CBCA 5856

DISMISSED FOR LACK OF JURISDICTION: November 28, 2017 CBCA 5856 LUMAR INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Jerry Martinez, Owner of LUMAR Inc., Mora, NM, appearing for Appellant. Daniel B. Rosenbluth, Office of the General Counsel, Department of Agriculture, Lakewood, CO, counsel for Respondent. Before Board Judges VERGILIO, SHERIDAN, and LESTER. VERGILIO, Board Judge. On September 18, 2017, the Board received from LUMAR Inc. a notice of appeal concerning its lease, 57-8C30-15-0010, with the Department of Agriculture. The submission includes a contracting officer decision which is said to deny the underlying contractor claim for a lump sum payment of $101,329.39 associated with the termination for convenience of the contract. The contractor has provided no evidence, in response to an order to show cause, that a certified claim was submitted to the contracting officer. Based upon the record, the Board concludes that a properly certified claim was not presented to the contracting officer. A certified claim, a necessary prerequisite for this Board’s jurisdiction over this appeal, is lacking. 41 U.S.C. § 7103(b) (2012). Well-established case law so interprets the statute and also provides guidance this contractor may find beneficial, in that the “only recourse is to proceed properly under the Act. ‘The proper course of action—for a contractor whose case is dismissed for lack of jurisdiction—is the following: (1) properly certify the claim; (2) CBCA 5856 2 resubmit the claim to the contracting officer; and (3) if there is then an adverse contracting officer’s decision, appeal either to the board . . . or directly to [the Court of Federal Claims].’” W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1340 (Fed. Cir. 1983) (internal citation omitted and court name updated). Decision The Board does not reach the merits of the appeal; instead, the appeal is DISMISSED FOR LACK OF JURISDICTION. ____________________________ JOSEPH A. VERGILIO Board Judge We concur: ____________________________ ____________________________ PATRICIA J. SHERIDAN HAROLD D. LESTER, JR. Board Judge Board Judge