defendant. Plaintiff has repeatedly at-
tempted to interject into this litigation the question of the validity of the CO’s
Final Decision of November 2002 that was never appealed by plaintiff, and
the court has consistently rejected plaintiff’s attempts. See Renda I, 65
Fed.Cl. at 156-57 (“Notwithstanding the court’s determination that it lacks
jurisdiction to review a contracting officer’s final decision that was not timely
appealed, plaintiff attempted, without success, to bring the decision before
the court twice during pretrial proceedings, twice during trial, and again, by
indirection, in the motion presently pending before the court.” (citing 41 USC
§605(b))) (footnotes omitted). As the court explained in Renda I:

On the second day of the pretrial conference, February 23,

2005, plaintiff’s counsel raised the November 2002 decision as
“an issue related to” the settlement of this case:

There is a legal impediment that we have run into that I think

the court can help us with, and the problem that we have run
into is that before we can begin any meaningful settlement dis-
cussions, the government feels that the government has a
trump card, namely the contracting officer’s final decision of
November 26th, 2002, which was issued about seven months
after Renda filed this lawsuit. We feel as a matter of law that it
is a legal nullity, and if the court could give us some guidance
on that, and if the court would entertain some briefing, I think
that it would become pretty clear, and then we could discuss
settlement with some earnest, but—

[Pretrial Tr.] at 239:5-18. The court rejected plaintiff’s late-

appearing attempt to raise this jurisdictionally-barred issue in
the guise of an impediment to settlement: “You have known at
least since 2002 that you had this circumstance. This is com-
pletely out of order…. [I]f you have a vulnerability here, that is
lawyering, and not settlement.” Id. at 239:20-25.
65 Fed.Cl. at 156 n. 4. The court declines to reconsider its previous rejections
and fashion an “exception” to the specific limitations period and concomitant
finality rule under the CDA for bringing an action in this court based on a
CO’s final decision.

1. The Statute of Limitations for Appeal of a Contracting Officer’s Final

Decision Under the CDA
As sovereign, the United States is “immune from suit save as it consents to
be sued.” United States v. Sherwood¸312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed.
1058 (1941). “Statutes of limitations, such as contained in the CDA, are
‘waiver[s] of sovereign immunity and thus must be strictly construed.’ ” Ham-
za v. United States, 36 Fed.Cl. 10, 13-14 (1996) (quoting Bowen v. City of New
York, 476 U.S. 467, 479, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986)). Section
605(b) of the CDA provides that a CO’s final decision on a contractor’s claim
“shall be final and conclusive and not subject to review by any forum, tribu-
nal, or Government agency, unless an appeal or suit is timely commenced as
authorized by this chapter.” 41 USC §605(b). A contractor who contests a con-
tracting officer’s decision has a choice between two exclusive remedies: it may
appeal the decision to an agency board of contract appeals (BCA) within nine-
ty days from the date of receipt of the decision, 41 USC §606, or it may “bring
an action directly on the claim in the United States Court of Federal Claims,”
41 USC §609(a); see Seaboard Lumber Co. v. United States, 903 F.ed 1560,
1562 (Fed.Cir. 1990). For a contractor that chooses the latter remedy, the
CDA provides that an action filed in the United States Court of Federal
Claims “shall be filed within twelve months from the date of the receipt by
the contractor of the decision of the contracting officer concerning the claim.”
41 USC §609(a)(3). Actual physical receipt of the contracting officer’s decision
is the critical event that starts the running of the statute of limitations. Bor-
ough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir. 1991). Timely fil-
ing provides the court with the requisite jurisdiction to allow adjudication of
the claim. See Handel v. United States, 16 Cl.Ct. 70, 73 (1988). On the other
hand, “the lack of timely filing renders the contracting officer’s decision ‘final
and conclusive and not subject to review by any forum····’ ” Hamza, 36
Fed.Cl. at 14 (quoting 41 USC §605(b)); see also Seaboard Lumber, 903 F.2d
at 1562 (“[O]nce the decision of the contracting officer becomes final on a gov-
ernment claim against the contractor, the merits of that decision cannot be
judicially challenged.”); Krueger v. United States, 26 cl.ct. 841, 844 (1992) (“If
the contractor does not begin an action within one year of the receipt of the
final decision by the contracting officer, the Claims Court lacks the requisite
jurisdiction to entertain the claim, and the contracting officer’s decision is fi-
nal and conclusive.”).
As stated by this court’s predecessor, “Congress has set the twelve-months
limit, and this court cannot and should not read into it exceptions and tolling
provisions Congress did not contemplate or authorize.” Gregory Lumber Co. v.
United States, 229 Ct.Cl. 762, 763 (1982). “Absent any express and unequivo-
cal statutory basis, this court may not, under long established principles,
waive or extend a statutory limitation on the sovereign’s immunity to suit.”
Dico, Inc. v. United States, 33 Fed.Cl. 1, 4 n. 3 (1993), aff’d, 48 F.3d 1199
(Fed.Cir. 1995). The court “cannot extend jurisdiction in the interest of equi-
ty.” UNR Indus., Inc. v. United States, 962 F.2d 1013, 1023 (Fed.Cir. 1992)
(en banc) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)); see also White Buffalo Constr.,
Inc. v. United States, 28 Fed.Cl. 145, 147 (1992) ( “Because Congress legisla-
tively mandated the twelve-month time period, it cannot be extended out of
sympathy for particular litigants, even if this effects a seemingly harsh re-
sult.”). Nor is the court “free to engraft exceptions on the statute of limita-
tions. Should Congress so desire, it may lengthen the time for bringing suit
against the government.” Hart v. United States, 910 F.2d 815, 819 (Fed.Cir.
1990); see also id. at 818-19 (“The statute of limitations is jurisdictional in
nature and, as an express limitation on the waiver of sovereign immunity,
may not be waived.”). Absent congressional action, the court cannot read into
the CDA “exceptions” to the specific statutory time limit for bringing actions
under the CDA in this court. See United States v. Kasler Elec. Co., 123 F.3d
341, 346 (6th Cir. 1997) (“The provisions of the CDA allowing a contractor to
dispute the government’s claims regarding a contract are specific, unambigu-
ous, and exclusive; the statute clearly states that a contractor may seek re-
view of a final decision only in a board of contract appeals or in the Court of
Federal Claims. Absent commencement of such review within the prescribed
period of time, the decision becomes impervious to any substantive review.”
(citing 41 USC §§605(b), 606, 609(a)).

2. Whether Plaintiff Is Excepted From the Twelve-Month Statutory Time

Limit Provided in the CDA for Bringing an Action in This Court Based on a
Contracting Officer’s Final Decision
Plaintiff does not dispute that it received the CO’s Final Decision issued on
November 26, 2002. Renda I, 65 Fed.Cl. at 156 (quoting Order of July 7, 2005
at 7). Plaintiff does not allege-nor could it-that the Final Decision did not ad-
equately inform plaintiff of its appeal rights. See Def.’s Reconsid. Resp. App
(Final Decision) at 5 (clearly and expressly informing plaintiff of its appeal
rights and applicable limitations periods). Nor does plaintiff contend that it
did file an appeal of the CO’s Final Decision with the Board within ninety
days of its receipt or that it brought an action in this court based on the CO’s
Final Decision within twelve months of its receipt. Accordingly, in the court’s
view, the inquiry is at an end and the court’s conclusion in its April 19, 2005
Opinion and Order that the CO’s Final Decision is “ ‘final and conclusive’ and
not reviewable by this court,” Renda I, 65 Fed.Cl. at 162, should not be dis-
turbed, see W. Coast Gen. Corp. v. Dalton, 39 F.3d 312, 315 (Fed.Cir. 1994)
(“West Coast received the CO’s decision denying its gas line claim on April
28, 1989. The CO’s decision set forth West Coast’s appeal rights. The appeal
period thus commenced April 28, 1989. West Coast’s period for appealing to
the Board ended in July 1989, and the period for filing a complaint in the
Court of Federal Claims ended in April 1990. Under the CDA, West Coast
could no longer appeal after April 1990. Thus, the Board properly dismissed
West Coast’s March 20, 1992 appeal.”).

However, plaintiff argues that “[t]he courts have recognized that there are
exceptions to the general rule set forth in section 605(b) of the CDA that a
CO’s final decision is accorded finality if not timely appealed.” Pl.’s Supp. Br.
at 2. The court proceeds now to address the “exceptions” to section 605(b) al-
leged by plaintiff to excuse its failure to bring an action in this court based on
the CO’s Final Decision within twelve months of its receipt.7

a. Whether Sharman Provides an Exception to the Twelve-Month Statutory Time

Limit Provided in the CDA for Bringing an Action in This Court Based on a
Contracting Officer’s Final Decision
Plaintiff places its principal reliance on Sharman Co. v. United States, 2 F.3d
1564 (Fed.Cir. 1993), overruled on other grounds by Reflectone, Inc. v. Dalton,
60 F.3d 1572 (Fed.Cir. 1995) (en banc), to support its argument that the court
should reconsider its April 19, 2005 Opinion and Order and excuse plaintiff’s
failure to appeal timely the CO’s Final Decision. See Pl.’s Supp. Br. at 4 (“The
principal exception that applies to excuse Renda’s failure to appeal the CO’s
[Final Decision] within one year is … based on the Sharman case.”). In
Sharman, the plaintiff filed a complaint against the government in the Unit-
ed States Claims Court8 on February 2, 1990, alleging, inter alia, entitlement
to certain progress payments from the government under the plaintiff’s con-

7 Plaintiff mentions five purported “exceptions” to the finality rule set forth in section 605(b)
of the CDA. However, plaintiff only argues that three of these exceptions apply to Renda.
See Pl.’s Supp. Br. at 4-5. Accordingly, the court considers only these three.
8 At the time that the plaintiff in Sharman initiated its action, the trial court was known as
the “United States Claims Court.” As of October 29, 1992, pursuant to Title IX of the Fed-
eral Courts Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506, the Claims
Court was renamed the “United States Court of Federal Claims.”
tract with the United States Marine Corps. 2 F.3d at 1566-67. Afterwards, on
October 18, 1990, the contracting officer sent the plaintiff a “notice of the
Contracting Officer’s final decision” regarding the return of the progress
payments. Id. at 1567. After the trial court partially dismissed the case,
Sharman amended its complaint on January 6, 1992 to include a specific
challenge to the government’s right to payment of the progress payments. Id.
at 1567-68. The government then counterclaimed in the trial court for the
progress payments. Id. at 1568. On June 11, 1992, the Claims Court entered
judgment for the government on its counterclaim. Id. On appeal, the United
States Court of Appeals for the Federal Circuit held that once a claim is the
subject of litigation, the Justice Department has exclusive authority over the
claim and the CO is divested of authority to issue a final decision on that
claim. 2 F.3d at 1571-72. Accordingly, the final decision regarding the pro-
gress payments issued by the CO during the litigation of that claim in the
Claims Court was “issued without authority and consequently … a nullity.”
Id. at 1572. And, because there was no final decision “prior to the com-
mencement of [the plaintiff’s] suit, the Claims Court lacked jurisdiction to
entertain the suit.” Id. at 1568 (quotation omitted).9

The Sharman court based its holding on 28 USC §§516-520 (2000), see Shar-
man, 2 F.3d at 1571, which states, in pertinent part, that “the conduct of liti-
gation in which the United States … is a party, or is interested, and securing
evidence therefor, is reserved to officers of the Department of Justice, under
the direction of the Attorney General,” 28 USC §516. Based on this section,
the Federal Circuit found that once a claim is “in litigation,” the CO is divest-
ed of authority to issue a final decision on that claim because the Justice De-
partment has exclusive authority over the claim. Sharman, 2 F.3d at 1571-
72. The court reasoned as follows that the government’s claim had been “in
litigation” at the time the contracting officer purported to issue a final deci-
sion with respect to it:

9 Sharman has been overruled by Reflectone, Inc., v. Dalton, 60 F.3d 1572 (Fed.Cir. 1995)
(en banc), but only on the point made by the court in Sharman that a claim is not a “claim”
for purposes of 48 CFR §33.201 (2005), unless it was disputed at the time it was submitted
to the CO. See Reflectone, 60 F.3d at 1579, 1579 n. 10 (“To the extent that Dawco [Constr.,
Inc. v. U.S., 930 F.2d 872 (Fed.Cir. 1991)] and its progeny [citing page 1571 of Sharman in
the footnote] have been read to also hold that, based on FAR 33.201, a ‘claim’ … must al-
ready be in dispute when submitted to the CO, they are hereby overruled.”). The holding
for which plaintiff cites Sharman, however, was not affected by Reflectone and has been
reaffirmed in subsequent Federal Circuit case law. See, e.g., Case, Inc. v. United States, 88
F.3d 1004, 1009-10 (Fed.Cir. 1996).
 Sharman’s original complaint was filed on February 2, 1990, al-
leging entitlement to the government’s progress payments un-
der a quantum meruit theory as part of its “reimburse[ment] …
for the value of the work performed.” … [T]his asserted enti-
tlement to the progress payments in Sharman’s original com-
plaint is the same “claim” as stated by Sharman’s amended
complaint and the government’s counterclaim, because in each
case the “claim” alleges entitlement to the same money based
on the same partial performance, only under a different legal
label. Therefore, the progress payment “claim” was in litigation
between the parties as of the date that Sharman’s original
complaint was filed.

….

Because this claim was effectively put in litigation by Shar-

man’s original complaint and because the contracting officer
had not issued a final decision as to either the government
claim or the contractor’s mirror image claim before the original
suit was filed, the Claims Court did not have jurisdiction over
either claim.

Id. at 1571-73 (first ellipsis in original); see also Case, Inc. v. United States,
88 F.3d 1004, 1010 (Fed.Cir. 1996) (“In Sharman, both the contractor’s initial
claim asserting entitlement to progress payments and the government’s sub-
sequent counterclaim for the return of progress payments involved precisely
‘the same money based on the same partial performance, only under a differ-
ent label.’ Thus, we referred to the contractor’s claim as being the ‘mirror im-
age’ of the government’s claim.” (quoting Sharman, 2 F.3d at 1573)).

Contrary to plaintiff’s assertions, the Sharman court did not hold that the
rule that the CO is divested of authority to issue a final decision on a claim
once that claim is the subject of litigation constitutes an “exception” to the
twelve-month limitations period set forth in section 609(a)(3) of the CDA or
the finality rule set forth in section 605(b) of the CDA. See id. passim. In fact,
the twelve-month limitations period was not mentioned in Sharman and the
Federal Circuit offered no opinion as to whether its holding could somehow be
construed as carving out an “exception” to the clearly stated finality rule in
section 605(b) of the CDA. Cf. id. at 1571 n. 10 (“Because claimed entitlement
to the progress payments was at issue when the original complaint was filed,
this is the time at which jurisdiction must be determined. Therefore … we
need not address the effect of Sharman’s later amendments to the complaint
or the government’s counterclaim and their relation to the October 1990 deci-
sion to determine whether the Claims Court had jurisdiction.”). In this court’s
view, the omission of such a discussion in Sharman is explained because,
among other reasons, it could not be so construed. See Hart, 910 F.2d at 819
(“Courts are not free to engraft exceptions on the statute of limitations.
Should Congress so desire, it may lengthen the time for bringing suit against
the government.”); Gregory Lumber, 229 Ct.Cl. at 763 (“Congress has set the
twelve-months limit, and this court cannot and should not read into it excep-
tions and tolling provisions Congress did not contemplate or authorize.”).

Section 605(b) unambiguously provides that “[t]he contracting officer’s deci-

sion on the claim shall be final and conclusive and not subject to review by
any forum, tribunal, or Government agency, unless an appeal or suit is timely
commenced as authorized by this chapter.” 41 USC §605(b). The plain lan-
guage of the CDA clearly confers finality and unreviewability on a CO’s deci-
sion that is not properly appealed within the statutory period provided. That
finality is not limited by the CO’s authority to issue such a decision or the va-
lidity of the CO’s decision. Kasler, 123 F.3d at 346. The statute affords the
opportunity to challenge the authority and/or validity of a decision, provided
the challenge is made within the statutory period. If a challenge is not made
within the statutory period, section 605(b) mandates that the CO’s decision
“be final and conclusive and not subject to review.” 41 USC §605(b). The court
refuses to read into the CDA an exception to this clear finality rule. See Ham-
za, 36 Fed.Cl. at 15 (“With respect to actions filed under the CDA, Congress
has limited th[e government’s] waiver [of sovereign immunity] by virtue of
the twelve month statute of limitations and only Congress can expand the
extent to which consent has been given. Since the statute of limitations is a
jurisdictional requirement, ‘the court cannot waive it on grounds of policy or
equity.’ Accordingly, this court lacks the power to extend the statute of limi-
tations beyond the twelve month period authorized by Congress.” (quoting
Computer Prods. Int’l, Inc. v. United States, 26 Cl.Ct. 518, 528 (1992))).

The court notes that absent from sections 605(b) and 609(a)(3) is any mention
of the “validity” of a CO’s decision or a CO’s “authorization” to issue a deci-
sion. Section 605(b) does not state that a – ”valid” or “authorized” –
”contracting officer’s decision on the claim shall be final and conclusive and
not subject to review … unless an appeal or suit is timely commenced as au-
thorized by this chapter.” 41 USC 605(b). In addition, section 609(a)(3) does
not state that “[a]ny action [challenging the decision of a contracting officer
brought in the United States Court of Federal Claims] shall be filed within
twelve months from the date of the receipt by the contractor of the – “valid”
or “authorized” –decision of the contracting officer concerning the claim.” 41
USC §609(a)(3). The court declines to read these words into the CDA in order
to fashion an exception to the twelve-month limitations period and the finali-
ty rule in the CDA that would permit it to consider the merits of an otherwise
time-barred claim. See 2A Norman J. Singer, [Sutherland] Statutes and Stat-
utory Construction §46:01, at 113-118 (6th ed. 2000) (Singer) (“[W]hen the
language of the statute is clear and not unreasonable or illogical in its opera-
tion, the court may not go outside the statute to give it a different meaning.”);
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100
S.Ct. 2051, 64 L.Ed.2d 766 (1980) ( “[T]he starting point for interpreting a
statute is the language of the statute itself.”); Greyhound Corp. v. Mt. Hood
Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978) (same);
Brown v. Dept. of Health and Human Servs., 920 F.2d 918, 920 (Fed.Cir.
1990) (“[A]bsent ambiguous language or clearly contrary legislative intent, a
statute is construed in accordance with its plain meaning.”); Skillo v. United
States, 68 Fed.Cl. 734, 744 (2005) (“The canons of statutory interpretation
require the court to consider first the plain language of the statute….”).

To be sure, the court must add that the circumstances in which plaintiff finds
itself after having failed to appeal the CO’s Final Decision are “particularly
harsh,” Renda II, 66 Fed.Cl. at 721, and that this case presents a difficult
question: whether the court may review — and determine to be a nullity — a
CO’s final decision that was not appealed within the specifically prescribed
statutory period under the CDA because the CO allegedly lacked the authori-
ty to issue the final decision under Sharman.

The parties have not identified, and the court has not found, any binding or
persuasive authority in this court, the Federal Circuit, or the United States
Supreme Court addressing precisely this issue. The Federal Circuit has noted
that “an invalid contracting officer’s decision may not serve as the basis for a
CDA action.” Case, 88 F.3d at 1009 (citing United States v. Grumman Aero-
space Corp., 927 F.2d 575, 579 (Fed.Cir. 1991)); see also id. (“A contracting
officer’s final decision is invalid when the contracting officer lacked authority
to issue it.”). However, this observation begs the question of how a contractor
is to determine in the first place whether a CO’s final decision is “invalid” or
whether the CO “lacked authority to issue it.” It is the court’s view that, un-
der the plain language of the CDA, a contractor obtains this determination by
appealing an allegedly invalid or unauthorized final decision to the BCA
within ninety days, 41 USC §606, or by bringing action challenging such a
final decision in this court within twelve months, 41 USC §609(a)(3). See, e.g.,
Medina Constr., Ltd. v. United States, 43 Fed.Cl. 537, 541-45 (1999) (address-
ing whether a CO’s final decision was issued without authority because it
was already the subject of pending litigation where challenge to that authori-
ty was made by the plaintiff within the twelve-month statutory period); see
also Buse Timber & Sales, Inc. v. United States, 45 Fed.Cl. 258, 264 (1999)
(addressing defendant’s argument that the CO’s final decision was issued
without authority because it was already the subject of pending litigation
where plaintiff filed an amended complaint challenging the final decision less
than four months after CO issued it).

As a practical matter, to allow for an exception to these statutory time limits

set forth in the CDA simply because the plaintiff’s challenge is to the “validi-
ty” of the CO’s decision or the CO’s “authority” to issue it under Sharman, as
opposed to the merits of the decision, potentially would open the door to con-
fusion, delay, and prejudice to the government. Indeed, as is underscored by
the parties’ extensive arguments on this issue, compare Pl.’s Reconsid. Mot.
at 2 (“The November letter addresses or is premised on a denial of Renda’s
certified claims before this [c]ourt and involves the same operative facts.”)
with Def.’s Reconsid. Resp. at 18-22 (arguing that “the government claims to
which the November 26, 2002[CO]’s decision is addressed are not the ‘mirror
image’ of, or the same as, the claims by Renda that are the subject of the
complaint in this case”) (capitals omitted), the Sharman “mirror image” anal-
ysis, whereby courts are to determine whether a CO has issued a final deci-
sion on the same “claim” that is the “mirror image” of a claim already “in liti-
gation” such that the final decision should be deemed a nullity, see Sharman,
2 F.3d at 1571, 1573; Case, 88 F.3d at 1010, can be difficult, fact-intensive,
and highly contentious, see, e.g., Case, 88 F.3d at 1010-11; Buse Timber, 45
Fed.Cl. at 264-267.

Under these circumstances, a contractor should not be free to determine, on

its own, that a final decision is necessarily “in litigation” and thus a nullity,
without timely appealing the final decision to the BCA or timely filing an ac-
tion challenging the final decision in this court as set forth under the CDA.
See 41 USC §§605(b), 606, 609(a)(3). Yet this is precisely what Renda did
here. See Transcript (Tr.) of Oral Argument of April 13, 2005 at 16:17-22
(plaintiff’s counsel, stating, “When we looked at the November 26, 2002, con-
tracting officer’s decision, … we saw it as the mirror image or the flip side of
exactly the claims that we had already asserted against the government, and
so those exact issues were already in play before the [c]ourt”). To hold other-
wise would render uncertain and inconclusive a CO’s final decision that was
not challenged within the statutory period (or not challenged at all) for an
undefined and potentially prejudicial length of time. Cf. Kasler, 123 F.3d at
346 (“Holding that district courts may engage in inquiries as to the authority
of a contracting officer at any given time would unnecessarily and unjustifi-
ably mire district courts in precisely the kind of substantive review of gov-
ernment contract matters that the [CDA] seeks to limit to a special statutory
scheme.”). Instead, as plainly stated in the CDA, if a contractor does not elect
either of its options for appeal within the statutory period, the contracting
officer’s final decision — valid or not — ”shall be final and conclusive and not
subject to review by any forum, tribunal, or Government agency.” 41 USC
§605(b); see Brown, 920 F.2d at 920 (“[A]bsent ambiguous language or clearly
contrary legislative intent, a statute is construed in accordance with its plain
meaning.”).

The court has identified a line of cases in this court holding that the statute
of limitations in the CDA is not triggered when a CO issues a final decision
based on an uncertified claim (where the claim was required to be certified
under the CDA) because the claim was not “properly submitted” and there-
fore the CO had no authority to issue a decision on the claim. See United
Construction Co. v. United States, 7 Cl.Ct. 47, 51 (1984) (“If the ‘claim’ to the
contracting officer is not certified, it has not been ‘properly submitted,’ so the
contracting officer does not have authority to issue a decision. A contracting
officer’s decision based on an uncertified claim cannot trigger the running of
the limitations periods under the CDA, because such a decision has no life
under the CDA apart from the underlying claim.”) (quoting Skelly & Loy v.
United States, 231 Ct.Cl. 370, 685 F.2d 414, 419 (1982)); H.H.O. Co. v. United
States, 12 Cl.Ct. 147, 160 (1987) (“[T]he contracting officer’s denial of said
claims in his October 26, 1983 decision is of no consequence. Defendant’s po-
sition that a contracting officer’s decision on uncertified claims over $50,000
have vitality if not appealed or resubmitted within 12 months of receipt
thereof is rejected. Such a decision is a nullity and the limitations provision of
section 609(a)(3) of the CDA is accordingly not activated.”); Witherington
Constr. Corp. v. United States, 45 Fed.Cl. 208, 213 (1999) (citing, inter alia,
United Construction, Skelly & Loy, and H.H.O., and finding that, “[a]s these
decisions indicate, the 12-month statute of limitations will not be triggered
until receipt of a valid final decision on the monetary claims”). However, the
facts essential to the holdings in this line of cases are not present in this case:
namely, the failure to certify a claim submitted to the CO as is required un-
der the CDA for claims of more than the statutory amount. See Def.’s Recon-
sid. Resp.App. (Final Decision) at 8 (stating that “the Contracting Officer is-
sued 6 letters to [Renda] acknowledging receipt of various certified claims
submitted by [Renda]”); Pl.’s Memo. at 2 (“When [d]efendant ignored the [Re-
quests for Equitable Adjustment], Renda resubmitted them as Certified
Claims.”); see also 41 USC §605(c)(1) (“For claims of more than $100,000, the
contractor shall certify that the claim is made in good faith, that the support-
ing data are accurate and complete to the best of his knowledge and belief,
that the amount requested accurately reflects the contract adjustment for
which the contractor believes the government is liable, and that the certifier
is duly authorized to certify the claim on behalf of the contractor.”). Such a
failure “taint[s] every ‘decision’ that follows.” Skelly and Loy, 685 F.2d at 419;
see also id. (“In sum, any proceedings on an uncertified claim-under the CDA-
are of no legal significance. In such a case, as in this case, the review process
simply has not begun.”). The factual circumstance addressed by these author-
ities — in which “the review process simply [never] beg[a]n” — is distin-
guishable from this case.

Although the court has not found any binding authority addressing whether
the court may review-and determine to be a nullity under Sharman — a CO’s
final decision that was not appealed within the specifically prescribed statu-
tory period under the CDA — the court has found persuasive authority from
the United States Court of Appeals for the Sixth Circuit that addresses pre-
cisely this issue in United States v. Kasler Electric Co., 123 F.3d 341 (6th Cir.
1997). In Kasler, the plaintiff and the Veterans Administration (VA) entered
into a contract in 1982 for the installation of a fire system at a VA hospital.
Id. at 342. In 1987, the plaintiff received notice of a decision from the CO
terminating the contract for default. Id. The contractor filed suit in the
Claims Court in 1988 challenging the default termination. Id. In 1990, during
the pendency of the Claims Court litigation, the CO issued another decision
determining excess reprocurement costs and ordering the contractor to pay
those costs. Id. The Claims Court dismissed the suit challenging the default
termination in 1992 without prejudice for lack of subject matter jurisdiction,
finding that Kasler had not submitted a CDA “claim” to the contracting of-
ficer as was required for jurisdictional purposes under the CDA. Id. Thereaf-
ter, in 1994, the United States filed an action in district court seeking a
judgment to enforce the CO’s 1990 decision. Id. at 343. The district court
granted summary judgment in favor of the United States, holding that “the
final decision was ‘valid, final and unreviewable under [41 USC] §609.’ ” Id.
(quotation omitted) (alteration in original). The Sixth Circuit affirmed. Id. at
350.

The Sixth Circuit in Kasler rejected the argument, made by the contractor,
that “the final decision was void when issued in 1990 because the pending
litigation in the Claims Court divested the contracting officer of authority to
issue a final decision on the matter.” Id. at 345 (noting that “Kasler bases its
argument on Sharman“); see also id. (“Kasler contends that no decision ren-
dered during the pendency of the litigation … was valid.”). The court ex-
plained:

The provisions of the CDA allowing a contractor to dispute the

government’s claims regarding a contract are specific, unam-
biguous, and exclusive; the statute clearly states that a con-
tractor may seek review of a final decision only in a board of
contract appeals or in the Court of Federal Claims. 41 USC
§§605(b), 606, 609(a). Absent commencement of such review
within the prescribed period of time, the decision becomes im-
pervious to any substantive review. 41 USC §605(b).

.…

Because the language of 41 USC §605(b) clearly imparts finali-

ty and unreviewability on a contracting officer’s decision that is
not properly appealed, and makes no mention of the contract-
ing officer’s authority to issue the decision, we hold that chal-
lenges to the existence of that authority, like the merits of the
dispute, can only be pursued through the statutorily provided
means. The district court, and this court on appeal, may in-
quire only as to the finality and unreviewability of the decision
that was issued — i.e., whether the contractor received notice
of the final decision, and whether it timely commenced an ap-
peal or suit in one of the provided forums.

Id. at 346. The court finds the Sixth Circuit’s analysis to be persuasive, and
in accordance with the express provisions and plain meaning of the CDA.

Here, the CO’s Final Decision may well have been on “claims” that were the
“mirror image” of the claims “in litigation” before this court. Compare Def.’s
Reconsid. Resp. App. (Final Decision) at 8 (noting, in the final paragraph of
the “Findings of Fact,” the “[b]reakdown of [the certified] claims [submitted to
the CO] and dollar amounts”) with Compl. at 29 (summarizing claims
brought in this court and stating the same claims with the same dollar
amounts (less one payment on Flare Area claim)). However, this issue was
not raised within the specifically prescribed statutory period under the CDA
and thus was never properly before the court. The time and place to challenge
the authority of the CO to issue the Final Decision was within ninety days of
plaintiff’s receipt of the Final Decision in the Board, 41 USC §606, or within
twelve months of plaintiff’s receipt of the Final Decision in this court, 41 USC
§609(a)(3). Plaintiff failed to do either, and this failure is fatal to plaintiff’s
challenge. The government has not waived its sovereign immunity with re-
spect to challenges of a CO’s final decision lodged after the prescribed statu-
tory period has expired, and the court refuses to fashion an exception to this
statutory period absent Congressional action or authority to do so. See Hart,
910 F.2d at 819 (“Courts are not free to engraft exceptions on the statute of
limitations. Should Congress so desire, it may lengthen the time for bringing
suit against the government.”); Gregory Lumber, 229 Ct.Cl. at 763 (“Congress
has set the twelve-months limit, and this court cannot and should not read
into it exceptions and tolling provisions Congress did not contemplate or au-
thorize.”). Accordingly, the court declines to rule on the validity of the CO’s
Final Decision, and plaintiff’s arguments based on Sharman do not persuade
the court to reconsider the court’s April 19, 2005 Opinion and Order finding
that the Final Decision “is now ‘final and conclusive’ and not reviewable by
this court.” Renda I, 65 Fed.Cl. at 162 (quoting 41 USC §605(b)); accord
Kasler Elec., 123 F.3d at 346.

b. Whether the Contracting Officer’s Alleged “Gross Mistake” Provides an Exception to

the Twelve-Month Statutory Time Limit Provided in the CDA for Bringing an Action
in This Court Based on a Contracting Officer’s Final Decision
Plaintiff states that it “believes there is significant evidence that the CO’s
[Final Decision] was issued as a result of gross mistake and that its failure to
appeal within one year is therefore excused.” Pl.’s Supp. Br. at 4. Plaintiff
provides no authority in support of the proposition that the “gross mistake” of
a CO in issuing a decision on a contractor’s claim excuses the contractor from
timely appealing the CO’s decision. See id. at 3-4. The reason plaintiff pro-
vides no authority in support of this proposition is that such authority does
not exist. “Because Congress legislatively mandated the twelve-month time
period, it cannot be extended out of sympathy for particular litigants, even if
this effects a seemingly harsh result.” White Buffalo Constr., 28 Fed.Cl. at
147. If Congress had wanted to provide an exception to the twelve-month
statute of limitations in section 609(a)(3) or the finality rule in section 605(b)
for “gross mistake” on the part of the CO, it would have done so.10 Absent

10 Indeed, as pointed out by defendant, Congress knows how to draft exceptions to finality
rules when it wishes to do so:
The CDA itself, with respect to the finality of board decisions, provides
that, “[i]n the event of an appeal by a contractor or the Government from
a decision by any agency board pursuant to [41 USC §607], notwith-
standing any contract provision, regulation, or rules of law to the contra-
ry, the decision of the agency board ··· on any question of fact shall be fi-
nal and conclusive and shall not be set aside unless the decision is
fraudulent, or arbitrary, or capricious, or so grossly erroneous as to neces-
sarily imply bad faith, or if such decision is not supported by substantial
evidence.” 41 USC §609(b) (2000) (emphasis added); see also 41 USC
such congressional action, regardless of whether or not the CO’s Final Deci-
sion was made as a result of “gross mistake,” the court may not review the
Final Decision because the twelve-month period had indisputably expired be-
fore plaintiff raised its challenge in this court. See 41 USC §§605(b),
609(a)(3); Hart, 910 F.2d at 819; Gregory Lumber, 229 Ct.Cl. at 763.

c. Whether the Contracting Officer’s Lack of Independence Provides an Exception to

the Twelve-Month Statutory Time Limit Provided in the CDA for Bringing an Action
in This Court Based on a Contracting Officer’s Final Decision
Plaintiff argues that, “[i]n light of the testimony of the CO that is contrary to
some of the facts asserted in the CO’s [Final Decision], as well as the other
factual errors in that [Final Decision], there is a serious question as to
whether any of the claims asserted in the CO’s [Final Decision] were actually
the CO’s decisions.” Pl.’s Supp. Br. at 5. According to plaintiff, if they are not,
“the decision of the contracting officer … is invalid” and plaintiff is excepted
from complying with the statute of limitations for challenging the CO’s Final
Decision. Id. Again, plaintiff provides no authority in support of this purport-
ed “exception” to the statute of limitations in the CDA. See id. at 3, 5. Accord-
ingly, the court declines to read into the statute such an exception and does
not reach the merits of plaintiff’s contention. See Hart, 910 F.2d at 819; Greg-
ory Lumber, 229 Ct.Cl. at 763.

Plaintiff was on notice of any “factual errors” in the final decision when it re-
ceived it on or around November 26, 2002. Under the clear and specific pro-
cedure set forth in the CDA and communicated to plaintiff in the Final Deci-
sion, plaintiff could have challenged the alleged “factual errors” in the Final
Decision by appealing it to the Board within ninety days, or by bringing an
action in this court within twelve months. Plaintiff failed to do so. The court’s
inquiry is therefore at an end.

d. Conclusion
For the foregoing reasons, the court finds that plaintiff is not excepted from
the twelve-month statutory time limit provided in section 609(a)(3) of the

§608(d) (2000) (“A decision against the Government or the contractor

reached under the small claims procedure shall be final and conclusive
and shall not be set aside except in cases of fraud.” (emphasis added)). No
such exceptions to finality are called out in 41 USC §605(b), however. A
contracting officer’s decision upon a claim that is not the subject of a
timely appeal or suit “shall be final and conclusive and not subject to re-
view by any forum, tribunal, or Government agency[ ].” [41 USC §605(b)].
Def.’s Supp. Br. Resp. at 26 (first alteration in original).
CDA for bringing an action in this court based on the CO’s Final Decision, 41
USC §609(a)(3), and that plaintiff is not excepted from the clear and explicit
finality rule provided in section 605(b) of the CDA mandating that the CO’s
Final Decision be “final and conclusive” and unreviewable by this court if an
appeal or suit is not timely commenced, 41 USC 605(b).

III. Conclusion

For the foregoing reasons, plaintiff’s Motion for Reconsideration is DENIED.

The court’s April 19, 2005 Opinion and Order remains in full force and effect.
The foregoing resolves all outstanding issues in this case.11 For the reasons
stated in the court’s Trial Opinion and opinions and orders of the court issued
thereafter, the Clerk of the Court is hereby directed to ENTER JUDGMENT
for defendant. No costs.

IT IS SO ORDERED.

11 The court notes the existence of several outstanding motions relating to pretrial and trial
proceedings. See Docket Nos. 62, 64, 88, 89, 129, 165 and 191. All such motions, to the ex-
tent not disposed of in pretrial and trial proceedings, are MOOT.
 Rex Systems

97-2 BCA ¶28,987

May 7, 1997

Appearance for Appellant: James S. Phillips, Esq., Law Offices of James S.

Phillips Arlington, VA. Appearances for the Government: Kelly T. McCrack-
en, III, Esq. Chief Trial Attorney Defense Logistics Agency Brian G. Flana-
gan, Esq. Trial Attorney Defense Contract Management Command (DLA)
Milwaukee, WI

Opinion by Administrative Judge Tunks Pursuant to Rule 11

With the exception of entitlement to profit, the parties have settled the above
referenced appeals. The underlying claims were for unabsorbed overhead. To
the extent the facts are similar, the parties have agreed that our decision in
ASBCA No. 49065 will govern the outcome of the other appeals. Thus, our
decision will address only ASBCA No. 49065. The appeals were submitted on
the written record pursuant to Board Rule 11. Both parties submitted briefs.

Findings of Fact

ASBCA No. 49065

The Government issued Invitation for Bids (IFB) No. N00383-91-R-0402 for
circuit card assemblies on 7 January 1991. Clause C-321 of the IFB, entitled
SPECIFICATIONS, required the assemblies to be manufactured in accord-
ance with “part number 247AS13-138-001 REV. “D.’ ” (R4, tab 1) Although
the IFB called out revision D, the data package forwarded with the IFB con-
tained revision C.

The Government awarded Contract No. N00383-91-C-9197 in the amount of

$5,082 to Rex Systems, Inc. (RSI) on 15 July 1991 (R4, tab 2). The contract
incorporated FAR 52.243-1 CHANGES (APR 1984) and FAR 52.212-15
GOVERNMENT DELAY OF WORK (APR 1984) (R4, tab 1). The Changes
clause authorized the contracting officer to equitably adjust the contract if
the Government changed the “[d]rawings, designs, or specifications,” the
“[m]ethod of shipment or packing” or the “[p]lace of delivery.” The Govern-
ment Delay of Work clause authorized an equitable adjustment for work to-
tally or partially delayed by “a failure of the Contracting Officer to act within
the time specified in the contract, or within a reasonable time if not speci-
fied.”
On 16 August 1991, RSI advised the Government that the data package in
the IFB contained revision C of the drawings instead of revision D, and re-
quested the Government to either send revision D or modify the contract to
indicate that the assemblies were to be manufactured in accordance with re-
vision C (R4, tab 3). RSI subsequently submitted several more requests for
clarification (R4, tabs 4, A-1, A-2, A-3). The Government did not reply to the
requests for clarification until 1 April 1992, when it forwarded a set of revi-
sion E drawings to RSI (R4, tab 5). On 16 April 1992, RSI advised the Gov-
ernment that it had incurred costs of $6,108.12 due to the delay (R4, tab 7).
On 29 September 1992, RSI provided additional information about its claim,
alleging, among other things, that the claim arose under the Changes and
Government Delay of Work clauses (R4, tab 16).

RSI requested the contracting officer to issue a final decision on 29 March

1995 (R4, tab 34). The parties subsequently engaged in numerous meetings,
discussions and written exchanges in an attempt to resolve the dispute (R4,
tabs 17, 18, 19, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39,
40, 42, 43, 44, 45, 46). With the exception of profit, the parties settled all as-
pects of the claims on 18 December 1995. Paragraph 3 of the agreement pro-
vided, in part, as follows:

3. Both parties agree that if and when a final resolution of [the

dispute on profit] is obtained ... under any one contract, that
resolution will apply to all REA’s [requests for equitable ad-
justments] under all contracts listed herein and any others
then pending between RSI and the Government based upon
similar facts ....

(Settlement Agreement dated 15 Dec. 1995). During telephone conferences on

8 and 20 December 1995, the parties designated ASBCA No. 49065 as the
test appeal.

Decision

The sole issue before us is whether RSI is entitled to profit on unabsorbed

overhead paid in settlement of a 228-day Government delay in clarifying de-
fective specifications. RSI argues that the claim originates under the Changes
clause, entitling it to payment of profit under Bell South Communication Sys-
tems, Inc., ASBCA No. 45955, 94-3 BCA ¶27,231. The Government argues
that the claim originates under the Government Delay of Work clause, which
specifically excludes payment of profit.
Both the Changes clause and the Government Delay of Work clause provide
for payment of delay damages, depending upon the nature of the delay. De-
lays which result from Government direction to perform work in excess of
that required by the contract are compensable under the Changes clause.
American Line Builders, Inc. v. United States, 26 Cl. Ct. 1155, 1176-81 (1992)
and cases cited therein. Once a contractor proves entitlement to an adjust-
ment under the Changes clause, it is entitled to recover for the change as well
as for any delays caused by the change. Pathman Constr. Co. v. United
States, 227 Ct. Cl. 670, 652 F.2d 70 (1981). Unreasonable delays caused by
the action or inaction of the contracting officer in administering the contract
fall under the Government Delay of Work clause. ECC International Corp.,
ASBCA Nos. 39044 et al., 94-2 BCA ¶26,639 (104-day delay in determining
first article requirements unreasonable); Michael, Inc., ASBCA No. 35653,
92-1 BCA ¶24,412 (two and a half month delay caused by defective Govern-
ment-furnished material unreasonable); Perma-Cal. Corp., ASBCA No.
42155, 91-2 BCA ¶24,034 (Delay in issuing a contract modification for over
four months unreasonable); Cf. Chaney & James Constr. Co. v. United States,
421 F.2d 728 (Ct. Cl. 1970) (Delays resulting from defective specifications are
per se unreasonable and compensable, in the case of a construction contract,
under the Suspension of Work clause).

RSI’s claim is not for performing additional work. It is for the 228-day delay
in the commencement of contract performance caused by the contracting of-
ficer’s failure to clarify defective specifications. The solicitation called out re-
vision D of the data package, but the drawing package included in the solici-
tation was revision C. Although RSI requested clarification on 16 August
1991, the Government, for reasons not explained on this record, did not reply
until 1 April 1992. There is no evidence that RSI attempted to perform to re-
vision C or revision D. Moreover, there was not alleged to be any difference in
the cost to perform under revision C, D or E. Accordingly, we conclude that
the claim arises under the Government Delay of Work clause and that RSI is
not entitled to payment of profit.

The appeals are denied.

ELIZABETH A. TUNKS, Administrative Judge

We concur
ALAN M. SPECTOR, Administrative Judge, Acting Chairman
MARK N. STEMPLER, Administrative Judge, Vice Chairman
 Rex Systems

98-2 BCA ¶29926

July 27, 1998

Appearances For The Appellant: James S. Phillips, Esq.; Leigh T. Hansson,

Esq.; Kinosky, Phillips & Lieberman, PLC; Arlington, VA. Appearances For
The Government: Kelly T. McCracken, III, Esq., Chief Trial Attorney; Steven
Gruenwald, Esq., Trial Attorney; Defense Contract Management Command
(DLA); Chicago, IL.

Opinion by Administrative Judge Thinks on Appellant’s Motion for

Reconsideration

Appellant (RSI) moves for reconsideration1 of our decision in Rex Systems,

Inc., ASBCA Nos. 49065 et al, 97-2 BCA ¶28,987, alleging that we failed to
consider all the relevant facts in denying its claim for profit on unabsorbed
overhead.2 In our earlier decision, we concluded that the underlying unab-
sorbed overhead claim arose from the Government’s unreasonable delay in
answering RSI’s request for clarification. As a result, we held that the claim
arose under the Government Delay of Work clause and denied RSI’s claim for
profit. On reconsideration, RSI argues that its claim arose, not from the Gov-
ernment’s untimely reply to its request for clarification, but from defective
Government-furnished specifications. After reviewing the facts in light of
RSI’s arguments, we are persuaded that our earlier decision was in error.

The bid package which was issued in connection with this contract was defec-
tive. The specifications required that the work be performed in accordance
with Revision D of the drawings, but the drawings included in the package
were Revision C. It is undisputed that this defect made it impossible for RSI
to commence work. It is also undisputed that RSI timely requested clarifica-
tion of the defect. Two hundred and twenty-eight days after receiving RSI’s
request for clarification, the Government indicated that the work was to be
performed in accordance with Revision E of the drawings, a later revision
than that specified in the bid package. Given these circumstances, we now

1 RSI has also moved to reopen the record and admit two additional documents into evi-
dence. Since we grant RSI’s motion for reconsideration, the motion to reopen the record is
moot and we need not address it.
2 The parties settled RSI’s claim for unabsorbed overhead. The only issue before us was en-
titlement to profit.
conclude that the delay which gave rise to RSI’s claim arose from the defec-
tive bid package.

Generally speaking, delays which precede the issuance of a change order are
not compensable under the Changes clause. However, there is an exception to
this general rule for delays caused by defective specifications. Hardrives, Inc.,
IBCA Nos. 2319 et al., 94-1 BCA ¶26,267; Frontier Contracting Co., Inc.,
ASBCA No. 33658, 89-2 BCA ¶21,595; Vic Lane Construction, Inc., ASBCA
No. 30305, 85-2 BCA ¶18,156; Weaver Construction Company, ASBCA No.
12577, 69-1 BCA ¶7455; Hurst & Son Awnings, Inc., ASBCA No. 4167, 59-1
BCA ¶2095; La Crosse Garment Manufacturing Co. v. United States, 193 Ct.
Cl. 168, 432 F.2d 1377 (1970);Beauchamp Construction Company, Inc. v.
United States, 14 cl. Ct. 430 (1988); Bell v. United States, 186 Ct. Cl. 189, 404
F.2d 975 (1969); see also Nash, Contract Changes, 1989 at 18-2 through 18-5.
On reconsideration, we determine that the circumstances of the present ap-
peal, which involve a defective bid package, qualify for such exceptional
treatment. Citing Labrunum Construction Corporation v. United States, 163
Ct. Cl. 339, 325 F.2d 451 (1964), respondent argued in its main post-hearing
brief that profit on unabsorbed overhead is not allowable because it: (1) con-
stitutes anticipatory profit on work not performed, and (2) results in an ille-
gal cost-plus-percentage contract. Laburnum, however, involved a breach of
contract claim. The instant claim arises under the Changes clause of the con-
tract. Under established principles of law, profit is allowable on equitable ad-
justment claims, including claims for unabsorbed overhead, unless expressly
prohibited by some pertinent contract provision. BEI Defense Systems Co.,
ASBCA No. 46399, 95-1 BCA ¶27,328; BellSouth Communications System,
Inc., ASBCA No. 45955, 94-3 BCA ¶27,231; Professional Services Unified,
Inc., ASBCA No. 45799, 94-1 BCA ¶26,580; Bennett Construction Company v.
United States, 178 Ct. Cl. 61, 371 F.2d 859 (1967); Nash & Cibinic, Admin. of
Government Contracts, 3d Ed., The George Washington University, at 753
and 761.

Accordingly, appellant is entitled to recovery of profit under the Changes

clause. The appeals are sustained as to this issue and remanded to the par-
ties for negotiation of quantum.

ELIZABETH A. TUNKS, Administrative Judge

We concur
ALAN M. SPECTOR, Administrative Judge, Acting Chairman
MARK N. STEMPLER, Administrative Judge, Vice Chairman
 Satellite Electric
v.
Dalton

105 F.3d 1418

January 30, 1997

Victor G. Klingelhofer, Cohen & White, Washington, D.C., argued for appel-
lant. Shalom Brilliant, Senior Trial Counsel, Commercial Litigation Branch,
Civil Division, Department of Justice, Washington, D.C., argued for appellee.
With him on the briefs were Frank W. Hunger, Assistant Attorney General,
David M. Cohen, Director.

Before ARCHER, Chief Judge, RICH, Circuit Judge, and FRIEDMAN,

Senior Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The Eichleay formula is used to determine a government contractor’s damag-

es reflecting unabsorbed home office overhead when the government delays
work on the contract indefinitely but requires the contractor to remain avail-
able to resume work immediately on the government’s instruction. The
Armed Services Board of Contract Appeals denied the contractor’s claim for
Eichleay damages because the government had shown that the delay did not
prevent the contractor from taking on additional work or reallocating its re-
sources. We affirm.

I.

The Navy awarded the appellant Satellite Electric Company (“Satellite”) a

contract to install a power supply system. Twice during the performance of
the contract the Navy required Satellite to stop performance because of the
Navy’s inability to provide two items that the contract required it to supply:
batteries and an induction coil. The first period of suspension of work lasted
82 days, and the second period lasted 146 days. See Appeal of Satellite Elec.
Co., ASBCA No. 46935, 95-2 BCA (CCH) ¶27,883 at 139,084-085, 1995 WL
518722 (Aug. 29, 1995). Satellite was required to remain on “standby” during
suspension of work, i.e., to be available to resume work promptly upon the
government’s instruction. See Appeal of Satellite Elec., 95-2 BCA at 139,089.
Both suspensions of work occurred after Satellite had completed 96.7 percent
of the contract.
Throughout the periods of suspension, Satellite bid on new contracts. Satel-
lite bid on approximately 30 projects during the first period, and on 19 during
the second period. Satellite obtained only two contracts. Satellite’s inability to
obtain new contracts resulted partially from limitations in its bidding bond,
unrelated to the contract, that restricted the number and type of contracts
upon which it could bid, and partially from economic conditions that made it
difficult to bid competitively for new contracts. See id.

As we describe in part II below, Eichleay damages are calculated by multiply-

ing the daily amount of the contractor’s unabsorbed home office overhead al-
located to the particular contract by the number of days for which work was
suspended. After two evidentiary hearings, the Armed Services Board of Con-
tract Appeals (Board) denied the contractor’s claim for Eichleay damages. See
id. The Board held that Satellite had established the first two elements of the
Eichleay formula: (1) “a government-imposed delay” and (2) the contractor
being on “standby” status during that delay. “There is no question that appel-
lant was on standby for a period of 228 days for delays attributable to the
Government.” Id. The Board further held, however, that the government had
carried its burden of rebutting that prima facie case by showing that “the
contractor did not suffer or should not have suffered any loss because it was
able to either reduce its overhead or take on other work during the delay.” Id.
The Board ruled that the evidence on which Satellite relied “does not show an
inability to take on additional work for any reason attributable to the Gov-
ernment” and that “[t]here must be an impairment of a contractor’s ability to
take on other work that is attributable to the Government-caused delay to be
reimbursed for the period of delay under the Eichleay formula.” Id.

II.

A.
In Eichleay Corp., ASBCA No. 5183, 60-2 BCA (CCH) ¶2688, 1960 WL 538
(July 29, 1960), aff’d on recons., 61-1 BCA 2894, 1960 WL 684 (Dec. 27,
1960), the Board approved, as “a realistic method of allocation of continuing
home office expenses” “incurred during a period of suspension of work” when
it was not practical for the contractor to undertake the performance of other
work which might absorb them, the following computation, which has become
known as the Eichleay formula. It involves:

an allocation of the total recorded main office expense to the

contract in the ratio of contract billings to total billings for the
 period of performance. The resulting determination of a con-
tract allocation is divided into a daily rate, which is multiplied
by the number of days of delay to arrive at the amount of the
claim.

Eichleay, 60-2 BCA at 13,574.

This court implicitly approved the Eichleay formula, apparently for the first
time, in Capital Electric Co. v. United States, 729 F.2d 743 (Fed.Cir. 1984), in
which the General Services Board of Contract Appeals had rejected the for-
mula. Since then this court has considered the Eichleay formula in a number
of cases in which it has explained and developed the conditions for applying
the formula. See, e.g., Interstate Gen. Gov’t Contractors v. West, 12 F.3d 1053
(Fed.Cir. 1993); Wickham Contracting Co. v. Fischer, 12 F.3d 1574 (Fed.Cir.
1994).

The three elements necessary to recover Eichleay damages are: (1) a govern-
ment-imposed delay occurred; (2) the government required the contractor to
“stand by” during the delay; and (3) while “standing by,” the contractor was
unable to take on additional work. Interstate, 12 F.3d at 1056. In 1995, in
Mech-Con Corp. v. West, 61 F.3d 883, 886 (Fed.Cir. 1995), this court reaf-
firmed these elements but shifted the burden of production on the third ele-
ment to the government:

[W]hen a contractor can show that the government required a

contractor to remain on “standby” and the government imposed
delay was “uncertain,” the contractor has established a prima
facie case of entitlement to Eichleay formula damages. The
burden then shifts to the government to present rebuttal evi-
dence or argument showing that the contractor did not suffer
or should not have suffered any loss because it was able to ei-
ther reduce its overhead or take on other work during the de-
lay.

Mech-Con, 61 F.3d at 886. Despite the shift in the burden of production, the
contractor must nevertheless “establish ... (3) that it was unable to take on
other work.” Altmayer v. Johnson, 79 F.3d 1129, 1133 (Fed.Cir. 1996).

The court also has explained the rationale for the Eichleay formula. “Home
office overhead costs are those [costs] that are expended for the benefit of the
whole business, which by their nature cannot be attributed or charged to any
particular contract.” Altmayer v. Johnson, 79 F.3d 1129, 1132 (Fed.Cir. 1996).
They are fixed costs that are allocated on a pro-rata basis among various con-
tracts. When the government delays or disrupts contract performance, the
contractor’s stream of income decreases while the fixed costs allocated to that
contract continue. The Eichleay formula “seeks to equitably determine alloca-
tion of unabsorbed overhead to allow fair compensation of a contractor for
government delay.” Wickham, 12 F.3d at 1578. We have “recognized the im-
practicality of a contractor obtaining replacement work or reducing home of-
fice overhead when it must ‘standby’ during an ‘uncertain’ period of govern-
ment-imposed delay.” Mech-Con, 61 F.3d at 886 (citations omitted).

The Eichleay formula compensates contractors who are unable to take on re-
placement work because the standby status prevents the contractor from do-
ing so. See, e.g., Interstate, 12 F.3d at 1057-58 (“When the period of delay or
suspension is uncertain ... and the contractor is required to remain ready to
resume [work] ... the contractor is effectively prohibited from mitigating such
overhead costs.”); Capital Elec. Co. v. United States, 729 F.2d 743, 745-746
(Fed.Cir. 1984) (contractor entitled to Eichleay damages since it had estab-
lished that it “could not have taken on any large construction jobs during the
various delay periods due to the uncertainty of the delays and ... the limita-
tion on its bonding capacity”). The contractor is entitled to damages, however,
only if its inability to take on additional work results from its standby status,
i.e., is attributable to the government. See Nebraska Pub. Power Dist. v. Aus-
tin Power, Inc., 773 F.2d 960, 972 (8th Cir. 1985) (“The Eichleay formula is
simply a recognized method of calculating home office overhead costs.... In
every instance, a contractor must show that the delays caused its increased
overhead costs.”); Aircraft Gear Corp. v. Kaman Aerospace Corp., 875 F.Supp.
485, 497 (N.D.Ill. 1995) (during a standby delay, “the contractor must actual-
ly be unable to take on other work so that the delay causes unavoidable dam-
ages”).

B.
There is no question that Satellite proved the first two elements and there-
fore established a prima facie case of entitlement to Eichleay damages. The
Board found on substantial evidence — and the government does not chal-
lenge the findings — that the government was responsible for the two sus-
pensions of work and that Satellite was on standby during those delays. The
sole question is whether the Board correctly found that the government had
rebutted that prima facie case by showing that Satellite “was able ... to take
on other work during the delay,” and that the evidence on which Satellite re-
lied for its contrary contention did not show “an impairment of a contractor’s
ability to take on other work that is attributable to the Government-caused
delay.” We hold that the record supports those findings, and that they sup-
port the Board’s conclusion that Satellite is not entitled to Eichleay damages.

During the two periods of suspension, Satellite submitted bids on 49 jobs.

Although Satellite’s president testified that the company’s standby status
precluded it from taking on other work during the suspension period, he also
testified that during those periods the company was “bidding projects,” was
“aggressively trying to bid the available work that was out there within the
limitations put on us by the bonding company,” and that “from the end of Au-
gust [we] were going after what was available ... and we bid aggressively at
that point.” If, as he stated, the company was aggressively going after new
work, it is reasonable to infer that it had the capacity to perform whatever
work it could have obtained. Indeed, he admitted that “we probably could
have [taken on other work] if we had been able to find such.”

In Altmayer v. Johnson this court, in reversing a Board of Contract Appeals

decision denying Eichleay damages, stated that the fact that the contractor
“may have bid on other contracts ‘at the very end’ of the subject contract, does
not establish that it was able to reduce its overhead or take on other work
during the delay.” Altmayer v. Johnson, 79 F.3d 1129, 1135 (Fed.Cir. 1996).
In the present case, as shown above, however, the evidence that Satellite was
able to take on other work was far more than its bidding “on other contracts
... ‘at the very end’ ” of the contract involved.

There was also other evidence supporting the Board’s findings. At the time of
the first work suspension, the project was 96.7 percent completed. The re-
maining work constituted less than $30,000 of the total contract price of
$845,789. The relatively small amount of work remaining to be done further
supports the Board’s conclusion that Satellite could have taken on significant
replacement work if it had been able to obtain it. Cf. Mech-Con, 61 F.3d at
887 n. 4 (“We are not faced with the case of a contractor who did not have to
leave its resources idle in order to complete a limited amount of work. In such
a case, the amount of work remaining on a suspended contract may be rele-
vant.”)

Satellite’s inability to obtain other work apparently resulted in part from the
limitations in its security bond. Those limitations, however, were to some ex-
tent the consequence of Satellite’s delays in submitting its invoices for pay-
ment under the contract. Had the invoices been timely submitted, Satellite
would have been paid sooner and presumably could have improved its bond-
ing position. Satellite’s bonding problems were considerably of its own mak-
ing, and were not the result of the government’s actions in suspending work.
Similarly, the government was not responsible for Satellite’s inability to ob-
tain more work because of the difficult competitive situation in which Satel-
lite found itself.

C.
Satellite contends, however, that in finding that the Navy had rebutted Satel-
lite’s prima facie case for Eichleay damages, the Board applied the wrong
standard. According to Satellite, the statement in Mech-Con that the gov-
ernment was required to present evidence or argument “showing that the
contractor ... was able ... to take on other work during the delay” required the
government to establish either that the contractor actually took on replace-
ment work or, at least, to “prove” rather than merely “show” its ability to do
so. Satellite also contends that the Board erred in not requiring the govern-
ment to show that the additional work Satellite sought was intended to re-
place the suspended work.

We decline to impose upon the government the additional burdens that Satel-
lite proposes.

1. To require the government to prove that the contractor actually obtained

additional work would be inconsistent with two elements of the Mech-Con
standard that this requirement is intended to implement, namely, that the
“showing” of the government may be made by “rebuttal evidence or argu-
ment” and that the government need show only that the contractor was “able”
to take on other work. Moreover, in this court’s original formulation of the
Eichleay requirements, under which the contractor was required to show all
three elements, the third element was phrased in terms of the contractor’s
inability to take on additional work, not in terms of whether it had done so.
See, e.g., Community Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1582
(Fed.Cir. 1993) (if “the contractor demonstrates that it could not have taken
on any other jobs ... the Eichleay formula ... may also be used”). There is no
indication or reason to believe that when in Mech-Con the court shifted the
burden of production on the third element to the government, it intended to
change the substantive content of that element.

Requiring the government to prove the actual acquisition of additional work

would be inconsistent with the assumption on which the Eichleay formula
rests: that where the government delays performance and requires the con-
tractor to stand by indefinitely, the contractor is unable to develop other work
against which the unabsorbed home office overhead otherwise chargeable
against the suspended contract may be charged. If the government shows
that the contractor was able to handle other work — whether or not it actual-
ly did so, which may have depended upon circumstances other than the delay
— it refutes the underlying fact on which Eichleay damages are based.

The contention that the government was required to “prove” rather than to
“show” that Satellite was able to take on additional work also is contrary to
the Mech-Con standard that the government’s rebuttal evidence or argument
must make the necessary “showing.”

2. Finally, we reject Satellite’s argument that the government had not rebut-
ted Satellite’s prima facie case because it had not shown that the additional
work Satellite sought was intended to replace the suspended work. The work
Satellite sought during the time of suspension, if Satellite had obtained it,
necessarily would have replaced the suspended work.

Conclusion

The decision of the Board is

AFFIRMED.
 Silver Enterprises
v.
Department of Transportation

CBCA 63-C (DOT BCA 4459, 4462)

February 20, 2007

Appearance for Applicant: Robert W. McGuire, Jr., Senior Associate of Silver

Enterprises, Cape Coral, FL. Appearance for Respondent: Felicia McBride,
Office of General Counsel, Research & Innovative Technology Administra-
tion, Department of Transportation, Cambridge, MA.

Before Board Judges Stern, Fennessy, and Somers

Stern, Board Judge

We have before us the timely application of Silver Enterprises (Silver or ap-

plicant), for fees and other expenses in the amount of $29,188.32, under the
Equal Access to Justice Act (EAJA). This application follows the decision of
the Department of Transportation Board of Contract Appeals finding Silver
was entitled to be paid $18,728 under a termination for convenience of its
contract issued by a contracting officer for the Department of Transportation
Research and Special Programs Administration (RSPA), now called the Re-
search and Innovative Technology Administration (RITA or respondent).1

Summary of Earlier Proceedings

The appeal involved a contract for the periodic maintenance of two GP-9 lo-
comotives. Silver was to provide labor and materials during inspections of the
locomotives upon their delivery to the United States Army’s Military Ocean
Terminal Concord (MOTCO) at Concord, California. Respondent was obligat-
ed to provide adequate facilities to appellant for the performance of the con-
tract work. After one locomotive was received at MOTCO, Silver attempted to
schedule an inspection. However, respondent was unable to make the inspec-

1 Silver Enterprises v. Department of Transportation, DOT BCA 4459, 4462, 06-2 BCA
¶33,370. There was some initial confusion by RITA regarding the due date for its response
to Silver’s application. This resulted in RITA’s filing a “Motion for Clarification” and a re-
sponse by applicant requesting award to Silver based on RITA’s failure to answer its ap-
plication for fees and expenses within thrity days. We dismiss applicant’s request and find
that RITA’s response was timely.
tion facility available. Several other unsuccessful inspection attempts fol-
lowed. Eventually, RITA terminated the contract for convenience.

The record reflected that Silver incurred costs in attempting contract perfor-
mance. The evidence indicated that Silver made numerous efforts to inspect
the locomotives and it incurred costs in making preliminary arrangements for
inspections. In addition, Silver obtained test equipment and sent a technician
to the site in preparation for testing. The record also discloed numerous con-
tacts between Silver and TIRA in making and canceling arrangements for
locomotive inspections.

After the contract was terminated, Silver was invited to submit a termination
settlement proposal. Silver submitted a request for payment of the full con-
tract amount of $48,582 but stated that it was willing to settle for fifty per-
cent of this amount, or $24, 291. Silver failed to submit any documentation in
support of its proposal. RITA rejected the proposal and offered a settlement of
$4027.90, which was later increased to $5220.23.

Applicant kept no time records. The only items of evidence before the Board
were the testimony of Silver’s owner, an invoice for the purchase of two air-
line tickets, and numerous items of correspondence that demonstrated the
efforts Silver had made in attempting contract performance.

In addition to its claims for payment under the termination for convenience
clause, applicant argued before the board that the termination of convenience
itself was not valid. The board rejected this claim.

As to applicant’s monetary claim, the board found that Silver had proven that
it incurred costs in attempting to perform the contract. However, there was
no accurate way of making a definite determination of the damages since Sil-
ver did not track its costs. The board found that it could make a reasonable
determination of the amount due. Using a jury verdict approach the board
estimated the amount of hours, based on the record, that Silver expended in
attempting to perform various tasks in arranging for contract performance.
The board concluded that Silver’s principals had invested 180 hours of work
on the contract. The board applied a reasonable rate, including overhead and
profit, of $100 per hour to these hours. In addition, the board found Silver en-
titled to $728 for the cost of two airline tickets. Silver was found entitled to be
paid $18,728.
The Application

Applicant seeks $29,188.32 for fees and expenses it alleges it incurred subse-
quent to the termination for convenience. Silver claims that this amount
would reimburse it for the time spent by Silver’s two principals in the prepa-
ration and presentation of the adversary adjudication. Silver alleges it was
the prevailing party and that respondent’s position was not substantially jus-
tified.

To be eligible for an award of fees and expenses under the Equal Access to
Justice Act (EAJA), an applicant that is an unincorporated business, a part-
nership, or a corporation may not have a net worth in excess of $7,000,000 or
more than 500 employees at the time of the initiation of the adversary adju-
dication. 5 USC §504(b)(1)(B) (2000). Along with its application Silver filed a
statement that it never had more than two employees and that its net worth
was well below the $7,000,000 threshold. A personal financial statement was
filed in support of this statement. RITA has not disputed these claims and we
find that applicant meets the statutory criteria.

The Equal Access to Justice Act requires that fees and other expenses in-
curred in connection with a proceeding be awarded to a party other than the
United States if that party is the prevailing party in the litigation and if the
position of the United States was not substantially justified. A party is the
prevailing party if it is successful on any significant issue in the litigation
that achieves some of the benefit sought. Hensley v. Echerhart, 461 U.S. 424,
433 (1983); Digital Services Group, Inc., DOT BCA 1817E, 92-2 BCA ¶24,786,
at 123,648 (1991). The Department of Transportation Board of Contract Ap-
peals found the applicant entitled to be paid $18,728 on its claim of over
$61,000. RITA’s settlement offer, as revised, was in the amount of $5,220.23.
Silver clearly was successful in achieving a portion of what it sought. We find
that Silver was the prevailing party in the litigation.

Silver, as the prevailing party, may recover on its application unless we find
that respondent’s position was substantially justified. 5 USC §504(a)(1). The
Government’s position is substantially jusitified if it had a reasonable basis
in law and fact to a degree that could satisfy a reasonable person. Pierce v.
Underwood, 487 U.S. 552, 565 (1988). “ ‘[P]osition of the agency’ means, in
addition to the position taken by the agency in the adversary adjudication,
the action or failure to act by the agency upon which the adversary adjudica-
tion is based.” 5 USC §504(b)(1)(E); Doty v. United States, 71 F.3d 384, 386
(Fed.Cir. 1995). The Government bears the burden of proving the reasona-
bleness of its position. Helfer v. West, 174 F.3d 1332, 1336 (Fed.Cir. 1999);
Trundle v. Bowen, 830 F.2d 807, 809 (8th Cir. 1987). In making our determi-
nation we must look at the “entirety of the government’s conduct and make a
judgment call whether the government’s overall position had a reasonable
basis in both law and fact.” Chiu v. United States, 948 F.2d 711, 715 (Fed.Cir.
1991).

Here, RITA made several requests to Silver for documentation in support of

its termination claim. Silver provided no records of the time it spent on con-
tract performance. RITA rejected Silver’s various settlement proposals based
upon its failure to support its claimed costs. The Department of Transporta-
tion Board of Contract Appeals found that applicant failed to keep adequate
records, so the exact amount of time spent by appellant on contract work
could not be determined. The board made an award based on the jury verdict
approach. The board had to estimate Silver’s costs due to the inadequate
supporting documentation. The record before the board included the sworn
testimony of Silver’s owner. RITA did not have this evidence before it, RITA
stated that it would only pay those costs that were supported by appropriate
documentation. RITA made a settlement determination of $5220.23 (as re-
vised). We cannot find that this position was unreasonable in light of appli-
cant’s failure to keep adequate records of its costs. RITA has carried its bur-
den. We find its position was substantially justified.

Decision

The application is DENIED.

James L. Stern, Board Judge

We Concur
Eileen P. Fennessy, Board Judge
Jeri K. Somers, Board Judge
 Suburban Middlesex Insulation

96-2 BCA ¶28,481

August 2, 1996

Appearances: Joseph A. Camardo, Jr., Esq., Auburn, New York, for the Ap-
pellant. Paul Embroski, Esq., Trial Attorney; Charlma Jones, Esq., Deputy
Assistant General Counsel; and Phillipa L. Anderson, Esq., Assistant Gen-
eral Counsel, Washington, D.C., for the Department of Veterans Affairs.

Opinion by Administrative Judge Thomas

On May 22, 1996, Suburban Middlesex Insulation, Inc. (Suburban or Con-

tractor) appealed the “deemed denial” of a certified claim submitted on Octo-
ber 9, 1995, upon which the Department of Veterans Affairs (VA or Govern-
ment) has failed to render a final decision. The Government has filed a
Motion To Dismiss For Lack Of Jurisdiction, arguing that the claim cannot be
“deemed denied” within the meaning of the Contract Disputes Act because
the Contractor was informed in a timely manner of the date when a decision
would be issued and that the date, as subsequently extended by the VA, is
entirely reasonable under the circumstances. The Contractor responds that
there is no assurance that the Government will not attempt to extend the an-
nounced final decision date yet another time and that, in any event, the time
which the Contracting Officer (CO) has already had to consider the claim is
“unreasonable.”

Findings of Fact

On December 15, 1994, the VA terminated for convenience a contract in the

amount of $314,545 which it had earlier awarded to Suburban on September
27, 1994. The Contractor’s Termination for Convenience settlement proposal
was submitted to the Contracting Officer on July 5, 1995. Thereafter, Subur-
ban converted its settlement proposal into a certified claim in the amount of
$222,966.34 on October 9, 1995. In a response dated October 10, 1995, the
Contracting Officer informed Suburban that the Termination for Convenience
proposal had been submitted to the VA’s Office of Inspector General (OIG) for
criminal investigation. On November 1, 1995, the Appellant filed a Notice of
Appeal with this Board. We dismissed the appeal on December 1, 1995 for
lack of jurisdiction under the Contract Disputes Act, noting that:
 41 USC 605(c) provides that “[a] contracting officer shall, with-
in sixty day or receipt of a submitted certified claim over
$50,000 — (A) issue a decision; or (B) notify the contractor or
the time within which a decision will be issued.” In the absence
of any communication by the contracting office which might
constitute a decision on the contractor’s claim or the passage of
the mandated sixty days, the contractor’s claim is not ripe for
adjudication and the Board does not have jurisdiction over the
claim. (citations omitted)

The Contracting Officer subsequently notified the Appellant by letter dated

December 5, 1995, that the OIG investigation “should be” completed by May
1, 1996, and she would issue the final decision by May 15, 1996. On May 3,
1996, the Contracting Officer wrote to the Contractor and extended the date
for the final decision to August 15, 1996, based on a May 1, 1996, letter from
the OIG’s Resident Agent in Charge. That letter, which was presented to the
Board in redacted form, stated that a “significant amount of fraudulent activ-
ity” was disclosed during the investigation and that an additional three
months was needed for the completion of the OIG investigation. The letter
further stated that a separate investigation apparently disclosed additional
questionable costs and that in April “evidence” was presented to an Assistant
U.S. Attorney (AUSA) who found that it “appeared to have prosecutive [sic]
merit.”

By letter dated May 22, 1996, the Contractor appealed the “deemed denial” of
its claim to the Board which was docketed as VABCA-4896. Thereafter, the
Government filed a Motion To Dismiss For Lack Of Jurisdiction.

Discussion

In support of its Motion, the Government argues that within 60 days of re-
ceipt of the certified claim, the CO made a “good faith estimate that she
would not be able to issue her final decision until May 15, 1996” and thus sat-
isfied the requirements of the Contract Disputes Act, citing Robert Augustine
& Sons, Inc., VABCA No. 3079, 90-1 BCA ¶22,506. Further, that after receiv-
ing information that the OIG would need an additional three months to in-
vestigate, the CO “made a second good faith estimate that she would not be
able to issue a final decision until August 15, 1996.” The Government cites
Chester P. Schwartz, Gary A. Mosko and Stanley H. Marks, VABCA No. 2975,
90-1 BCA ¶22,518 at 113,014, for the proposition that “the estimated date
could be subject to revision in light of actual experience, provided of course
that it was reasonable.”
We understand the Contracting Officer’s desire to have the complete OIG re-
port before issuing a final decision. However, there is nothing in the record to
show that the documentation presented to the AUSA in April 1996 was insuf-
ficient for the Contracting Officer to make a final decision on the Appellant’s
termination settlement claim by the promised May 15, 1996 date.

The Contract Disputes Act, 41 USC 605(c) provides, in pertinent part:

(3) The decision of a contracting officer on submitted claims

shall be issued within a reasonable time, in accordance with
regulations promulgated by the agency, taking into account
such factors as the size and complexity of the claim and the ad-
equacy of the information in support of the claim provided by
the contractor.

*****

(5) Any failure by the contracting officer to issue a decision on a

contract claim within the period required will be deemed to be
a decision by the contracting officer denying the claim and will
authorize the commencement of the appeal or suit on the claim
as otherwise provided for in this chapter....

Thus it is clear that the Contracting Officer’s decision must be issued within
a reasonable time. A “reasonable time” is determined by taking into account
such factors as the size and complexity of the claim and the support of the
claim provided by the contractor. Robert Augustine & Sons, Inc., VABCA No.
3079, 90-1 BCA ¶22,506; Cessna Aircraft Co., ASBCA No. 43196, 92-1 BCA
¶24,425. The Government has not asserted that the Appellant’s information
provided in support of its claim was inadequate or that the claim is unusually
complex. Indeed, there is every indication that the Government has a definite
position regarding this claim. The only reason proffered for not yet issuing a
final decision is that the matter is in the hands of the OIG. The Government
has repeatedly referred to an OIG criminal investigation. But the issue before
this Board is not whether the Board should suspend an appeal while the
Government pursues a criminal investigation. As for those standards appli-
cable to suspension, see Superior Surgical Mfg. Co., Inc., VABCA No. 3748,
93-2 BCA ¶25,826.

Rather, the question before us today is simply whether we have jurisdiction

over an appeal because the Contracting Officer has failed to issue a final de-
cision “within a reasonable time.” The time it takes to perform an audit is
certainly a consideration a contracting officer must include when making a
good faith determination of when the Government will issue a final decision.
Here more than 390 days have passed since the original submission of a ter-
mination settlement proposal to the Contracting Officer involving no more
than 45 days of construction activity. The record before this Board indicates
that sufficient information was available to the Government to render such a
decision by the time the OIG contacted the AUSA in April 1996. Without ad-
ditional reasons for delay proffered by the Government, reasonable time for
issuance of the final decision has now passed.

Decision

Accordingly, the Government’s Motion To Dismiss For Lack Of Jurisdiction is

denied. The Appellant’s Complaint and the Government’s Appeal File are due
30 days from the date of receipt of this decision.

WILLIAM E. THOMASa1
Administrative Judge, Panel Chairman

We Concur
GUY H. McMICHAEL III
Chief Administrative Judge

MORRIS PULLARA, JR.

Administrative Judge

a1 Unavailable for signature at time of dispatch.

 System Planning
v.
United States

95 Fed. Cl. 1
October 6, 2010

F. Whitten Peters, Washington, DC, for plaintiff. Michael P. Goodman, with

whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Di-
rector, and Mark A. Melnick, Assistant Director, Commercial Litigation
Branch, Civil Division, Department of Justice, Washington, DC, for defend-
ant.

Order and Opinion

Hewitt, Chief Judge

Before the court are System Planning Corporation’s (plaintiff’s or SPC’s)

Complaint (Complaint or Compl.) against the United States (defendant or
United States), filed September 18, 2007; Defendant’s Motion to Dismiss (de-
fendant’s Motion or Def.’s Mot.), filed July 1, 2010; Plaintiff’s Opposition to
Defendant’s Motion to Dismiss (plaintiff’s Response or Pl.’s Resp.), filed July
30, 2010; and Defendant’s Reply in Support of the Motion to Dismiss (defend-
ant’s Reply or Def.’s Reply), filed August 16, 2010.

I. Background

On March 11, 1993 SPC entered into Contract No. F19628-92-D-0011 with
the United States Air Force (USAF) to design and provide a new security sys-
tem capable of protecting USAF facilities. Compl. ¶4. An amendment to the
contract provided that, in certain circumstances, the United States would pay
SPC an additional negotiated fee. Compl. ¶8.

On September 8, 2000 SPC invoiced the United States for the additional ne-
gotiated fee of $7,039,870 that it contends is due on the contract as a result of
the USAF’s actions. Compl. ¶17. On October 9, 2000, after the USAF refused
to pay the invoice, SPC submitted a certified claim to the Contracting Officer
(CO) responsible for the contract. Compl. ¶19. On December 7, 2000 the CO
informed SPC that she would issue a final decision by February 13, 2001.
Compl. ¶21; Pl.’s Resp. 3. On March 2, 2001 she extended the due date for the
decision to April 13, 2001. Compl. ¶21; Pl.’s Resp. 3. On September 18, 2007,
after waiting nearly seven years for the CO to issue a final decision on the
claim, SPC deemed its claim denied and filed this case. Pl.’s Resp. 4. The
United States contends that SPC’s Complaint must be dismissed in its entire-
ty for failure to comply with the six-year statute of limitations in 28 USC
§2501 (2006). Def.’s Mot. 5. The court disagrees.

II. Legal Standards

A. Contract Disputes Act Subject Matter Jurisdiction Generally

The burden of proof of establishing jurisdiction is borne by the plaintiff.
McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936);
Russell v. United States, 78 Fed. Cl. 281, 285 (2007). If the defendant chal-
lenges jurisdictional facts, the plaintiff must support them with “competent
proof.” McNutt, 298 U.S. at 189. The plaintiff bears the burden to show by a
preponderance of the evidence that jurisdiction is proper. Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir. 1988). In deciding a motion
to dismiss pursuant to RCFC 12(b)(1), “the court [is] obligated to assume all
factual allegations to be true and to draw all reasonable inferences in plain-
tiff’s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir. 1995) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236-37 (1974)). Jurisdiction is a threshold
matter, and a case can proceed no further if the court lacks jurisdiction to
hear it. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

In the Tucker Act, Congress authorized the United States Court of Federal
Claims (Court of Federal Claims) to “render judgment upon any claim
against the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, or upon any express
or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.” 28 USC §1491(a)(1) (2006). Plaintiff’s
claim is brought under the Contract Disputes Act (CDA), 41 USC §§601-613
(2006).

The CDA requires that “[a]ll claims by a contractor against the government
relating to a contract shall be in writing and shall be submitted to the con-
tracting officer for a decision.” 41 USC §605(a). Jurisdiction is appropriate
under the CDA when a contractor “submit[s] in writing to the contracting of-
ficer a clear and unequivocal statement that gives the contracting officer ade-
quate notice of the basis and amount of the claim.” Contract Cleaning Maint.,
Inc. v. United States, 811 F.2d 586, 592 (Fed.Cir. 1987).
“[T]he CDA grants jurisdiction to the Court of Federal Claims ... over a con-
tractor’s request for relief only when the appeal or action is based on a quali-
fying claim filed by the contractor and a final decision by the contracting of-
ficer.” Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1264
(Fed.Cir. 1999) (citing Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed.Cir.
1995) (en banc)). The contracting officer shall issue a decision within sixty
days of receipt of a certified claim over $100,000 or notify the contractor when
a decision will be issued. 41 USC §605(c)(2). The decision shall be issued
within a reasonable time. 41 USC§605(c)(3). “Any failure by the contracting
officer to issue a decision on a contract claim within the period required will
be deemed to be a decision by the contracting officer denying the claim and
will authorize the commencement of the appeal or suit on the claim....” 41
USC §605(c)(5). A contractor may file suit in this court in lieu of appealing
the decision of the CO to an agency board. 41 USC §609(a)(1).

B. Statute of Limitations
Section 2501 provides, “Every claim of which the United States Court of Fed-
eral Claims has jurisdiction shall be barred unless the petition thereon is
filed within six years after such claim first accrues.” 28 USC §2501. However,
“the CDA explicitly states that all actions under the CDA shall be governed
by the CDA’s provisions.” LaCoste v. United States, 9 Cl. Ct. 313, 315 (1986);
Pathman Constr. Co. v. United States (Pathman), 817 F.2d 1573, 1580
(Fed.Cir. 1987). Therefore, if a contractor proceeds under the CDA, the six-
year statute of limitations in 28 USC §2501 does not apply. Pathman, 817
F.2d at 1580 (“Once a contractor elects to proceed under the Disputes Act, the
six-year statute of limitations in 28 USC §2501 is not applicable.”); Parsons
Transp. Grp., Inc. v. United States (Parsons), 84 Fed. Cl. 779, 781 (2008)
(“Section 2501 limits the Court’s jurisdiction under the Tucker Act .... But it
does not apply to CDA suits.”); S & M Mgmt. Inc. v. United States (S & M), 82
Fed. Cl. 240, 246 n.6 (2008) (“Because plaintiff filed its complaint pursuant to
the ‘deemed denial’ provision ... it has elected to proceed under the CDA and
is not bound by the six-year limitations period in 28 USC §2501.”); Salt River
Pima-Maricopa Indian Cmty. v. United States (Salt River), 86 Fed. Cl. 607,
612 (2009) (“[T]he general six-year statute of limitations also is inapplicable
to the instant case ... because the contractor has elected to proceed under the
CDA.”).
III. Application of Legal Standards to This Case

A. Contract Disputes Act Subject Matter Jurisdiction Generally

On October 9, 2000 SPC submitted a certified claim to the CO alleging that
the United States owes SPC the additional negotiated fee of $7,039,870 as a
result of the USAF’s actions. Compl. ¶19. SPC’s submission was a clear and
unequivocal statement that gave the CO adequate notice of the basis and
amount of the claim. Id. By September 18, 2007, when SPC filed this suit, the
CO had not yet issued a final decision. Compl. ¶21. The CO did not issue the
decision within a reasonable time, therefore, SPC was authorized by 41 USC
§605(c)(5) and § 609(a)(1) to file this suit.

B. Statute of Limitations
The United States contends that this suit must be dismissed for failure to
satisfy the six-year statute of limitations in 28 USC §2501 because SPC filed
suit on September 18, 2007, more than six years after its claim was “deemed
denied.” Def.’s Mot. 3-4, 9. The United States relies on Witherington Constr.
Corp. v. United States (Witherington), 45 Fed. Cl. 208, 212-13 (1999). In
Witherington, this court stated, “in the case of a ‘deemed denial’ under 41
USC §605(c), a plaintiff is bound by the Tucker Act’s general six-year statute
of limitations found at 28 USC §2501.” Def.’s Mot. 9 (quoting Witherington, 45
Fed. Cl. at 212-13, and citing Turner Constr. Co. v. United States (Turner), 9
Cl. Ct. 214, 216 (1985)). In Turner, the court noted that “[i]f ‘deemed’ decision
contract claim suits are not covered by 41 USC §609(a)(3), they must fall
within the otherwise all-inclusive coverage of 28 USC §2501.” Turner, 9 Cl.
Ct. at 216. According to the United States, “the most plausible reading of the
CDA and 28 USC [§]2501 together is that the CDA delays the accrual of
claims subject to the generally applicable six-year statute of limitations ra-
ther than making that statute of limitations a nullity.” Def.’s Mot. 10.

However, binding case law in the Federal Circuit is contrary to the conten-
tions of the United States. Once a contractor elects to proceed under the
CDA, the Tucker Act’s six-year statute of limitations does not apply. The pas-
sage of time does not transform a claim brought pursuant to the “deemed de-
nial” provision of the CDA into one covered by the Tucker Act’s general six-
year statute of limitations. The United States relies on Witherington and
Turner to support its argument. However, both Turner — which predates
Pathman — and Witherington are contrary to the Federal Circuit’s holding in
Pathman and the more recent Parsons, S & M and Salt-River decisions of
this court. Because plaintiff filed its complaint pursuant to the “deemed deni-
al” provision, it has elected to proceed under the CDA and is not bound by the
six-year limitations period in 28 USC §2501.

IV. Conclusion

For the foregoing reasons, defendant’s Motion to Dismiss the Complaint is

DENIED. The court’s Scheduling Order of September 8, 2010 remains in ef-
fect.

IT IS SO ORDERED.

Emily C. Hewitt, Chief Judge

 Titan Corp.
v.
West

129 F.3d 1479

November 24, 1997

Reginald T. Blades, Jr., Attorney, Commercial Litigation Branch, Civil Divi-

sion, Department of Justice, Washington, DC, for appellee. With him on the
brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen,
Director, and Sharon Y. Eubanks, Deputy Director. Of counsel on the brief
was Lewis H. Burke, Trial Attorney, Office of Counsel, Corps of Engineers,
Department of the Army, of Vicksburg, Mississippi.

Before RICH, NEWMAN, and SCHALL, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.

Titan Corporation appeals the decision of the Armed Services Board of Con-
tract Appeals,1 denying its claim for reimbursement of certain costs incurred
in performance of a contract with the Department of the Army. The Board
denied the claim, based on failure of the subcontractor to comply with the
Limitation of Costs provision. We affirm the Board’s decision.

Background

California Research & Technology, Inc. (CRT), now a division of Titan, en-
tered into a cost plus fixed fee contract with the Army Corps of Engineers for
research and development services related to the behavior of geological mate-
rials subject to blast and shock. The estimated cost of the contract was
$108,737, and the fee was fixed at $9,678. CRT subcontracted part of the
work, also by cost plus fixed fee contract, to Applied Theory, Inc. (ATI). The
subcontract stated an estimated cost of $28,920 and a fee of $2,603. Both the
CRT contract and the ATI subcontract contained the Limitation of Costs
clause, FAR 52.232-20, 48 CFR §52.232-20, which limits the government’s
payment to the costs as originally estimated unless the contractor notifies the
government of any prospective overrun in advance. The contractor must noti-
fy the Contracting Officer in writing whenever it has reason to believe that—

1 Titan Corp. v. West, ASBCA No. 49865, 97-1 BCA ¶28,679.

 (1) The costs the Contractor expects to incur under this con-
tract in the next 60 days, when added to all costs previously in-
curred, will exceed 75 percent of the estimated cost specified in
the Schedule; or

(2) The total cost for the performance of this contract ... will be
either greater or substantially less than had been previously
estimated.

FAR 52.232-20(b). The contractor is not obligated to continue performance or

otherwise to incur costs in excess of the estimated cost unless

the Contracting Officer (i) notifies the Contractor in writing

that the estimated cost has been increased and (ii) provides a
revised estimated total cost of performing this contract.

FAR 52.232-20(d)(2). The contractor’s right to refuse work that will exceed
estimated costs extends to work made necessary by changes ordered by the
government. FAR 52.232-20(g).

Following completion of the subcontract in February 1989 and the prime con-
tract in May 1990, ATI’s costs were audited in 1990 by the Defense Contract
Audit Agency (DCAA). The audit report, which was provided to ATI in Feb-
ruary 1991, confirmed the rates of indirect costs that ATI now claims. These
costs totalled $11,624.82 more than the estimated indirect costs stated in the
contract. (In addition, ATI claims $2,025.49 of direct costs due to a change
ordered by the government.) ATI requested reimbursement for these sums.
This request, which was the first notice to the government of any increased
costs of ATI’s performance, was made more than a year after completion of
the work in which the costs were incurred. The contracting officer denied the
claim, holding that ATI should have been monitoring its costs and known of
the overrun before it occurred. The Board affirmed, holding that ATI “failed
to prove that the overrun was unforeseeable either for the basic contract
work or for the alleged changed work.” This appeal followed.

Discussion

The Board’s interpretation of a contract is not final, and is subject to de novo

review on appeal, although due respect is often warranted by the Board’s ex-
perience in interpreting the Federal Acquisition Regulations (FAR). See Al-
vin, Ltd. v. United States Postal Serv., 816 F.2d 1562, 1564 (Fed.Cir. 1987).
Findings of disputed facts receive deferential review in accordance with the
terms of the Contract Disputes Act, 41 USC §609(b). In dispute was the ques-
tion of foreseeability, relevant to ATI’s obligations under FAR 52.232-
20(d)(2).

Titan states, and the DCAA audit confirmed, that during the period of con-
tract performance ATI’s overhead and administrative costs increased. Titan
argues that the estimated rates when the contract was entered did not be-
come final until the DCAA audit, which was well after completion of contract
performance. Titan points out that it is a generally accepted accounting prin-
ciple that provisional costs are not deemed final until after an audit, and thus
that ATI can not have known of the overrun in indirect costs. Titan states
that ATI received the DCAA audit report in February 1991 and promptly in-
formed the Army that its indirect costs had increased from the provisional
rates set in the contract. Titan argues that ATI’s enlarged costs were unfore-
seeable in that it could not know with certainty what the final overhead costs
would be until the DCAA completed its audit. The Limitation of Costs clause
forgives failure of notice if the additional costs were unforeseeable, RMI, Inc.
v. United States, 800 F.2d 246, 248 (Fed.Cir. 1986) (“[I]f the contractor has no
reason to believe that an overrun is imminent, he is not required to give no-
tice.”) (quoting General Electric Co. v. United States, 194 Ct.Cl. 678, 440 F.2d
420, 423 (1971)). However, the contractor has the burden of proving that its
overrun was unforeseeable. Id.

The government points out that the DCAA audit made no changes in ATI’s
accounted costs, and that ATI had accounting information about its costs dur-
ing contract performance and before the audit. The notice clause does not re-
quire a precise statement of any prospective cost overrun; notice is required
when the contractor “has reason to believe” that it will exceed the estimated
costs. The Board found, and Titan does not dispute, that the overhead and G
& A rates confirmed by the audit were the same as those on ATI’s books.
Thus the Board held that ATI knew or should have known that its actual in-
direct costs, as they were incurred, exceeded the provisional rate in the con-
tract. The Board rejected Titan’s argument that since overhead rates can not
be accurately predicted the cost overrun was not foreseeable.

In explaining its failure to notify the government of its anticipated overrun,

ATI’s officer pointed to the pressures of the work. The Board did not deem
this explanation to be exculpatory. Although relatively small entities may
well encounter disproportionate burdens in dealing with the government, the
obligations of the relationship can not be unilaterally waived. The FAR pro-
vides no exception either as to company size or the amount of the overrun.
The contractor’s duty to monitor its costs is accompanied by the obligation to
inform the government of probable overruns before they occur. Advanced Ma-
terials, Inc. v. Perry, 108 F.3d 307, 310 (Fed.Cir. 1997). There is sound reason
for the notice requirement of the Limitation of Costs provision. It protects the
contractor by either providing assurance of reimbursement or permitting the
contractor to cease performance. It protects the government from paying
more than it had expected for the project. The choice as to whether to incur
additional costs is the government’s, not the contractor’s.

The contractor did not comply with its obligation of notifying the government
of its overrun. Substantial evidence supports the Board’s finding that the
overrun was foreseeable. Thus we affirm the decision that the government is
not liable for the additional costs.

AFFIRMED
 United States
v.
FKW

189 F.3d 542

August 27, 1999

Charles C. Griffith, Johnson, Carroll & Griffith, Evansville, IN, John C.

McDonald (argued), Schottenstein, Zox & Dunn, Columbus, OH, for Plain-
tiff-Appellant. Robert F. Stayman (argued), Ziemer, Stayman, Weitzel &
Shoulders, Evansville, IN, for FKW Inc. Bradley L. Williams (argued), Ice,
Miller, Donadio & Ryan, Indianapolis, IN, Jeffrey B. Kolb, Emison, Doolittle,
Kolb & Roellgen, Vincennes, IN, for Jeffrey J. Strange.

Before POSNER, Chief Judge, and CUDAHY and ROVNER, Circuit

Judges.

CUDAHY, Circuit Judge.

Officers at the Crane Naval Surface Warfare Center (Crane) wanted to re-
move sediment from two ponds located on Crane grounds and solicited bids to
do the job. An unsuccessful bidder, Robert Durcholz, and his eponymous com-
pany, brought this three-count qui tam False Claims Act, 31 USC §3729 et
seq. (FCA), action against FKW, Crane’s private general contractor, and Jef-
frey Strange, Crane’s civilian contracting specialist. The district court grant-
ed summary judgment in favor of FKW, see United States ex rel. Durcholz v.
FKW Inc., 997 F.Supp. 1159, 1171-74 (S.D.Ind. 1998) (Durcholz II), and
Durcholz appeals. We agree with the district court and accordingly affirm its
order granting summary judgment in favor of FKW on all three counts.

This case, like most FCA cases, is “heavily dependent on its facts.” Hindo v.
University of Health Sciences/The Chicago Med. School, 65 F.3d 608, 610
(7th Cir. 1995). The district court has recited the story in some detail in two
different published opinions. See United States ex rel. Durcholz v. FKW Inc.,
997 F.Supp. 1143, 1146-49 (S.D.Ind. 1998) (Durcholz I); Durcholz II, 997
F.Supp. at 1162-64. We repeat only those facts necessary to the disposition of
this appeal.

Debris from a demolition range began to clog two sedimentation ponds,

threatening Crane’s compliance with various environmental regulations.
Crane officials needed to unclog the ponds and quickly. They took three
measures to fast-track the project. First, they decided to have the ponds
dredged, a method which is faster, but more expensive, than conventional ex-
cavation. Second, they issued the job order contract (JOC) through the JOC
manager, FKW. Under the JOC regulations, FKW could then select the
sub-contractor without regard to price. Finally, Crane officials classified the
project as a “performance specification,” which they hoped would speed up
the bidding process by requiring the use of conventional line-items from the
Unit Price Book (UPB). There were two potential drawbacks with this ap-
proach, however: the UPB does not contain line-items for dredging, and the
winning bidder could, under the governing regulations, complete the project
however it liked, whether by dredging or by excavation.

Recognizing these problems, Crane officials made it clear to Brian Frederick,

FKW’s site manager, that they expected the ponds to be dredged. They were
not concerned about the lack of a dredging line-item; they simply expected
bidders to price the dredging project using UPB excavation line-items. Fred-
erick, in turn, informed all interested bidders of these expectations, but also
told them that (again, pursuant to the regulations) they would be permitted
to submit excavation bids. Using UPB line-items for excavation, Crane offi-
cials estimated the project would cost about $373,644; FKW’s calculations
were virtually identical.

FKW received five bids — one for excavation, three for dredging and Dur-
cholz’s $271,700 bid, which, Durcholz told Frederick, he would perform by
either excavation or dredging. Midwest Dredge was the next lowest dredging
bid, at $369,800. FKW presented a summary of these bids to Crane officials.
The summary included the names of the companies and the bid prices, but
not the proposed method of performance. Frederick, Strange and various
Crane officials discussed the bids at a series of meetings, the particulars of
which we discuss later. For now, suffice to say that the Crane officials with
decision-making authority believed that Durcholz’s bid was for excavation
only. Midwest was awarded the contract. FKW forwarded its proposal —
priced at $457,812: Midwest’s bid price plus FKW’s 23% cut — to Crane offi-
cials. Pursuant to suggestions from those officials, Midwest included several
additional excavation line-items in the proposal in order to help square the
final project price with the original estimates. Midwest began dredging the
ponds, and FKW submitted an invoice for work completed, still using UPB
excavation line-items. A Crane accounting official, claiming that the specific
work covered by the line-items had not been completed, refused to pay FKW.
Other Crane officials directed FKW to resubmit the invoice without the
line-items. FKW followed these instructions; Midwest eventually completed
the job; and everyone got paid.

Durcholz’s suspicions of fraud resulted in an internal Crane investigation and

this lawsuit, which alleges three violations of the FCA. Counts one and two
relate to FKW’s use of UPB excavation line-items in (1) its proposal for and
(2) subsequent invoices from the dredging project. The presentation of these
claims to the government, Durcholz alleges, was fraudulent.

To prove a FCA violation, Durcholz must produce evidence that FKW know-
ingly presented, or caused to be presented, a false or fraudulent claim for
payment or approval. See 31 USC §3729(a)(1). The mens rea element, “know-
ingly,” requires that the defendant have actual knowledge of (or deliberately
ignore or act in reckless disregard of) the truth or falsity of the information
presented; no specific intent to defraud is required. See id. at §3729(b). Thus,
“[i]nnocent mistakes or negligence are not actionable”; “[w]hat constitutes the
offense is not intent to deceive but knowing presentation of a claim that is
either fraudulent or simply false.” Hindo, 65 F.3d at 613 (internal quotations
and citation omitted). The government’s prior knowledge of an allegedly false
claim can vitiate a FCA action. See, e.g., United States ex rel. Hagood v.
Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991); but see
United States v. Incorporated Village of Island Park, 888 F.Supp. 419, 442
(E.D.N.Y. 1995) (government’s knowledge not a bar to a FCA claim if the
knowledge is incomplete or acquired too late in the process). If the govern-
ment knows and approves of the particulars of a claim for payment before
that claim is presented, the presenter cannot be said to have knowingly pre-
sented a fraudulent or false claim. In such a case, the government’s
knowledge effectively negates the fraud or falsity required by the FCA. See
Hindo, 65 F.3d at 613-14; see also United States ex rel. Lamers v. City of
Green Bay, 168 F.3d 1013, 1018 (7th Cir. 1999) (“it is impossible to meaning-
fully discuss falsity without implicating the knowledge requirement”).

The district court held that the Crane officials’ knowledge — that FKW’s pro-
posal and invoices used excavation line-items for the dredging project —
barred Durcholz’s FCA claims. See Durcholz II, 997 F.Supp. at 1171-73. We
agree with this reasoning. From the start, Crane officials were more interest-
ed in speed than cost and made their decisions in accordance with these pri-
orities. They classified the project as a performance specification in order to
expedite the bidding, knowing that the UPB did not contain dredging
line-items. They later directed FKW to modify its proposal to match the Mid-
west bid and told FKW to resubmit its invoices without the excavation
line-items. Thus, the government not only knew that FKW’s proposal and in-
voices contained excavation line-items, it directed FKW to use those pricing
numbers. In essence, then, Durcholz is alleging that the government was de-
frauded by the very activities that its agents ordered. We decline to hold
FKW liable for defrauding the government by following the government’s ex-
plicit directions. The government knew what it wanted, and it got what it
paid for. In this case, the government’s knowledge is an effective bar to Dur-
cholz’s FCA claim, and we therefore affirm the district court’s grant of sum-
mary judgment in favor of FKW on counts one and two.

Count three is a slightly different matter. In count three, Durcholz alleged

that FKW conspired with Strange to withhold Durcholz’s bid and to award
the bid to Midwest in violation of the FCA. The district court concluded that
Durcholz had produced insufficient evidence of an agreement between FKW
and Strange to show a conspiracy to defraud the government and accordingly
granted FKW’s motion for summary judgment on this count. See Durcholz II,
997 F.Supp. at 1173-74. The only evidence of an agreement was testimony
that FKW followed Strange’s instructions by selecting Midwest in the first
instance and later by submitting its proposal using excavation line-items.
This evidence was insufficient to defeat a summary judgment motion, the dis-
trict court held, because it did not tend to show that FKW shared Strange’s
conspiratorial objective. We too are unable to find any evidence in the record
from which a reasonable jury could conclude that FKW and Strange had a
meeting of the minds, and we therefore agree with the district court’s ulti-
mate conclusion that summary judgment was appropriate as to count three.

Although we affirm the district court’s decision, we want to point out one flaw
in its analysis of the record. In reaching its conclusion, the district court stat-
ed that “there is no evidence that [FKW] knew that Strange’s superiors mis-
takenly believed Midwest submitted the lowest dredging bid.” Durcholz II,
997 F.Supp. at 1173. However, several Crane officials testified that, during at
least one of the meetings at which the bids were discussed, Strange made an
affirmative representation that Durcholz was an excavator only and that
Frederick did not correct this statement. Viewing this evidence in the light
most favorable to Durcholz, as we must when reviewing a summary judgment
decision, a jury could conclude that Frederick — because he apparently at-
tended at least one meeting at which the bidders’ proposed methods of per-
formance were discussed — was aware that Crane officials were misinformed
about Durcholz’s intentions. So Durcholz’s evidence that FKW conspired with
Strange was slightly stronger than the district court believed.
But it was still not strong enough to defeat FKW’s summary judgment mo-
tion. Durcholz might have argued from this evidence (Frederick’s alleged si-
lence in the face of Strange’s alleged misinformation) that a reasonable jury
could infer that Frederick and Strange were in cahoots to withhold the proper
information about Durcholz’s bid from Crane officials in order to ensure that
Midwest was awarded the dredging contract. It is impossible, however, to in-
fer a meeting of the minds from Frederick’s alleged silence alone. There are
many plausible explanations for Frederick’s silence: it is possible, for exam-
ple, that Frederick simply was not paying attention in the meeting or even
that Frederick quickly recognized an easy opportunity to pad FKW’s profits
on the pond project. Even were we to believe that Frederick’s alleged silence
was fraudulent, however, there is nothing to suggest that the objective of his
fraud was shared by Strange. In any event and whatever the reason for Fred-
erick’s alleged silence, there is no evidence that Frederick was mum in order
to advance a plan that he had hatched with Strange. And, in light of all of the
other evidence (most of which suggests that throughout the project FKW
simply tried to satisfy Strange and other Crane officials by following their
orders), no reasonable jury could infer a conspiracy from the meager evidence
of an agreement produced by Durcholz. Of course, Durcholz is not required to
show an express agreement; conspiracies, by their very nature, are not often
susceptible to direct proof. To avoid summary judgment, however, he must
produce more than “a whiff of the alleged conspirators’ assent.” Kunik v. Ra-
cine County, Wisc., 946 F.2d 1574, 1580 (7th Cir. 1991). Durcholz has failed
in this task. The facts here are simply insufficient to support the inferential
leaps that would be required to conclude that FKW conspired with Strange.

AFFIRMED

(footnotes omitted)
 Wesleyan Co.
v.
Harvey

454 F.3d 1375

July 17, 2006.
Rehearing Denied Oct. 5, 2006.

Richard L. Moorhouse, Greenberg Traurig, LLP, of McLean, Virginia, argued

for appellant. With him on the brief was L. James D’Agostino. David A. Har-
rington, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for appellee. On the
brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Di-
rector, Brian M. Simkin, Assistant Director, and Tara K. Hogan, Trial Attor-
ney. Of counsel on the brief was Craig S. Clarke, Supervisory Trial Attorney,
Contract Appeals Division, Office of the Judge Advocate General, United
States Department of the Army, of Arlington, Virginia.

Before Michel, Chief Judge, Newman and Mayer, Circuit Judges.

Opinion for the court filed by Chief Judge Michel.

Dissenting opinion filed by Circuit Judge Newman.

Michel, Chief Judge.

Wesleyan Company, Inc. (“Wesleyan”) appeals the decision of the Armed Ser-
vices Board of Contract Appeals (“Board”) dismissing for lack of subject mat-
ter jurisdiction its breach of contract claim against the United States. Wes-
leyan Co., ASBCA No. 53896, 05-1 BCA ¶32,950, 2005 WL 1006866 (April 22,
2005). Because the Board erred in concluding that the Contract Disputes Act
of 1978, §3(a), 41 USC §602(a) (“CDA”), does not confer subject matter juris-
diction over a portion of Wesleyan’s claim, we reverse and remand.

In the early 1980s, Wesleyan communicated to the United States Army its
concepts for its “FIST/FLEX” drinking system, which allows a soldier to con-
sume liquid from a canteen without removing his protective mask, and its
“FIST Fountain” system, designed to enable soldiers to fill empty canteens in
a contaminated environment (collectively, “Wesleyan system”). Beginning in
early 1983, and acting upon the Army’s advice, Wesleyan sent the first of
three unsolicited proposals for the Wesleyan system to multiple Army com-
ponents. The U.S. Army’s Soldier and Biological Chemical Command, U.S.
Army Soldier System Center in Natick, Massachusetts (“Natick Labs”) as-
sumed responsibility for the analysis of the Wesleyan system. Natick Labs
rejected Wesleyan’s proposal in April 1983 because it did not contain a De-
fense Acquisition Regulation (“DAR”) legend discussing government use of
the unsolicited information.

After discussions with Natick Labs, Wesleyan resubmitted the unsolicited

proposal with DAR 3-507.1(a) included and executed a Memorandum of Un-
derstanding (“MoU”), both of which prohibited the government from disclos-
ing information in the proposal to third parties and from using the infor-
mation for any purpose other than evaluating the proposal.1

The MoU reads in relevant part:

It is understood that the Department of the Army has accepted

the above proposal for the purpose of evaluating it and advising
of any possible Army interest. It is further understood that
such acceptance does not imply or create: … any relationship,
contractual or otherwise, such as would render the Govern-
ment liable to pay for or to give up any legal right or assume
any obligation for disclosure or use of any information in the
proposal to which the Government would otherwise lawfully be
entitled.

Two other unsolicited proposals were submitted at later dates.

After determining that the Wesleyan system was technically feasible, Natick
Labs requested in November 1983 that Wesleyan lend a prototype system to
ILC Dover, a manufacturer of protective suits and masks, for incorporation
into a prototype protective suit. The bailment agreement, executed on De-
cember 1, 1983, was silent as to the safeguarding or use of proprietary data
in the Wesleyan system, but did state that the bailment was being made “for

1 DAR 3-507.1(a) reads in relevant part:

This data … shall not be disclosed outside the Government and shall not
be duplicated, used or disclosed in whole or in part for any purpose other
than to evaluate the proposal…. This restriction does not limit the Gov-
ernment’s right to use information contained in the data if it is obtained
from another source without restriction….
the limited purpose” of determining “its use in demonstrating and testing its
ability to perform the intended services.” The bailment agreement expressly
stated that the Wesleyan system remained Wesleyan’s property.

Beginning on May 10, 1984, the Army initiated purchases of the Wesleyan
systems, which were used in field tests at Natick Labs and other Army units,
including the Infantry School at Fort Benning, Georgia, and the Chemical
School at Fort Leonard Wood, Missouri. The Army purchased nine systems
during 1984.

On January 15, 1985, the Army required Wesleyan to sign a Policy Statement
for continued evaluation of the Wesleyan system. The Policy Statement con-
tained the following clause:

4. The voluntary submissions will be handled in accordance

with established Government procedures for safeguarding such
articles or information against unauthorized disclosure. In ad-
dition, the data forming a part of or constituting the submis-
sion will not be disclosed outside the Government or be dupli-
cated, used or disclosed in whole or in part by the Government,
except for record purposes or to evaluate the proposal.

Following execution of this Policy Statement, the Army purchased an addi-

tional twenty Wesleyan systems during 1985. In January 1986, the Army re-
quired Wesleyan to execute a second, similar Policy Statement. Following ex-
ecution of this second Policy Statement, the Army purchased thirty-three
systems in 1988, and sixty-eight systems in 1989, for a total of 130 systems.

The Army purchases were governed by six purchase orders, all of which were
silent as to the safeguarding or use of proprietary data. However, four of the
six purchase orders stated that the purchases were being made for evaluative
or demonstrative purposes.2 In 1992, the Army completed its testing and
terminated consideration of the Wesleyan system.

2 One purchase order stated that the “[i]tems are needed at the Infantry School for a limited
user evaluation”, another indicated that “[t]his item is being procured as NDI prototypes,
for initial evaluation to determine its acceptability with respect to the Mask Drinking Sys-
tem SN-CIE”, a third noted that “[t]he items are urgently required for the upcoming p
NBC Demo in April 1985”, and the fourth specified that “[t]hese items are required for the
upcoming Natick/HEL 1985 New Thrust Demo in August 1985.”
Beginning in 1996, Natick Labs initiated development of the Land Warri-
or/Modular Lightweight Load Carry Equipment system (“MOLLE”), which
included a hydration system, and awarded a primary contract for MOLLE in
May 1997 to Specialty Plastic Products of PA, Inc. (“Specialty”). The commer-
cial hydration system then used in MOLLE was received poorly by users, and
the Marine Corps noted that a large number of Marines instead were pur-
chasing a commercially available hydration system produced by CamelBak
Products, Inc. (“CamelBak”). Specialty replaced the hydration system in
MOLLE with CamelBak’s hydration system in 1998.

On April 15, 2002, Wesleyan submitted a claim for nearly $21 million to Na-
tick Labs, alleging that the Army improperly disclosed Wesleyan’s proprie-
tary data to non-governmental third parties, and that its proprietary infor-
mation was subsequently incorporated into the CamelBak system. The Army
Contracting Officer (“CO”) issued a final decision denying Wesleyan’s claim
for lack of jurisdiction under the CDA on July 19, 2002, and Wesleyan ap-
pealed to the Board.

On May 7, 2004, the Board granted the Army’s motion for partial summary
judgment, holding that, to the extent any proprietary data was disclosed pub-
licly in Wesleyan’s patents,3 the Army was entitled to disseminate that in-
formation. In other words, the Board held that all information disclosed to
the Army and not taught by the patents was to be protected from third par-
ties.

The Board also determined that the Army’s acceptance of Wesleyan’s unsolic-
ited proposals created a contract permitting the government to use the pro-
posal data “in accordance with the DAR legend and memoranda of under-
standing.” The Board then held that the resulting confidentiality agreement
applied only to the unsolicited proposals, not to the subsequent bailment
agreement or purchases, and sua sponte requested the parties to brief wheth-
er the Board possessed subject matter jurisdiction over the dispute. Following
the submission of briefs, the Army moved to dismiss for lack of subject matter
jurisdiction, and the Board granted that motion on April 22, 2005.

Wesleyan appeals. We have jurisdiction pursuant to 28 USC §1295(a)(10).

3 Mr. Wesley Schneider, the president of Wesleyan, obtained patents on the FIST/FLEX and
FIST Fountain systems in 1985 and 1987, respectively.
II

The sole issue on appeal is whether the pleaded contracts are covered by the
CDA. Statutory interpretation is a question of law that we review de novo.
Minn. Power and Light Co. v. United States, 782 F.2d 167, 169 (Fed.Cir.
1986).

We begin our analysis with the language of the statute. Institut Pasteur v.
United States, 814 F.2d 624, 627 (Fed.Cir. 1987). Pursuant to the CDA, the
Board has subject matter jurisdiction over “any express or implied contract …
entered into by an executive agency for — (1) the procurement of property,
other than real property in being.” 41 USC §602(a). “Procurement” is “the ac-
quisition by purchase, lease or barter, of property or services for the direct
benefit or use of the Federal Government.” New Era Constr. v. United States,
890 F.2d 1152, 1157 (Fed.Cir. 1989) (emphasis in original).

Here, three types of agreements are at issue: the unsolicited proposals; the
bailment agreement; and the purchase orders. Although the bailment agree-
ment does involve, and the unsolicited proposals arguably involve, the trans-
fer of “property”, neither involve “acquisition … by such means as … renting
[or] leasing”, as Wesleyan did not receive any value in exchange. As such, the
unsolicited proposals and bailment agreement were donative in nature.

The purchase orders, in contrast, involve the exchange of property for money,
and thus involve “procurement”. The Board erred by ignoring this critical ex-
change. Accordingly, the Board erred by categorizing Wesleyan as a “bidder”,
and thus in relying on our decision in Coastal Corp. v. United States, 713
F.2d 728 (Fed.Cir. 1983). In Coastal Corp., the Army had not engaged in any
“procurement” activities, and had instead cancelled a bid solicitation prior to
awarding a contract. Id. at 729. We held that the CDA “deals with contrac-
tors, not with disappointed bidders.” Id. at 730. Wesleyan, however, is more
than a disappointed bidder. Although here, the Army had not yet awarded
Wesleyan a final contract to provide the FIST/FLEX system to soldiers, the
Army had purchased FIST/FLEX prototypes for testing. This purchasing ac-
tivity was sufficient to transform the Army’s relationship with Wesleyan from
that of evaluator and bidder to that of buyer and seller. Accordingly, Coastal
Corp. is distinguishable.

We turn now to the question of whether the information contained in the pur-
chase orders was sufficient to constitute a procurement “contract”. The pur-
chase orders specify the parties involved, delivery instructions, price, pay-
ment terms, and transportation instructions. No essential term is missing.4
Although Wesleyan did not sign the purchase orders, it performed, which
clearly signals acceptance. Taken together, the purchase orders and Wesley-
an’s performance contain all essential contract terms and demonstrate mutu-
al assent to a procurement contract.

Thus, pursuant to the CDA, the Board possesses limited subject matter juris-
diction over this suit insofar as Wesleyan’s claim involves a breach of the
purchase orders, which constitute procurement contracts. Because Wesleyan
alleges a breach of the confidentiality agreement, however, Wesleyan has
stated a claim upon which relief may be granted only if the confidentiality
agreement was incorporated into the procurement contracts. On remand, the
Board should first determine whether language on four of the six purchase
orders indicating that the Wesleyan systems are being purchased for evalua-
tive or demonstrative purposes is sufficient to incorporate by reference previ-
ously executed documents relating to the evaluative process, namely the con-
fidentiality provisions of the DAR legend, MoU, and Policy Statements. If the
Board answers this question affirmatively, then it may entertain only those
portions of Wesleyan’s complaint alleging a breach of the confidentiality
agreement as incorporated into the procurement contracts. Accordingly, we
turn next to Wesleyan’s specific allegations of breach.

Wesleyan alleges four specific instances of breach in its complaint. First,

Wesleyan alleges that conceptual information disclosed to the Army’s Chemi-
cal Systems Laboratory at Aberdeen Proving Grounds, Maryland (“Aberdeen
Proving Grounds”) prior to the submission of its first unsolicited proposal was
divulged to a direct competitor. Specifically, Wesleyan alleges that “the head
of the [Army] Chemical Systems Laboratory’s Mask Management Office was
consulted regarding the viability of Wesleyan’s hydration systems concepts”
and that “[u]pon information and belief, this individual later was employed
by … ILC Dover, Inc.” (Compl. ¶11-13.) Because, as explained above, a CDA
contract would not have arisen until the Army procured prototypes, the
Board does not have jurisdiction over this portion of Wesleyan’s claim.

We address Wesleyan’s second, third, and fourth allegations together. Wes-

leyan’s second allegation is that prior to June 1985, the Army improperly dis-
closed and conveyed concepts from the Wesleyan system to the Battelle Me-

4 The complete exchange between the parties is no doubt even more robust than the infor-
mation contained in the record. For example, oral discussions are referenced on the pur-
chase orders, and the record does not include the content of those discussions.
morial Institute, a contractor at Aberdeen Proving Grounds. Wesleyan alleg-
es that Battelle used Wesleyan’s concepts in its June 1985 report “regarding
the need to improve the Army’s mask drinking system”, and further alleges
that “Battelle in turn revealed Wesleyan’s proprietary concepts to other con-
tractors responsible for mask deployment and soldier hydration.” (Compl.
¶25-27.) Third, Wesleyan alleges that “in 1986 employees of the Army’s
Chemical Research and Development Center (‘CRDC’) [a precedessor to the
Army’s Chemical Systems Laboratory at Aberdeen Proving Grounds] released
Wesleyan’s proprietary information directly to employees of ILC Dover with-
out permission from Wesleyan.” (Compl. ¶38.) Wesleyan explains that ILC
Dover “was working with CRDC to develop a competing concept with the
FIST/FLEX device.” (Compl. ¶39.) Fourth, Wesleyan asserts that because
Army files from the early 1990s contained Camelbak’s brochure for its drink-
ing system, which disclosed certain features of the FIST/FLEX design, the
Army improperly disclosed to Camelbak “concepts and intellectual property
contained in Wesleyan’s unsolicited proposals and in the prototypes submit-
ted for testing purposes under the above-discussed bailment agreement and
purchase orders.” (Compl. ¶60.)

Because the Army purchased some of the prototype Wesleyan systems prior
to these alleged disclosures, the Board possesses jurisdiction to decide Wes-
leyan’s remaining allegations. As explained above, the unsolicited proposals
and prototype submitted pursuant to the bailment agreement do not fall
within the Board’s jurisdiction. To succeed, then, Wesleyan must prove that
the Army obtained the confidential information that it later disclosed im-
properly not from the unsolicited proposals, nor from the bailment, but solely
from the prototypes purchased and evaluated. In other words, to the extent
Wesleyan alleges that the information disclosed improperly by the Army was
gleaned solely from the prototypes purchased by the Army, the Board may
entertain Wesleyan’s claim.

III

Wesleyan made a strategic decision to pursue its claim before the Board, and
this forum choice has significantly limited the scope of its potential relief.
Had Wesleyan desired to pursue all allegations contained in its complaint, it
could have brought suit in the United States Court of Federal Claims under
the Tucker Act, 28 USC §1491(b)(1), which grants jurisdiction over disputes
involving “any express or implied contract with the United States”. Indeed,
because, unlike the CDA, the Tucker Act does not require that the contract
with the United States relate to procurement, the Court of Federal Claims
would have possessed subject matter jurisdiction here even if the Army had
not purchased any Wesleyan systems, and had breached the confidentiality
agreement solely by disclosing information contained in the unsolicited pro-
posals and/or bailment. By opting to pursue its claim before the Board, Wes-
leyan limited the scope of its dispute to the CDA, and thus to the prototypes
obtained through the purchase orders. Nonetheless, Wesleyan is entitled to a
full and fair determination of the procurement-related portion of its claim be-
fore the Board.

IV

In sum, the Board possesses subject matter jurisdiction over a subset of Wes-
leyan’s claim. Because the unsolicited proposal and bailment agreement do
not involve procurement, those agreements are not subject to the CDA. Ac-
cordingly, the Board does not have jurisdiction to hear allegations of breach
arising from disclosure of information acquired from the unsolicited proposals
or the prototype loaned pursuant to the bailment agreement.

However, the Army also purchased prototypes from Wesleyan pursuant to

purchase orders containing all essential contract terms. Accordingly, that
portion of the dispute arises under a procurement contract, which the Board
has jurisdiction over pursuant to the CDA. Because Wesleyan asserts a
breach of the confidentiality provisions, it has stated a claim upon which re-
lief may be granted only if the procurement contracts at issue here-the pur-
chase orders-incorporate by reference the previously executed confidentiality
provisions. To succeed on the merits, Wesleyan must prove that the Army ob-
tained confidential information later disclosed improperly not from the unso-
licited proposals, and not from the bailment, but solely from the prototypes
purchased.

We thus reverse the decision of the Board dismissing Wesleyan’s claim for
lack of jurisdiction, and remand for further proceedings consistent with this
opinion.

Reversed and Remanded.

Newman, Circuit Judge, dissenting.

I respectfully dissent. The Board of Contract Appeals has jurisdiction and au-
thority to decide all of the asserted breaches of the confidentiality provisions
related to the contracts between Wesleyan and the Army with respect to this
drinking mask. The court’s decision, separating the various steps in this rela-
tively simple procurement, can have large consequences for dispute resolu-
tion.

The Contract Disputes Act does not withhold from the boards of contract ap-
peals the authority to consider the entirety of the claim. There is no basis in
the Contract Disputes Act for segregating the contract-based confidentiality
obligations that were incurred at the beginning and at the end of this pro-
curement, from that in the middle. Many procurements start with an offer
and then a prototype and then a larger-scale evaluation, all accompanied by
standard written confidentiality provisions. My concern with the panel major-
ity’s ruling is that it parses the various stages at which the offeror provided
confidential information, when all of these stages are part of one overall sup-
ply proposition, and are part of one overall claim.

The government required a confidentiality agreement when Wesleyan sub-

mitted the prototypes, and Wesleyan then resubmitted the prototypes with
the appropriate confidentiality notices in the form of Defense Acquisition
Regulation legend 3-507.1(a) and a Memorandum of Understanding. We need
not decide the effect of these confidentiality agreements in isolation, for the
evaluation of Wesleyan’s drinking system resulted in a procurement contract.
The steps of the evaluation of Wesleyan’s technology were part of the normal
negotiation process, which in this case resulted in a contract for sale; each of
the stages of the procurement were part of one overall contracting process.

The purpose of the Contract Disputes Act is to facilitate the fair and efficient
resolution of contract disputes. As explained in testimony during considera-
tion of the Act:

It is in the Government’s selfish interest to be fair in its deal-

ings with its contractor citizens. Unfair procedures drive the
most essential and efficient contractors out of competition for
Government contracts, and cause those who remain, to submit
consistently higher prices which neither the taxpayer nor the
Nation can any longer afford. The cost of diminished competi-
tion is not readily measurable, but it is unquestionably huge.

Testimony of Judge L. Spector, Contract Disputes: Hearings Before the Sub-

committee on Administrative Law and Governmental Relations of the Com-
mittee on the Judiciary 95th Cong. First Session on H.R. 664 and Related
Bills at 107 (1978). Fairness requires not only protection of the proprietary
information of contractors, but also the right to litigate the issues of proprie-
tary information if the ensuing contract is litigated. The confidentiality pro-
visions herein are part of an integrated procurement, and the Contract Dis-
putes Act gives the Board jurisdiction over disputes arising anywhere in the
process. From the court’s failure to recognize and authorize the Board to re-
solve all of the disputes associated with the contract I must, respectfully, dis-
sent.