DISMISSED FOR LACK OF JURISDICTION: July 1, 2008

DISMISSED FOR LACK OF JURISDICTION: July 1, 2008

CBCA 1063

KENNETH W. BATTLEY, TRUSTEE FOR THE ESTATE OF MARTECH USA, INC.,

Appellant,

v.

SOCIAL SECURITY ADMINISTRATION,

Respondent.

Robert G. Watt of Watt, Tieder, Hoffar & Fitzgerald, LLP, McLean, VA, counsel for

Appellant.

Clary Simmonds, Office of the General Counsel, Social Security Administration,

Baltimore, MD, counsel for Respondent.

Before Board Judges SOMERS, GOODMAN, and DRUMMOND.

SOMERS, Board Judge.

This appeal arises out of a contract between Martech USA, Inc. (Martech) and the

Social Security Administration (SSA) for renovation services. After completing the scope

of work under the contract, but before SSA paid Martech the remaining contract balance of

$153,792.40, Martech filed a petition for bankruptcy on December 19, 1993. Due to the

bankruptcy filing, SSA deferred payment to Martech pending resolution of various

government claims on other Martech projects.

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On May 20, 1999, Kenneth W. Battley, the trustee in bankruptcy for the estate of

Martech, submitted a certified claim under the Contract Disputes Act of 1978 (CDA), 41

U.S.C. §§ 601- 613, for the recovery of the outstanding contract balance. An SSA

contracting officer denied the claim on November 1, 1999. In her final decision, the

contracting officer stated:

After you submitted your request for payment to SSA in July 1999, SSA

received the enclosed request from the United States Air Force to setoff any

amount that is owed by SSA to Martech. We have confirmed that nothing in

the bankruptcy proceeding precludes SSA from paying this Government setoff.

As you know, the judge in the Martech bankruptcy proceeding issued an order

in May, 1995, allowing Government setoff. Further, the Government’s setoff

claim has a greater priority than your claim for payment as the debtor-trustee

in bankruptcy.

Based upon the foregoing, we have determined that no amount is payable to

you.

Complaint ¶ 20, Exhibit 6. The decision concluded by stating that it was “the final decision

of the Contracting Officer” and notified Martech of the ninety-day deadline for appeals to the

General Services Board of Contract Appeals (GSBCA) and the twelve-month deadline for

filing suits in the Court of Federal Claims. Mr. Battley received the final decision by certified

mail on December 8, 1999.

Mr. Battley did not appeal the November 1, 1999, final decision to either the GSBCA

or to the Court of Federal Claims. Instead, on April 19, 2006, Mr. Battley requested a second

final decision from the SSA concerning the same contract balance. In the April 19 claim, Mr.

Battley contends that he had recently learned that SSA had retained the contract balance, and

that it had not been used to set off any debts due to the Air Force. Mr. Battley certified the

second claim and requested a final decision. By letter dated September 5, 2006, SSA

informed Mr. Battley that it did not intend to issue another final decision. On February 1,

2008, Mr. Battley filed an appeal with this Board based upon the “deemed denial” of his April

19, 2006, certified claim.

SSA moves the Board to dismiss the appeal for lack of jurisdiction. The agency notes

that the contractor received the contracting officer’s final decision on December 8, 1999; the

decision advised the contractor that it could appeal to the GSBCA within the next ninety days;

and the appeal was not filed until February 1, 2008, well beyond the ninety-day deadline. The

parties do not dispute the timing and content of the communications at issue. Nonetheless,

CBCA 1063

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Mr. Battley opposes the motion, arguing that the November 1, 1999, decision did not

unequivocally and permanently deny the claim.

SSA’s motion is well taken.

The CDA, which governs the Board’s review of contracting officer decisions, requires

that an appeal of such decision be filed “[w]ithin ninety days from the date of receipt of [the]

decision.” 41 U.S.C. § 606 (2000). The plain language of the CDA clearly confers finality

and unreviewability of a contracting officer’s decision that is not properly appealed within the

statutory period provided. That finality is not limited to the contracting officer’s authority to

issue such a decision or the validity of the contracting officer’s decision. See, e.g., United

States v. Kasler Electric Co., 123 F.3d 341, 346 (6th Cir. 1997). The statute affords the

opportunity to challenge the authority and/or validity of the 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 contracting officer’s decision “be final and conclusive and

not subject to review.” 41 U.S.C. § 605(b). This deadline for filing has been strictly

construed by the Court of Appeals for the Federal Circuit because the authorization to make

the filing is a waiver of sovereign immunity. A late filing divests the Board of jurisdiction

to consider the case on its merits. Three Rivers Timber, Inc. v. Department of Agriculture,

CBCA 1044, 08-1 BCA ¶ 33,833, at 167,456 (citing Renda Marine, Inc. v. United States, 509

F.3d 1372, 1381 (Fed. Cir. 2007); D. L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir.

1997); Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982);

Robert T. Rafferty v. General Services Administration, CBCA 617, 07-1 BCA ¶ 33,577, at

166,340). Accordingly, because Mr. Battley did not file the appeal until after the ninetieth day

from his receipt of the decision in question, we do not have jurisdiction to consider the appeal.

In addition, we reject Mr. Battley’s argument that the appeal could be filed on a

“deemed denial” basis resulting from the contracting officer’s failure to issue a final decision

on the “new” April 19, 2006, claim. The established test for what constitutes a “new” claim

is whether “claims are based on a common or related set of operative facts. If the court will

have to review the same or related evidence to make its decision, then only one claim exists.”

Environmental Safety Consultants, Inc., ASBCA 54995, 06-1 BCA ¶ 33,230, at 164,666

(citing Placeway Construction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).

In the April 19, 2006, claim, Mr. Battley sought the remaining contract balance of

$153,792.40, plus interest from November 7, 1994. The amount sought is identical to that

sought in the original claim, with the exception of seeking CDA interest on the balance. The

fact that Mr. Battley identified a date from which interest should run does not make the claim

of April 19, 2006, a “new” claim. Id. (citing Aerojet Ordnance Tennessee, ASBCA 36089,

91-3 BCA ¶ 24,130, at 120,773 (as long as the essential character of a claim remains the same,

revision of the amount is permitted)).

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Decision

SSA’s motion is granted.

JURISDICTION.

The case is DISMISSED FOR LACK OF

_____________________________

JERI KAYLENE SOMERS

Board Judge

We concur:

____________________________

ALLAN H. GOODMAN

Board Judge

_______________________________

JEROME M. DRUMMOND

Board Judge