CBCA 7447

DISMISSED FOR LACK OF JURISDICTION: August 12, 2022 CBCA 7447 GULF TECH CONSTRUCTION LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. James E. Krause of James E. Krause, P.A., Jacksonville, FL, counsel for Appellant. Kathleen Ramos, Office of General Counsel, Department of Veterans Affairs, Arlington, TX, counsel for Respondent. Before Board Judges LESTER, RUSSELL, and SHERIDAN. LESTER, Board Judge. Appellant, Gulf Tech Construction LLC (Gulf Tech), has filed a motion asking us to stay proceedings in this appeal to give it time to submit a certified claim seeking monetary relief to the contracting officer and to allow the contracting officer to issue a decision on it. Underlying the current appeal is an uncertified (and unsigned) request for equitable adjustment (REA) that Gulf Tech submitted for negotiation purposes. Gulf Tech filed this appeal after the contracting officer treated its REA as a claim and issued a final decision on it that notified Gulf Tech of its appeal rights. Gulf Tech alleges in its motion to stay that issuance of a final decision “was improper as Gulf Tech did not submit a Claim to the government.” CBCA 7447 2 We agree with Gulf Tech that, because there is no contractor claim underlying this appeal that meets the requirements of the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), the Board lacks jurisdiction to entertain the appeal. Rather than stay proceedings, we dismiss the appeal for lack of jurisdiction. Background The Department of Veterans Affairs (VA) awarded Gulf Tech a contract for construction work to expand a parking garage at the Durham VA Medical Center in Durham, North Carolina. Gulf Tech alleges that, during contract performance, several delays and disputes arose that were the subject of discussions between the parties. On November 16, 2021, allegedly at the contracting officer’s request, Gulf Tech submitted an REA with, according to Gulf Tech, “the intent and expectation to resolve matters with the [contracting officer] at the administrative level for solutions to several onsite delays and other problems.” In the REA, Gulf Tech asked the contracting officer for “review and approval of the attached cost for REA #1” and represented that “the attached reflects re[a]sonable costs that [Gulf Tech] has [incurred] based upon additional time onsite.” Gulf Tech requested compensation of $234,673.411 but indicated that some “shipping and material increases in prices are still coming in.” Gulf Tech did not submit with its REA any written certification in accordance with the requirements of the CDA. In fact, the REA was not even signed. In it, Gulf Tech did not explicitly request a final decision from the contracting officer, which Gulf Tech tells us in a declaration from its corporate president was intentional. Gulf Tech states in its motion that it “did not submit the REA with the anticipation of having to resort to litigation or for the purpose of going, or with the intent to go, to the Board with an Appeal of a [contracting officer’s final decision].” On April 1, 2022, the VA contracting officer issued what he called “the final decision of the Contracting Officer” on Gulf Tech’s submission. In it, he denied Gulf Tech’s request for payment of $234,673.41 but stated that “his review of the circumstances justifies a potential settlement in the amount of $46,401.66.” He then provided Gulf Tech with a notice 1 Gulf Tech did not identify any dollar amount for which it was seeking compensation in the narrative portion of its REA. A chart accompanying the REA, however, identified a cost estimate of $234,673.41 for which Gulf Tech wanted payment. It is not completely clear to the Board whether that $234,673.41 figure encompassed or, instead, was supplemented by additional dollar figures identified in other attachments to the REA. In his decision on the REA, the contracting officer assumed that Gulf Tech’s total request was for $234,673.41.