CBCA 4612(3359)-REM

DISMISSED FOR LACK OF JURISDICTION: September 8, 2015 CBCA 4612(3359)-REM WESTERN STATES FEDERAL CONTRACTING, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Robert J. Berens and Adam D. Melton of Langley LLP, Phoenix, AZ, counsel for Appellant. Daniel J. McFeely, Office of General Counsel, Department of Veterans Affairs, Phoenix, AZ, counsel for Respondent. Before Board Judges SHERIDAN, KULLBERG, and SULLIVAN.1 SHERIDAN, Board Judge. In Western States Federal Contracting, LLC v. Department of Veterans Affairs, CBCA 3359, 14-1 BCA ¶ 35,530, motion for reconsideration denied, 14-1 BCA ¶ 35,620, this Board dismissed for lack of jurisdiction an appeal brought by Western States Federal Contracting, LLC (Western States or appellant). We took this action because Western States, having ceased to be in good standing in its state of formation, lacked capacity to maintain its 1 Judge Marian E. Sullivan replaced Judge R. Anthony McCann on the panel subsequent to Judge McCann’s retirement from federal service. CBCA 4612(3359)-REM 2 action at the Board. In a nonprecedential order dated March 19, 2015, the United States Court of Appeals for the Federal Circuit vacated that decision, and, on the Government’s motion, remanded the case back to the CBCA to consider two questions: (1) “whether Western [States] had standing under [Federal Rule of Civil Procedure (FRCP)] 17(b)(3)(A) as an ‘unincorporated association,’” and (2) “whether Western [States’] appeal should have been dismissed because its representative was not authorized to certify a claim to the [Department of Veterans Affairs (VA)] contracting officer or file an appeal at the CBCA on its behalf.” Western States Federal Contracting, LLC v. Department of Veterans Affairs, No. 2014-1541 (Fed. Cir. Mar. 19, 2015). We docketed the remanded matter as CBCA 4612(3359)-REM and requested briefing from the parties on the two questions posed by the Federal Circuit. For the reasons below, we conclude that (1) Western States did not have capacity pursuant to FRCP 17(b)(3)(A) to maintain its appeal at the CBCA, even though (2) Western States’ representative was authorized to certify the claim it submitted to the VA’s contracting officer and file an appeal of that claim to this Board. Therefore, the appeal may not proceed. Background On September 30, 2009, Western States entered into contract VA258-C-0320 with the VA for, among other things, the alteration and expansion of the fire alarm and sprinkler system at the VA Medical Center, Phoenix, Arizona. Western States was a Delaware limited liability company (LLC), doing business as a foreign limited liability company in the state of Arizona. On April 26, 2012, Western States submitted a claim, certified by Mr. Jose A. Perea, Jr., to a VA contracting officer alleging 699 days of VA-caused delay and seeking $461,706.01 in damages for extended home office overhead and $299,146 in other delay damages. When a timely final decision was not forthcoming, Western States appealed the deemed denial to the Board on April 29, 2013. Mr. Perea filed a notice of appearance on behalf of Western States. Shortly thereafter, the VA, respondent, filed a motion to strike the appearance of Mr. Perea. In its motion, the Government alleged that Mr. Perea had not proven that he met the Board’s requirements for representation of the limited liability company and that, even if Mr. Perea could represent the limited liability company before the Board, the limited liability company needed to be in good standing in its state of formation, Delaware, in order to maintain the action. The VA argued that a limited liability company that is not in good standing “may not maintain any action, suit or proceeding in any court . . . until such domestic LLC . . . has been restored and has the status of a domestic limited liability company . . . in good standing.” Del. Code Ann. tit. 6, § 18-1107(l) (2012). CBCA 4612(3359)-REM 3 Thereafter, Mr. Perea submitted a revised notice of appearance. Attached to the revised notice, Mr.