CBCA 8158

DISMISSED FOR LACK OF JURISDICTION: August 30, 2024 CBCA 8158 THE GILCHRIST LAW FIRM, P.A., Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Jacquin P. Gilchrist of The Gilchrist Law Firm, P.A., Coral Gables, FL, counsel for Appellant. Anastasia Snyderman and Tami Hagberg, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, O’ROURKE, and NEWSOM. O’ROURKE, Board Judge. A contractor appealed from a contracting officer’s email stating that the contractor’s claim would likely be denied. The agency moved to dismiss the appeal for lack of jurisdiction, then joined the contractor’s request to dismiss the appeal without prejudice. Our Rules state that, when the Board lacks jurisdiction to hear an appeal, it will dismiss the matter for lack of jurisdiction, regardless of the parties’ positions. Rule 12(b)(3) (48 CFR 6101.12(b)(3) (2023)). Because we find that the appeal was premature, we dismiss it for lack of jurisdiction. CBCA 8158 2 Background The Gilchrist Law Firm, P.A. (appellant or Gilchrist) has a contract with the Department of Health and Human Services (HHS) to provide real estate support services. Pursuant to that contract, Gilchrist submitted a claim to the contracting officer on July 10, 2024, in the amount of $18.05, for interest that Gilchrist asserts that it is owed under the Prompt Payment Act, 31 U.S.C. § 3902 (2018). In the claim, the contractor provided a brief list of “undisputed facts” and then stated: As a reminder, once a claim is submitted, the contracting officer must issue a final decision within a reasonable time, considering factors such as the size and complexity of the claim and the adequacy of the information provided. If the contracting officer fails to issue a decision within the required period, it is deemed a decision denying the claim . . . . I propose a deadline of July 15, 2024, by 5:00 PM EST for the Contracting Officer’s decision. On July 12, 2024, the contracting officer responded to the claim by email, stating: “It is highly likely that the claim for $18.05 will be denied. [Our Invoice Processing Platform (IPP)] automatically pays interest when it is warranted. As the delivery date for [contract line item number (CLIN)] 0001 is June 14th, 2024, the payment was made on July 5th, which is within 30 days of the delivery date stated in the attached contract.” No further communication between the parties occurred. On July 23, 2024, Gilchrist filed an appeal with the Board based on the contracting officer’s July 12, 2024, email. After obtaining a copy of the email, the Board docketed the appeal on July 24, 2024. The next day, respondent, HHS, filed a motion to dismiss the appeal for lack of jurisdiction. Shortly thereafter, Gilchrist moved to withdraw its appeal without prejudice. HHS joined Gilchrist’s motion on August 12, 2024. Discussion Before the Board is the parties’ joint motion to dismiss Gilchrist’s appeal without prejudice under Board Rule 12(b)(2), which pertains to voluntary dismissals. The rule states: “Subject to Rule 12(b)(3), the Board will dismiss all or part of a case on the terms requested if the appellant, petitioner, or applicant moves for dismissal with prejudice or moves jointly with the respondent for dismissal with or without prejudice.” As stated in the rule, voluntary dismissals are subject to Board Rule 12(b)(3), which pertains to the Board’s jurisdiction and provides: “If the Board finds that it lacks jurisdiction to decide all or part of a case, the Board will dismiss the case or the part of the case, regardless of the parties’ positions on jurisdiction or dismissal.” CBCA 8158 3 The Board’s jurisdiction to consider appeals involving contract disputes derives from the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109. “Once a claim is submitted, the contracting officer must have an opportunity to respond to it before judicial review can commence.” Pros Cleaners v. Department of Homeland Security, CBCA 5871, 17-1 BCA ¶ 36,904, at 179,807.