M. Maropakis Carpentry, Inc. v. United States

United States Court of Appeals

for the Federal Circuit

__________________________

M. MAROPAKIS CARPENTRY, INC.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

__________________________

2009-5024

__________________________

Appeals from the United States Court of Federal

Claims in 03-CV-2825, Judge Lawrence M. Baskir.

__________________________

Decided: June 17, 2010

__________________________

STEPHANIE E. DIVITTORE, Rhoads & Sinon LLP, of

Harrisburgh, Pennsylvania, argued for plaintiff-

appellant. Of counsel on the brief was KELLY H. DECKER.

KENT C. KIFFNER, Trial Attorney, Commercial Litiga-

tion Branch, Civil Division, United States Department of

Justice, of Washington, DC, argued for defendant-

appellee. With him on the brief were TONY WEST, Assis-

tant Attorney General, JEANNE E. DAVIDSON, Director,

and DONALD E. KINNER, Assistant Director.

__________________________

M MAROPAKIS CARPENTRY v. US 2

Before NEWMAN, LOURIE, and LINN, Circuit Judges.

Opinion for the court filed by Circuit Judge LINN.

Dissenting opinion filed by Circuit Judge NEWMAN.

LINN, Circuit Judge.

This action arises under the Contract Disputes Act

(“CDA”), 41 U.S.C. §§ 601-613. M. Maropakis Carpentry,

Inc. (“Maropakis”) appeals the decision of the United

States Court of Federal Claims dismissing Maropakis’s

complaint for lack of subject matter jurisdiction because it

failed to present to the contracting officer a “claim” within

the meaning of the CDA. Maropakis further appeals the

grant of the government’s counterclaim for liquidated

damages. Because Maropakis has demonstrated no errors

of law or clearly erroneous factual findings, we affirm.

BACKGROUND

On April 6, 1999 the Navy awarded a contract to Ma-

ropakis for, among other things, the replacement of

windows and a roof at a warehouse building located at

Naval Inventory Control Point in Mechanicsburg, Penn-

sylvania. M. Maropakis Carpentry, Inc. v. United States,

84 Fed. Cl. 182, 185 (2008). The contract specified a

completion date of January 16, 2000, though this was

later modified by extensions to February 4, 2000. The

contract also included a liquidated damages clause, in the

form of 48 C.F.R. § 52.211-12, which provided that Ma-

ropakis would be liable to the government for $650 per

day for each day of delay beyond the contract completion

date.

Maropakis did not begin work until after the specified

completion date. The project was completed May 17,

2001, 467 days after the modified completion date. On

August 20, 2001, Maropakis sent a letter addressed to

3 M MAROPAKIS CARPENTRY v. US

“Mr. W.L. Robertson O.I.C., Navfac Contracts” requesting

“an extension of contract time . . . from January 16, 2000

to April 17, 2001, a total of 447 consecutive calendar days”

based on five alleged delays: (1) 187 days due to the

inability to locate a window manufacturer; (2) 32 days in

time lost from the start date of fabrication of windows due

to the need to re-submit plans; (3) 107 days due to the

discovery of lead-based paint; (4) 20 days due to the

Navy’s prohibition of the use of asphalt as a roofing

adhesive; and (5) 101 days for time lost while searching

for a metal fabricator. Id. at 191. On August 28, 2001,

James Nihoff, the contracting officer (“Contracting Offi-

cer”) on Maropakis’s contract responded to the August 20

letter to Robertson by stating that Maropakis did not

“present[] sufficient justification to warrant the time

extension” requested. Id. The Contracting Officer re-

jected each of the requested extensions, noting that,

among other problems, some of the dates of delay were

overlapping. In closing, the Contracting Officer invited

Maropakis to “submit additional information” in support

of its request and stated that “[t]his letter is not a Final

Decision of the Contracting Officer.” Id. at 192.

On June 28, 2002, the Navy sent Maropakis another

letter, pointing out that Maropakis had neither “re-

sponded [to the August 2001 letter] with additional in-

formation” nor “requested a Contracting Officers [sic]

final decision for these matters.” Id. The letter also

indicated that the government had made payments to

Maropakis in the amount of $1,053,115, $244,036 less

than the total contract price of $1,297,151. Finally, the

letter informed Maropakis that it would owe liquidated

damages of $303,550 representing $650 per day for the

467 days of delay in completing the project. The Navy

applied this amount against the remaining contract

M MAROPAKIS CARPENTRY v. US 4

balance, $244,036, resulting in a total due from Ma-

ropakis of $59,514.

Maropakis responded in a letter on July 22, 2002 reit-

erating its earlier request for an extension but mentioning

specifically only the 107-day extension for the removal of

lead contaminated windows. This letter referred to

multiple delays but did not specify a total number of days

of extension requested. The letter then stated, “we will

dispute . . . the liquidated damages amount of $303,550.00

and will indicate that M. Maropakis was not responsible

for the delays.” Id. at 193 (emphases added). There was

no follow-up to this correspondence by either party.

Maropakis did not file a separate formal claim regarding

the time extension.

On December 20, 2002 the Navy issued Final Decision

#03-002F which reiterated the government’s demand for

liquidated damages. The government characterizes this

letter as a final decision pertaining only to the Navy’s

demand for liquidated damages. Maropakis contends that

this letter was a final decision applying to each of its

previous requests for extension of the contract period.

There was no further activity by either party until

Maropakis filed a complaint on December 17, 2003 in the

Court of Federal Claims alleging (1) breach of contract

due to government delay and seeking resulting time

extensions, and (2) breach of contract due to the govern-

ment’s assessment of liquidated damages and seeking

remission of the full $303,550. Amended Compl., ¶¶ 50-

52, 54-55, M. Maropakis, 84 Fed. Cl. 182. The govern-

ment responded by asserting a counterclaim for the

$59,514 balance it contended was due the government in

liquidated damages. On October 3, 2008, the Court of

Federal Claims granted the government’s motion to

dismiss Maropakis’s claim for time extensions for lack of

5 M MAROPAKIS CARPENTRY v. US

subject-matter jurisdiction, finding that Maropakis had

not submitted a “claim” for contract modification as

required under the CDA. The Court of Federal Claims

also granted the government’s motion for summary judg-

ment as to its counterclaim on the liquidated damages

issue. Maropakis appeals both decisions, arguing that its

July 22, 2002 letter was sufficient to constitute a claim

under the CDA. In addition, Maropakis argues that it

was not required to comply with the jurisdictional prereq-

uisites of the CDA to assert its claim for a time extension

as a defense to the government’s counterclaim for liqui-

dated damages.

We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

I. Standard of Review

We review de novo the decision of the Court of Federal

Claims to dismiss for lack of jurisdiction. RadioShack

Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir.

2009). A plaintiff bears the burden of establishing sub-

ject-matter jurisdiction by a preponderance of the evi-

dence. Reynolds v. Army & Air Force Exch. Serv., 846

F.2d 746, 748 (Fed. Cir. 1988).

We also review de novo the grant of summary judg-

ment by the Court of Federal Claims, “drawing justifiable

factual inferences in favor of the party opposing the

judgment” and reapplying the standard applicable to

proceedings before the Court of Federal Claims. Long

Island Savs. Bank, FSB v. United States, 503 F.3d 1234,

1244 (Fed. Cir. 2007). In the Court of Federal Claims,

once the moving party comes forward with evidence

satisfying its initial burden on a motion for summary

judgment, the party opposing the motion must present

evidence creating a genuine issue of material fact. Id.

M MAROPAKIS CARPENTRY v. US 6

Whether a particular defense is permitted under the CDA

is also a question of law, which we review de novo. See

Frazer v. United States, 288 F.3d 1347, 1351 (Fed. Cir.

2002) (holding that “this court reviews de novo all legal

determinations” including the defense of equitable toll-

ing).

II. Time Extensions

The parties in this case dispute whether Maropakis

submitted a valid claim for time extensions to its contract-

ing officer sufficient to give the Court of Federal Claims

jurisdiction over the issue. Under the CDA, the Court of

Federal Claims has jurisdiction over actions filed within

twelve months of a contracting officer’s decision on a

claim. 41 U.S.C. § 609(a). This Court has found that

jurisdiction thus requires both a valid claim and a con-

tracting officer’s final decision on that claim. James M.

Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42

(Fed. Cir. 1996). Since the CDA itself does not define the

term “claim,” we look to the Federal Acquisition Regula-

tions (FAR) implementing the CDA for the definition. See

Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir.

1995) (en banc). The FAR defines “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.” 48 C.F.R. § 33.201. While a CDA claim

need not be submitted in any particular form or use any

particular wording, it must contain “a clear and un-

equivocal statement that gives the contracting officer

adequate notice of the basis and amount of the claim.”

Contract Cleaning Maint., Inc. v. United States, 811 F.2d

586, 592 (Fed. Cir. 1997).

7 M MAROPAKIS CARPENTRY v. US

The CDA also requires that a claim indicate to the

contracting officer that the contractor is requesting a final

decision. Ellett, 93 F.3d at 1543 (“Besides meeting the

FAR definition of a claim, the CDA also requires that all

claims be submitted to the contracting officer for a [final]

decision.”). “This does not require an explicit request for a

final decision, as long as what the contractor desires by its

submissions is a final decision. . . .” Id. (internal quota-

tion marks omitted). These requirements of the CDA are

jurisdictional prerequisites to any appeal. England v.

Swanson, 353 F.3d 1375, 1379 (Fed. Cir. 2004). Thus, for

the Court of Federal Claims to have jurisdiction under the

CDA, the contractor must submit a proper claim─a writ-

ten demand that includes (1) adequate notice of the basis

and amount of a claim and (2) a request for a final deci-

sion. In addition, the contractor must have received the

contracting officer’s final decision on that claim. Ellett, 93

F.3d at 1541-42.

In its complaint, Maropakis alleged it was entitled to

damages because of various “delays, impacts and disrup-

tions” by the government. M. Maropakis, 84 Fed. Cl. at

184. The Court of Federal Claims found that it lacked

subject matter jurisdiction over this claim for time exten-

sion because Maropakis had not satisfied the require-

ments of the CDA. The trial court thoroughly analyzed

each communication between Maropakis and the govern-

ment and found that none of them, either alone or in

combination, contained a clear and unequivocal statement

sufficient to qualify as a claim. Id. at 196-203.

On appeal, Maropakis argues that its letter of July 22,

2002 was sufficient to constitute a claim under the CDA.

Specifically, Maropakis argues that because the July 22,

2002 letter “was the product of continuing discussions

between the parties concerning the assessment of liqui-

dated damages and cause of Project delay, the letter was

M MAROPAKIS CARPENTRY v. US 8

sufficient to give the contracting officer adequate notice of

the basis of Maropakis’s claim.” Maropakis’s Principal

Br. at 20-21. The trial court found, however, that “[a]t

best, a generous reading of the July 22, 2002, correspon-

dence can be interpreted as Maropakis’s request for a

final decision on the government’s liquidated damages

assessment.” M. Maropakis, 84 Fed. Cl. at 203. We agree

that Maropakis’s letter of July 22, 2002 was not sufficient

to provide the contracting officer adequate notice of the

basis and amount of Maropakis’s claim and therefore does

not satisfy the CDA. As noted by the trial court, this

letter mentioned specifically only the 107-day extension

previously requested. Id. The letter did not state the

total number of days requested in extension and did not

request a final decision. In fact, the letter appears to

promise a forthcoming written claim, which never materi-

alized. A claim cannot be based merely on intent to assert

a claim without any communication by the contractor of a

desire for a contracting officer decision. See Transamerica

Ins. Corp., Inc. v. United States, 973 F.2d 1572, 1579 (Fed.

Cir. 1992), overruled in part by Reflectone, 60 F.3d 1572

(holding that submissions qualified as CDA claims when

the contractor “asserted in writing and with sufficient

specificity a right to additional compensation” and “the

contractor communicated his desire for a contracting

officer decision”); Mingus Constructors Inc. v. United

States, 812 F.2d 1387, 1394 (Fed. Cir. 1987) (finding that

letters indicating an intent to file a claim in the future for

an unspecified amount were not claims as defined by the

contract where the contractual definition of claim was

substantially the same as the FAR definition: “a written

demand or assertion by one of the parties seeking, as a

legal right, the payment of money, adjustment or inter-

pretation of contract terms, or other relief, arising under

or relating to this contract”).

9 M MAROPAKIS CARPENTRY v. US

Maropakis also argues that even if it was not in tech-

nical compliance with the CDA, the United States had

actual knowledge of the amount and basis of Maropakis’s

claim and therefore the Court of Federal Claims had

jurisdiction. However, Maropakis provides no evidence

that the government was ever placed on actual notice of

the specific number of days of extension that Maropakis

would ultimately request. Instead, Maropakis points to

the government’s demand for liquidated damages and

asserts that since it refers to Maropakis’s July 22, 2002

letter, the government was fully aware that at least the

amount of damages assessed for the 107-day extension

was in dispute.

Even assuming the government’s knowledge of Ma-

ropakis’s contentions along the way, there is nothing in

the CDA that excuses contractor compliance with the

explicit CDA claim requirements. See 41 U.S.C. § 605

(requiring that “[a]ll claims by a contractor against the

government relating to a contract shall be in writing,”

“shall be submitted to the contracting officer for a deci-

sion,” and “[f]or claims of more than $100,000, the con-

tractor shall certify [] the claim”). Indeed, we have

recognized that the CDA is a statute waiving sovereign

immunity. Winter v. FloorPro, Inc., 570 F.3d 1367, 1370

(Fed. Cir. 2009). A “waiver of sovereign immunity must

be strictly construed in favor of the sovereign.” Orff v.

United States, 545 U.S. 596, 601-02 (2005). Such a waiver

“must be unequivocally expressed in statutory text and

will not be implied.” Lane v. Pena, 518 U.S. 187, 192

(1996) (citations omitted). Thus, we have enforced the

“strict limits of the CDA as ‘jurisdictional prerequisites to

any appeal.’” England, 353 F.3d at 1379 (quoting Shar-

man Co. v. United States, 2 F.3d 1564, 1568-69 n.6 (Fed.

Cir. 1993), overruled on other grounds by Reflectone, 60

F.3d 1572). Maropakis’s argument that this court may

M MAROPAKIS CARPENTRY v. US 10

ignore the jurisdictional requirements of the CDA based

on Maropakis’s allegations of knowledge by the govern-

ment is without merit.

Maropakis’s letter of July 22, 2002 was not a valid

claim under the CDA because it did not provide the

Contracting Officer adequate notice of the total number of

days actually requested in extension, it did not state a

sum certain, and it did not request a final decision. The

absence of notice and the failure to request a final deci-

sion were jurisdictional impairments for a claim under

the CDA. Ellett, 93 F.3d at 1541-42. Moreover, while

technical compliance with certification is not a jurisdic-

tional prerequisite to litigation of a contractor’s claim

under the CDA, it is a requirement to the maintenance of

such an action. 41 U.S.C. § 605(c)(6); see Sharman, 2 F.3d

at 1569. Here, in addition to the jurisdictional defects

noted above, Maropakis’s letter was not certified.

Because Maropakis did not meet the jurisdictional

prerequisites of a claim against the government for con-

tract modification under the CDA, the Court of Federal

Claims correctly dismissed Maropakis’s breach of contract

claim for lack of jurisdiction.

III. Liquidated Damages

Maropakis also claimed that the government’s as-

sessment of damages was improper and sought its remis-

sion in full. The government made a motion for summary

judgment on this claim and on its corresponding counter-

claim for the assessed liquidated damages. The Court of

Federal Claims found that Maropakis “failed to establish

a material issue as to whether the government’s liqui-

dated damages provision was an unenforceable penalty.”

It therefore granted the government’s summary judgment

motion, finding Maropakis liable for the retained balance

11 M MAROPAKIS CARPENTRY v. US

of the contract and an additional $59,514 in liquidated

damages. M. Maropakis, 84 Fed. Cl. at 208.

On appeal, Maropakis argues that “the Court did not

consider Maropakis’s factual defenses.” Maropakis’s

Principal Br. at 27. Maropakis argues that its right to

assert a defense against the government’s claim for liqui-

dated damages means that the CDA requirements that

would otherwise apply to Maropakis’s affirmative claim

for entitlement to time extensions no longer apply and

Maropakis can raise these issues to defend against the

government’s claim. We disagree.

Maropakis relies on Placeway Construction Corp. v.

United States, 920 F.2d 903 (Fed. Cir. 1990), as authority

for the proposition that a valid CDA claim is not required

prior to raising excusable delay as a defense to the gov-

ernment’s liquidated damages claim. 1 However, the

1 The dissent agrees with Maropakis’s argu-

ment citing Garrett v. General Electric Co., 987 F.2d 747,

749 (Fed. Cir. 1983) as authority for the assertion that

claims and defenses are distinct. Slip op. at 3-4. How-

ever, Garrett is inapposite. The issue in Garrett was

whether the Board of Contract Appeals had jurisdiction

over a contracting officer’s decision that GE must correct

a problem under a contract at no additional cost to the

Navy even though GE submitted no claims itself to the

contracting officer. Thus, the only issue addressed by this

Court in Garrett was whether the Board had “jurisdiction

over the Navy’s claims under the contract” and “whether

the Navy’s directives under the contract’s inspection

clause are appealable CDA claims.” Garrett, 987 F.2d at

749. The Court found that this was a government claim

over which the Board correctly determined it had jurisdic-

tion despite the Navy’s choice of a nonmonetary remedy.

Id. Garrett did not discuss GE’s defenses to the govern-

ment claim at issue or whether those defenses themselves

involved contractor claims that must adhere to the re-

quirements of the CDA. Therefore, Garrett like Placeway

M MAROPAKIS CARPENTRY v. US 12

Placeway decision does not support such a rule. In Place-

way, the contractor had submitted a written demand for

payment of an unpaid contract balance of $297,226 to its

contracting officer along with other demands for payment.

Id. at 905. Placeway’s demands, like Maropakis’s re-

quests, were not valid claims under the CDA. Id. In

response to Placeway’s demands, the contracting officer

refused to release the contract balance because Placeway

had failed to complete the contract “in a timely manner.”

Id. Placeway filed a complaint in the Claims Court seek-

ing, among other amounts, the contract price balance.

The United States Claims Court determined that the

government’s decision to keep the contract balance was a

government claim as opposed to a contractor claim and

thus did not require certification. However, the Claims

Court nevertheless concluded that it did not have jurisdic-

tion over the dispute because the government had not

made a final decision on its claim and thus had itself not

made a valid CDA claim. On appeal, we determined that

the contracting officer had effectively made a final deci-

sion on the government claim notwithstanding the fact

that the contracting officer reserved the authority to

redetermine the amount of the setoff claimed based upon

the receipt of additional information on the actual costs

incurred by the government. Id. at 906-07. Therefore, we

concluded that the Claims Court did have jurisdiction

over the government’s claim for liquidated damages. Id.

However, we did not address whether the Claims Court

had jurisdiction over any of Placeway’s defenses.

In this case, there is no dispute that the Court of Fed-

eral Claims had jurisdiction over Maropakis’s claim

relating to liquidated damages and the government’s

does not support the rule advocated by Maropakis and

agreed to by the dissent.

13 M MAROPAKIS CARPENTRY v. US

corresponding counterclaim. The parties also agree that

the claim for liquidated damages was a government claim

that did not require certification and that the contracting

officer properly made a final decision on the issue. The

Court of Federal Claims correctly found that Placeway

had no bearing on the CDA’s requirements for contractor

claims. M. Maropakis, 84 Fed. Cl. at 204. Several other

Court of Federal Claims cases have directly addressed

this issue and have all concluded that even when used as

a defense to a government claim, a contractor’s claim for

contract modification must adhere to the jurisdictional

requirements of the CDA. Sun Eagle Corp. v. United

States, 23 Cl. Ct. 465, 477 (1991) (“This court holds that

the plaintiff is challenging a government claim to liqui-

dated damages and making its own contractor claim to

recover amounts withheld for liquidated damages. The

latter must be certified.”) 2 (emphasis added); Elgin Build-

2 The dissent quotes portions of this same lan-

guage in Sun Eagle when describing the proposition that

claims and defenses are distinct. Slip op. at 5. However,

the dissent, with all due respect, ignores the actual hold-

ing of Sun Eagle, which states as follows:

In the case at bar, plaintiff is seeking an adjustment

of contract terms or monetary relief because it de-

fends against the assessment of liquidated damages

on the basis that the Army caused the delay. The

claim is a claim by the contractor. The contractor

made the claim in its claim letter and, if it recovers,

the CDA would award the contractor interest on its

claim. Plaintiff’s contractor claim must be certified, as

required by 41 U.S.C. § 605(c). In this case plaintiff

did certify its claim. Defendant asserts that the certi-

fication is insufficient because the contractor failed to

certify that the data supporting its claim were “accu-

rate and complete to the best of the contractor’s

knowledge and belief,” as required by section 605(c).

The court need not address this issue, as the case is

M MAROPAKIS CARPENTRY v. US 14

ers, Inc. v. United States, 10 Cl. Ct. 40, 44 (1986) (stating

that “where . . . the contractor seeks to contest the as-

sessment of liquidated damages by claiming entitlement

to time extensions or other relief, the court is presented

with a claim by the contractor against the government

and that must first be presented to the CO” and the

contractor’s defenses in such a case are “limited to the

nature of, and the issues present in, the assessment

itself─that is, for example, to contest that there was any

delay in contract completion”).

The statutory language of the CDA is explicit in re-

quiring a contractor to make a valid claim to the contract-

ing officer prior to litigating that claim. The purpose of

this requirement is to encourage the resolution of dis-

agreements at the contracting officer level thereby saving

both parties the expense of litigation. See 48 C.F.R.

§ 33.204; Reflectone, 60 F.3d at 1580. Maropakis does not

point to any authority that provides an exception to the

in settlement. However, if the issue were resolved ad-

versely to plaintiff, the result would call for the dis-

missal of all of its contractor claims, and the court

would retain jurisdiction only over the government

claim. As a practical consequence, plaintiff likely

would agree to the stay of the government claim

while it recertified its contractor claims, obtained a

contracting officer decision thereon, and refiled in the

Claims Court. That action would be joined with the

instant action and proceedings scheduled on an expe-

dited basis.

Sun Eagle, 23 Cl. Ct. at 482 (emphases added) (internal

citations omitted). Thus, Sun Eagle does not, as stated by

the dissent, support the proposition that the absence of

CDA prerequisites on Maropakis’s claims of government

delay does not bar its right to raise them in defense of the

government’s liquidated damages claim. Instead, Sun

Eagle stands for the exact opposite.

15 M MAROPAKIS CARPENTRY v. US

CDA claim requirements when a contractor’s claim for

contract modification is made in defense to a government

claim. And we see no reason to create such an exception.

Thus, we hold that a contractor seeking an adjustment of

contract terms must meet the jurisdictional requirements

and procedural prerequisites of the CDA, whether assert-

ing the claim against the government as an affirmative

claim or as a defense to a government action.

Here, the Court of Federal Claims correctly required

Maropakis to comply with the CDA requirements not-

withstanding Maropakis’s styling of its claim as a defense

to a government counterclaim for liquidated damages.

Because the Court of Federal Claims correctly held that it

did not have jurisdiction over Maropakis’s claim for time

extensions, and because Maropakis’s extension claim was

the only defense asserted against the government’s coun-

terclaim for liquidated damages, we affirm the grant of

summary judgment to the government on its counterclaim

for liquidated damages.

CONCLUSION

The Court of Federal Claims’s determination that it

lacked jurisdiction over Maropakis’s claim for breach of

contract is affirmed. We also affirm the Court of Federal

Claims’s grant of summary judgment to the government

on its counterclaim for liquidated damages.

AFFIRMED

United States Court of Appeals

for the Federal Circuit

__________________________

M. MAROPAKIS CARPENTRY, INC.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

__________________________

2009-5024

__________________________

Appeal from the United States Court of Federal

Claims in 03-CV-2825, Judge Lawrence M. Baskir.

__________________________

NEWMAN, Circuit Judge, dissenting.

The court holds that the contractor M. Maropakis

Carpentry, Inc. is barred, in its appeal to the Court of

Federal Claims of the contracting officer’s grant of the

government’s claim for delay damages, from defending

against that claim by showing that the government

caused and contributed to the delay. Thus my colleagues

grant summary judgment to the government on its claim

for $303,550 in delay damages, on the theory that the

court “lack[s] subject matter jurisdiction” to consider the

defense that Maropakis had raised with the Contracting

Officer. I do not share the view that there is no “jurisdic-

tion” to consider the defense to the government’s claim,

whereby the claim was summarily granted without per-

mitting inquiry as to its merits and defenses.

M MAROPAKIS CARPENTRY v. US 2

During performance of the contract, Maropakis had

requested various extensions of time, in light of various

performance delays. The government does not deny that

it had a role in delay. 1 My colleagues’ ruling that the

court does not have “subject matter jurisdiction” of the

contractor’s defense that the government contributed to

the delay, is based on the theory that Maropakis “had not

submitted a ‘claim’ for contract modification as required

under the CDA.” Maj. Op. at 5. My colleagues hold that

the courts are deprived of jurisdiction because no separate

claim to modify the contract was made. However, Ma-

ropakis is not seeking contract reformation. Nor is Ma-

ropakis seeking damages or additional compensation.

Maropakis is simply raising an objection to the merits of

the government’s claim for delay damages, defending on

the ground that the government had contributed to the

delay.

The question is not whether Maropakis could have or

should have submitted a claim for some sort of contract

modification; the question is whether Maropakis is per-

mitted to defend against the government’s claim for delay

damages. The majority cites the FAR’s inclusion of “the

adjustment . . . of contract terms” in the definition of

“claim.” However, this definition does not mean that the

FAR requires that the government contract be presented

for modification before a contractor can defend against a

government claim arising from contract performance.

1 It was not disputed that the government ordered

cessation of all work and did not authorize Maropakis to

proceed to remove the lead paint until 107 days after

discovery of the paint by Maropakis. It was not disputed

that when Maropakis found that the windows specified by

the government did not exist, the government refused to

change the specifications, and by the time the windows

were custom made and the lead paint removed, the entire

performance time set in the contract had elapsed.

3 M MAROPAKIS CARPENTRY v. US

Indeed, the contracting officer did not require Maropakis

to file a request for contract modification in order for the

contracting officer to consider Maropakis’ various re-

quests for extensions of performance time. These re-

quests were simply denied for various reasons relating to

substance, not procedure.

When a claim is within a tribunal’s jurisdiction, like

the government’s claim for delay damages, the tribunal

routinely has jurisdiction to consider defenses to the

claim. This rule is not negated by any provision of the

Contract Disputes Act. Yet my colleagues sustain the

government’s CDA claim and its sizable monetary award,

permitting no defense and imposing obstacles that have

been negated by statute and precedent. For example, my

colleagues hold that Maropakis was required to “certify”

its defense, as if it were a monetary claim. Precedent is

contrary. My colleagues hold that Maropakis was re-

quired to state a “sum certain” that it is claiming; how-

ever, Maropakis is not claiming a sum; it is objecting to

the damages claimed by the government, raising the

defense that the government contributed to the delay.

And my colleagues hold that Maropakis was required to

somehow seek and obtain “contract modification” before it

could raise this defense; this curious theory is devoid of

support.

In Garrett v. General Electric Co., 987 F.2d 747 (Fed.

Cir. 1993), the court considered whether the government’s

directive to the contractor to do certain remedial work at

the contractor’s expense was a government “claim”; this

court held that it was, and that the contractor could

appeal and raise its objections without filing a separate

“claim” of its own. Jurisdiction was based on the govern-

ment’s claim, not the contractor’s objection to that claim.

This court was explicit in holding that the contractor did

not have to submit its own claim:

M MAROPAKIS CARPENTRY v. US 4

GE submitted no claims to the CO on the engine

defects at the time of the decision. The Act, how-

ever, provides that a contractor may appeal a Gov-

ernment claim to the appropriate board without

submitting a claim of its own to the CO. Thus,

only jurisdiction over the Navy’s claims under the

contract are at issue in this appeal.

Id. at 749 (citation omitted). This holding is contravened

by the court’s decision today, for although jurisdiction of

the government’s claim for delay damages is undisputed,

the court now requires a separate jurisdictional basis for

the contractor’s objection to the government’s claim.

Placeway Construction Corp. v. United States, 920

F.2d 903 (Fed. Cir. 1990) arose on facts analogous to those

of Maropakis. In Placeway the appeal was from the

contracting officer’s decision not to release the contract

balance, the government asserting delay damages. Like

Maropakis, the contractor raised the defense that the

government had caused some of the delay. See Placeway

Constr. Corp. v. United States, 18 Cl. Ct. 159, 162 (1989),

aff’d in part, vacated in part, and remanded, 920 F.2d 903

(Fed. Cir. 1990). This court agreed with the Claims Court

that the government’s withholding of the contract balance

as a setoff against its claim for delay damages was a

government claim. Placeway, 920 F.2d at 906. Because

the contracting officer’s decision on the government claim

was final, jurisdiction was proper, despite the absence of a

contractor claim complying with CDA procedures includ-

ing certification. That is, the contractor’s complaint

seeking recovery of the contract balance was not a con-

tractor claim, and did not require certification. This

5 M MAROPAKIS CARPENTRY v. US

court’s ruling today conflicts with its holding in Place-

way. 2

Other decisions have explored various aspects of the

difference between a claim and a defense, as particular

facts and circumstances have tested the boundary. In

Sun Eagle Corp. v. United States, 23 Cl. Ct. 465 (1991),

the Claims Court explained that while certification is

required of a contractor’s claim for payment under the

contract, for it constitutes a “contractor claim,” a defense

to a government claim need not be certified. The Sun

Eagle court summarized:

Placeway held that a contractor’s challenge to a

government claim need not be certified. This

court holds that plaintiff is challenging a govern-

ment claim to liquidated damages and making its

own contractor claim to recover amounts withheld

for liquidated damages. The latter must be certi-

fied.

Id. at 477.

Precedent respects the distinction between a claim

and a defense. My colleagues’ selective quotation from

the opinion in Sun Eagle, Maj. Op. at 13 n.2, implements

the holding in Sun Eagle that the contractor’s letter was

indeed a “claim,” made “in a claim letter,” 23 Cl. Ct. at

480. The Sun Eagle court then held that since the con-

tractor had made such a claim, it needed to be certified.

The court explicitly did not hold that a contractor raising

a defense to a government claim “must meet the jurisdic-

tional requirements and procedural prerequisites of the

2 The majority posits that Placeway dealt only with

government claims, and not contractor defenses. Maj. Op.

at 12. That is precisely the point: in Placeway this court

based jurisdiction on the government’s claim; a defense

does not have a jurisdictional dimension.

M MAROPAKIS CARPENTRY v. US 6

CDA,” Maj. Op. at 15. The routine defense that the

government contributed to delay is a defense, not a con-

tract modification. Failure to meet the CDA requirements

for certification, naming a sum certain, requesting a final

decision, or modifying the contract, does not preclude

defending against the government’s claim.

Indeed, whether Maropakis’ several requests for time

extensions met the CDA’s “claim” requirements is irrele-

vant – although these letters stated that the contractor

would dispute any assessment of delay damages. The

issue here is not whether Maropakis perfected a monetary

claim of its own, but whether Maropakis is to be permit-

ted to defend against the government’s claim. No rule or

precedent holds that a contractor forfeits its right of

defense if it does not file its own claim. And the court is

misguided in its ruling that the government’s claim for

damages cannot be defended against unless the contractor

first undertakes the formal procedures of contract modifi-

cation. In Garrett this court explained that the CDA

“provides that a contractor may appeal a Government

claim to the appropriate board without submitting a claim

of its own to the CO.” 987 F.2d at 749. See also 41 U.S.C.

§609(a)(1) (“[I]n lieu of appealing . . . to an agency board,

a contractor may bring an action directly on the claim in

the United States Court of Federal Claims, notwithstand-

ing any contract provision, regulation, or rule of law to the

contrary.”). No statute or rule withholds subject matter

jurisdiction from such actions when the contractor chal-

lenges a government claim.

The government did not dispute that it owed Ma-

ropakis the unpaid balance of the contract, and the con-

tracting officer’s recognition of that obligation is not

appealed. The only issue is the summary grant of judg-

ment to the government for the delay damages in the

government’s claim, while denying, on “jurisdictional”

7 M MAROPAKIS CARPENTRY v. US

grounds, Maropakis’ right of defense. The right to defend

against an adverse claim is not a matter of “jurisdiction,”

nor of grace; it is a matter of right. The denial of that

right, argued by the government on a theory of “jurisdic-

tion” that was supported by the Court of Federal Claims

and is now supported by this court, is contrary to the

purposes of the CDA, contrary to precedent, and an af-

front to the principles upon which these courts were

founded. 3 I respectfully dissent.

3 “It is as much the duty of Government to render

prompt justice against itself, in favor of citizens, as it is to

administer the same, between private individuals.” A.

Lincoln, First Annual Message (Dec. 3, 1861), engraved at

the entrance to this courthouse, 717 Madison Place NW,

Washington, DC.