CBCA 5287

DISMISSED FOR LACK OF JURISDICTION: May 12, 2017 CBCA 5287 SAVANNAH RIVER NUCLEAR SOLUTIONS, LLC, Appellant, v. DEPARTMENT OF ENERGY, Respondent. Karen L. Manos and Erin N. Rankin of Gibson, Dunn & Crutcher, LLP, Washington, DC, counsel for Appellant. Lucy M. Knowles, Mary-Ellen Noone, Ralf Wilms and Jennifer B. Farmer, Office of Chief Counsel, Department of Energy, Aiken, SC; and Sky W. Smith, Office of Chief Counsel, Department of Energy, Cincinnati, OH, counsel for Respondent. Before Board Judges DANIELS (Chairman), GOODMAN, and ZISCHKAU. GOODMAN, Board Judge. Appellant, Savannah River Nuclear Solutions, LLC, has filed this appeal from what it characterizes as a contracting officer’s deemed denial of its certified claim for certain costs with regard to the performance of its contract with respondent, Department of Energy. Respondent has filed a motion to dismiss this appeal for lack of jurisdiction, or alternatively to suspend proceedings. We grant the motion to dismiss, as we find that this Board lacks jurisdiction. CBCA 5287 2 Factual Background The claim that is the subject of this appeal arises under Contract No. DE-AC09-08SR22470 (contract), the management and operations contract for the Savannah River Site that appellant1 has held with respondent since 2008. The claim concerns certain costs that appellant alleges are allowable pursuant to the contract. For three years, respondent paid these costs to appellant. In 2011 respondent’s contracting officer informed appellant that he believed the costs may be unallowable under the terms of the contract. The parties attempted to negotiate a resolution. In 2013, respondent’s contracting officer disallowed costs in the amount of $1,256,481.2 On January 20, 2016, appellant was informed by the Department of Justice (DOJ) that a suit would be filed against appellant pursuant to the False Claims Act, 31 U.S.C. §§ 3729-3733 (2012) (FCA). On February 10, 2016, appellant filed a certified claim pursuant to the Contract Disputes Act (CDA), 41 USC § 7101 et seq. (2012), requesting a contracting officer’s decision interpreting the contract as to the allowability of the disputed costs under a specific clause of the contract, including the $1,256,481 disallowed by the contracting officer in 2013. On March 14, 2016, DOJ filed a complaint against appellant and one of its parent companies in federal district court in South Carolina asserting claims under the civil FCA, as well as for breach of contract, unjust enrichment, and payment by mistake. By letter dated March 31, 2016 to appellant, a successor contracting officer informed appellant as follows: SUBJECT: Response to Savannah River Nuclear Solutions . . . Certified Claim and Request for Final Decision . . . dated February 10, 2016. The purpose of this letter is to formally respond to your subject letter of February 10, 2016. The costs identified in your letter were referred to the cognizant Office of Inspector General (OIG) and the Department of Justice 1 Appellant is a sole-purpose entity consisting of three member companies that was formed to compete for the award of, and to perform, the contract. 2 This sum had already been paid to appellant before the contracting officer determined it was not allowable. CBCA 5287 3 (DOJ) as required by FAR [Federal Acquisition Regulation] 33.209 because our office suspected the costs were fraudulent. As you are aware, the DOJ and OIG investigated these costs. DOJ has filed a lawsuit concerning the costs against your parent company under the False Claims Act . . . . Pursuant to FAR 33.210(b) a Contracting Officer’s authority does not extend to the settlement, compromise, payment or adjustment of any claim involving fraud. Therefore, I have no authority to take action on the above claim. On April 14, 2016, appellant filed a notice of appeal at this Board, which stated that appellant “appeals the deemed denial of its certified claim.” The appeal was docketed as CBCA 5287. On May 19, 2016, appellant filed its complaint in the appeal. On June 1, 2016, respondent filed a motion to dismiss for lack of jurisdiction or alternatively to suspend proceedings.