# Petition for Writ of Certiorari — Essex Electro Engineers, Inc. v. Widnall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1366%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 916 ## Text Supreme Court, U.S. rage , \ ‘gy. 417 SEP - 8 1997 No.orric OF THE CLERK IN THE Supreme Court of the United States OcTOBER TERM, 1997 Essex ELECTRO ENGINEERS. INC. Petitioner Vv. SHEILA E. WIDNALL. SECRETARY OF THE AIR FORCE. Respondent, On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit PETITION FOR A WRIT OF CERTIORARI CHARLES E. RALEY Counsel of Record W. DREW MALLENDER WATT, TIEDER & HOFFAR, L.L.P 7929 Westpark Drive Suite 400 McLean, Virginia 22102 (703)749-1000 Attomeys for Petitioner September 5, 1997 QUESTION PRESENTED Under 41 U.S.C. §§ 607, is a dismissal by an agency board without prejudice to refiling a “decision” from which an appeal to the United States Court of Appeals for the Federal Circuit is mandatory within one hundred twenty days or is such a dismissal “other appropriate action” by the board with the matter to be reinstated if the cause for the interlocutory dismissal is removed within three years as required by Rule 30 issued under the authority of the Act? 1i PARTIES TO THE PROCEEDING Petitioner is Essex Electro Engineers, Inc., a small business concer. Pursuant to Supreme Court Rule 29.6, petitioner states that it has no parent company or subsidiaries. A343 TABLE OF CONTENTS Page QUESTION PRESENTED ..................... i PARTIES TO THE PROCEEDING ............. li Some Wr PAD TIuiGe .................005. iv So 8 SES | 1 Ot te 2 STATUTORY PROVISIONS AND RULES ......... 2 STATEMENT OF THECASE ................... 6 The Relationship Between the Parties........... 6 The Proceedings Below...................... 8 REASONS FOR GRANTING THE PETITION ..... 10 The Appellate Court has Abrogated the Rule Issued for the Board to Carry Out the Provisions of the Act and Contradicted the “Norm” Defined by this Court..1Z Essex has been Foreclosed from its Right to an Efficient and Fair Resolution of its Claims .... 16 ES 21 SE a a Attached lv TABLE OF AUTHORITIES Page Cases: Beam, James B., Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439 (1991). 12, 14-15 Califomia v. Harvier, 700 F.26 1217 (th Ce. 1965) ............ 13 Dawco Construction, Inc. v. United States, 930 F.2d 872 (Fed.Cir. 1991)..... 8,9, 10, 11, 17,18, 19-21 Ellett, James M., Construction Co. v. United States, 93 F.3d 1537 (Fed.Cir. 1996) .......... 12, 19 Electronics & Space Corp., ASBCA No. 37352, Se 20 Die WN ET ok ee en ieee 20 Mayfair Consiruction Company v. United States, 841 F.2d 1576 (Fed.Cir. 1988), cert. den., 488 U.S. 980 (1988) ...... 7-11, 18 Mediax Interactive Technologies, Inc., ASBCA No. 43961, 93-3 BCA] 26,071 ..... 20 Mesa v. United States, Oi F.oG au (110) Ge. 1905) ...... 2.22055. 13 Midland Maintenance, Inc.., ENG BCA Nos. 6080, et a/., OG-T BOA G27 OGs «www ecw ee 20-21 Peters v. Welsh Development Agency, 920 F.2d 438 (7th Cir. 1990) ............. 13 Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995)...... 10, 11, 12, 15-21 reversing, Reflectone, Inc., ASBCA No. 43081, 93-1 BCA 925,812 .......... 8, 20 Page Cases [Continued]: United States v. Grumman Aerospace Corp., 927 F.2d 575 (Fed.Cir. 1991), cert.denied, 502 U.S. 919, 112 S.Ct. 330 ... 20 Statutes, Rules, and Other Authorities: 28 U.S.C. § 1254(1) . 0.2 ee. 2 28 U.S.C.§ 1291.0... ee 4,12 28 U.S.C.§ 1292 ................. 2,4, 5, 12-13 28 U.S.C.§ 1295 ................. 2,4, 5, 12, 14 41U.S.C.§ 401 ....... 0... eee ee 3 44 U.S.C. S GOS ow. ce en cn wen 117.1 41U.S.C.§ 607 ................. i, 2, 3, 5, 12-14 OT UDG. BGS go cc eee anne eeee weenie 2 P.L. 102-572, § 907, 6 Stat.4518 ............. 20 PRR SDAA occ ieee aces reas dea en 18 FAR § 49.101(d) ........0.0. 000.000.0000, 8 Supreme Court Rule 29.6 ............. ...... ii Federal Claims Court Rule 41(b) .............. 13 O.F.P.P. Board Rule $ ...............0008- 4,14 O.F.P.P. Board Rule 30......... 4,10, 11, 14, 16, 20, 21 S.Rep. No. 1118, 95th Cong., 2d Sess. 4 (1978), repnnted, 1978 U.S.C.C.A.N. 5235 ........ 17 Blacks Law Dictionary, W¥@Ot, Gir OG. (TOG) oc 5 cies vac vse ew ues 13 eee IN THE Supreme Court of the United States OCTOBER TERM, 1997 No. Essex ELECTRO ENGINEERS, INC. Petitioner, V. SHEILA E. WIDNALL, SECRETARY OF THE AIR FORCE, Respondent, —_—_———_ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit PETITION FOR A WRIT OF CERTIORARI Essex Electro Engineers, Inc. ["Essex’], respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit. OPINIONS BELOW The Federal Circuit's decision, published at 116 F.3d 461, is reproduced in the Appendix (App.) at 1. The dismissal of Essex’s appeals without prejudice by the Armed Services Board of Contract Appeals 2 ["Board”], published at 94-2 BCA J 26,902, is reproduced at App. 10. The reconsideration by the Board affirming the dismissal without prejudice, published at 95-1 BCA ¥] 27,302, is reproduced at App. 6. The Board’s decision not to reinstate Essex’s appeals after the cause for the dismissal was removed, published at 96-2 BCA 4] 28,600, is reproduced at App. 4. JURISDICTION The Board had jurisdiction for its final decision not to reinstate the appeals under 41 U.S.C. § 607. The earlier dismissal without prejudice by the Board was based on finding that at the time it lacked jurisdiction to proceed with the appeals to a decision. The Court of Appeals had jurisdiction under 41 U.S.C. §§ 607 and 609 and 28 U.S.C. § 1295. The judgment of the Court of Appeals was entered June 24, 1997. This Court has jurisdiction to issue the Writ under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS AND RULES This case requires an analysis to resolve the inherent tension that exists between the statutory authority of the agency boards to render “decisions” or to “take other appropriate action” on submitted appeals under 41 U.S.C. § 607 and the consequent effect on appeal rights to the Federal Circuit. This analysis is particularly critical in the absence of rules issued under this Court's authority in 28 U.S.C. § 1292(e) and involves consideration of the following provisions: 3 41 U.S.C. § 607. Agency boards of contracts appeals. (d) Jurisdiction. Each agency board shall have jurisdiction to decide any appeal from a decision of a contracting officer...In exercising this jurisdiction, the agency board is authorized to grant any relief that would be available to a litigant asserting a contract claim in the United States Court of Federal Claims. (e) Decisions. An agency board shall provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes, and shall issue a decision in writing or take other appropriate action on each appeal submitted.... (g) Review. (1) The decision of an agency board of contract appeals shall be final, except that-- (A) a contractor may appeal such a decision to the United States Court of Appeals for the Federal Circuit within one hundred twenty days after the date of receipt of a copy of such decision.... (h) Procedural guidelines. Pursuant to the authority conferred under the Office cf Federal Procurement Policy Act [41 U.S.C. § 401 et seq.J, the Administrator is authorized and directed, as may be necessary or desirable to carry out the provisions of this ee + chapter, to issue guidelines with respect to criteria for the establishment, functions, and procedures of the agency boards.... Agency Board Rule 5. Motions. (a) Any motion addressed to the jurisdiction of the Board shall be promptly filed....The Board shall have the right at any time and on its own initiative to raise the issue of its jurisdiction to proceed with a particular case, and shall do so by an appropriate order, affording the parties an opportunity to be heard thereon. Agency Board Rule 30. Suspensions; dismissal without prejudice. ...In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. Where the suspension has continued, or may continue, for an inordinate length of time, the Board may, in its discretion, dismiss such appeals from its docket without prejudice to their restoration when the cause of suspension has been removed. Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice. 28 U.S.C. § 1291. Final decisions of district courts. ... The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title. 5 28 U.S.C. § 1295. Jurisdiction of the United States Court of Appeals for the Federal Circuit. (a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction-- (3) of an appeal from a final decision of the United States Court of Federal Claims... (10) of an appeal from a final decision of an agency board of contract appeals pursuant to section 8(g)(1) of the Contract Disputes Act of 1978 (41 U.S.C. 607(g)(1))... 28 U.S.C. § 1292. Interlocutory decisions. (d)(2)...when any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (e) The Supreme Court may prescribe rules, in accordance with section 2072 of this title, to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under subsection (a), (b), (c), or (d). 6 STATEMENT OF THE CASE The Relationship Between the Parties At the end of December, 1989, the government awarded two competitive, fixed price, small business contracts to Essex, Contract F41608-90-D-0410 ["Contract-0410"] for Floodlight Sets and Contract F41608-90-C-0409 ["Contract-0409"] for related spare parts. [App. 10]. Essex could not proceed with production and delivery until completion and government approval of first article testing, which was scheduled for August 2, 1990. Deliveries were scheduled to be completed in February, 1991. Beginning in March, 1990, and continuing through July, 1990, Essex discovered and notified the government of deficiencies in the government's drawings and specifications [App. 11]. During meetings in July, 1990, the government representatives reviewed and discussed Essex’s plan to obtain diesel engine generators for the floodlight sets from a source other than the “Suggested Source” on the government's drawing. [App. 11]. Yet, months later, after the drawing deficiencies were corrected and Essex had completed the first article and was ready to proceed with the testing, in January, 1991, a new contracting officer withheld approval to start testing unless Essex used the “suggested” engine generator or “qualified” Essex’s selected engine generator source by performing criteria and testing in addition to the first article tests in the Contract. [App. 13]. Essex immediately notified the contracting officer that the additional qualification criteria and testing 7 violated the Contract and required a_ contract modification. [App. 13-14]. In April, 1991, the contracting officer again stated that he would not authorize first article testing unless Essex either used the “suggested” engine generator or qualified Essex's selected source [App. 14]. In early May, 1991, Essex notified tie contracting officer that it was his “obligation to issve a Final Decision” ordering performance in accordance with his interpretation. [App. 16]. The Government then issued “termination for convenience” notices in late June, 1991, on “Contract- 0410” and in late July, 1991, on “Contract-0409." [App. 18]. Essex made a written submission for Contract- 0410 in June, 1992, containing a recitation of the facts and seeking $635,434, as “[oJur Claim, certified as required by the Act..for changes including the Government-caused first article delays and production disruption...[and] the previous disputes regarding the specification control drawings and deficient Government technical data...” [App. 19-20]. Essex further demanded a contracting officer's decision and insisted “upon the time requirements of the Contract Disputes Act for a response to this claim.” [App. 20]. In July, 1992, Essex made a similar submission for Contract-0409 seeking $20,603, and including the foregoing statements, except noting that, since the amount did not exceed $50,000, a CDA certification was not necessary. [App. 22-23]. in essentially duplicate letters, in July and August, 1992, a Termination Contracting Officer ["“TCO"] asserted that each of Essex’s submissions were “not a claim for purposes of the Act.” The letters cited Mayfair 8 Construction Company v. United States, 841 F.2d 1576 (Fed.Cir. 1988), and Dawco Construction, Inc. v. United States, 930 F.2d 872 (Fed.Cir. 1991). [App. 20- 24). By letters in September and October, 1992, Essex resubmitted its claims “solely for the purpose of preserving Essex’s rights and in no way...a waiver of the existence of the valid and lawful claim.” Essex noted that the TCO had “already failed to take prompt action to resolve the claims as required by FAR § 49.101(d) [which is applicable to a small business concern such as Essex] and the CDA...” [App. 24-28]. The Proceedings Below No decisions by the contracting officer were issued on Essex’s claims. After waiting six and seven months, respectively, in January, 1993, Essex filed notices of appeal to the Board from the contracting officer's failure to decide. The appeals were docketed as ASBCA No. 45663 and 45664. [App. 28]. Essex filed its Complaints and served discovery requests in March, 1993. The government filed no answer to the Complaints. Rather, in June, 1993, the government filed a Motion for a Protective Order to foreclose any discovery by Essex and a Motion to Dismiss, citing Mayfair, supra., and Dawco, supra. Ten months later in April, 1994, the Board dismissed Essex’s appeals “without prejudice” to resubmission of “proper” claims. The Board relied on Mayfair, supra., and Dawco, supra., and its own decision in Reflectone, Inc., ASBCA No. 43081, 93-1 BCA {| 25,512, holding that Essex’s submissions were 9 not CDA claims because “there was no underlying dispute” before the claims were submitted and ‘[t]his Board, of course, is obliged to follow the precedents of the Federal Circuit.” [App. 30-31, 34]. Eleven days later, on May 5, 1994, Essex moved the Board for reconsideration and, while continuing to question the applicability and validity of Mayfair, supra.., and Dawco, supra., Essex pointed out that its demand of May 6, 1991, for a contracting officer's decision on the specification control drawing dispute was itself a proper CDA claim for an interpretation of contract terms or, at least, evidenced a pre-existing dispute. [App. 8]. In November, 1994, the Board affirmed its earlier dismissals without prejudice. [App. 9]. In the meantime, on June 14, 1993, Essex had submitted a separate CDA certified claim for damages for the government's breach and repudiation in ending Contract-0410 in bad faith. Eight months later, no final decision had been rendered by the contracting officer and Essex filed another appeal to the Board, which was docketed as ASBCA No. 47167. The filing of that appeal allowed Essex to begin discovery. After two years, in July, 1994, a contracting officer issued a decision on Essex’s first claim, allowing less than 10% and nothing for the increased costs for the drawing deficiencies and the delays and disruptions. Essex filed another appeal and requested consolidation with its earlier appeals. Essex also filed another notice of appeal from the contracting officer's continuing failure to decide the initial claim on Contract-0409 and also requested consolidation. To date, the merits of Essex's claims have not been resolved. 10 On July 26, 1995, the United States Court of Appeals for the Federal Circuit issued its en banc decision in Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir. 1995), specifically reversing the Board's decision in Reflectone, supra., restricting Mayfair, supra., and overruling Dawco, supra., and “all cases relying on Dawco.” Thirteen days later, on August 8, 1995, Essex filed its motion to set aside the Board's prior dismissals without prejudice and to reinstate the appeals, citing the Board’s Rules, the guidance provided by the Federal Rules of Civil Procedure, and the decision in Reflectone. [App. 4]. More than one year later, in October, 1996, the Board issued its decision, denying Essex’s motion to reinstate the appeals and holding that the dismissals were final. [App. 6]. Essex’s Appeal to the Federal! Circuit followed immediately. On June 24, 1997, the Court of Appeals affirmed the Board’s refusal to reinstate, holding that the Board’s earlier dismissal. without prejudice had become final 120 days after it was entered and could not thereafter be appealed. The Court reached its conclusion even though it recognized that “Rule 30 provides that an appeal dismissed without prejudice becomes an appeal dismissed with prejudice if not reinstated within three years.” [App. 1-3]. REASONS FOR GRANTING THE PETITION The decision of the Court of Appeals has affirmed action by the Board which materially departs from the authority for Board proceedings mandated by Congress in the Contract Disputes Act, as implemented in the Board’s own Rules, and alters the appellate jurisdiction 11 conferred on the Court of Appeals. Essex has thus been denied access to the Board for a decision on the merits of its initial appeals with the consequent denial of fundamental rights afforded by the Act. The Board dismissed Essex’s appeals “without prejudice” by concluding that it was prevented from proceeding to a decision based on its own Reflectone decision, and because it was “obliged to follow” the decisions of the Federal Circuit in Mayfair and Dawco, supra., which had held that there can be no explicit or presumed decision of a contracting officer if it is found that no dispute had existed before a Contract Disputes Act “claim” was submitted.’ Nine months after the Board reconsidered and reiterated its dismissal without prejudice, the Federal Circuit decided Reflectone, supra., en banc, reversing, restricting, and overruling every reason for the Board's inability to proceed with Essex’s appeals. Essex immediately moved the Board to reinstate its appeals. The Board's ultimate decision, refusing to reinstate the appeals, rendered the dismissals final with prejudice. The Court of Appeals affirmed the Board’s refusal to vacate and reinstate for two stated reasons [App. 2-3]: 1. Even though “Rule 30 provides that an appeal dismissed without prejudice becomes an appeal dismissed with prejudice if not reinstated within three years...[i]t does not, however, provide a mechanism to reinstate a dismissed appeal.” An appeal to the Federal ‘Explicit and presumed decisions by contracting officers are defined in 41 U.S.C. § 605(a) and (c), respectively. 12 Circuit from the earlier dismissals without prejudice was required within 120 days from the date they were entered and “could not thereafter be appealed. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 541 (1991).” 2. The Court of Appeals was not being “inconsistent with James M. Ellett Construction Co. v. United States, 93 F.3d 1537 (Fed.Cir. 1996). In that case, the appellant filed a notice of appeal within 120 days of the judgment of the Court of Federal Claims and requested a stay pending our decision in Reflectone, a situation completely different from this one.” The Appellate Court has Abrogated the Rule Issued for the Board to Carry Out the Provisions of the Act and Contradicted the “Norm” Defined by this Court The Board's authority extends only to issuing a “decision” on an appeal from a decision of a contracting Officer or taking “other appropriate action” on a submitted appeal. [41 U.S.C. § 607(d) & (e)]. The Federal Circuit's jurisdiction on appeals that are required to be filed “within one hundred twenty days” is limited to review of a “decision” of the Board, with no mention of reviewing “other appropriate action” the Board may take on a submitted appeal. [41 U.S.C. §607 (g)(1)(A); 28 U.S.C. § 1295(a)(10)]. The Court of Federal Claims has explicit statutory authority to issue interlocutory orders with the Federal Circuit then having jurisdiction for a discretionary appeal, if the necessary statement is included in the lower court's order. [28 U.S.C. §§ 1291 & 1292(d)(2)]. “Interlocutory” is defined as “[s]omething intervening ad eS Date erik Heine USI N Cale i3 between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.” Black’s Law Dictionary, West, 6th ed., p. 815 (1990). A dismissal without prejudice to refiling would not be an adjudication upon the merits in a proceeding under Rule 41(b) of the Rules of the Court of Federal Claims and would not be appealable because it contemplates further proceedings in the same forum. [Cf., Peters v. Welsh Development Agency, 920 F.2d 438, 440 (7th Cir. 1990); California v. Harvier, 700 F.2d 1217, 1218-19 (9th Cir. 1983); Mesa v. U.S., 61 F.3d 20, 21 (11th Cir. 1995)]. The only statutory authority for the Board to issue such interlocutory orders resides in the provision for “other appropriate action” under procedural guidelines to be issued “to carry out the provisions” of the Act. [41 U.S.C. § 607(d), (e) & (h)]. It must be recognized that, while the authority of the Court of Federal Claims to issue interlocutory orders and discretionary appeals from those orders is clearly expressed in the statutory provisions, the Supreme Court has not exercised its rule-making authority to “provide for an appeal of an interlocutory decision to the courts of appeals,” in connection with such decisions by the Board. [28 U.S.C. § 1292(e)]. In addition, if interlocutory authority of the Board resides in the provision for “relief that would be available” in the Court of Federal Claims [41 U.S.C. § 607(d)], the Board’s dismissals of Essex’s appeals without prejudice did not contain the statement required for such a decision by the Court of Federal Claims that would then give rise to a discretionary appeal to the Federal Circuit. [28 U.S.C. § 1292(d)(2)]. 14 Among the Rules that have been issued for the Board “to carry out the provisions” of the Act, Rule 5 concerns the potential for a limitation on the Board’s jurisdiction that would prevent it from proceeding to a decision in a particular case. Rule 30 is the only Rule which then addresses a dismissal without prejudice by the Board, if the “Board is unable to proceed with disposition...[of a case] for reasons not within the control of the Board...” The Board may “dismiss such appeals from its docket without prejudice to their restoration when the cause of suspension has been removed.” Either party or the Board may then act “within three years to reinstate any appeal dismissed without prejudice.” Contrary to the conclusion of the Federal Circuit, Rule 30 establishes not only the mechanism but also the time limit for reinstating “any appeal dismissed without prejudice.” Such a dismissal is not a “final decision of an agency board” under the Contract Disputes Act from which an appeal to the Federal Circuit is required within 120 days, particularly here, where the predicate for the Board's dismissal was that there had been no “claim” or decision of the contracting officer on which the Board could render a decision in the appeals under the Act. [41 U.S.C. § 607(g)(1)(A); 28 U.S.C. § 1295(a)(10)]. The Federal Circuit's citation to this Court's decision in James 8. Beam Distilling Co. v. Georgia, 901 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), is misplaced and neither expands the meaning of “decision” of the Board, in contrast with “other appropriate action” by the Board, nor does it restrict the reinstatement period defined by Rule 30. James B. Beam Distilling Co. involved an action filed in Georgia seeking a refund of taxes paid under Georgia law 15 applicable to 1982 through 1984, based on a decision of this Court in 1984, holding that similar laws in Hawaii violated the Commerce Clause. The Court held that the retroactivity of a decision is a choice-of-law question: “As a matter purely of judicial mechanics, there are three ways in which the choice-of-law problem may be resolved. First, a decision may be made fully retroactive, applying to the parties before the court and to all others by and against whom claims may be pressed, consistent with res judicata and procedural barriers such as statutes of limitations. This practice is overwhelmingly the norm....” 501 U.S. at 535, 111 S.Ct. at 2443; emphasis added. As for a second way of resolving the problem, “a purely prospective method of overruling” is used by “announcing the new” as effective only after the date of the decision. 501 U.S. at 536, 111 S.Ct. 2443. There was no announcement of prospectivity by the Federal Circuit in Reflectone, supra. The third way of resolving the problem would be “selective prospectivity” but that “breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally...[SJelective prospectivity appears never to have been endorsed in the civil context.” 501 U.S. at 537-38, 111 S.Ct. at 2444-5. In its citation to James B. Beam, the Federal Circuit below only refers to 501 U.S. at 541, without discussing the foregoing choice-of-law analysis and the “norm” defined by this Court. At the cited page in the 16 decision, this Court merely reiterated the rule that retroactivity is limited only “by res judicata or by statutes of limitation or repose.” A dismissal without prejudice to refiling is not a decision on the merits and has no res judicata effect. The only “limitation” that exists with respect to a Board dismissal without prejudice is Rule 30 providing for reinstatement within a period of three years if the cause for the dismissal is removed. The en banc decision in Reflectone, supra., removed the cause for the Board's dismissals of Essex’s appeals without prejudice and Essex timely sought reinstatement within sixteen months after the initial dismissals and less than nine months after the Board’s reconsideration and reiteration of the dismissals without prejudice. Essex has been Foreclosed from its Right to an Efficient and Fair Resolution of its Claims In May, 1991, Essex submitted a written demand for a contracting officer's final decision on the dispute regarding the interpretation of the contract terms applicable to the Specification Control Drawing. In June, 1992, Essex submitted a written demand for a contracting officer's final decision on an amount exceeding $50,000 with a proper certification required by the Contract Disputes Act. In July, 1992, Essex submitted a written demand for a contracting officer's final decision on an amount on the second contract which was less than $50,000. In September and October, 1992, Essex resubmitted its previous demands. After more than five years, no decision has yet been rendered on the merits of Essex’s claims and appeals to the Board. . 17 When it overruled the cause for the Board's dismissal of Essex’s appeals wiithout prejudice, the Federal Circuit acknowledged that-- “Dawco has proven to be inimical to at least two goals of the CDA: providing for the efficient and fair resolution of contract claims. See, Report of the Senate Governmental Affairs Committee and the Senate Judiciary Committee on the Contract Disputes Act of 1978, S.Rep. No. 1118, 95th Cong., 2d Sess. 4 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5238." ark “A dispute requirement _ that allows the government to unilaterally designate when a submission becomes a ‘claim’ disrupts the 4 balance of power between the government and contractors that the CDA sought to establish. (/d.]...The purpose of awarding interest to contractors from the submission date of a successful claim is to compensate them for 2 legitimate cost incurred when required by the government to perform the additional work of a changed contract. /d...at 5266. Allowing the government to unilaterally determine a claim's submission date would vitiate this purpose. : “The parties are not prevented or discouraged i from settling their differences because the first 4 written demand for payment...is recognized and treated as a CDA ‘claim.’ If anything, such a rule promotes settlement by preventing procrastination.” Reflectone, 60 F.3d at 1580, 82- 83. RO on ee or 18 The dismissal of Essex’s appeals without prejudice denied Essex’s right to fundamental “goals” in the Contract Disputes Act, and has allowed massive procrastination in the resolution of the merits of Essex’s claims. In Reflectone, 60 F.3d at 1578, under the heading, “Dawco’s Holding is Overruled’, the Federal Circuit first discussed its prior decision in Mayfair Construction Co., supra., which had served as the underpinning for Dawco and for the Board's dismissal without prejudice here. The Reflectone Court held that Mayfair was “mistakenly quoted in Dawco,” because it had been based on-- “...interim regulatory language incorporated into the contract's disputes clause explicitly requiring that a claim be in dispute when submitted...., therefore, Mayfair provides no support for requiring a pre-existing dispute in any case involving contracts resulting from solicitations issued after June 1, 1980.” Reflectone, 60 F.3d at 1579. The Reflectone Court then concluded: “We hold that properly construed for its plain meaning, the language of FAR 33.201 does not require that a payment demand contained in a purported CDA claim be in dispute before being submitted for decision to the CO unless that demand is a ‘voucher, invoice or other routine request for payment.’ To the extent that Dawco and cases relying on Dawco can be read to suggest otherwise, they are overruled.” /d., 60 F.3d at 1583; emphasis added. eal eR MANA kite Pps ABATE Ne