CBCA 5869

DISMISSED FOR LACK OF JURISDICTION: October 30, 2017 CBCA 5869 MAGWOOD SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Carolyn E. Hansen, Stone Ridge, NY, counsel for Appellant. Meaghan Q. LeClerc, Office of Regional Counsel, General Services Administration, Boston, MA, counsel for Respondent. Before Board Judges HYATT, DRUMMOND, and CHADWICK. CHADWICK, Board Judge. The Board ordered the appellant, Magwood Services, Inc. (Magwood), to show cause why we should not dismiss this appeal for lack of jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012). The appellant and the respondent, General Services Administration (GSA), stated their positions on jurisdiction in response to the order. In arguing that we may adjudicate certain claims by Magwood for damages in this appeal, Magwood relies on communications between the parties that predated the filing of an earlier appeal by Magwood, CBCA 5588, regarding a termination for default. Although, as GSA notes, Magwood’s own arguments raise facial issues of timeliness, we find that we lack jurisdiction for other reasons, namely: (1) Magwood did not present any damages claims to the GSA contracting officer in a CDA claim, and (2) to the extent that Magwood seeks to challenge the default termination, that dispute is already before us in CBCA 5588. CBCA 5869 2 Background On September 22, 2016, a GSA contracting officer emailed Magwood a notice terminating for default a construction contract that Magwood had been performing in Calais, Maine. The notice stated that it was “the final decision of the Contracting Officer” and advised Magwood of its appeal rights. On November 9, 2016, Magwood emailed the contracting officer a four-page letter, with attachments. The letter began: “The Notice of Termination for Default Letter (dated 9/22/16) for [the contract] provided the terms for default. Please accept this formal request to amend this determination to reflect a Termination for Convenience. Detailed responses are provided below, and provide a description of the issues experienced during the contract period of performance, which require further consideration.” Magwood’s November 9 letter had six subheadings, corresponding to events on the project. The sixth and final subheading, on page 3, was, “6–Overall Project/Magwood’s Project Management Concerns.” In four bulleted paragraphs under that subheading, Magwood complained about payment issues it allegedly experienced on the contract and itemized a total of $12,153.78 of invoiced “expenses” for which it said “reimbursement . . . ha[d] not been rendered.” Magwood’s letter concluded, “Thank you for your consideration, and we look forward to your timely response.” On December 12, 2016, the contracting officer wrote to Magwood by email, in full: “The Termination for Default letter that was sent on September 22, 2016 noted that this was the final decision of the Contracting Officer. As such, no request for appeal or reconsideration of this decision should be directed to me. The letter of September 22, 2016 outlines the options available for appeal of this decision, should you choose to do so.” One week later, on December 19, 2016 (eighty-eight days after receiving the termination notice), Magwood filed a notice of appeal in what is now CBCA 5588. On the Board’s appeal form, Magwood said it was appealing from a contracting officer’s decision dated “December 19, 2016,” the same date as the notice of appeal. However, Magwood attached to its notice of appeal a copy of the September 22 notice of termination for default. In the box of the appeal form that asks the appellant to describe the relief sought, Magwood requested conversion of the termination for default to a termination for convenience, and $12,000 for the payment issues noted in Magwood’s November 9 letter. In February 2017, Magwood’s president, who was then representing the company, filed with the Board a three-page letter styled as the “complaint” in CBCA 5588.