           In the United States Court of Federal Claims
                                         No. 18-1864C
                                     Filed: January 8, 2020
                                    NOT FOR PUBLICATION

                                              )
 CREATIVE MANAGEMENT                          )
 SERVICES, LLC, D/B/A MC2                     )
                                              )       Contract Disputes Act; 41 U.S.C. §§
                       Plaintiff,             )       7101, et seq.; RCFC 12(b)(1); Subject-
                                              )       Matter Jurisdiction; Termination for
 v.                                           )       Convenience; Sum Certain; Contracting
                                              )       Officer’s Final Decision.
 THE UNITED STATES,                           )
                                              )
                       Defendant.             )
                                              )

       Charles A. Weiss, Counsel of Record, Stephen R. Snodgrass, Of Counsel, Bryan Cave
Leighton Paisner LLP, St. Louis, MO, for plaintiff.

      Sonia W. Murphy, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC; Stephen T.
O’Neal, Of Counsel, General Services Administration, for defendant.

                         MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       In this Contract Disputes Act (“CDA”) matter, plaintiff, Creative Management Services,
LLC, d/b/a MC2 (“MC-2”), seeks a declaratory judgment against the government related to the
General Services Administration’s (“GSA”) demand that MC-2 return certain reserve funds held
in connection with a task order to provide marketing and logistical support services for annual
government conferences and the settlement of MC-2’s claim for certain termination for
convenience costs related to work performed under that task order. See generally Compl. The
government has moved to dismiss this action for lack of subject-matter jurisdiction, pursuant to
Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). See
generally Def. Mot. For the reasons discussed below, the Court GRANTS the government’s
motion to dismiss and DISMISSES the complaint.

II.    FACTUAL AND PROCEDURAL BACKGROUND1

       A.      Factual Background

       In this Contract Disputes Act action, MC-2 seeks a declaratory judgment related to the
GSA’s demand that MC-2 return certain reserve funds held by MC-2 in connection with a task
order to provide marketing and logistical support services for annual government conferences.
See generally Compl. MC-2 also seeks a declaratory judgment related to its final termination for
convenience settlement proposal in connection with the termination of that task order. Id.

       Specifically, in Counts I, II and III of the complaint, MC-2 seeks a declaratory judgment
that: (1) MC-2 is entitled to keep any funds representing the excess of revenue over expenses
left at the end of certain GovEnergy conferences held during the period 2009 through 2011 (the
“Reserve Funds”); (2) a GSA letter to MC-2 dated November 10, 2015, is not the contracting
officer’s final decision with regards to the government’s demand for the payment of these
Reserve Funds; and (3) a GSA letter to MC-2 dated January 31, 2018, regarding the Reserve
Funds was sent more than six years after the government’s claim to recover the Reserve Funds
accrued. Id. at ¶¶ 37-52. Lastly, in Count IV of the complaint, MC-2 seeks a declaratory
judgment that the GSA contracting officer’s letter dated November 10, 2015, is a final decision
only with respect to MC-2’s termination for convenience settlement proposal and that the
payment approved in that letter is due and owed to MC-2. Id. at ¶¶ 53-55.

               1.      The MC-2 Task Order

       On July 23, 2009, MC-2 was awarded task order GSA-00-09-AA-0203, which requires
that MC-2 provide certain integrated marketing and logistical support services in connection with
an annual conference for various federal agencies, known as the GovEnergy Conference and
Trade Show (the “MC-2 Task Order”). Def. App’x at 1.




1
 The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”); the
exhibits attached thereto (“Compl. Ex.”); the government’s motion to dismiss (“Def. Mot.”); and the
appendix attached thereto (“Def. App’x”). Unless otherwise noted, the facts recited herein are
undisputed.


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       The MC-2 Task Order requires, among other things, that MC-2 “shall establish a separate
bank account for all the revenue collected on behalf of the conference.” Id. at 12. The MC-2
Task Order also requires that MC-2 “shall collect monies from attendee and exhibitor
registration fees . . . [and] shall collect and account for such monies and hold them in trust for
GovEnergy.” Id. at 18. To that end, the MC-2 Task Order provides that:

       The monies collected shall comprise the “Reserve” for the conference event.
       With the GSA [Contracting Officer Technical Representative]’s written
       authorization upon review of a written monthly invoice, the [Contracting
       Officer Technical Representative] may direct [MC-2] to pay itself for
       services provided, as well as the other monthly expenses, from the
       respective conference event “Reserve”.

Id. (emphasis original).

       MC-2 successfully performed the MC-2 Task Order in 2009, 2010 and 2011. Def. Mot.
at 2. But, the GSA terminated the MC-2 Task Order for convenience in 2012. Compl. at ¶ 7.

               2.      The GSA’s Request For The Reserve Funds

       After the GSA terminated the MC-2 Task Order for convenience, MC-2 and the GSA
engaged in negotiations to determine the costs that MC-2 would be entitled to recover due to the
termination for convenience. See Compl. Ex. 1 at 5 (“no settlement agreement was reached by
the parties . . . .”). In connection with those negotiations, the GSA sent an e-mail to MC-2 on
July 18, 2012, which states that:

       The government requests that MC-2 return the entire Reserve Fund, under
       MC-2’s management for GovEnergy under order GS-A-00-09-AA-0203, as
       well as an accounting of the amounts in the Reserve Fund over the life of
       the contract, no later than July 25, 2012. Based on our records the amount
       of the Reserve Fund is at least $1,230,127.05.

Def. App’x at 30.

       On January 26, 2014, the GSA also sent a letter to MC-2 stating that “this is a second
demand to MC-2 that all monies remaining in the account be returned to GSA.” Id. at 35. This
letter also states that “it is GSA’s belief that the Reserve account under the control of MC-2
contained in excess of $1.3 million in 2012.” Id.

       On February 4, 2015, MC-2 responded to the GSA contracting officer’s letter in an e-
mail which states that MC-2 “immediately refunded all monies raised by MC-2 for this event as


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was requested by GSA immediately following the cancelation [sic]” and that “any accounting
related to previous years events that were successfully completed are not at issue now.” Id. at
37. On June 22, 2015, the GSA contracting officer responded to MC-2’s February 4, 2015, e-
mail and advised that the GSA had not received a final accounting of all revenue and expenses
from MC-2 and the GSA requested that MC-2 return any excess monies in the Reserve Fund. Id.
at 41-42.

        On August 31, 2015, MC-2 submitted a final termination for convenience settlement
proposal to the GSA contracting officer seeking to recover $717,680.10. Compl. Ex. 1 at 1.
MC-2 certified this claim on October 14, 2015. Id. At that time, MC-2 also submitted a letter to
the GSA contracting officer stating that “there is no existing reserve fund and MC-2 is not
holding any money that belongs to the Government.” Def. App’x at 45.

               3.      The November 10, 2015, Final Decision

        On November 10, 2015, the GSA contracting officer issued a final decision (the
“November 10, 2015, Final Decision”) in which she considered each of MC-2’s proposed
termination for convenience costs and approved costs in the amount of $628,415.37. Compl. Ex.
1 at 6-9. But, the GSA contracting officer also determined that:

        MC-2 is not entitled to the $717,680.10 amount itemized . . . or any
        additional claimed amounts. As previously communicated, it is GSA’s
        belief that MC-2 is actually indebted to the Government, as it has kept, and
        not accounted for, GovEnergy monies in excess of its $717,680.10 certified
        claim.

Id. at 1.

        In this regard, the GSA contracting officer determined that, based upon a July 11, 2012,
e-mail from MC-2 to the GSA, there was “nearly $1.3 million—i.e., $1,288,429.05” remaining
in the Reserve Fund. Id. at 2. In addition, the GSA contracting officer observed that she had
issued a demand in July 2012 to MC-2 for an accounting of the Reserve Fund and the return of
any surplus monies in the fund. Id. at 4.

        The GSA contracting officer also observed that she issued a second demand “that all
monies remaining in the account be returned to GSA” on January 26, 2014, and she stated that
“[t]he Government again demands that MC-2 return all monies remaining in the [Reserve Fund]



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account to GSA.” Id. at 4, 10. And so, the GSA contracting officer denied MC-2’s claim. Id. at
9.

               4.     The January 31, 2018 Letter

       On January 31, 2018, the GSA contracting officer sent another letter to MC-2 requesting
a “payment in the amount of $660,013.68 and applicable interest on this amount from July 18,
2012.” Compl. Ex. 2 at 1. This letter provides that:

       On November 10, 2015, pursuant to the Contract Disputes Act of 1978 . . .,
       GSA issued a Contracting Officer’s Final Decision to [MC-2] and
       determined that MC-2 failed to account for, and improperly retained,
       $1,288,429.05 that was held in trust for the Government.

Id. The January 31, 2018 letter also provides that:

       MC-2 received the Final Decision on November 12, 2015 through its
       counsel . . . and MC-2 did not appeal. By virtue of MC-2’s election not to
       appeal the Final Decision under the processes established by the CDA, this
       debt is final and conclusive.

Id.

       MC-2 commenced this CDA action on December 6, 2018. See generally Compl.

       B.      Procedural History

       MC-2 filed the complaint in this matter on December 6, 2018. See generally id. On June
14, 2019, the government filed a motion to dismiss this matter for lack of subject-matter
jurisdiction, pursuant to RCFC 12(b)(1). See generally Def. Mot.

       On July 12, 2019, MC-2 filed a response and opposition to the government’s motion to
dismiss. See generally Pl. Resp. On July 26, 2019, the government filed a reply in support of its
motion to dismiss. See generally Def. Reply.

       The government’s motion to dismiss having been fully briefed, the Court resolves the
pending motion.




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III.   LEGAL STANDARDS

       A.      RCFC 12(b)(1)

       When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(b)(1), this Court must assume that all
undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the
non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(1). But, plaintiff
bears the burden of establishing subject-matter jurisdiction, and it must do so by a preponderance
of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
Should the Court determine that “it lacks jurisdiction over the subject matter, it must dismiss the
claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

       In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and “possess[es] only that power authorized by Constitution and statute. . . .” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Tucker Act grants the Court
jurisdiction over:

       [A]ny claim against the United States founded either upon the Constitution, or any
       Act of Congress or any regulation of an executive department, or upon any express
       or implied contract with the United States, or for liquidated or unliquidated
       damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). The Tucker Act is, however, a jurisdictional statute; “it does not create
any substantive right enforceable against the United States for money damages. . . . [T]he Act
merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976) (alterations original).
And so, to pursue a substantive right against the United States under the Tucker Act, a plaintiff
must identify and plead a money-mandating constitutional provision, statute, or regulation; an
express or implied contract with the United States; or an illegal exaction of money by the United
States. Cabral v. United States, 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295,
1302 (Fed. Cir. 2003). “[A] statute or regulation is money-mandating for jurisdictional purposes
if it ‘can fairly be interpreted as mandating compensation for damages sustained as a result of the
breach of the duties [it] impose[s].’” Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell,
463 U.S. 206, 217 (1983)).


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       B.        The Contract Disputes Act

       The Tucker Act provides that this Court “shall have jurisdiction to render judgment upon
any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41
[the Contract Disputes Act], . . . on which a decision of the contracting officer has been issued
under section 6 of that Act.” 28 U.S.C. § 1491(a)(2); see also Renda Marine, Inc. v. United
States, 71 Fed. Cl. 378, 386 (2006). And so, to establish jurisdiction in a Contract Disputes Act
(“CDA”) matter, a plaintiff must demonstrate compliance with the requirements of the CDA.

       In this regard, the CDA requires that all claims made by a contractor against the
government relating to a contract shall be in writing and shall be submitted to the contracting
officer for a final decision. 41 U.S.C. § 7103(a); Northrop Grumman Computing Sys., Inc. v.
United States, 709 F.3d 1107, 1111-12 (Fed. Cir. 2013) (“A prerequisite for jurisdiction of the
Court of Federal Claims over a CDA claim is a final decision by a contracting officer on a valid
claim.”) (emphasis original); see also Securiforce Int’l Am., LLC v. United States, 879 F.3d
1354, 1359 (Fed. Cir. 2018). If the claim made by the contractor is for more than $100,000,
the contractor must also certify the claim. 41 U.S.C. § 7103(b)(1). And so, the contractor’s
claim submission and the requirement that the contracting officer render a final decision on the
claim are mandatory and jurisdictional prerequisites before a contractor may file suit in this
Court. See M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010)
(stating that “for the Court of Federal Claims to have jurisdiction under the CDA, the contractor
must submit a proper claim—a written demand that includes (1) adequate notice of the basis and
amount of a claim and (2) a request for a final decision”) (citing James M. Ellett Constr. Co., v.
United States, 93 F.3d 1537, 1541-42 (Fed. Cir. 1996)).

       The CDA also addresses government claims against a contractor. In this regard, the CDA
provides that “[e]ach claim by the Federal Government against a contractor relating to a contract
shall be the subject of a written decision by the contracting officer.” 41 U.S.C. § 7103(a)(3). In
addition, the CDA generally requires that claims by a contractor or the government relating to a
contract “shall be submitted within 6 years after the accrual of the claim.” 41 U.S.C. §
7103(a)(4)(A).

       While the CDA does not define the term “claim,” the FAR defines a “claim” as follows:




                                                                                                      7
       [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 related to the contract.

48 C.F.R. § 2.101. A CDA claim need not follow a set form, but, the claim must provide the
contracting officer with adequate notice of the basis for, and amount of, any claim. M.
Maropakis Carpentry, 609 F.3d at 1328; see also Contract Cleaning Maint., Inc. v. United
States, 811 F.2d 586, 592 (Fed. Cir. 1987) (stating that the claim must contain “a clear and
unequivocal statement that gives the contracting officer adequate notice of the basis and amount
of the claim”). Given this, the Federal Circuit has recognized that “a sum certain naturally must
be asserted. It is, after all the defining measure of that right.” J.P. Donovan Constr. v. Mabus,
469 F. App’x 903, 906 (Fed. Cir. 2012) (quoting Essex Electro Engineers, Inc. v. United States,
960 F.2d 1576, 1581 (Fed. Cir. 1992)).

       With regards to what is meant by a “sum certain,” this Court has held that the CDA’s
“sum certain requirement is met if the contracting officer can determine the amount claimed by a
simple mathematical calculation.” Modeer v. United States, 68 Fed. Cl. 131, 137 (2005); see
also CPS Mech. Contractors v. United States, 59 Fed. Cl. 760, 764 (2004). The Federal Circuit
has held, however, that a CDA claim that uses qualifying language does not state a sum certain.
J.P. Donovan Constr., 469 F. App’x at 908. And so, dismissal of such a claim for lack of
subject-matter jurisdiction is appropriate. Id.

       The CDA also contains a statute of limitations, which requires that a contractor must file
a direct action disputing a contracting officer’s final decision in this Court within 12 months of
receiving the final decision. 41 U.S.C. § 7104(b)(3). And so, a claim brought more than 12
months after receiving a contracting officer’s final decision is untimely and must be dismissed
for lack of subject-matter jurisdiction. RMA Eng’r S.A.R.L. v. United States, 140 Fed. Cl. 191,
216-17 (2018).

IV.    LEGAL ANALYSIS

       The government has moved to dismiss this matter for lack of subject-matter jurisdiction,
upon the ground that MC-2’s Contract Disputes Act claims are untimely, because MC-2 filed
this action more than 12 months after receiving the GSA contracting officer’s November 10,
2015, Final Decision. Def. Mot. at 8-12. MC-2 counters in its response and opposition to the


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government’s motion to dismiss that the Court may consider its claims related to the
government’s demand that MC-2 return the Reserve Funds, because MC-2 commenced this
action within 12 months of receiving the final decision on this claim. Pl. Resp. at 5-6. And so,
MC-2 requests that the Court deny the government’s motion to dismiss. Id. at 6.

       For the reasons set forth below, a careful review of the factual record in this matter shows
that all of MC-2’s CDA claims are untimely. And so, the Court GRANTS the government’s
motion to dismiss and DISMISSES the complaint.

       A.      The Court May Not Consider MC-2’s Termination For Convenience Claim

       As an initial matter, there is no genuine dispute that MC-2’s CDA claim related to its
termination for convenience settlement proposal is untimely. The CDA requires that MC-2 file
this CDA action within 12 months of receiving the GSA contracting officer’s final decision on
its termination for convenience claim. 41 U.S.C. § 7104(b)(3). And so, if MC-2 failed to file
this claim within 12 months of receiving the GSA contracting officer’s final decision, the Court
must dismiss the claim for lack of subject-matter jurisdiction. RMA Eng’r S.A.R.L. v. United
States, 140 Fed. Cl. 191, 216-17 (2018).

       It is undisputed that the GSA contracting officer issued a final decision on MC-2’s
termination for convenience claim on November 10, 2015, and that MC-2 received this final
decision on November 12, 2015. Def. Mot. at 11; Pl. Resp. at 2; Compl. Ex. 1 at 1 (stating that
“MC-2 received the Final Decision on November 12, 2015 . . . .”). And so, to be timely, MC-2
must have filed its termination for convenience claim by November 12, 2016. 41 U.S.C. §
7104(b)(3). MC-2 commenced this action on December 6, 2018—long after the CDA’s 12-
month statute of limitations period expired. See generally Compl. And so, as both parties
appear to agree, the Court must dismiss this claim for lack of subject-matter jurisdiction. Def.
Mot. at 10-11; Pl. Resp. at 2; see also RMA Eng’r, 140 Fed. Cl. at 216-17; RCFC 12(b)(1).

       B.      The Court May Not Consider MC-2’s Reserve Funds Claims

       While a somewhat closer question, the factual record for this matter also shows that the
Court may not consider MC-2’s CDA claims related to the GSA’s demand for the return of the
Reserve Funds, because these claims are also untimely.




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        To resolve the government’s motion to dismiss the Reserve Fund claims, the Court
considers three crucial questions. First, whether the GSA issued a valid claim under the CDA for
the return of the Reserve Funds. Second, if so, whether the GSA’s CDA claim was the subject of
a written decision by the GSA contracting officer. And finally, whether MC-2 failed to
commence this action within 12 months of receiving the GSA contracting officer’s final decision
on the government’s CDA claim. Because the factual record makes clear that the Court must
answer each one of these questions in the affirmative, the Court dismisses these claims.

        With regards to the first question, the factual record before the Court makes clear that the
GSA issued a valid CDA claim demanding that MC-2 return the Reserve Funds held in
connection with the MC-2 Task Order. The FAR defines a claim as “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. In this case, the evidence shows that the GSA
issued a written demand to MC-2 for the return of the Reserve Funds on two separate occasions,
consistent with the CDA.

        First, it is undisputed that the GSA contracting officer sent an e-mail to MC-2 on July 18,
2012, stating, in relevant part that:

        The government requests that MC-2 return the entire Reserve Fund, under
        MC-2’s management for GovEnergy . . . as well as an accounting of the
        amounts in the Reserve Fund over the life of the contract, no later than July
        25, 2012. Based on our records the amount of the Reserve Fund is at least
        $1,230,127.05.

Def. App’x at 30 (emphasis supplied). Thereafter, the GSA contracting officer sent a letter to
MC-2 on January 26, 2014, which states, among other things, that “this is a second demand to
MC-2 that all monies remaining in the [Reserve] account be returned to GSA.” Id. at 35. The
aforementioned email and letter clearly notify MC-2 that the GSA is seeking the return of all of
the Reserve Funds for the MC-2 Task Order. Id. at 30, 35. Given this, the Court agrees with the
government that the GSA issued a written demand to MC-2 seeking the payment of money, as
contemplated by the CDA.

        The evidence before the Court also shows that the GSA’s written demands for payment
of the Reserve Funds sought “the payment of money in a sum certain,” as required by the CDA.


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48 C.F.R. § 2.101. In his July 18, 2012, email to MC-2, the GSA contracting officer states that
“[b]ased on our records the amount of the Reserve Fund is at least $1,230,127.05.” Def. App’x
at 30. The GSA contracting officer’s January 26, 2014, letter similarly describes the amount of
the Reserve Funds sought by the government to be “in excess of $1.3 million in 2012,” based
upon accounting documentation showing the activity in the Reserve account during the period
2009-2012. Id. at 35.

       MC-2 correctly observes that the GSA contracting officer’s e-mail and letter do not state
the exact dollar amount of the Reserve Funds demanded by the government. Pl. Resp. at 3-5.
But, the Court is not persuaded by MC-2’s argument that these written demands are deficient
because they fail to request a sum certain. Id. at 2-6.

       This Court has recognized that the CDA’s sum certain requirement may be met if the
amount claimed can be determined by a simple mathematical calculation. Modeer v. United
States, 68 Fed. Cl 131, 137 (2005); see also CPS Mech. Contractors v. United States, 59 Fed. Cl.
760, 764 (2004). In this case, the GSA contracting officer makes abundantly clear in her email
and letter to MC-2 that the government is demanding the return of “the entire Reserve Fund” and
“all monies” contained in the Reserve Fund. Def. App’x at 30, 35. The MC-2 Task Order also
makes clear that the Reserve Funds demanded by the government are held in “a separate bank
account for all the revenue collected on behalf of the conference.” Id. at 12. Given this, the
Court reads the GSA contracting officer’s written demands to state that the government was
demanding the return of all funds contained in the Reserve Fund account.

       Because there is no genuine dispute that MC-2 could have readily calculated the precise
amount of the funds contained in the Reserve Fund by obtaining the current balance for the
Reserve Fund account, the Court reads the GSA contracting officer’s written demands to state a
sum certain and to adequately notify MC-2 of the basis of the GSA’s claim. See Pl. Resp. at 3
(“MC-2 has this money in its possession . . . .”). And so, the Court concludes that the GSA has
issued a valid CDA claim for the return of the Reserve Funds.

       Lastly, the factual record makes clear that the government’s CDA claim demanding the
return of the Reserve Funds was also the subject of the GSA contracting officer’s November 10,
2015, Final Decision. 41 U.S.C. § 7103(a)(3) (requiring that “[e]ach claim by the Federal
Government against a contractor relating to a contract shall be the subject of a written decision


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by the contracting officer”). Indeed, a careful review of the November 10, 2015, Final Decision
shows that the GSA contracting officer addressed and analyzed the government’s demand that
MC-2 return the Reserve Funds. Notably, at the outset of the November 10, 2015, Final
Decision, the GSA contracting officer states that “it is GSA’s belief that MC-2 is actually
indebted to the Government, as it has kept, and not accounted for, GovEnergy monies in excess
of [MC-2’s] $717,680.10 certified claim.” Compl. Ex. 1 at 1. The November 10, 2015, Final
Decision, also refers to the pertinent contractual requirements of the MC-2 Task Order with
regards to the Reserve Funds. Id. at 2 (stating that “Section 2.4.2 of the task order, Conference
Financial Management, required MC-2 to ‘establish a separate bank account for all the revenue
collected on behalf of the conference as a result of registration, exhibit sales and sponsorship
sales”).

           The GSA contracting officer also observes in the November 10, 2015, Final Decision that
she “had issued a demand in July 2012 to MC-2 for an accounting of the Reserve Fund and a
return of any surplus monies in the Fund.” Id. at 4. In addition, the GSA contracting officer
states that “[o]n January 26, 2014, [she] issued a second demand ‘to MC-2 that all monies
remaining in the account be returned to GSA.’” Id.

           The GSA contracting officer also determined in the November 10, 2015, Final Decision
that she must deny MC-2’s claim for termination for convenience costs, because the proposed
settlement amount “is significantly less than the monies believed held by MC-2 in the Reserve
Fund.” Id. at 9 (emphasis supplied). Given this, there can be no genuine dispute that the
government’s CDA claim demanding the return of the Reserve Funds was the subject of the
contracting officer’s November 10, 2015, Final Decision.2




2
  MC-2’s argument that a subsequent letter from the GSA contracting officer, dated January 31, 2018, is
the contracting officer’s final decision on the government’s CDA claim is also misguided. The GSA
contracting officer’s January 31, 2018, letter contains none of the elements required to be a final decision.
48 C.F.R. § 33.211(a)(4) (stating that a final decision must include a description of the claim or dispute, a
reference to the pertinent contract terms, a statement of the factual areas of agreement and disagreement, a
statement of the contracting officer’s decision, with supporting rationale, and a paragraph); see also
Compl. Ex. 2. In fact, this letter expressly states that the GSA contracting officer’s November 10, 2015,
Final Decision is the final decision on the government’s CDA claim. Compl. Ex. 2 at 1 (“On November
10, 2015, pursuant to the [CDA], GSA issued a Contracting Officer’s Final Decision . . .”).


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         Because the Court concludes that the GSA contracting officer issued a final decision on
the government’s CDA claim demanding the return of the Reserve Funds on November 10,
2015, the Court must also conclude that MC-2’s Reserve Fund claims—which have been filed
more than 12 months after MC-2 received the GSA contracting officer’s final decision—are
untimely. 41 U.S.C. § 7104(b)(3). And so, the Court dismisses these claims for lack of subject-
matter jurisdiction. RCFC 12(b)(1).

V.       CONCLUSION

         In sum, all of MC-2’s claims in this Contract Disputes Act matter are untimely because
MC-2 commenced this action more than 12 months after receiving the GSA contracting officer’s
November 10, 2015, Final Decision on these claims. And so, for the foregoing reasons, the
Court:

         1. GRANTS the government’s motion to dismiss; and

         2. DISMISSES the complaint.

         The Clerk shall enter judgment accordingly.

         Each party shall bear their own costs.

         IT IS SO ORDERED.



                                                  s/ Lydia Kay Griggsby
                                                  LYDIA KAY GRIGGSBY
                                                  Judge




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