CBCA 6631

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON APRIL 5, 2021 DISMISSED FOR LACK OF JURISDICTION: January 28, 2021 CBCA 6631 SAGE ACQUISITIONS LLC, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. Michael R. Rizzo, Aaron S. Ralph, and Kevin J. Slattum of Pillsbury Winthrop Shaw Pittman LLP, Los Angeles, CA, counsel for Appellant. Blythe I. Rodgers, Julie K. Cannatti, and William J. Selinger, Office of the General Counsel, Department of Housing and Urban Development, Washington, DC, counsel for Respondent. Before Board Judges GOODMAN, SHERIDAN, and O’ROURKE. GOODMAN, Board Judge. Respondent, Department of Housing and Urban Development (HUD), has moved to dismiss this appeal (respondent’s motion) filed by appellant, Sage Acquisitions LLC (Sage or appellant), or in the alternative for summary judgment. We dismiss the appeal for lack of jurisdiction. CBCA 6631 2 Background On January 10, 2018, HUD terminated for convenience three asset manager (AM) contracts HUD had awarded to appellant on September 25, 2015: contract no. DU204SB-15-D-05 (Area 7A); contract no. DU204SB-15-D-07 (Area 5P); and contract no. DU204SB-15-D-12 (Area 1D). On January 9, 2019, Sage submitted its termination for convenience settlement proposal (TSP), a sixty-nine page document, which included a standard form (SF) 1436. Appeal File, Exhibit 77 at 001991, et seq. Section II of the SF 1436, entitled “Proposed Settlement,” contained an itemized list of costs totaling $3,149,926, as follows: 5. Other Costs (from Schedule B) $2,666,496 8. Profit (Explain in Schedule D) $266,650 12. Settlement Expenses(from Schedule E) $216,780 15. Gross Proposed Settlement $3,149,926 17. Net Proposed Settlement $3,149,926 19. Net Payment Requested $3,149,926 Pages 2 and 3 of the SF 1436 contained schedules B (Other Costs), D (Profit), and E (Settlement Expenses), all of which read, “See Attached Term. For Conv. Proposal Including REAs [requests for equitable adjustment].” The form was executed by appellant’s chief financial officer. Above the signature block appears a certificate with wording that varies from the certification required by the Contract Disputes Act (CDA), 41 U.S.C. § 7103(b) (2018).1 The TSP contains a narrative asserting legal principles and facts, including a chronology and explanation of appellant’s prior submission of REAs in 2017 and respondent’s rejection of the REAs in 2018. Appeal File, Exhibit 77 at 36-38. The TSP states that it is including the REAs “in this proposal as it is entitled to do under the applicable termination for convenience clause.” Id. at 38. Section VII of the TSP, entitled “Sage Proposed Settlement Costs,” begins with a cost schedule. Appeal File, Exhibit 77 at 57. The cost schedule states: “The settlement costs identified by category are entered into and support Sage’s proposal calculation for ‘Other 1 Respondent has not challenged the sufficiency of the certification language for purposes of certification pursuant to the CDA. CBCA 6631 3 Costs’ on line 5 of SF 1436.” The first section of the cost schedule is entitled “Termination for Convenience” and is an itemization of categories totaling $3,149,926: Unamortized Start-up Costs $955,004 Unabsorbed Depreciation for fixed assets $93,833 Cost of Terminated Work in Process $975,480 Continuing Office Lease $642,179 Closeout Costs continuing After TBD [to be determined] Termination/Transition Out Costs Subtotal $2,666,496 Proposal and REA Preparation Costs $216,780 Profit @ 10% (Excluding Settlement Costs) $266,650 Total Termination for Convenience Settlement Proposal $3,149,926 In this itemization, the subtotal of $2,666,496 equals the amount on line 5 of SF 1436, “Other Costs,” and the “Total Termination for Convenience Settlement Proposal” amount of $3,149,926 equals the amounts on lines 15 (“Gross Proposed Settlement”), 17 (“Net Proposed Settlement”), and 19 (“Net Payment Request...