CBCA 5379

DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED: September 23, 2016 CBCA 5379 JONATHAN NOELDNER, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Jonathan Noeldner, pro se, Eau Claire, WI. James L. Rosen, Office of the General Counsel, Department of Agriculture, San Francisco, CA, counsel for Respondent. Before Board Judges DANIELS (Chairman), HYATT, and GOODMAN. DANIELS, Board Judge. Respondent, the Department of Agriculture, moves the Board to dismiss, for failure to state a claim upon which relief may be granted, an appeal filed by contractor Jonathan Noeldner. Respondent maintains that the claims at issue were submitted to the agency later than the time permitted by the contract. We grant the motion. Background The United States Forest Service, an entity within the Department of Agriculture, awarded the Whipsaw Fuelwood timber sale contract to Mr. Noeldner on January 13, 2011. CBCA 5379 2 The contract permitted Mr. Noeldner to cut and remove lodgepole pine, Jeffrey pine, and white fir timber from the Inyo National Forest. The contract included clause BT9.21, Time Limits for Submission of Claim. This clause provided: Failure by Purchaser to submit a Claim within established time limits shall relinquish the United States from any and all obligations whatsoever arising under the contract or portions thereof. Purchaser shall file such Claim within the following time limits: . . . .[1] (d) . . . Purchaser must file any Claim not later than 60 days after receipt of Contracting Officer written notification that timber sale is closed. On July 1, 2015, Mr. Noeldner asked the contracting officer by e-mail, “[W]hen will I be able to submit claims against the [Forest Service], per contract documents, on this contract?” The contracting officer replied later that day, also by e-mail, “[Y]ou may submit disputed issues you have with the Forest Service at any time. Once the determination related to the Whipsaw Sale default is settled, a sale closure letter will be issued to you and the normal submission of claims timeline will then be in effect.” By letter dated July 15, 2015, the contracting officer wrote to Mr. Noeldner: This sale has been closed on our records. . . . Any claim or reservation of claim must be filed in accordance with contract provisions BT9.2 – Disputes and BT 9.21 – Time Limits for Submission of Claim, with the Forest Supervisor. Failure to do so shall relinquish the United States from any and all obligations whatsoever arising under this contract or portion thereof. Mr. Noeldner signed a certified mail receipt for this letter on July 27, 2015. Consequently, in accordance with clause BT9.21, he had until sixty days later – until September 25, 2015 – to file a claim. 1 Paragraphs (a), (b), and (c) contain time limits for filing claims regarding road construction and payment and cutting units. The Forest Service says that “[b]ecause all of Appellant’s claims were untimely even under the more generous standard of BT9.21(d), there is no reason to conduct a separate analysis for claim items that might fall under BT9.21(c).” CBCA 5379 3 By letter dated March 16, 2016,2 which was received by the contracting officer on March 23, 2016, Mr. Noeldner made eight separate claims for money regarding the contract. The contracting officer responded on March 24, 2016: As stated in Provision BT9.21, “Failure by Purchaser to submit a Claim within established time limits shall relinquish the United States from any and all obligations whatsoever arising under the contract or portions thereof.” Therefore your claim will not be considered any further because it did not meet this time limit. Mr. Noeldner received the contracting officer’s letter on March 29, 2016, and filed an appeal from it on June 24, 2016. Discussion The Contract Disputes Act provides that “in general,” “[e]ach claim by a contractor against the Federal Government relating to a contract . . . shall be submitted within 6 years after the accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A) (2012).