MOTION TO DISMISS GRANTED IN PART AND

MOTION TO DISMISS GRANTED IN PART AND

DENIED IN PART; APPELLANT’S MOTION FOR

RECONSIDERATION DENIED AS MOOT:

March 25, 2015

CBCA 3871, 3912

SAFE HAVEN ENTERPRISES, LLC

Appellant,

v.

DEPARTMENT OF STATE,

Respondent.

Jason R. Mischel, Executive Vice President and General Counsel of Safe Haven

Enterprises, LLC, New York, NY, counsel for Appellant.

Dennis J. Gallagher, Office of the Legal Adviser, Buildings and Acquisitions,

Department of State, Washington, DC, counsel for Respondent.

Before Board Judges SOMERS, SHERIDAN, and LESTER.

LESTER, Board Judge.

Pending before the Board is the motion of the Department of State (DOS or the

Government) to dismiss these consolidated appeals for lack of jurisdiction. Also pending is

a motion for reconsideration from appellant, Safe Haven Enterprises, LLC (Safe Haven), in

which it asks the Board to reconsider a prior order denying it permission to amend its notices

of appeal to reflect different jurisdictional facts and to establish a new basis for jurisdiction.

For the reasons set forth below, the Board grants that portion of the Government’s motion

seeking dismissal of Safe Haven’s request for punitive damages, but otherwise denies the

CBCA 3871, 3912

2

Government’s motion to dismiss without prejudice, pending further development of the

record on disputed jurisdictional facts. The Board also denies as moot Safe Haven’s motion

for reconsideration.

Background

I.

The Contract

In early 2004, DOS awarded an indefinite delivery/indefinite quantity contract,

number SALMEC-03-D-0035 (contract 0035), to Safe Haven. On March 26, 2006, DOS

issued task order 0002 under this contract for chiller replacement and other construction

work at the United States Embassy in Georgetown, Guyana. On August 24, 2006, DOS

issued task order 0003 under this contract for environmental security construction work at

the United States Embassies in Sana’a, Yemen, and Manama, Bahrain.

II.

The Written Claims and the Written Final Decisions

By certified claim submitted to Howard Williams, Jr., the DOS contracting officer

(CO Williams), on June 27, 2012, Safe Haven sought $1,827,211.80 for money allegedly due

under various task orders issued pursuant to contract 0035, including a claim for $469,916.65

associated with the de-obligation of funds for its work in Yemen and Bahrain under task

order 0003. On September 18, 2012, CO Williams issued a final decision denying that claim,

with the necessary appeal language from 48 CFR 33.211(a)(4)(v) (2011). See Appeal File,

Exhibits 34, 35.

By letter to CO Williams dated July 25, 2012, Safe Haven indicated that the

Government had not paid a ten-percent retainer, totaling $68,339.65, for equipment that Safe

Haven had purchased for its work at Georgetown, Guyana, under task order 0002 (the

Georgetown retainer). On August 27, 2012, CO Williams issued a final decision denying

what he described as Safe Haven’s claim seeking payment of that retainer1 and included in

his final decision the appeal language required by 48 CFR 33.211(a)(4)(v). See Appeal File,

Exhibit 10.

1

The appeal file does not contain a copy of Safe Haven’s July 25, 2012, letter.

Nevertheless, the Government has represented in its motion to dismiss that the letter satisfies

the requirements for a claim under the Contract Disputes Act (CDA), 41 U.S.C.

§§ 7101-7109 (2012). Absent a challenge by the Government, we assume for purposes of

this jurisdictional analysis that it meets those requirements.

CBCA 3871, 3912

III.

3

Jurisdictional Allegations in the Notice of Appeal

On May 28, 2014, Safe Haven filed a notice of appeal (docketed as CBCA 3871)

relating to the de-obligation of Yemen/Bahrain funds under task order 0003. In its notice of

appeal, Safe Haven did not mention that it had submitted a certified claim on that issue or

that the contracting officer had issued a written final decision in response to the claim. Nor

did it attach to its notice of appeal a copy of its claim or the contracting officer’s decision.

Instead, it purported to base its appeal solely on an alleged verbal statement of the

contracting officer on March 21, 2014, following various communications and meetings

between the parties, as follows:

Appellant . . . learned that a Contracting Officer Technical Representative

(“COTR”), who was an independent contractor of the DOS, had authorized the

de-obligation of funds totaling $469,916.55 from the Contract . . . in violation

of the Federal Acquisition Regulation[] and the Department of State

Acquisition Regulation[]. . . . From the time appellant discovered this

discrepancy through March 21, 2014, appellant engaged in continuous

communications and meetings with the DOS to recover these funds. On

March 21, 2014, at a meeting at the DOS, appellant was advised by [the]

Contracting Officer . . . that it was the decision of his agency that these funds

would not be paid back to appellant.

On June 19, 2014, Safe Haven filed a second notice of appeal (docketed as CBCA

3912), in which it indicated that, despite numerous discussions with the contracting officer,

the DOS had not yet paid Safe Haven the Georgetown retainer under task order 0002 and

that, at a meeting on March 21, 2014, the contracting officer had represented that he would

“look into the issue.” Again, in its notice of appeal, Safe Haven mentioned nothing about

a previously submitted claim relating to the retainer issue or about any written contracting

officer final decision in response to it:

As part of the contract, appellant purchased all required materials including a

10% retainer in the amount of $68,339.65. The contract was successfully

completed and on October 10, 2007 [Safe Haven] sent an invoice to the DOS

for payment of the retainer. In early 2008, a DOS Contracting Officer

Technical Representative (“COTR”) informed Appellant that the retainer

would not be paid because the job had “closed out”, in violation of applicable

laws and regulations . . . . From the time Appellant was told it would not be

paid the retainer through March 21, 2014, Appellant engaged in continuous

communications and meetings with the DOS to recover these funds. On

March 21, 2014, at a meeting with the DOS, Appellant was advised by [the]

CBCA 3871, 3912

4

Contracting Officer . . . that he would look into the issue. To date, [the

contracting officer] has not provided a ruling on the issue.

IV.

Jurisdictional Allegations in the Complaint

At the parties’ request, the Board subsequently consolidated the two appeals, and Safe

Haven filed a complaint. In its complaint, Safe Haven alleged that, on January 31, 2012, CO

Williams “issued a letter,” which it referred to as the “Williams Letter,” “containing his

decision regarding both the Yemen/Bahrain De-Obligated Funds and the Georgetown

Retainer,” Complaint ¶ 18,2 but it did not mention that it had previously submitted claims

relating to those issues and it did not refer to the “Williams Letter” as a final decision under

the CDA. It then alleged that, on February 1, 2013, it met with Mr. Williams and his soonto-be successor as contracting officer, James Thomas (CO Thomas), at which time both

Messrs. Williams and Thomas “agreed to rescind the Williams Letter as factual questions still

existed with respect to both the Yemen/Bahrain De-Obligated Funds and the Georgetown

Retainer.” Id. ¶ 22. It further alleged that, on March 21, 2014, CO Thomas “communicated

that the DOS had conducted its re-consideration of Williams’ decision regarding the

Yemen/Bahrain De-Obligated Funds and it was the DOS’ final position that these would not

be paid to [Safe Haven].” Id. ¶ 25. It also alleged that, at that same meeting, CO Thomas

“agreed to look into the issue of the Georgetown Retainer.” Id.

In its answer, the Government denied that, at the meeting on February 1, 2013, either

Messrs. Williams or Thomas agreed to rescind what it described as “contracting officer final

decisions that had been issued with respect to claims presented by Appellant.” Answer ¶ 23.

It represented that, contrary to Safe Haven’s allegations, “Mr. Thomas recalls that Mr.

Williams, who was the cognizant contracting officer” at that time, agreed at the February 1,

2013, meeting “to consider withdrawing his decision if Appellant would present a written

request stating the rationale therefor.” Id. The Government then alleged that it “is not aware

that any such written request was ever made or acted upon.” Id.

2

There is no letter in the appeal file dated January 31, 2012. The only two letters

from the DOS contracting officer in the appeal file purporting to decide the Yemen/Bahrain

de-obligation of funds dispute and the Georgetown retainer dispute are those previously

identified, dated August 27 and September 18, 2012. In its answer to Safe Haven’s

complaint, the Government represents that it is unaware of a letter dated January 31, 2012.

Answer ¶ 18.

CBCA 3871, 3912

V.

5

The Parties’ Pending Motions

On October 3, 2014, the DOS filed a motion to dismiss both of Safe Haven’s appeals

for lack of jurisdiction, arguing that Safe Haven’s notices of appeal did not identify a viable

jurisdictional basis and that, in any event, the appeals were time-barred because, despite Safe

Haven’s failure to mention the contracting officer’s final decisions of August 27 and

September 18, 2012, the appeals were filed more than ninety days after Safe Haven received

those decisions. The DOS also asked that, to the extent that the appeals were not dismissed

in their entirety, the Board dismiss the monetary requests in Safe Haven’s complaint based

upon fraud and for punitive damages.

Safe Haven responded with a request to change the basis of its jurisdictional

allegations and argued that, after the two final decisions were issued, the DOS contracting

officer agreed to reconsider them, which, it argued, suspended the time for appeal. Attached

to its request was an affidavit from its former counsel, in which the attorney declared that,

at a meeting on February 1, 2013, both CO Williams and CO Thomas expressly told him and

Safe Haven’s owner that “any deadline for filing an action to appeal the decisions in either

the Civilian Board of Contract Appeals or the United States Court of Federal Claims, would

be void” because “the Final Decisions were being reconsidered as the Bureau of Overseas

Operations was going to audit the projects as factual questions existed as to both the

Yemen/Bahrain Deobligated Funds and the Georgetown Retainer.” Affidavit of Bradley S.

Deutchman ¶ 4. Relying upon this affidavit and some other documentary evidence, Safe

Haven argued that the deadline for appeal was eliminated. It further asserted that, on March

21, 2014, “after continued communications with the DOS,” the successor contracting officer,

CO Thomas, informed Safe Haven, for the first time, that the DOS “had conducted its reconsideration” of the Yemen/Bahrain de-obligated funds decision and decided not to pay the

funds to Safe Haven, but that he would “look into the issue of the Georgetown retainer.”

Appellant’s Response at 6-7. Safe Haven then argued that its appeals following those March

21, 2014, representations were timely.

The DOS disputed Safe Haven’s evidence. Although acknowledging that a meeting

took place on February 1, 2013, the DOS has provided an affidavit from CO Thomas denying

that, at that meeting, either contracting officer made the representations that Safe Haven

alleges, and the DOS noted that Safe Haven has not submitted any e-mail messages or other

correspondence from after the February 1, 2013, meeting evidencing that such

representations occurred. The DOS has also suggested that CO Williams may have

represented during the February 1, 2013, meeting that the Government would consider

withdrawing one or both of the contracting officer’s final decisions if Safe Haven would

present a written request establishing a rationale for doing so, but that no such written request

was ever made.

CBCA 3871, 3912

6

By order dated January 9, 2015, the Board Judge then assigned to these appeals denied

Safe Haven’s request to change the jurisdictional basis of its appeals. On February 9, 2015,

Safe Haven filed a motion for reconsideration of that order, which is now pending before the

Board. The cases were subsequently reassigned to the current presiding Judge.

Discussion

I.

Standard of Review

The Board’s jurisdiction is derived from the CDA, 41 U.S.C. §§ 7101-7109. “[T]he

strict limits of the CDA” constitute “jurisdictional prerequisites to any appeal.” England v.

Swanson Group, Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004). If jurisdiction is found to be

lacking, the Board must dismiss the case. Universal Canvas, Inc. v. Stone, 975 F.2d 847, 850

(Fed. Cir. 1992).

“When considering a motion to dismiss for lack of subject matter jurisdiction, a

tribunal accepts as true the undisputed allegations in the complaint and draws all reasonable

inferences in favor of the plaintiff.” McAllen Hospitals, LP v. Department of Veterans

Affairs, CBCA 2774, et al., 14-1 BCA ¶ 35,758, at 174,970 (citing Trusted Integration, Inc.

v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011)). “Nevertheless, when a question of

the tribunal’s jurisdiction is raised, ‘either by a party or by the [tribunal] on its own motion,

the [tribunal] may inquire, by affidavits or otherwise, into the facts as they exist.’” Id.

(quoting Land v. Dollar, 330 U.S. 731, 739 n.4 (1947)). The party seeking to invoke a

tribunal’s subject matter jurisdiction “bears the burden of establishing [it] by a preponderance

of the evidence.” Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed.

Cir. 1988).

II.

Deficiencies in Safe Haven’s Original Jurisdictional Allegations

When Safe Haven originally filed its notices of appeal in these consolidated cases, it

did not mention that it had submitted written claims to the contracting officer and that the

contracting officer had issued two written final decisions, and it did not attach the contracting

officer’s decisions to its notice. The only basis that Safe Haven identified for jurisdiction

was that the contracting officer, following a series of communications and meetings with

Safe Haven, orally stated that the Government would not pay any money for the

Yemen/Bahrain de-obligation of funds dispute and that he would look into the Georgetown

retainer issue. In its complaint, it again did not mention any written claim submission.

Although it identified a January 2012 letter from the contracting officer that it described as

the “Williams Letter,” it did not describe that letter as a written final decision. Again, it

merely suggested that, after a series of meetings and communications, the contracting officer

CBCA 3871, 3912

7

orally informed it on March 21, 2014, that the Government would not pay the

Yemen/Bahrain claim and would consider the Georgetown retainer issue.

It is the appellant’s burden to plead “facts necessary to establish the Board’s

jurisdiction.” Integrated Systems Analysts, Inc., GSBCA 10750-P, 91-1 BCA ¶ 23,477, at

117,776 (1990). In Federal court, the party bringing a case is required under Federal Rule

of Civil Procedure 8(a)(1) to include those jurisdictional allegations in its complaint for the

court’s evaluation. Before the Board, because the notice of appeal rather than the complaint

initiates a case, it is generally “the notice of appeal, not the complaint, that establishes the

bounds of jurisdiction.” Gardner Zemke Co., IBCA 2626, 90-3 BCA ¶ 23,064, at 115,800

n.7 (citing Crawford Technical Services, Inc., ASBCA 36732, 89-2 BCA ¶ 21,783, at

109,608); see Cafritz Co. v. General Services Administration, GSBCA 13525, 97-1 BCA

¶ 28,969, at 144,263.

In both of its notices of appeal, Safe Haven relies upon verbal statements from the

contracting officer on March 21, 2014, as its basis for appeal, without mentioning the

existence of preceding written claims. Under the CDA, the Board cannot assume jurisdiction

over a contractor’s request for monetary relief unless the contractor previously submitted to

the agency’s contracting officer, in writing, a claim seeking payment of a sum certain and

requesting a final decision. 41 U.S.C. § 7103(a)(1), (2); see Reflectone, Inc. v. Dalton, 60

F.3d 1572, 1575-76 (Fed. Cir. 1995) (en banc) (a written claim to the contracting officer is

a jurisdictional prerequisite). Once the contractor receives the contracting officer’s final

decision denying the claim, the contractor has ninety days to appeal that decision to the

Board. 41 U.S.C. § 7104(a). That final decision must be in writing. 41 U.S.C.

§ 7103(a)(3); see Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1267 (Fed. Cir.

1999); Paradigm Learning, Inc. v. United States, 93 Fed. Cl. 465, 474 (2010). Alternatively,

if the contracting officer does not issue a written decision within the statutory time limits, the

contractor can appeal the contracting officer’s “deemed denial” of the written claim. 41

U.S.C. § 7103(f)(5); see CB&I Federal Services LLC v. Department of Homeland Security,

CBCA 3112, et al., 14-1 BCA ¶ 35,550, at 174,210.

Pursuant to CBCA Rule 2(a)(1), an appellant is expressly required to identify the basis

of the Board’s jurisdiction in its notice of appeal by describing the contracting officer’s final

decision being appealed “in enough detail to enable the Board to differentiate that decision

from any other.” 48 CFR 6101.2(a)(1)(i) (2014). “If an appeal is taken from the failure of

a contracting officer to issue a decision” – that is, the contracting officer’s “deemed denial”

– “the notice of appeal should describe in detail the claim that the contracting officer has

failed to decide.” Id. Here, the notices of appeal do not identify any written final decisions

or written claims or attach any decisions or claims. They identify only verbal representations

CBCA 3871, 3912

8

by the contracting officer about a dispute, following various discussions that do not include

the contractor’s submission of a written claim. That is not a viable jurisdictional basis.

III.

A Different Jurisdictional Basis Identifiable from the Record

A.

The Board’s Obligation to Consider Unalleged Jurisdictional Bases

Despite the defect in the notices of appeal, it is clear from the record that there is a

potential jurisdictional basis for maintaining these appeals. As the Government

acknowledges in its answer, and as the appeal file establishes, Safe Haven submitted a claim

relating to the Yemen/Bahrain de-obligated funds issue underlying CBCA 3871 on

November 29, 2011; Safe Haven certified that claim in accordance with the requirements of

the CDA on June 27, 2012; and the contracting officer denied that claim in a written final

decision on September 18, 2012. Further, the Government acknowledges in its motion to

dismiss that Safe Haven submitted a claim relating to the Georgetown fund issue underlying

CBCA 3912 on July 25, 2012, seeking a final decision of the contracting officer in an amount

below the threshold requiring claim certification, and that the contracting officer issued a

written decision denying the claim on August 27, 2012. Relying upon these jurisdictional

facts, the Government argues in its motion to dismiss that, if we look beyond the facts

alleged in the notices of appeal, Safe Haven’s appeals to the Board are untimely because they

were filed more than ninety days after the written final decisions were issued. In its response

to the Government’s motion, Safe Haven has submitted an affidavit in which its former

attorney avers that, after the written final decisions were issued, the contracting officer

affirmatively agreed to reconsider the decisions, an act that it asserts eliminated the time for

appeal.

Although these allegations do not appear in the notices of appeal or even in Safe

Haven’s complaint, and although an appellant acts at its peril in failing to identify a viable

jurisdictional basis in its notice of appeal, we are loath to dismiss a case for lack of

jurisdiction based simply upon an initial pleading defect. Federal courts are specifically

directed by statute to permit amendments of defective jurisdictional allegations: “Defective

allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28

U.S.C. § 1653; see Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 832 (1989)

(courts can “remedy inadequate jurisdictional allegations, but not defective jurisdictional

facts”); Haxton v. State Farm Mutual Automobile Insurance Co. Board of Directors, No.

13-485, 2014 WL 3586550, at *4 (M.D. Fla. July 21, 2014) (“Although a defect in subject

matter jurisdiction cannot be waived, pleading defects . . . may be cured”). Although the

statute is addressed to the courts’ discretion, “usually the section is to be construed liberally

to permit the action to be maintained if it is at all possible to determine from the record that

jurisdiction does in fact exist.” Cox v. Livingston, 407 F.2d 392, 393 (2d Cir. 1969) (quoting

CBCA 3871, 3912

9

John Birch Society v. National Broadcasting Co., 377 F.2d 194, 198–99 (2d Cir. 1967)).

Even without regard to that statute, it is clear that, as a general principle, courts have wide

discretion to look to “the whole record” if an appellant “fail[s] to properly allege” facts

supporting jurisdiction and that insufficient allegations “will not . . . defeat the jurisdiction

of the [tribunal] if, as a matter of fact,” review of the record establishes a basis for

jurisdiction. Kelleam v. Maryland Casualty Co. of Baltimore, 112 F.2d 940, 943 (10th Cir.

1940), rev’d on other grounds, 312 U.S. 377 (1941). Accordingly, if the tribunal discovers

that “requisite [jurisdictional facts are] anywhere averred in the record, or facts are therein

stated which in legal intendment constitute such allegations, that is sufficient” to permit the

court to consider the merits of the case. Id.; see Sun Printing & Publishing Association v.

Edwards, 194 U.S. 377, 382 (1904) (“The whole record, however, may be looked to, for the

purpose of curing a defective averment of citizenship, where jurisdiction in a Federal court

is asserted to depend upon diversity of citizenship, and if the requisite citizenship is

anywhere expressly averred in the record, or facts are therein stated which, in legal

intendment, constitute such allegation, that is sufficient.”); Howe v. Howe & Owen Ball

Bearing Co., 154 F. 820, 822 (8th Cir. 1907) (“The jurisdiction of a federal court may not

be renounced or denied where the facts requisite to confer it appear either directly or by just

inference from any part of the record.”).

Given that federal courts generally exercise their discretion to overlook initial

pleading defects and assume jurisdiction if they discover that the record supports jurisdiction,

it is even more incumbent upon the Board to do so. In the CDA, Congress provided that the

Board shall “to the fullest extent practicable provide informal, expeditious, and inexpensive

resolution of disputes.” 41 U.S.C. § 7105(g)(1). Although the Board’s rules identify

requirements for notices of appeal, see 48 CFR 6101.2(a)(1), we are to construe our rules

liberally to provide for the informal and just resolution of matters before us, 41 CFR

6101.1(c), and we are entitled to modify our rules when necessary to achieve those goals.

Id. 6101.1(d). Although we are never required to scour the record to try to uncover an

uncited basis for an appellant’s case, see 1-A Construction & Fire, LLP v. Department of

Agriculture, CBCA 2693, slip op. at 17 (March 17, 2015), we should exercise our discretion

to forgive possible defects or omissions in notices of appeal and pleadings if, during the

course of proceedings, we actually become aware that the record supplies an uncited basis

for jurisdiction. A contractor should not lose its right to appeal merely because it makes an

initial misstep in identifying existing jurisdictional facts.

Here, even though not mentioned in Safe Haven’s notice of appeal or even its

subsequent complaint, the record makes clear that Safe Haven submitted two written claims

pursuant to the CDA, that the contracting officer issued written final decisions on both of

them, and that the record contains evidence supporting an argument that the contracting

officer reconsidered the final decisions in such a manner that, if true, could mean that the

CBCA 3871, 3912

10

appeals were timely filed. In these circumstances, we will consider this jurisdictional

argument. Because we have agreed to evaluate this jurisdictional argument based upon the

existing record, we deny as moot Safe Haven’s request, through its motion for

reconsideration, that we permit it to amend its notices of appeal.

B.

The Contracting Officer’s Alleged Reconsideration of His Final Decisions

A contractor, after receiving a written final decision from the contracting officer, may

appeal that written decision to a board of contract appeals “[w]ithin ninety days from the date

of receipt of [the] decision.” 41 U.S.C. § 7104(a). Alternatively, within twelve months from

the date of the contractor’s receipt of the contracting officer’s final decision, a contractor

may file its appeal with the United States Court of Federal Claims. Id. § 7104(b).

These deadlines for filing have been strictly construed by the Court of Appeals for the

Federal Circuit. The Court has repeatedly held that, because the authorization to make the

filing is a waiver of the Government’s sovereign immunity, failure to file an appeal within

the ninety-day deadline divests the Board of jurisdiction to consider the case on its merits.

See, e.g., D.L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir. 1997); West Coast

General Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994); Cosmic Construction Co. v.

United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982). Here, the contracting officer issued his

final decisions on the Georgetown retainer claim and the Yemen/Bahrain de-obligation of

funds claim on August 27 and September 18, 2012, respectively. Safe Haven did not file an

appeal of the disputes underlying either final decision until more than twenty months after

those final decisions were issued. On its face, Safe Haven’s failure to appeal those final

decisions within ninety days of their issuance would appear to preclude us from entertaining

jurisdiction over them.

Safe Haven, however, now argues that the time limits for appeal were eliminated or

tolled because Safe Haven requested reconsideration of, and the contracting officer agreed

to reconsider, the written final decisions. Even though the Federal Acquisition Regulation

does not address reconsideration of a previously issued final decision, contracting officers

plainly have the authority to reconsider their own decisions. Riverside General Construction

Co., IBCA 1603-7-82, 82-2 BCA ¶ 16,127, at 80,049. “While a board cannot extend the time

for appeal, an appeal period can be tolled where one finds that a [contracting officer’s]

decision was not truly final but was being reconsidered. In that instance, the time for appeal

begins to run with the contractor’s receipt of the reconsideration.” Staff Inc., AGBCA

95-181-1, et al., 96-1 BCA ¶ 28,051, at 140,071 (1995). In Devi Plaza, LLC v. Department

of Agriculture, CBCA 1239, 09-1 BCA ¶ 34,033 (2008), the Board addressed the standard

that we should apply in evaluating whether a final decision is no longer effective because the

contracting officer reconsidered it:

CBCA 3871, 3912

11

It is well-established that, if a [contracting officer’s] decision is not truly

“final,” but being reconsidered, a “failure to appeal from the decision within

the prescribed period will not defeat . . . [a] contractor’s opportunity to be

heard on the merits.” E.g., Johnson Controls, Inc., ASBCA No. 28340, 83-2

BCA ¶ 16,915 at 84,170. As the Court of Claims explained in Roscoe-Ajax

Constr. Co. v. United States, 458 F.2d 55, 63, 198 Ct. Cl. 133, 148 (1972) a

[contracting officer’s] agreeing to meet with a contractor and “to reconsider

the question, serve[s] to keep the matter open and necessarily destroy[s] any

finality the [contracting officer’s] decision theretofore had.” Accordingly, to

ascertain if this appeal is timely, we must determine whether the “finality” of

the [contracting officer’s] decision was vitiated.

Id. at 168,337 (quoting Sach Sinha & Associates, ASBCA 46916, 95-1 BCA ¶ 27,499, at

137,041).

It is clear that “[a] contractor is not entitled to an automatic extension simply because

he requests reconsideration.” Staff, 96-1 BCA at 140,071. Rather, “there must be some

action, either express or implied on the part of the [contracting officer] that indicates that he

is willing to reconsider the final decision, and it is the [contracting officer’s] agreement to

reconsider that triggers the extension.” Merritt Lumber Co., AGBCA 88-313-1, et al., 89-2

BCA ¶ 21,676, at 109,009-10. In Devi Plaza, the Board adopted the following test for

determining whether the finality of a contracting officer’s decision has been vitiated: “the

issue to be resolved with respect to vitiation of ‘finality’ is whether the contractor presented

evidence showing it reasonably or objectively could have concluded the [contracting

officer’s] decision was being reconsidered.” 90-1 BCA at 168,337 (quoting Sach Sinha &

Associates, 95-1 BCA at 137,042).3

Here, the parties have presented very different, and conflicting, versions of their

communications after the final decisions were issued. Safe Haven’s former counsel attests

that the contracting officer and his successor expressly represented that the appeal deadlines

3

See, e.g., Royal International Builders Co., ASBCA 42637, 92-1 BCA ¶ 24,684,

at 123,134 (finality vitiated where the contracting officer’s actions “created sufficient

uncertainty” that contractor “could reasonably believe that the initial decision was not final”);

Birken Manufacturing Co., ASBCA 36587, 89-2 BCA ¶ 21,581, at 108,669 (finality attached

where contractor was not reasonably led to believe that decision was being reconsidered);

Johnson Controls, Inc., ASBCA 28340, 83-2 BCA ¶ 16,915, at 84,170 (finality vitiated

where contracting officer met with contractor to discuss decision and did not “make it very

clear” that original appeal period “continues to run”).

CBCA 3871, 3912

12

were void and that they were reconsidering the final decisions, while the Government denies

those allegations. “In a situation where the parties dispute the predicate facts allegedly

giving rise to the [trial tribunal’s] jurisdiction, the [tribunal] will often need to engage in

some preliminary fact-finding.” Skwira v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003).

“In that situation, the [tribunal] ‘enjoys broad authority to order discovery, consider extrinsic

evidence, and hold evidentiary hearings in order to determine its own jurisdiction.’” Id. at

72 (quoting Valentín v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001)); see Land

v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“As there is no statutory direction for procedure

upon an issue of jurisdiction, the mode of its determination is left to the trial [tribunal].”

(quoting Gibbs v. Buck, 307 U.S. 66, 71-72 (1939)). To the extent that “the jurisdictional

facts, though genuinely disputed, are inextricably intertwined with the merits of the case,”

the tribunal may even “defer resolution of the jurisdictional issue until the time of trial.”

Valentin, 254 F.3d at 363 n.3. In the circumstances here, we believe it appropriate to obtain

the parties’ views on how to proceed in resolving this jurisdictional factual dispute, including

whether a short evidentiary hearing to permit the parties to present evidence regarding the

factual issue is necessary.

IV.

Fraudulent Misrepresentation and Punitive Damages

The Government requests that, if we do not dismiss Safe Haven’s complaint in its

entirety, we dismiss the two counts of Safe Haven’s complaint alleging fraudulent

misrepresentation, as well as its request for punitive damages.

Fraudulent Misrepresentation. Safe Haven alleges in two counts of its complaint that

the Government made fraudulent misrepresentations that either caused or independently

constituted breaches of contract.4 The Government argues that the CDA “expressly denies

the contracting officer authority to decide claims involving fraud” and that, since the

contracting officer cannot consider Safe Haven’s fraud allegations, neither can the Board.

Respondent’s Motion at 7 (citing 41 U.S.C. § 7103(c)). Yet, the section of the CDA to which

the Government refers “applies only to fraud claims made by the Government against a

4

In count IV of its complaint, Safe Haven alleges that it “was given multiple

reasons from various personnel at the DOS as to the reason why the funds were de-obligated”

from its Yemen/Bahrain task order, some of which allegedly involved fraud, such that the

DOS “knowingly, fraudulently intentionally misrepresented” to Safe Haven “both the deobligation of funds as well as the reasons for doing so, with the intent to deceive” Safe

Haven. Complaint ¶ 46. In count VIII, Safe Haven alleges that the reason given “to justify

not returning the Georgetown Retainer was a fraudulent and intentional misrepresentation”

to Safe Haven, “with the intent to deceive” Safe Haven. Id. ¶ 77.

CBCA 3871, 3912

13

contractor, not vice versa.” INSLAW, Inc. v. United States, 35 Fed. Cl. 295, 306 (1996)

(citing Martin J. Simko Construction, Inc. v. United States, 852 F.2d 540, 542-44 (Fed. Cir.

1988)). The CDA does not bar a contracting officer from considering a contractor’s

monetary contract claim simply because it includes, as part of the allegations of breach,

allegations that the Government acted fraudulently. We cannot grant the Government’s

motion to dismiss on that basis.

The Government alternatively argues that fraudulent misrepresentation is a tort over

which the Board cannot exercise jurisdiction. Respondent’s Reply Brief at 4. It is true that

the Board is barred “from handling fraud qua fraud claims.” Rockwell International Corp.,

EBCA C-9509187, et al., 97-2 BCA ¶ 29,322, at 145,794; see L’Enfant Plaza Properties,

Inc. v. United States, 645 F.2d 886, 892 (Ct. Cl. 1981) (fraud, independent of a contract, is

a tort over which court lacks jurisdiction); Environmental Safety Consultants, Inc., ASBCA

53485, 02-2 BCA ¶ 31,904, at 157,613 (“The Board does not have jurisdiction over criminal

or civil fraud and would not have jurisdiction over a claim of fraud.”). We specifically “lack

jurisdiction to consider a claim alleging the tort of misrepresentation.” Mitchell v. General

Services Administration, GSBCA 16209, 04-1 BCA ¶ 32,551, at 160,996 n.3; see National

Gypsum Co., ASBCA 53259, 03-1 BCA ¶ 32,054, at 158,455 & n.2 (2002) (“[w]e have no

jurisdiction over tort claims,” including “misrepresentation”).

Nevertheless, “a claim of misrepresentation [is] ‘not barred simply because it might

also be stated as a tort.’” PAE International, ASBCA 48922, 95-2 BCA ¶ 27,787, at 138,590

(quoting Olin Jones Sand Co. v. United States, 225 Ct. Cl. 741, 745 (1980)). If the

appellant’s “misrepresentation claim is entirely dependent on, and in fact evolves from the

contract,” it is properly characterized as a breach of contract claim. Badgley v. United States,

31 Fed. Cl. 508, 514 (1994); see Chain Belt Co. v. United States, 115 F. Supp. 701, 712 (Ct.

Cl. 1953) (“[a] tortious breach of contract is not a tort independent of the contract so as to

preclude an action”); Houston Ship Repair, Inc. v. United States Department of

Transportation, Maritime Administration, DOT BCA 4505, 06-2 BCA ¶ 33,381, at 165,492

(2007) (Board may “exercise jurisdiction over a tortious breach of contract”); HK

Contractors, Inc., DOT BCA 2766, 96-1 BCA ¶ 28,175, at 140,645 (“The fact that a claim

speaks of ‘tortious’ actions does not per se deprive the Board of jurisdiction.”). An

appellant’s references to alleged fraudulent Government misrepresentations that affected

contract performance “are merely another way of asserting that a breach of contract

occurred.” Olin Jones Sand, 225 Ct. Cl. at 745. Here, the damages that Safe Haven seeks

for fraudulent misrepresentation duplicate and mirror those that it seeks under the counts of

its complaint for breach of contract, breach of the implied duty of good faith and fair dealing,

and negligent misrepresentation. Safe Haven plainly intends its fraudulent misrepresentation

counts to relate to breaches of contract. In such circumstances, Safe Haven’s claim of

fraudulent misrepresentation “is in substance a ‘claim for breach of contract by

CBCA 3871, 3912

14

misrepresentation.’” Schweiger Construction Co. v. United States, 49 Fed. Cl. 188, 206

(2001) (quoting Badgley, 31 Fed. Cl. at 514). Such a claim is properly within our

jurisdiction. See Olin Jones Sand, 225 Ct. Cl. at 745; see SIA Construction, Inc., ASBCA

57693, 14-1 BCA ¶ 35,762, at 174,986 (“[t]he Board [has] jurisdiction under the CDA to

decide the contract rights of the parties even when fraud has been alleged” (quoting Public

Warehousing Co. K.S.C., ASBCA 58078, 13 BCA ¶ 35,460, at 173,896)). Accordingly, to

the extent that Safe Haven seeks damages arising out of the contract, we possess jurisdiction

over Safe Haven’s fraudulent misrepresentation claim.5

Punitive Damages. As for Safe Haven’s request for punitive damages, Safe Haven

has identified no basis for such a demand. “Absent express consent of Congress, punitive

damages may not be awarded against the United States.” Crutcher v. General Services

Administration, GSBCA 15586, 02-1 BCA ¶ 31,763, at 158,878; see Mastrolia v. United

States, 91 Fed. Cl. 369, 382 (2010) (“The United States has not waived sovereign immunity

with regard to punitive damages.”). The CDA, under which we derive jurisdiction, does not

contain such a waiver. We dismiss Safe Haven’s request for punitive damages.

Decision

For the foregoing reasons, Safe Haven’s motion for reconsideration of the Board’s

January 9, 2015, order is hereby DENIED AS MOOT. The Government’s motion to dismiss

Safe Haven’s request for punitive damages is GRANTED, but the motion to dismiss is

otherwise DENIED, subject to reconsideration after further factual development. By

5

Oddly, although arguing that we cannot consider the counts of Safe Haven’s

complaint alleging fraudulent misrepresentation because they are tort-based, the Government

did not seek to dismiss the two counts of Safe Haven’s complaint based upon negligent

misrepresentation. Claims “sounding in tort” include those “based on negligent

misrepresentation.” Somali Development Bank v. United States, 508 F.2d 817, 821 (Ct. Cl.

1974). Nevertheless, for the same reasons that we can consider contract claims alleging

fraudulent misrepresentation, we can consider contract claims alleging negligent

misrepresentation – they are both entirely dependent upon, and evolve from, the contract.

CBCA 3871, 3912

15

separate order, the Board will provide the parties an opportunity to address the manner in

which they wish to proceed in resolving disputed jurisdictional facts.

_______________________________

HAROLD D. LESTER, JR.

Board Judge

We concur:

________________________________

JERI KAYLENE SOMERS

Board Judge

________________________________

PATRICIA J. SHERIDAN

Board Judge