DISMISSED FOR LACK OF JURISDICTION: March 13, 2017

DISMISSED FOR LACK OF JURISDICTION: March 13, 2017

CBCA 5632

FOXY CONSTRUCTION, LLC,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Donna L. Gunther of Foxy Construction, LLC, Las Vegas, NV, appearing for

Appellant.

Heather R. Hinton-Taylor, Office of the General Counsel, Department of Agriculture,

Golden, CO, counsel for Respondent.

Before Board Judges HYATT, ZISCHKAU, and LESTER.

LESTER, Board Judge.

On February 7, 2017, the Board received and docketed an appeal filed by appellant,

Foxy Construction, LLC (FCL), from a contracting officer’s decision dated December 8,

2016. In reviewing the materials attached to the notice of appeal, the Board became

concerned about its jurisdiction to entertain this appeal and issued a show cause notice to

which both FCL and the United States Forest Service (USFS) (an entity within the

Department of Agriculture, the respondent in this appeal) have responded. Based upon our

CBCA 5632

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review of those responses and the materials attached to them, we must dismiss this appeal

for lack of jurisdiction.

Background

On July 8, 2015, the USFS awarded contract no. AG-0261-C-15-0008 to FCL for the

relocation of a USFS bunkhouse and visitor center near Las Vegas, Nevada, with a total fixed

contract price of $358,591.50. The period of performance was originally set as ninety

calendar days after issuance of the notice to proceed, but with a completion date no later than

September 30, 2015 (a period less than ninety days from the contract award date).

Subsequently, the contract was modified to incorporate additional foundational and other

work, increasing the contract price to $392,438.90. The USFS also extended the contract

performance period several times, and the USFS has represented that the work required by

the contract was completed on April 22, 2016.

FCL’s First Monetary Request. On January 7, 2016, FCL’s owner sent an email

message to the USFS contracting officer and the contracting officer’s representative (COR),

asking them to “see the attached documentation regarding the issues leading to a possible

back charge” and indicating that “[i]f you have any questions please give me a call.”

Attached to the email message was a letter on FCL letterhead, addressed to the “United

States Dept of Agriculture – Forest Service,” in which FCL stated that it was “asking to be

compensated for delays and for having to work in unusual conditions” and asserting that, by

the time the contract was awarded, it was already short of the ninety days that were

anticipated for contract performance. It represented that it had attempted to expedite

performance to complete the project before the winter months, but then appears to suggest

that design submittals were improperly rejected, which apparently delayed the project into

the winter months when weather issues made work on the project more difficult. It then

stated that it was attaching what it called a “claim” and asked that the contracting officer and

the COR “review and comment” on it, as follows:

Attached is a copy of the claim. Note the claim is because [the original

Government inspector] was injured and another inspector took over the project

who didn’t trust [the first inspector’s] decisions. Please review and comment.

In the letter, FCL then stated that, “with a 70%-30% shared responsibility (70% Forest

Service & 30% Foxy), the backcharge should only be $51,051.47.” The attachments to the

letter included a “shut down” cost calculation and a “loss of efficiency and productivity” cost

calculation, which, added together, totaled $170,171.57. Thirty percent of $170,171.57 is

$51,051.47, which matches the amount of the backcharge request in the letter. Nevertheless,

also included in the attachments to the January 7 letter was an unsigned “Application And

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Certificate For Payment” apparently seeking payment (in the “Current Payment Due”

column) of $95,207.71. There was no claim certification accompanying the letter.

The USFS contracting officer sent an email message to FCL’s owner on January 19,

2016, informing her that, “the way [the claim] is written, my only option is to deny it in its

entirety” based upon “lack of detail and the fact that it is very hard to understand.” She also

indicated that “[i]t is not clear how much you are asking for” or “how you came to these

figures,” but she interpreted the letter as seeking payment of more than $100,000, stated that

“[c]urrently as written it is not a valid claim” because it was uncertified, and quoted from

Federal Acquisition Regulation (FAR) 33.207 (48 CFR 33.207 (2016)) discussing claim

certification requirements. She also requested that FCL provide additional information so

that she could consider the monetary request.

On April 14, 2016, the USFS contracting officer and COR met with FCL’s owner, at

which time FCL apparently attempted to resubmit the January 7 letter directly to the

contracting officer. The contracting officer, however, reiterated her concern that the claim

was an uncertified request for payment of more than $100,000, which (as she wrote in

another email message on April 18, 2016, summarizing the April 14 meeting) she “would

have to reject again based on the same reasoning [she] sent in the email dated 19 Jan 2016.”

There is nothing in the record here indicating that, during or after the April 14 meeting, FCL

challenged the contracting officer’s belief that the claim value exceeded $100,000. In the

April 18 email message, the contracting officer explained the claim submission and review

process and indicated that a valid claim needed to contain a sum certain and, if the claim

exceeded $100,000, the certification required by the FAR.

FCL’s Second Monetary Request. On April 26, 2016, FCL sent another email

message to the contracting officer, with the subject line “claim letter for Foxy Const.,” to

which was attached a letter with the subject line “Re: Relocation of Bunkhouse and Visitor

Center.” In that letter, FCL indicated that, “due to the extra days spent on job because of

weather, the Forest Service owes Foxy an equitable adjustment to the contract” based upon

the following: (1) “[t]he equipment that set [sic] for 39 days as listed for hours and amount”;

(2) “[a] 45% increase for equipment used to complete job”; (3) “[a] 45% increase for all

labor paid out”; and (4) “[a] Burden of 32% for overhead and profit.” In the attachment to

the cover page, FCL, after removing some costs for which it appears FCL assumed

responsibility, indicated a “Grand Total” for payment by the USFS of $329,800. There was

no claim certification accompanying the letter.

On June 21, 2016, the USFS contracting officer issued a decision on the April 26

“claim,” denying it in its entirety. In the decision, the contracting officer indicated that FCL

had not submitted a claim certification, as required by FAR 33.207 for claims in excess of

CBCA 5632

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$100,000. The contracting officer then informed FCL that it could challenge the decision

through an appeal to the Board or an action before the United States Court of Federal Claims.

FCL’s Third Monetary Request. On September 8, 2016, the contracting officer, at

FCL’s request, agreed to participate in a conference call to provide additional comments

upon the contractor’s April 26 claim. According to the contracting officer, she agreed during

that call to allow FCL to provide additional facts to support its claim and that she would

consider a new submission.

On October 18, 2016, FCL submitted another letter by United States mail addressed

to the USFS (which apparently did not receive it until November 1, 2016), directed to the

attention of the USFS contracting officer. In the letter, FCL complained of a differing site

condition at the administrative site, improper rejection of design submittals, and delays for

which FCL was not responsible. In this letter, FCL represented that its “cost overrun on this

project is approximately $225,000,” which “is directly related to the change in onsite

personnel and delays of the foundation plan approval.” It indicated that it “look[ed] forward

to a settlement that is palatable to your organization and mine.” The letter did not contain

a claim certification, and FCL did not attach any supporting materials to it.

The USFS contracting officer issued another decision on December 8, 2016. She

indicated that FCL had not, as it had promised, provided any additional supporting rationale

for its monetary request and again did not certify its claim. Accordingly, she indicated that

her prior decision stood. Nevertheless, she again notified FCL of its right to appeal to the

Board or to sue in the Court of Federal Claims.

The Current Monetary Request. On February 7, 2017, the Board received FCL’s

notice of appeal of the contracting officer’s decision dated December 8, 2016. FCL attached

to its notice of appeal both its letter to the contracting officer dated October 18, 2016, and

the contracting officer’s decision dated December 8, 2016 (which referenced both the April

26 and October 18 “claims” and the contracting officer’s earlier June 21 decision).

On February 9, 2017, the Board issued a show cause order, asking the parties to

address whether, to the extent that FCL’s claim exceeded $100,000, it had been certified and

whether, in the letter of October 18, 2016, FCL had requested monetary relief in a sum

certain. FCL filed its response to the show cause order on February 28, 2017, indicating that

it now seeks “exactly $153,430.12 as a Claim from [the USFS] in this matter.” The USFS

responded to the show cause order on March 2, 2017, requesting that the Board dismiss the

appeal for lack of jurisdiction.

CBCA 5632

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Discussion

I.

Requirements for a Claim

The Board’s jurisdiction to entertain contract disputes derives from the Contract

Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012). As a prerequisite to review by the

Board of a contractor’s demand for money from the Federal Government, the contractor must

have submitted a “claim” to an agency contracting officer. Id. §§ 7103, 7104(a). The CDA

does not define the term “claim.” Todd Construction, L.P. v. United States, 656 F.3d 1306,

1311 (Fed. Cir. 2011). In the absence of a such a definition in the CDA itself, we rely upon

the FAR’s definition of the term “claim” in applying the CDA’s requirements. Id. The FAR

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.” 48 CFR 2.101.

There is no requirement in the CDA or the FAR “that a ‘claim’ . . . be submitted in

any particular form or use any particular wording.” Contract Cleaning Maintenance, Inc. v.

United States, 811 F.2d 586, 592 (Fed. Cir. 1987). Nevertheless, “[f]or the Board to possess

jurisdiction to entertain an appeal for monetary relief, the contractor must first have

submitted a claim to the contracting officer identifying the basis of the request, seeking

payment of a sum certain, and requesting, either expressly or implicitly, a decision of the

contracting officer.” Bon Secour Management, LLC v. Department of Veterans Affairs,

CBCA 4703, slip op. at 2 (May 13, 2015). In addition, if the amount of a claim exceeds

$100,000, the contractor must have certified the claim in the form required by 41 U.S.C.

§ 7103(b)(1), and any uncertified request for payment in excess of $100,000 “is not a claim

under [the CDA] until certified as required by the statute.” FAR 2.101 (48 CFR 2.101).

Once a proper claim is submitted, the contractor cannot appeal until either the contracting

officer has issued a decision on the claim or the statutory time for the contracting officer to

issue such a decision, as set forth in 41 U.S.C. § 7103(f), has expired. Primestar

Construction v. Department of Homeland Security, CBCA 5510, 17-1 BCA ¶ 36,612, at

178,330. These requirements are jurisdictional prerequisites to any appeal under the CDA.

M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1329 (Fed. Cir. 2010).

FCL submitted three different letters to the USFS contracting officer requesting

additional money under its contract. The USFS argues in its response to the show cause

order that none of those letters constitutes a “claim” that would allow us to entertain FCL’s

appeal. As an initial matter, the only contracting officer’s decision that FCL attached to its

notice of appeal was the one dated December 8, 2016, which purported to decide the FCL

“claim” dated October 18, 2016 (which also was attached to the appeal notice). Under our

rules of procedure, it is the claim and/or decision referenced in and/or attached to the notice

of appeal that identifies what is being appealed. 48 CFR 6101.2(a)(1). Typically, we would

CBCA 5632

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look to FCL’s October 18, 2016, submission, rather than its earlier letters, to evaluate

whether we possess jurisdiction to entertain this appeal. Nevertheless, in the interest of

completeness, and because FCL’s various submissions were apparently viewed as related

(such that the contracting officer’s December 2016 decision refers back to the earlier July

2016 decision and the April 2016 “claim”), we will evaluate all three submissions to

determine whether any one of them could provide a jurisdictional basis for appeal.

II.

The January 7, 2016, Letter

FCL first requested money under the contract in its letter dated January 7, 2016. The

USFS argues that this letter was not a “claim” because FCL did not certify it in accordance

with section 7103(b) of the CDA, 41 U.S.C. § 7103(b). Such a certification is required for

any claim of more than $100,000 and is “a jurisdictional prerequisite for review of a

contracting officer’s decision before this Board.” B&M Cillessen Construction Co. v.

Department of Health & Human Services, CBCA 931, 08-1 BCA ¶ 33,753, at 167,084

(2007). “The submission of an uncertified claim [in excess of $100,000], for purposes of the

CDA, is, in effect, a legal nullity.” Fidelity Construction Co. v. United States, 700 F.2d

1379, 1384 (Fed. Cir. 1983). “Although a defective certification may be corrected, a failure

to certify may not.” B&M Cillessen, 08-1 BCA at 167,084 (quoting K Satellite v.

Department of Agriculture, CBCA 14, 07-1 BCA ¶ 33,547, at 166,154).

There is no question that FCL did not attempt to certify its January 7 letter in

accordance with the CDA. It is unclear, though, whether any certification was required. In

its letter, the dollar figure that FCL identifies as the amount of the requested backcharge is

$51,051.47, a figure below the statutory threshold for requiring certification.1 Yet the

attachments to the January 7 letter, which FCL represented constituted its “claim,” include

an unsigned “Application And Certificate For Payment” apparently seeking an additional

payment of $95,207.71, which, coupled with the $51,051.47 backcharge request, exceeds the

$100,000 certification threshold. The contracting officer expressed confusion over the

amount of FCL’s “claim,” and it does not appear from the record that, in response to the

contracting officer’s statements in a January 19 email message and at a meeting on April 14

that the total claimed amount exceeded $100,000, FCL made any attempt to clarify whether

it was only seeking to recover the $51,051.47 figure through the January 7 submission.

1

The USFS asserts that there are multiple dollar figures, some of which are more

than $100,000, in the three pages of FCL’s cost calculations that render it unclear exactly

how much FCL was requesting. Our review of those pages indicates that all of the numbers

were identified as part of the calculation for reaching the $51,051.47 backcharge figure that

FCL said was the USFS’s responsibility.

CBCA 5632

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We need not resolve how much FCL was requesting in its January 7 letter because

there is another reason – one that FCL candidly acknowledges – that precludes the January

7 submission from constituting a CDA “claim.” Nowhere in the January 7 letter does FCL

request a contracting officer’s final decision, as required under the definition of a “claim”

in FAR 2.101. Without such a request in the claim letter, we lack jurisdiction over an appeal

based upon that “claim.” Bon Secour Management, slip op. at 2. It is true that “[t]he law

does not require an explicit demand or request for a contracting officer’s decision; ‘as long

as what the contractor desires by its submissions is a final decision, that prong of the CDA

claim test is met.’” James M. Ellett Construction Co. v. United States, 93 F.3d 1537, 1546

(Fed. Cir. 1996) (quoting Transamerica Insurance Corp. 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) (en banc)). Further, “[t]hat the contractor intended

to make such a request [can] be ‘implied from the context of the submission.’” Rex Systems,

Inc. v. Cohen, 224 F.3d 1367, 1372 (Fed. Cir. 2000) (quoting Heyl & Patterson, Inc. v.

O’Keefe, 986 F.2d 480, 483 (Fed. Cir. 1993), overruled in part on other grounds by

Reflectone, 60 F.3d at 1579 & n.10); see Red Gold, Inc. v. Department of Agriculture, CBCA

2259, 12-1 BCA ¶ 34,921, at 171,721 (2011) (“The request may be either explicit or

implicit,” but it must be clear from the submission that “what the contractor desires . . . is a

final decision.”). “To make this determination, the Board looks at the totality of the

correspondence, including the submissions and the circumstances surrounding them,” using

“a common sense analysis . . . to determine whether the contractor communicated his desire

for a contracting officer’s decision.” Red Gold, 12-1 BCA at 171,721.

There is no express request for a decision in the January 7 letter. Further, looking at

the totality of FCL’s communications, we cannot imply a request for a final decision into the

language of that letter. Although FCL uses the word “claim” in its January 7 letter, FCL asks

the contracting officer to “review and comment” on, rather than decide, its request. Further,

in its email message accompanying the January 7 letter, FCL indicated that the January 7

letter and its accompanying materials related to “the issues leading to a possible back charge”

and that, if the contracting officer had any questions, she should call FCL’s owner. Exhibit

C to Respondent’s Show Cause Response (emphasis added). We recognize that a “cordial

closing” to a letter or other written communication that invites further discussions does not,

in and of itself, “compromise the letter’s status as a claim.” James M. Ellett, 93 F.3d at 1546;

see Contract Cleaning Maintenance, 811 F.2d at 592 (“The fact that in those letters the

appellant frequently expressed the hope that the dispute could be settled and suggested

meeting to accomplish that result does not mean that those letters did not constitute

‘claims.’”). Nevertheless, a “letter [that] expresses a willingness to reach an agreement as

opposed to a demand that the contracting officer reach a final decision” is not a claim.

Hoffman Construction Co. v. United States, 7 Cl. Ct. 518, 525 (1985). Here, considering as

CBCA 5632

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a whole the letter, its attachments, and the email message through which the letter and

attachments were delivered, there was no implied request for a final decision.

In its response to the Board’s show cause order, FCL represented that its intent in

submitting the January 7 letter (as well as its subsequent April 26, 2016, letter) was to begin

a negotiating process with the USFS. The United States Court of Appeals for the Federal

Circuit has distinguished between, on the one hand, a request for equitable adjustment that

seeks materially to further the negotiation process through exchanges of information aimed

at achieving a mutually agreeable settlement and, on the other, a formal claim intended to

commence the litigation or prosecution process. Bill Strong Enterprises, Inc. v. Shannon, 49

F.3d 1541, 1550 (Fed. Cir. 1995), overruled in part on other grounds by Reflectone, 60 F.3d

at 1579 & n.10. Although a contractor (except in circumstances involving routine requests

for payment and termination settlement proposals) may choose to initiate the claim

prosecution process while or even before attempting to negotiate an amicable resolution,

Systems Development Corp. v. McHugh, 658 F.3d 1341, 1347 (Fed. Cir. 2011) (impasse in

negotiations is not necessary before claim can be submitted), the contractor is entitled to

pursue negotiation before submitting a formal claim and to treat the costs that it incurs in that

negotiation process as contract administration costs. Tip Top Construction, Inc. v. Donahoe,

695 F.3d 1276, 1284 (Fed. Cir. 2012). That is what FCL says it did through its January 7

submission, and the absence of a request for a contracting officer’s final decision in the letter

is consistent with FCL’s representation that it did not intend for that submission to be a CDA

claim. Until the contractor submits a formal claim meeting the requirements of the FAR,

though, it cannot commence the appeal process. Todd Construction, 656 F.3d at 1311.

The January 7, 2016, letter does not constitute a “claim” that could provide us a basis

for exercising jurisdiction.

III.

The April 26, 2016, Letter

In its letter dated April 26, 2016, FCL requested an equitable adjustment of $329,800.2

A claim in that amount requires certification. 41 U.S.C. § 7103(b). Because FCL did not

certify its submission, it was not a claim, and we lack jurisdiction to entertain an appeal

arising from it. B&M Cillessen, 08-1 BCA at 167,084. The fact that the contracting officer

actually issued a decision in response to the April 26 submission, notifying the contractor of

2

As with its January 7 submission, FCL has stated that it did not intend its April 26

letter to constitute a claim, but instead viewed it as a submission during a negotiation

process: “[FCL] believed it was still trying to negotiate an equitable adjustment for [USFS]

delays, not submitting a claim.” FCL’s Show Cause Response at 1.

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its right either to appeal to the Board or to file an action in the Court of Federal Claims (using

the language set forth in FAR 33.211(a)(4)(v) (48 CFR 33.211(a)(4)(v)), does not somehow

eliminate the jurisdictional defect because “[a] contracting officer’s decision rendered on an

uncertified [claim] is a ‘nullity.’” Regency Construction, Inc. v. Department of Agriculture,

CBCA 3246, et al., 16-1 BCA ¶ 36,468, at 177,705 (quoting EHR Doctors, Inc. v. Social

Security Administration, CBCA 3426, 13 BCA ¶ 35,371, at 173,572).

IV.

The October 18, 2016, Letter

The letter that FCL attached to its notice of appeal, dated October 18, 2016, requested

payment of “approximately $225,000.” That letter cannot constitute a claim for two reasons.

First, like the April 26 letter, the October 18 letter seeks payment of more than

$100,000, but without any CDA certification. The Board lacks jurisdiction to entertain an

appeal arising from it. B&M Cillessen, 08-1 BCA at 167,084.

Second, the use of the word “approximately” in the October 18 letter is inconsistent

with the FAR requirement that a claim be stated in a “sum certain.” 48 CFR 2.101,

52.233-1(c). In J.P. Donovan Construction, Inc. v. Mabus, 469 F. App’x 903 (Fed. Cir.

2012), the Federal Circuit held that the use of the word “approximately” in describing the

claimed amount meant that the claimed amount was not a “sum certain” unless the

contracting officer, from other information or material in or accompanying the claim, could

determine the exact amount that the contractor was claiming:

Donovan’s claim used qualifying language, “approximately $65,000,” and did

not include supporting documents that would allow the contracting officer to

substantiate the claim. Donovan submitted the March Letter without

supporting documents. In that form, the claimed amount was unascertainable.

. . . [T]his court affirms the Board’s dismissal of Donovan’s appeal for lack of

jurisdiction.

Id. at 908; see JEM Transport, Inc. v. United States, 120 Fed. Cl. 189, 198 (2015) (discussing

the J.P. Donovan decision); G&R Service Co. v. General Services Administration, CBCA

1876, 10-2 BCA ¶ 34,506, at 170,166 (citing Van Elk, Ltd., ASBCA 45311, 93-3 BCA

¶ 25,995, for proposition that approximate amount does not constitute a sum certain). Here,

as in J.P. Donovan, no clarifying supporting material accompanied FCL’s October 18 letter.

Further, the dollar figure approximation in that letter differed from the dollar figures in

earlier submissions. In such circumstances, the identification of “approximately $225,000”

in cost overruns does not state a sum certain, as required for a claim under the FAR.

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In response to the Board’s show cause notice, FCL states that it is now seeking

“exactly $153,430.12 as a Claim” from the USFS, a figure that differs from any of its prior

submissions to the USFS. It is not too late for FCL to pursue this claim, see 48 CFR

33.206(a) (requiring contractor to submit claims to contracting officer within six years of

accrual), but, before it files an appeal with the Board, FCL must first submit that claim to the

contracting officer with the required information, identify the amount of its monetary request

in a sum certain, certify the claim using the language required by the CDA (set forth at FAR

33.207(c) (48 CFR 33.207(c))), and allow the contracting officer to decide it. “If the

contracting officer,” after receipt of a proper claim, “does not render a timely decision, or

[the contractor] is unwilling to accept the decision, [the contractor] is free to exercise its right

of appeal to this Board.” Red Gold, 12-1 BCA at 171,722.

Decision

For the foregoing reasons, this appeal is DISMISSED FOR LACK OF

JURISDICTION.

_________________________________

HAROLD D. LESTER, JR.

Board Judge

We concur:

_________________________________

CATHERINE B. HYATT

Board Judge

_________________________________

JONATHAN D. ZISCHKAU

Board Judge