CBCA 5632

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 2 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 CBCA 5632 3 Certificate For Payment” apparently seeking payment (in the “Current Payment Due” column) of $95,207.71.