CBCA 4459-R

MOTION FOR RELIEF FROM DECISION DENIED: April 22, 2015 CBCA 4459-R CONSTRUCTION GROUP LLC, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Bobby Knight, Owner of Construction Group LLC, North Charleston, SC, appearing for Appellant. Cassandra Walbert, Legal Service Command, Procurement Law Division East, United States Coast Guard, Department of Homeland Security, Norfolk, VA, counsel for Respondent. Before Board Judges DANIELS (Chairman), HYATT, and KULLBERG. DANIELS, Board Judge. On March 4, 2015, we dismissed this case for lack of jurisdiction because no underlying claim or contracting officer decision exists. Construction Group, LLC, the appellant, moves us to grant relief from that decision, under Board Rule 27 (48 CFR 6101.27 (2014)), by concluding that we have jurisdiction over the case. Initially, Construction Group argued that its appeal was (a) from the contracting officer’s letter of January 6, 2015, which makes a government claim, and (b) from a deemed denial of a claim it made to the contracting officer. We found that the contracting officer’s CBCA 4459-R 2 letter of January 6, 2015, did not make a government claim and that the contractor had never made a claim, such that a deemed denial was not possible. In moving for relief from decision, Construction Group focuses on its assertion that it did make a claim to which the contracting officer never responded. Specifically, the contractor points to a written communication it appears to have sent to the contracting officer on September 12, 2012. In this communication, Construction Group asked for “a FORMAL FINAL WRITTEN DECISION about Construction Group, LLC’s work identified in documentation shown with both No.15 & No 16 that is accepted by the COTR [contracting officer’s technical representative].” Numbers 15 and 16 are shop drawing/material approval requests from the contractor dated August 24, 2012. Each of these requests contains a great deal of information, among which is allegations that certain specifications for work to be performed are unwise. As we explained in our earlier decision in this case, a claim is “a written demand or written assertion . . . seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract.” Slip op. at 3 (citing Northrop Grumman Computing Systems, Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013); Parsons Global Services, Inc. v. McHugh, 677 F.3d 1166, 1170 (Fed. Cir. 2012); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc) (all referencing the definition prescribed in the Federal Acquisition Regulation (FAR))). There is no indication in either request number 15 or request number 16 that the contractor was making any of the kinds of demand which might constitute a claim. Thus, neither request provided the necessary predicate to filing an appeal on a deemed denial basis. Construction Group makes numerous other contentions in its motion as well. It asserts that a dispute, as well as a claim, is “capable of opening the doors of jurisdiction.” Cover letter to motion (Mar. 9, 2015). This theory is based on the instruction in FAR 33.211(a)(4)(i), 48 CFR 33.211(a)(4)(i) (2014), that a contracting officer’s decision “shall include . . . a description of the claim or dispute.” The theory is at odds not only with the Contract Disputes Act’s structure, which we described in our initial decision in this case, but also with the cited FAR section, which directs contracting officers to issue decisions “[w]hen a claim . . . cannot be satisfied or settled by mutual agreement.” Id. 33.211(a) (emphasis added). Construction Group suggests that its predicament in having a subcontractor steal supplies and the Government not investigate the theft is extraordinary, so FAR part 50, “Extraordinary Contractual Actions and the SAFETY [Support Anti-terrorism by Fostering Effective Technologies] Act [of 2002],” must apply. FAR part 50 “[p]rescribes policies and CBCA 4459-R 3 procedures for entering into, amending, or modifying contracts in order to facilitate the national defense under the extraordinary emergency authority granted by Public Law 85-804 (50 U.S.C. 1431-1434).” 48 CFR 50.000(a)(1). The part also “[i]mplements indemnification authority granted by Pub. L. 85-804 . . .