CBCA 8002

DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN PART: September 9, 2024 CBCA 8002 MLU SERVICES, INC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Allison G. Geewax of Smith Currie Oles LLP, Tysons, VA; and Lochlin B. Samples of Smith Currie Oles LLP, Atlanta, GA, counsel for Appellant. Andrew Michael Thabo Hickey, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges LESTER, RUSSELL, and SULLIVAN. LESTER, Board Judge. Appellant, MLU Services, Inc. (MLU), has appealed a decision of a contracting officer for the Federal Emergency Management Agency (FEMA) that both denies a monetary claim that MLU submitted and asserts a government claim. The FEMA contracting officer denied MLU’s claim challenging FEMA’s non-payment of five invoices (only three of which MLU is pursuing in this appeal) that MLU alleges, but FEMA denies, MLU had previously submitted for payment. The FEMA contracting officer also asserted a government claim under the anti-fraud provision of the Contract Disputes Act (CDA), 41 U.S.C. § 7103(c)(2) (2018) (section 7103(c)(2)), seeking penalties on the unsupported part (allegedly the entirety) CBCA 8002 2 of MLU’s monetary claim, plus reimbursement of FEMA’s costs incurred in reviewing MLU’s claim. Addressing MLU’s monetary claim, FEMA filed a motion seeking summary judgment in its favor because, before MLU submitted its claim, MLU had not submitted its invoices for payment in the manner that its task orders required, meaning that FEMA’s obligation to process and pay those invoices had never accrued. Because MLU does not dispute that it did not formally submit the invoices to FEMA for payment in conformance with the contract’s required process and because MLU provides no evidentiary support for its allegation that FEMA informally agreed to change the contractually required method for the formal submission of invoices, FEMA is entitled to summary judgment on MLU’s claim challenging FEMA’s non-payment. MLU’s more recent submission of the invoices to FEMA in accordance with the contract requirements, which occurred after MLU submitted its certified claim, is not properly before us, and our decision here does not preclude MLU, outside of the context of this appeal, from pursuing payment on invoices that it properly submitted after submitting its certified claim. Addressing FEMA’s monetary claim, which seeks penalties under section 7103(c)(2) arising out of MLU’s alleged fraud, MLU requests that we “strike” that claim because the contracting officer did not possess authority to have issued a final decision asserting the government claim. MLU is correct that contracting officers lack authority to issue CDA decisions seeking recovery under section 7103(c)(2), meaning that the FEMA contracting officer’s decision purporting to do so is void and unenforceable. We reject FEMA’s argument that, because the Board lacks authority to consider fraud, the contracting officer’s decision imposing penalties under section 7103(c)(2) is essentially unappealable and untouchable. Instead, we find that, because the contracting officer’s decision asserting an affirmative monetary claim under section 7103(c)(2) is void, there is no valid decision asserting the purported government claim upon which to base jurisdiction of MLU’s appeal of that claim.1 Background I. The Terms of Task Orders 18, 43, and 55 On April 3, 2018, FEMA awarded contract 70FB8018D00000013, known as the “Logistics Housing Operations Unit Installation Maintenance and Deactivation” 1 We similarly lack jurisdiction to entertain additional monetary demands that FEMA included in an addendum to its answer because the contracting officer never asserted entitlement to those costs in the contracting officer’s final decision on appeal. CBCA 8002 3 (LOGHOUSE) contract, to MLU. Appeal File, Exhibit 2 at 582, 643.2 The LOGHOUSE contract was an indefinite-delivery/indefinite-quantity contract with a cost ceiling of $730 million that was intended to support FEMA’s manufactured housing unit mission. Id.