CBCA 7392

DISMISSED FOR LACK OF JURISDICTION; MOTION TO DIRECT RESPONDENT TO ISSUE FINAL DECISIONS BY A SPECIFIC DEADLINE DENIED: July 29, 2022 CBCA 7392 4K GLOBAL-ACC JOINT VENTURE, LLC, Appellant, v. DEPARTMENT OF LABOR, Respondent. Karl Dix, Jr., Lochlin B. Samples, Jonathan R. Mayo, and Gesuè A. Staltari of Smith, Currie & Hancock LLP, Atlanta, GA, counsel for Appellant. José Otero, Jonathan I. Pomerance, Joshua L. Caplan, C. Cleveland Fairchild, and Christopher L. Sanders, Office of the Solicitor, Department of Labor, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), LESTER, and KULLBERG. LESTER, Board Judge. In a notice of appeal filed May 4, 2022, appellant, 4K Global-ACC Joint Venture, LLC (4KG-ACC), asserted that it was appealing “the Contracting Officer’s government claim under the Contract Disputes Act [(CDA), 41 U.S.C. §§ 7101-7109 (2018),] regarding alleged default termination damages incurred by the [Department of Labor (DOL)]” under contract no. 1630DC-17-0024 (the contract). DOL has filed a motion seeking to dismiss the appeal for lack of jurisdiction, arguing that the letter from the contracting officer upon which CBCA 7392 2 4KG-ACC is relying, issued March 23, 2022, was not a “final decision” from which 4KG-ACC could appeal. For the reasons set forth below, we grant DOL’s motion. 4KG-ACC has asked that, if the Board dismisses this appeal, it preclude DOL from issuing a series of piecemeal “final decisions” asserting Government claims under the terminated contract and direct DOL to issue any and all “final decisions” associated with the March 23 letter by a date certain in July 2022. Because the Board lacks authority to control the timing of the Government’s issuance of final decisions asserting Government claims, we deny 4KG-ACC’s request. Background The Contracting Officer’s March 23, 2022, Claim Letter Accompanying 4KG-ACC’s May 4, 2022, notice of appeal was a letter from the DOL contracting officer to 4KG-ACC’s managing members dated March 23, 2022, which 4KG-ACC contends constitutes an appealable final decision under section 7103(a)(3) of the CDA (41 U.S.C. § 7103(a)(3)). The letter reads in its entirety as follows: Re: Government Claim for Default Termination Damages Under Contract No. 1030DC-17-C-0024 Construction of the Atlanta Job Corps Center – Project 1046 Dear Mr. McKnight and Ms. Sapp: In accordance with the [CDA], 41 U.S.C. Chap. 71, Federal Acquisition Regulation (FAR) 33.206, and the terms of the above-referenced Contract, the United States Government, acting through [DOL], hereby asserts a claim against [4KG-ACC] in the amount of $5,552,959.51. This amount represents damages the Government has incurred to date as a result of the Joint Venture’s default of the above-referenced Contract. . . . The Government’s damages include: Attch. Nature of work performed DOL Contract No. Paid to Date A Designer of Record DOL-ETA-16-C- $2,475,509.31 (TAG) review of Project 0062 specifications and plans following 12/6/19 CBCA 7392 3 B Spectrum Mgt., LLC (site 1630DC-20-P- $1,792,355.58 caretaker security and 00005 maintenance) following 12/6/19 C Harbor Enterprises, LLC 1630AE-21-C- $1,285,094.62 (site caretaker security 0003 and maintenance) following 12/6/19 Total $5,552,959.51 In support of these damages, we are providing the attached contracts and invoices, as well as accompanying agency payment summaries. Note that DOL expects to incur significant additional damages as a result of the Joint Venture’s default. DOL will assert additional claims as those future costs are incurred and identified. DOL expects that a contract for the completion of the Project will be awarded in the future. At that time, DOL expects additional obligation of funds, far in excess of the funds that remained unspent on the Contract at the time of the termination.