In the United States Court of Federal Claims

No. 12-539 c
(Fii@d April 26, 2013)

DIVERSIFIED MAINTENANCE ) Motion to Dismiss for Lacl< of Subject-

SYSTEMS,INC., )Matter Jurisdiction, RCFC 12(b)(1);
Plaintiff, )Contract Disputes Act of 1978, 41

v. ) U.S.C. §§ 7101~7109; Burden ofProof

)for Jurisdictional Facts Establishing

THE UNITED STATES, ) Submission of Claim to Contracting

Defendant. ) Officer.

ORDER

This matter comes before the court on defendant’ s Motion to Dismiss (ECF No.
6). Defendant contends this court lacks jurisdiction over plaintiff’ s Complaint (ECF
No. 1) brought pursuant to the Contract Disputes Act (CDA), 41 U.S.C. § 7101 etseq.
because plaintiff had not submitted a valid claim to the contracting officer (CO), a
jurisdictional requisite to CDA litigation in this forum. Upon analysis, it is concluded
that proof this jurisdictional requirement was satisfied is lacl<ing. Accordingly,
absent jurisdiction over the matter, dismissal without prejudice is required.l’

Background

Plaintiff’s Complaint filed August 24, 2012, relates plaintiff’ s award of a
Delivery Order Contract in support of the United States Arrny’s Redstone Arsenal in
Alabama. Plaintiff pleads that "[o]n or about July l4, 201 1, [it] submitted a certified
claim seeking cost and time increases associated with unsuitable soils and delays
attributable to those differing site conditions, and changes directed by the Army."
(Compl. 11 3, ECF No. 1 .) Plaintiff’ s Complaint describes two changes in the original
scope of work, both due to assertedly unsuitable soil. The first, requested by the CO
on April 6, 2011, was performed but the result was not satisfactory, leading to the

l’ Pursuant to 41 U.S.C. § 7103 (a)(4)(A), plaintiff has six years after accrual of its claim to
submit a valid claim to the CO. Following dismissal of this litigation, should plaintiff then submit
the same claim to the CO, obtain a decision pursuant to 41 U.S.C. § 7103(a)(3) or (f)($) and then
elect to timely file a de novo action on the merits in this court, the filing fee shall be waived.

second set of directions and changes "on or before July 14, 201 l." (Id. 1111 6-9.)
"[C]osts and time associated with the initial direction" are a 61-day extension of the
contract performance time and "$106,277.98 in increased costs of perforrnance." (Ia’.
11 10.) The Complaint concludes that "[n]o final decision of the contracting officer
was received." (Ia'. 11 4.)

No such claim letter was attached to the Complaint, and defendant’s Motion
represents that it was not aware of one.

[T]he Government is not aware of any claim, certified or otherwise,
submitted by [plaintiff] to the contracting officer on or about July 14,
2011 relating to the contract. Nor is the Government aware of any
claim, certified or otherwise, submitted by [plaintiff] to the contracting
officer seeking cost and time increases associated with unsuitable soils
and delays attributable to differing site conditions and changes directed
by the Arrny, as alleged in the complaint.

(Def’s Mot. Dismiss 4, ECF No. 6.)

In response, plaintiff argues that the allegation in the Complaint of its
submission of a "claim" is presumed to be true and sufficient to survive defendant’s
Motion to Dismiss. Nevertheless, plaintiff attaches a purported copy of "the claim
letter, as submitted," contending it "contains all of the essential elements of a claim,
including certification." (Op. Def.’s Mot. Dismiss 3, ECF No. 8.)

Defendant’s Reply disagrees with plaintiff’ s assessment of its burden of proof
concerning jurisdictional facts and includes an affidavit from Leo Hickman, Chief of
Contracting (following the retirement of Donna Parker, the CO during times relevant
here), that "the claim letter" plaintiff references was not in the files, and affirming that
the addressee of that purported claim letter was not the CO. (Def. ’s Reply 2-3 & A1,
ECF No. 9.)

Discussion
This court has "jurisdiction to render judgment upon any claim by or against,

or dispute with, a contractor arising under . . . the [CDA ] . . . on which a decision of
the contracting officer has been issued under . . . that Act." 28 U.S.C. § 1491(a)(2);

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see also Todd Constr. L.P. v. Unz`tedStates, 656 F.3d 1306, 1310-1 1 (Fed. Cir. 2011).

The CDA, 41 U.S.C. § 7l03(a) and (b), provides that "[e]ach claim by a contractor
against the Federa1 Government relating to a contract shall be in writing," "shall be
submitted to the contracting officer for a decision," and "[f]or claims of more than
$100,000 . . . the contractor shall certify [the claim]." The CDA, as a "waiver of
sovereign immunity must be strictly construed in favor of the sovereign." O)yjfv.
UnitedStates, 545 U.S. 596, 601-02 (2005); Winter v. FloorPro, Inc., 570 F.3d 1367,
1370 (Fed. Cir. 2009) (explaining that a waiver "‘must be unequivocally expressed
in statutory text and will not be implied"’ (quoting Lone v. Pena, 518 U.S. 187, 192
(1996) (citations omitted)). Accordingly, the "strict limits of the CDA [are]
‘ jurisdictional prerequisites to any appeal."’ M Maropakz's Corpentrjy, Inc. v. United
States, 609 F.3d 1323, 1329 (Fed. Cir. 2010) (quoting Englandv. Swanson Grp., Inc.,
353 F.3d 1375, 1379 (Fed. Cir. 2004)).3/ If subject-matter jurisdiction is lacking,
dismissal is required. RCFC 12(h)(3); Arbough v. Y & H Corp., 546 U.S. 500, 514
(2006).

The submission of a valid claim to the CO and a final decision on that claim
are jurisdictional prerequisites to litigation in this court. See M Maropakz`s
Carpenz‘ry, 609 F.3d at 1327 ("This Court has found that jurisdiction thus requires
both a valid claim and a contracting officer’s final decision on that claim.") (citation
omitted); England, 353 F.3d at 1379.§’

In reliance on Henke v. United States, 60 F.3d 795 (Fed. Cir. 1995), plaintiff
contends that for the purpose of this Motion to Dismiss, the factual allegations of its
Complaint must be accepted as true. However, this is not the case with respect to
jurisdictional allegations. See Shoshone Indz'an Trz`be of the WindRz`ver Reservcztz`on,

Wyo. v. United Sz‘ates, 672 F.3d 1021, 1030 (Fed. Cir. 2012) ("Ifa Rule 12(b)(1)

3’ Unlike the proceeding involved when an "appeal" of a CO decision is taken to an agency
board under 41 U.S.C. § 7105, bringing an action directly on the claim in the United States Court
of Federa1 Claims, pursuant to 41 U.S.C. § 7104, is not an "appeal" of the CO decision. Instead, the
action in the Court of Federal Claims proceeds de novo with the CO decision having relevance solely
as a jurisdictional prerequisite. 41 U. S.C. § 7104(b)(4); Wilner v. Unz'tedStaz‘es, 24 F.3d 1397, 1401-
02 (Fed. Cir. 1994).

5’ If a CO fails to issue a decision within the required period of time, the CDA provides that
the failure is deemed to be a decision denying the claim such as to authorize the filing of a de novo
action on the matter in this court. 41 U.S.C. § 7103(f)(5); Pathman Constr. Co. v. Unz`tedSlates, 817
F.Zd 1573, 1575 (Fed. Cir. 1987).

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motion challenges a complaint’s allegations of jurisdiction, the factual allegations in
the complaint are not controlling and only uncontroverted factual allegations are
accepted as true."). As defendant has challenged the jurisdictional factual assertion
that a CDA claim was submitted, the court may consider relevant evidence outside
the pleadings to resolve that factual dispute. Id.; Arakakz` v. Unz'tedSz‘ates, 62 Fed. Cl.
244, 247 (2004) (citing Reynolds v. Arrny & Az`r Force Exch. Serv., 846 F.2d 746, 747
(Fed. Cir. 1988)); Indiuzn Corp. ofAm. v. Selnz`-Alloys, Inc., 781 F.2d 879, 884 (Fed.
Cir. 1985)); see 2 J ames Wm. Moore et al., Moore ’s F ederal Practz'ce 11 12.30[3] (3d
ed. 2012) ("[U]nlike a Rule 12(b)(6) dismissal, the court need not confine its
evaluation to the face of the pleadings . . . ."). Plaintiff bears the burden of
establishing this court’s jurisdiction by a preponderance of the evidence. See
Reynolds, 846 F.2d at 748.

A "claim" is "a written demand or written assertion by one of the contracting
parties 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 relating
to the contract." 48 C.F.R. § 2.101 (2011). A proper claim must contain both: "(1)
adequate notice of the basis and amount of a claim and (2) a request for a final
decision." M Maropakis Carpenz‘ry, 609 F.3d 1323, 1328 (Fed. Cir. 2010). When
a claim seeks more than $100,000, it must be certified in accordance with 41 U.S.C.
§ 7103(b)(1), but a defective certification may be corrected during the pendency of
a suit in this court, z'd. § 7103(b)(3).

"Claim" should be broadly construed. Todd Constr., 656 F.3d at 131 1. There
is "no requirement in the [CDA] that a ‘claim’ must be submitted in any particular
form or use any particular wording." Contract Cleaning Maz`nt., Inc. v. UnitedStates,
81 1 F.2d 586, 592 (Fed. Cir. 1987); see Transarnerz`ca Ins. Corp. v. UnitedStates, 973
F.2d 15 72, 1579 (Fed. Cir. 1992), overruled on other grounds by Rejlectone, Inc. v.
Dolz‘on, 60 F.3d 1572 (Fed. Cir. 1995) (en banc) (holding that submissions qualified
as CDA claims when the contractor "asserted in writing and with sufficient specificity
a right to additional compensation" and "the contractor communicated his desire for
a contracting officer decision"); Mz`ngus Constructors, Inc. v. Unz'tedStates, 812 F.2d
13 87, 1394-96 (Fed. Cir. 1987) (finding that letters indicating an intent to file a claim
in the future for an unspecified amount were not claims).

"‘All that is required is that the contractor submit in writing to the contracting
officer a clear and unequivocal statement that gives the contracting officer adequate

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notice of the basis and amount of the claim."’ Northrop Gru)nman Computing Sys.,

Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (quoting Contract
Cleaning Maz'nt. Inc., 811 F.2d at 592). Moreover, the contractor’s request for a
decision from the CO need not be explicit; it may be implied. Jarnes M. Ellett Constr.

Co., 93 F.3d at 1543; see also Transamerz`ca. Ins. Corp., 973 F.2d at 1576 ("The
statute’s broad language demonstrates that as long as what the contractor desires by
its submissions is a final decision, that prong of the CDA claim test is met."). "[T]he

phrase ‘as a matter of right’ in the regulatory definition of a ‘claim’ requires only that
the contractor specifically assert entitlement to the relief sought. 'l`hat is, the claim
must be a demand for something due or believed to be due rather than, for example,
a cost proposal for work the govemment later decides it would like performed."
Allz`ant Techsystems, Inc. v. Unz'tedSz‘ates, 178 F.3d 1260, 1265 (Fed. Cir. 1999); see
also Todd Constr. Co., 656 F.3d at 1311-12.

A claim containing the required elements must be submitted to the contracting
officer. SeeArctic Slope Naz‘z've Ass ’n v. Sebelz`us, 583 F.3d 785, 793 (Fed. Cir. 2009)
("[T]he presentment of claims to a contracting officer . . . is a prerequisite to suit in
the Court of Federal Claims." (citing England v. Swanson Grp. , 353 F.3d 1375, 1379
(Fed. Cir. 2004) and Sharman Co. v. United States, 2 F.3d 1564, 1568 (Fed. Cir.
1993), overruled on other grounds by Reflectone, Inc, 60 F.3d 1572)). The
submission requirement is met if the contractor sends its claim directly to the
contracting officer or if "the contractor sends a proper claim to its primary contact
with a request for a final decision of the contracting officer and a reasonable
expectation that such a request will be honored, and the primary contact in fact timely
delivers the claim to the contracting officer." Neal & Co. v. United States, 945 F.2d
385, 388 (Fed. Cir.1991) (emphasis in original); see also Dawco Constr., Inc. v.
United States, 930 F.2d 872, 880 (Fed. Cir. 1991) ("Neither the Act, nor its
implementing regulations, instructs the contractor how [submission] must be
accomplished . . . . [T]he purpose of the Act’s ‘submit’ language is not related to the
minutia of addressing or delivering claim letters, . . . but is merely a requirement that
once a claim is made, the parties must ‘commit’ the claim to the contracting officer
and ‘yield’ to his authority to make a final decision."), overruled on other grounds
by Reflectone, Inc., 60 F.3d 1572.

Plaintiff submits no evidence that the letter dated July 14, 201 1 was submitted

to, or received by, the CO. In Neal & Co. the contractor sent its claim to its primary
government contact and the CO actually received the claim, 945 F.2d at 388-89;

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plaintiff here does not allege that Morgan Murphree, the addressee on the July 14,
201 1 letter, was its primary contact on this Delivery Order. See Danka de P.R., Inc.
v. United States, 63 Fed. Cl. 20, 23-24 (2004) (dismissing CDA case where claim
letter was not sent to the contracting officer and no evidence was offered that the
contracting officer had received the claim). Other than plaintiff’s conclusory
statement in its Complaint that its claim letter was "submitted" (with no "to whom"
it was submitted) and that no final CO decision was received, no other evidence was
offered on this jurisdictional requirement. 1n contrast, defendant submitted an
affidavit that despite a thorough search, no such letter was in the CO’s files, averring
that following the retirement ofthe CO for plaintiff’ s Delivery Order, Donna Parker:

documents related to the Delivery Order from the office files, electronic
files and archived storage files for the Mobile District’s Contracting
Division and Construction Resident and Area Offices that administered
the Delivery Order were thoroughly searched. No letter dated July 14,
2011 was found as part of that search, nor were any documents found
that referenced a letter dated July 14, 2011.

(Def.’s Reply Al, ECF No. 9-1.)3’

Questions as to the addressee of the letter aside, even if the July 14, 201 1 letter
was mailed/submitted but not received, it is well-settled that "it is the ‘contractor
[who] bears the risk for delayed or lost submissions prior to receipt by the
[contracting officer]."’ Dawco Constr., Inc. , 930 F.2d at 880 (alterations in original)
(quoting Am. Pac. Roofz`ng Co. v. United States, 21 Cl. Ct. 265, 268 (1990).

Notably, these jurisdictional requirements were recently clearly stated and
applied in dismissing another Complaint by plaintiff. 1n Dz'versifz`ed Maz'ntenance
Syste)ns, Inc. v. United States, 103 Fed. Cl. 431 (2012), a decision dated February 21,
2012, defendant’ s Motion to Dismiss plaintiff’ s Complaint was granted for failure to
submit a claim to the contracting officer.

3' "The Resident Office responsible for overseeing this project did receive an unsigned letter
from [plaintiff] addressed to Morgan Murphree, dated August 2, 2011, requesting additional
compensation in the amount of $74,739.35 and a 67 calendar day time extension." (Id. A2.) lt is
not contended that this letter is a claim.

[Diversified Maintenance Systems, 1nc.] has neither alleged nor
established that it submitted a certified claim with the contracting officer
before commencing this suit. Because the submission of a CDA claim
and a final decision on that claim are jurisdictional prerequisites to suit
in this court, the court must dismiss [Diversified’s] suit for lack of
subject matter jurisdiction pursuant to RCFC l2(b)(1).

103 Fed. Cl. at 439. Despite this clear articulation, plaintiff has repeated its earlier
action by filing the instant Complaint on August 24, 2012, some six months later,
without sufficient attention to that prior instruction.

The court concludes that plaintiff has failed to establish by a preponderance of
the evidence that the July 14, 201 1 letter was "submitted to the contracting officer for
a decision," 41 U.S.C. § 7103(a)(1), therefore, this court lacks jurisdiction. M
Maropakz`s Carpentry, 609 F.3d at 1327; England, 353 F.3d at 1379; see also L.A.
Ruz`z Assocs., Inc. v. United States, 94 Fed. Cl. 768, 772 (2010) ("Plaintiff has not
presented any evidence which would lead the Court to conclude that the letter was
ever actually submitted to, or received by, the contracting officer for review.")
(emphasis in original).

Notwithstanding the foregoing, examining the contents of the July 14, 2011
letter, it is noted that two requests for additional work are referenced, both assertedly
due to unforeseen soil conditions, the first "received on or about April 6, 201 1." That
work was done but apparently the results were not satisfactory. (Pl.’s Resp. 2, ECF
No. 8-1.) Accordingly, a "second set of directions" was then~recently given and, as
the letter represents, would be perforrned. The additional costs of $106,277.98 and
61-day time extension are for the "initial direction." (Id. at 3.) While the word
"claim" appears in this letter and there is a "Disputes Clause Certification," the letter
appears more informative rather than demanding a final CO decision, or suggesting
that there was a dispute over this additional time or cost. See 48 C.F.R. § 2.101
(defining "claim" and explaining that "[a] voucher, invoice, or other routine request
for payment that is not in dispute when submitted is not a claim."). However, because
of the court’s findings herein, it is not necessary to further examine the substance of
that letter for its compliance with other requirements of the CDA.

lt is not possible to suspend or stay this litigation to afford plaintiff an
opportunity to submit a valid claim to the CO; jurisdiction in this forum rises or falls

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on the circumstances at the time the initial Complaint was filed. Sharman Co. , 2 F.3d
at 1569; see also Mollan v. Torrance, 22 U.S. 537, 539 (1824) ("[T]he jurisdiction
of the Court depends upon the state of things at the time of the action brought[.]").
Neither would supplemental pleadings under RCFC 15(d) cure the jurisdictional
defect. Black v. Sec ’y of Health and Human Servs., 93 F.3d 78l, 790-91 (Fed. Cir.
1996). Moreover, a stay of this litigation would not offer a cure because the CO has
no authority to rule on a claim that is in litigation. See Sharrnan Co. , 2 F.3d at 1571
("Once a claim is in litigation, the Department of Justice gains exclusive authority to
act in the pending litigation," thereby "divest[ing] the contracting officer of his
authority to issue a final decision on the claim."). See Case, Inc. v. United States, 88
F.3d 1004, 1009 (Fed. Cir. 1996) ("when a contracting officer lacks authority to issue
a final decision on a claim, there can be no valid deemed denial of the claim so as to
confer CDA jurisdiction . . . .").

The time period for plaintiff to submit a claim to the CO has not expired,§’ and
in this circumstance prudence, as well as jurisdictional infinnities, dictate the
dismissal of this action. Accordingly, the court concludes it lacks subject-matter
jurisdiction over plaintiff’ s Complaint and grants defendant’s Motion to Dismiss
which removes the pending litigation obstruction to the CO’s authority to consider
plaintiff’ s claim upon a valid and timely submission. See Alaska Pulp Corp. v.
United States, 34 Fed. Cl. 100, 103-04 (1995); see also Boez`ng Co. v. United States,
31 Fed. Cl. 289, 292-93 (1994). Should, following a valid, final CO decision or
deemed denial, plaintiff elect to file a de novo action, as noted, plaintiff may so file
in this court without an additional filing fee.

CONCLUSION

Accordingly, it is ORDERED:

(1) Defendant’s Motion to Dismiss (ECF No. 6) is GRANTED; and

§/ The timeliness requirement is met if a contractor submits its claim to the CO within six
years of its accrual. 41 U.S.C. § 7103(a)(4)(A); see Unz'globe Gen. Tradz'ng & Contractz'ng Co. v.
United States, 107 Fed. Cl. 423, 430-31 (2012).

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(2) The Clerk of Court shall DISMISS plaintiff’ s Complaint without prejudice
pursuant to RCFC 12(b)(1).

s/ J ames F. Merow
J ames F. Merow
Senior Judge

