CBCA 5993

DISMISSED FOR LACK OF JURISDICTION: June 27, 2018 CBCA 5993 B&F DISTRIBUTORS, LLC, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Dessie Minor, President of B&F Distributors, LLC, Hattiesburg, MS, appearing for Appellant. Samantha S. Ahrendt, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges SULLIVAN, LESTER, and O’ROURKE. O’ROURKE, Board Judge. Appellant, B&F Distributors, LLC (B&F), appealed a contracting officer’s final decision (COFD) more than seven years after it was issued. The agency filed a motion to dismiss the appeal for lack of jurisdiction. B&F opposed the motion, arguing that the COFD was legally defective because it was sent to B&F without a referenced attachment that identified which work orders were disapproved. We grant the motion. Background During the 2006-2007 time-frame, B&F performed work under a task order issued by the Federal Emergency Management Agency (FEMA or agency). Although the record is not CBCA 5993 2 clear regarding the precise nature of the work, according to B&F’s appeal, the company received work orders from FEMA for services related to “blocking, leveling and/or anchoring travel trailers in Mississippi.” On June 29, 2009, two years after B&F completed performance under the contract, B&F received a notification of overpayment from FEMA in the amount of $180,554, due to unsubstantiated invoices associated with 157 work orders. On March 4, 2010, B&F disputed the overpayment in what it referred to as “a claim” to the contracting officer (CO), and on March 23, 2010, FEMA and B&F met to review the claim.1 Based on their discussions, B&F analyzed thousands of documents and photographs to substantiate its work on the units/trailers in question and provided relevant supporting information to FEMA on April 7, 2010. After evaluating the information, the CO determined that, of the original 157 work orders in dispute, 132 were correctly approved for payment, and twenty-five were incorrectly approved for payment. The overpayment was reduced from $180,554 to $35,087, consistent with the CO’s updated analysis. On May 19, 2010, the CO issued a final decision on B&F’s claim, informing B&F that it had been overpaid by $35,087 based on twenty-five work orders that should not have been approved for payment.2 The decision included the requisite language from the Contract Disputes Act (CDA), 41 U.S.C. §§ 601-613 (2006) (now codified at 41 U.S.C. §§ 7101-7109 (2012)), informing B&F of its right to challenge the COFD, including that it could appeal the decision to the Civilian Board of Contract Appeals within ninety days of the date of receipt. B&F received the final decision the same day it was issued and thanked FEMA in an email, stating, “This is still a lot but we will work with Tina to get it taken care of. An expensive lesson learned on my part.” The COFD twice referenced an “attached spreadsheet” that listed the twenty-five work orders that were disapproved and should not have been paid. However, the spreadsheet was not attached to the COFD. Repeated requests to the agency for a copy of the spreadsheet went unanswered and, in the meantime, the ninety-day appeal period lapsed. During that time, B&F did not file an appeal but did begin making payments on the debt. In October 2013, when $14,600 had been paid back to FEMA, and B&F had still not received a copy of 1 A copy of B&F’s “claim” was not included with its appeal, so we cannot verify whether it satisfied the term “claim” as defined in the Federal Acquisition Regulation (FAR). 2 Despite the CO’s reference to the “Contractor’s Claim” in the COFD, the record shows that the overpayment was actually a government claim against B&F. See Dodd, Frazier & Co., IBCA 1591-6-82, et al., 83-1 BCA ¶ 16,231, at 80,644 (government claims subject to CDA procedures include the recovery of overpayments provisionally paid to a contractor). CBCA 5993 3 the spreadsheet, B&F stopped making the payments.