CBCA 5871

DISMISSED FOR LACK OF JURISDICTION: November 15, 2017 CBCA 5871 PROS CLEANERS, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Bruce Webber, President of Pros Cleaners, Kenner, LA, appearing for Appellant. Erik Claudio and Hillary J. Freund, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges SHERIDAN, ZISCHKAU, and SULLIVAN. SULLIVAN, Board Judge. When this appeal was filed, the Board directed appellant, Pros Cleaners, to show cause why its appeal should not be dismissed for lack of jurisdiction because it had not submitted a claim to the contracting officer prior to filing its appeal. In response, Pros Cleaners explains that it requested a final decision from the contracting officer, but that request was made after it filed its notice of appeal. Because the Board does not find a claim to the contracting officer that preceded the filing of this appeal, the Board dismisses the appeal for lack of jurisdiction. CBCA 5871 2 On October 3, 2017, the Board docketed an appeal filed by Pros Cleaners arising from a contract with the Federal Emergency Management Agency (FEMA) to provide unskilled laborers to support a disaster response effort. In the notice of appeal, Pros Cleaners describes an exchange of email messages between itself and the FEMA contracting officer regarding some future work for Pros Cleaners to perform pursuant to its contract and a subsequent email response from the contracting officer, all dated September 29, 2017. In a show cause order issued on October 4, 2017, the Board advised the parties that it did not appear that Pros Cleaners had submitted a claim to the contracting officer. Responding to the Board’s show cause order, Pros Cleaners submitted a copy of an email message dated October 13, 2017, to the contracting officer requesting a final decision. In the October 13 email message, Pros Cleaners states a claim for $600,000 for breach of contract, and indicates that the claim is an estimate until it can obtain further discovery. The Board’s jurisdiction to entertain appeals involving contract disputes derives from the Contract Disputes Act (CDA). 41 U.S.C. §§ 7101-7109 (2012). The CDA requires as a prerequisite to review by the Board that the contractor, if it is seeking the payment of money from the Government or adjustment or interpretation of contract terms, have submitted a written claim to the Government. Id. § 7103(a)(1). Contractor claims in excess of $100,000 must be certified as to accuracy by a duly authorized representative of the contractor. Id. § 7103(b)(1). The Federal Acquisition Regulation (FAR) defines a “claim” as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.” 48 CFR 2.101(b)(2) (2016). An uncertified request for payment in excess of $100,000 “is not a claim under [the CDA] until certified as required by the statute.” Id. “While a valid claim under the CDA must contain ‘a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim,’ the claim need not take any particular form or use any particular wording.” Northrop Grumman Computing Systems, Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (quoting Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)). A claim containing only an estimate or approximation of the amount that the contractor believes was owed does not satisfy the “sum certain” requirement of the CDA. Foxy Construction, LLC v. Department of Agriculture, CBCA 5632, 17-1 BCA ¶ 36,687, at 178,628. Once a claim is submitted, the contracting officer must have an opportunity to respond to it before judicial review can commence. Under the CDA, “[a] contracting officer shall issue a decision on any submitted claim of $100,000 or less within 60 days from the CBCA 5871 3 contracting officer’s receipt of a written request from the contractor that a decision be rendered within that period.” 41 U.S.C. § 7103(f)(1).