CBCA 7587

DISMISSED FOR LACK OF JURISDICTION: April 6, 2023 CBCA 7587 BES DESIGN/BUILD, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jerome E. Speegle of Speegle, Hoffman, Holman & Holifield, LLC, Mobile, AL, counsel for Appellant. Kelly Y. Burnell and David C. Charin, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DRUMMOND, KULLBERG, and ZISCHKAU. DRUMMOND, Board Judge. Respondent filed a motion to dismiss for lack of jurisdiction, arguing that this claim is a resubmission of a previous claim that appellant did not timely appeal. For the reasons below, we grant respondent’s motion and dismiss the appeal for lack of jurisdiction. Findings of Fact The General Services Administration (GSA) entered into a general construction, indefinite-delivery, indefinite-quantity contract (GS-04P-15-EZ-D-0011) with BES CBCA 7587 2 Design/Build, LLC (BES). Appeal File, Exhibits 1–3.1 Under that contract, GSA awarded BES a task order (GS-P-04-16-EX-7486) for $348,227 to replace two exterior stairs at a courthouse in Statesville, North Carolina. Exhibit 6. During performance, disputes arose relating to issues of performance and non-payment. On February 24, 2021, BES submitted a certified claim for $37,816.15 to the contracting officer (CO). Exhibit 16 at 1. According to BES, the contract work had been completed, and GSA refused to pay the remaining balance. Id. On April 23, 2021, the CO issued a contracting officer’s final decision (COFD) denying BES’s claim and including the statement, “This is the final decision of the contracting officer.” Exhibit 19 at 1. The COFD also provided notice to BES of its appeal rights. The COFD was sent electronically to BES’s owner and several other BES representatives on the day of issuance. Exhibit 18. Over one year later, on June 8, 2022, BES submitted a claim to the CO that was nearly identical to the February 24, 2021, claim.2 On August 22, 2022, the CO responded to the letter, informing BES that a COFD had already been issued on the matter on April 23, 2021. Exhibit 25. BES makes no contention that it did not receive the April 23, 2021, COFD. Eighty-eight days later, on November 18, 2022, BES filed a notice of appeal with this Board, stating that BES was appealing a COFD issued on August 22, 2022, and referencing the CO’s email to BES of that date. In response, GSA filed a motion to dismiss for lack of jurisdiction. Discussion The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), governs the jurisdiction of the Board and authorizes the Board to review a COFD on a contractor’s claim. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1573 (Fed. Cir. 1995). There are three components, or prerequisites, to our ability to hear a contractor’s claim for money under the CDA: the contractor’s submission of the claim to the CO, the issuance of a COFD or occurrence of a deemed denial, and a timely appeal. Bass Transportation Services, LLC v. Department of 1 All exhibits are found in the appeal file, unless otherwise noted. 2 The only difference between the claims was that BES lowered its sum certain because GSA made a payment between the submittals of the first and second claims. Compare Exhibit 16 (certified claim from February 24, 2021) with Exhibit 24 (certified claim from June 8, 2022); see Exhibit 21 at 4 (e-mails approving a payment of $6189). CBCA 7587 3 Veterans Affairs, CBCA 4995, 16-1 BCA ¶ 36,464, at 177,688; see Safe Haven Enterprises, LLC v. Department of State, CBCA 3871, et al., 15-1 BCA ¶ 35,928, at 175,603. First, the contractor must have appropriately submitted a valid CDA claim to the CO. The CDA itself does not define “claim,” but it has been established that a non-routine “claim” for money be “(1) a written demand, (2) seeking, as a matter of right, (3) the payment of money in a sum certain.” Reflectone, 60 F.3d at 1575. Here, BES’s February 24, 2021, letter to the CO was a valid claim under the CDA. The claim consisted of a contractor’s written demand seeking payment as required under the contract with a sum certain of $37,816.15. The claim also included an explicit request for a COFD and described the basis for the claim. Second, an appeal must stem from a COFD or a deemed denial.