DISMISSED WITHOUT PREJUDICE: January 31, 2008

DISMISSED WITHOUT PREJUDICE: January 31, 2008

CBCA 825

BOWERS INVESTMENT COMPANY, LLC,

Appellant,

v.

DEPARTMENT OF TRANSPORTATION,

Respondent.

Jerry Bowers, Managing Member of Bowers Investment Company, LLC, Fairbanks,

AK, appearing for Appellant.

Glenn H. Brown, Office of the Regional Counsel, Federal Aviation Administration,

Department of Transportation, Anchorage, AK, counsel for Respondent.

Before Board Judges GILMORE, STERN, and SOMERS.

STERN, Board Judge.

Appellant, Bowers Investment Company, LLC (Bowers), brought this appeal to the

Board based on the failure of the contracting officer of the Federal Aviation Administration

(FAA) to issue a final decision. The FAA moves to dismiss for lack of jurisdiction.

Background

In 1993, the parties entered into a fifteen-year lease under which appellant leased

office space in Alaska to the FAA. The lease expired on September 20, 2006. Appellant

claims that the FAA failed to make the September 2006 lease payment of $22,021.60, that

the FAA held over the tenancy beyond the end of the lease and failed to make a payment for

this holdover period, that it is due $2350 for the remediation of insect infestation caused by

CBCA 825

2

the FAA, and that the FAA is liable for other miscellaneous costs including charges for

cleaning services and the changing of building locks. The total amount of the claim is

$62,492.11.

In an effort to resolve these and other issues, the parties voluntarily submitted their

dispute to the FAA’s Office of Dispute Resolution for Acquisition (ODRA). Appellant

submitted its claims to ODRA during the course of the ODRA proceeding. The contracting

officer received appellant’s claims as a result of this submission. ODRA recommended that

the FAA pay certain of the amounts claimed by appellant. The FAA declined to accept

ODRA’s proposed resolution.

On April 19, 2007, after conclusion of the ODRA proceedings, the FAA’s

contracting officer wrote appellant regarding its claims and the ODRA proceedings. The

contracting officer granted appellant’s claim for rent adjustments for the year 2006, in the

amount of $8849. The contracting officer denied appellant’s claim of $22,341.37 for

September 2006 rent, but suggested that appellant provide additional information (bank or

tax records) to support its position. The contracting officer did not address any of

appellant’s other claims in this letter. The contracting officer concluded:

It is apparent to us, and I sense to you as well, that we are not going to be able

to settle your claims through mediation or negotiation. Thus, we must now

move on to the next step. The lease incorporates Federal Acquisition

Regulation Clause No. 52-233-1 - Disputes (Dec. 1991). Under this clause,

to initiate the claims process, subparagraph (d) requires you to submit your

claims to the contracting officer in writing. Because you have already

submitted them to the mediator and I obviously have copies of them, I am not

going to insist that you resubmit them to me. I do, however, need you to

review each of the various items in your claims, and let me know in writing

which ones you still wish to pursue. In addition, please submit anything else

you want me to consider before I issue a decision on each of your claims.

Appellant waited sixty days and, without further submission to the contracting officer,

filed this appeal. Appellant concedes that the contracting officer did not issue a final

decision but argues that the claim is properly before the Board pursuant to section 6 (c)(5)

of the Contract Disputes Act (CDA), 41 U.S.C. § 605(c)(5) (2000), which authorizes an

appeal from a claim that has not been acted upon by the contracting officer within sixty

days of the submission of the claim.

The FAA moves to dismiss the appeal on the basis that appellant failed to comply

with the CDA’s requirement that a claim be submitted in writing to the contracting officer

for a decision before invoking the jurisdiction of this Board.

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Discussion

The CDA requires that a claim by a contractor be filed with the contracting officer

as a prerequisite to the Board’s jurisdiction. “All claims by a contractor against the

government relating to a contract shall be in writing and shall be submitted to the contracting

officer for a decision.” 41 U.S.C. § 605(a). Providing the contracting officer an opportunity

to consider and render a decision on a submitted claim is a condition precedent to filing an

appeal before the Board. See Sharman Co. v. United States, 2 F.3d 1564, 1558-69 (Fed. Cir.

1993). The courts and boards of contract appeals apply a common sense analysis to

determine whether a claim has been submitted in writing to the contracting officer. The

submission to the contracting officer must provide an unequivocal statement giving the

contracting officer adequate notice of the basis of the claim. Medical Development

International, LTD v. Department of Justice, DOT BCA 4547, 06-2 BCA ¶ 33,405, and

cases cited therein; D.C.I. Danaco Constructors, Inc., DOT BCA 2086, 90-2 BCA ¶ 22,750.

At the same time, unless the demand for payment requests a contracting officer’s final

decision, whether explicitly or implicitly, the statutory prerequisite is not satisfied. Heyl &

Patterson, Inc. v. O’Keefe, 986 F.2d 480, 483 (Fed. Cir. 1993); Transamerica Insurance

Corp. v. United States, 973 F.2d 1572, 1576 (Fed. Cir. 1992).

Here, Bowers and the FAA engaged in an alternative dispute resolution proceeding

at which appellant presented its claims to the settlement official. The contracting officer

became aware of appellant’s claims through those proceedings. The parties failed to settle

their dispute before ODRA and the contracting officer issued a letter granting one of

appellant’s claims and denying another. The contracting officer invited appellant to provide

further support for its position on all of its claims. Without further correspondence with the

contracting officer, appellant filed this appeal.

Submission to the contracting officer may have resulted in the resolution of some

issues or the narrowing of the differences between the parties. This in turn could shorten

the litigative process. Without such a formal submission to the contracting officer, this

important step in the process was omitted. The statutory mandate of seeking a final decision

from the contracting officer was not satisfied.

Because of Bowers’ failure to submit its claim to the contracting officer and request

a final decision, appellant may not invoke the provision of the CDA permitting an appeal

to the Board based on the contracting officer’s failure to timely act on a claim. If appellant

wishes to pursue an appeal before this Board, it must first present its claims to the

contracting officer so that he or she has an opportunity to address the claims. Once the

statutory prerequisites are met, and a final decision is issued, the case may be brought to the

Board.

CBCA 825

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The Board does not have jurisdiction over this appeal.

Decision

The motion to dismiss is granted.

PREJUDICE.

The appeal is DISMISSED WITHOUT

____________________________

JAMES L. STERN

Board Judge

We concur:

_________________________

BERYL S. GILMORE

Board Judge

____________________________

JERI KAYLENE SOMERS

Board Judge