CBCA 5246-R

MOTION FOR RECONSIDERATION DENIED: November 16, 2016 CBCA 5246-R STOBIL ENTERPRISE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Billie O. Stone, Chief Executive Officer of Stobil Enterprise, San Antonio, TX, appearing for Appellant. Mary A. Mitchell, Office of Regional Counsel, Department of Veterans Affairs, Houston, TX, counsel for Respondent. Before Board Judges DANIELS (Chairman), ZISCHKAU, and RUSSELL. RUSSELL, Board Judge. Stobil Enterprise (Stobil) has moved for reconsideration of the Board’s decision that dismissed this appeal for lack of jurisdiction. Stobil Enterprise v. Department of Veterans Affairs, CBCA 5246, 16-1 BCA ¶ 36,478. Citing 48 CFR 2.101 and 41 U.S.C. § 7103(b), the Board noted that, because Stobil’s request to the contracting officer for payment in excess of $100,000 was uncertified, it could not be considered a “claim” under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012). The Board held that, in the absence of a valid claim upon which the contracting officer issued a final decision, the Board lacked jurisdiction over this appeal. The Board was unpersuaded by Stobil’s argument relying on a document dated January 18, 2016, with the subject line, “Dispute of Claim,” and  CBCA 5246-R 2 characterized by Stobil as its certified claim.1 Such a document, following the contracting officer’s decision dated December 18, 2015, could not cure the jurisdictional defect. The Board’s Rule 26 (48 CFR 6101.26 (2015)) provides that reconsideration may be granted “for any reasons stated in Rule 27(a) and the reasons established by the rules of common law or equity applicable to private parties in the courts of the United States.” Rule 27(a) lists a number of bases upon which a party may seek relief from a Board decision or order, including newly discovered evidence which could not have been earlier discovered, even through due diligence; justifiable or excusable mistake, inadvertence, surprise, or neglect; fraud, misrepresentation, or other misconduct of an adverse party; the decision has been satisfied, released, or discharged, or a prior decision upon which it is based has been reversed or otherwise vacated, and it is no longer equitable that the decision should have prospective application; the decision is void, whether for lack of jurisdiction or otherwise; or any other ground justifying relief from the operation of the decision or order. Stobil ultimately has the burden of proving the Board’s jurisdiction. McAllen Hospitals LP v. Department of Veterans Affairs, CBCA 2774, et al., 14-1 BCA ¶ 35,758, at 174,969 (“The party invoking the Board’s jurisdiction bears the burden of establishing it by a preponderance of the evidence.”). Nevertheless, when there are questions of the Board’s jurisdiction, the Board may weigh relevant evidence and make findings of fact pertinent to its jurisdiction. See, e.g., Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003). In support of its motion for reconsideration, Stobil contends that there are documents in the appeal file evidencing that the Board has jurisdiction over its claim. Specifically, it points to a contracting officer’s decision dated February 16, 2016. Stobil argues that this decision, which postdates the January 18, 2016, “Dispute of Claim” document in which Stobil requests relief, proves that the Board has jurisdiction. Although unclear, Stobil appears to also argue that its claim actually accrued in 2013. Stobil seems to rely on email communication with respondent during December 2013 (and perhaps through January 2014) to support jurisdiction based on a deemed denial of its claim. Appeal File, Vol. 2, Exhibit 8. 1 In this document, Stobil stated that it was formally seeking payment of funds exceeding $100,000 and requested a decision from the contracting officer. Also in the document, Stobil certified that its claim was made in good faith, that data in support were accurate and complete to Stobil’s knowledge and belief, that the amount requested accurately reflected what Stobil believed was the Government’s liability and Stobil’s losses, and that the signer of the document was authorized to certify the claim on behalf of Stobil.  CBCA 5246-R 3 We start with the premise that “ the jurisdiction of the [Board] depends upon the state of things at the time of the action brought.” Grupo Dataflux v. Atlas Global Group, 541 U.S.