CBCA 4995

DISMISSED FOR LACK OF JURISDICTION: July 6, 2016 CBCA 4995 BASS TRANSPORTATION SERVICES, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Le’Mon J. Bass, III and LaMar Bass, co-owners of Bass Transportation Services, LLC, Belleville, IL, appearing for Appellant. Neil S. Deol, Office of Regional Counsel, Department of Veterans Affairs, Decatur, GA, counsel for Respondent. Before Board Judges HYATT, ZISCHKAU, and CHADWICK. CHADWICK, Board Judge. Bass Transportation Services, LLC (Bass or appellant), provided van transportation to patients of a Department of Veterans Affairs (VA or respondent) medical facility in the St. Louis, Missouri, area. VA terminated Bass’s contract for cause in August 2014. In March 2015, Bass submitted a certified claim to the contracting officer for “damages” totaling $1,490,193.62 “[a]s a result of VA’s termination and breach.” The contracting officer denied the claim in June 2015. Bass filed a timely appeal from that decision. CBCA 4995 2 Although VA has now converted the termination to one for the convenience of the Government, we must dismiss this appeal for lack of jurisdiction, because the underlying claim necessarily questioned the validity of the termination for cause, which was no longer reviewable by us when Bass filed the appeal. We cannot entertain an appeal of VA’s latest contract action unless and until Bass submits a new claim and it is decided or deemed denied. Background The facts bearing on jurisdiction can be briefly stated. VA awarded van transportation contract VA255-P-1771 to Bass in May 2011. Appeal File, Exhibit 2. VA exercised options to continue the contract into 2014, Appeal File, Exhibit 3, but it terminated the contract for cause after disputes arose about Bass’s performance obligations. Appeal File, Exhibits 7-11. The VA contracting officer mailed Bass a notice terminating the contract in its entirety for cause on August 29, 2014, but the letter was returned by the Postal Service, then resent and received by Bass in early October 2014. Complaint, Exhibit F; Appeal File, Exhibit 14. The notice said, among other things, that it “constitute[d] a final decision that the contractor is in default as specified and that the contractor has the right to appeal under the Disputes clause.” Complaint, Exhibit F at 2. The contract’s Disputes clause, Appeal File, Exhibit 2 at 40, incorporated by reference Federal Acquisition Regulation (FAR) clause 52.233-1 (48 CFR 52.233-1 (2009)), which stated that a contracting officer’s decision was final unless the contractor appealed or filed suit under the Contract Disputes Act (CDA), now codified at 41 U.S.C. §§ 7101-7109 (2012).1 On March 27, 2015, Bass submitted to the contracting officer, through outside counsel, a five-page certified claim alleging that “VA’s Termination for Cause was a breach of contract . . . and Bass is entitled to be awarded damages it incurred as a result of said breach.” Appeal File, Exhibit 16 at 3 (respondent’s corrected copy, filed April 4, 2016). Bass sought $1,090,616.50 in “lost profits for the remaining [unperformed] 104 weeks of the Contract”; $278,527.25 that Bass alleged it would have “recouped to cover [startup] costs during the remaining 104 weeks of the Contract”; and $121,049.87 for “contractual obligations that Bass has and will continue to incur during the remaining 104 weeks of the Contract,” including financing costs, mortgage interest, taxes, and insurance. Id. at 4. The claim did not ask VA to convert the termination for cause to a termination for the convenience of the Government, or ask for other relief from the termination decision itself. 1 The CDA was recodified without substantive change after the contract was awarded, by Public Law No. 111-350, 124 Stat. 367 (2011). CBCA 4995 3 A successor VA contracting officer issued a nine-page decision denying the claim on June 30, 2015. Appeal File, Exhibit 16. After summarizing the contract, the history of the dispute, and the claim, the contracting officer stated that “[t]he contract was properly terminated for cause as a result of the Bass [sic] failure to perform,” and that “[g]iven the propriety of the Government’s termination for cause, Bass is entitled to no measure of damages” under the FAR. Id. at 6.