       In the United States Court of Federal Claims
                         No. 17-335C (Filed: September 19, 2017)

                                               )    Keywords: Contract Disputes Act;
 VANQUISH WORLDWIDE, LLC,                      )    Subject Matter Jurisdiction;
                                               )    Submission of a Claim.
                         Plaintiffs,           )
                                               )
 v.                                            )
                                               )
 THE UNITED STATES OF AMERICA,                 )
                                               )
                         Defendant.            )
                                               )

Michael D. Maloney, Williams Mullen, Tysons, VA, with whom were William A
Wozniak, Williams Mullen, and Todd W. Miller, Law Office of Todd W. Miller, Golden,
CO, for Plaintiff.

James W. Poirier, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, with whom were Franklin E. White, Jr., Assistant Director, Robert
E. Kirschman, Jr., Director, and Chad A. Readler, Acting Assistant Attorney General, for
Defendant.

                                  OPINION AND ORDER

KAPLAN, Judge.

        Plaintiff Vanquish Worldwide, LLC (Vanquish) held a contract with the United
States Transportation Command (TransCom) to provide shipping and logistics services
for the U.S. Army in Afghanistan. It alleges that it received a performance evaluation in
connection with its work under the contract that was arbitrary, capricious, and
unsupported by the facts. It therefore seeks a declaratory judgment vacating the
performance evaluation and remanding the matter back to the agency.

        The government has moved to dismiss Vanquish’s complaint for lack of subject
matter jurisdiction, claiming that Vanquish failed to submit a claim to the contracting
officer for a final decision before filing suit in this court, as is required by the Contract
Disputes Act (CDA), 41 U.S.C. §§ 7101–09. As discussed below, the Court agrees with
the government that Vanquish’s continuing correspondence with the agency about the
evaluation never ripened into a claim. Accordingly, the government’s motion is
GRANTED, and Vanquish’s complaint is dismissed without prejudice.
                                    BACKGROUND

I.     Vanquish’s Contract and the Performance Evaluation

         As noted, between December 2014 and December 2015, Vanquish held a contract
with TransCom to provide trucking services to the U.S. Army in Afghanistan. Compl.
¶ 1, ECF No. 1. TransCom terminated the contract for cause on January 22, 2016, after
Vanquish failed to deliver the last twelve shipments under the contract. See id. ¶ 6.
According to Vanquish, the shipments were not delivered because they were hijacked.
See id. ¶ 4. The government eventually recovered the missing cargo in March 2016. See
id. ¶ 9.

       On January 29, 2016, the contracting officer (CO) entered a performance
evaluation into the government-wide Contractor Performance Assessment Reporting
System (CPARS). Id. ¶ 58; see also id. Ex. B, ECF No. 1-1. Based on the loss of the
twelve shipments, the CO assigned Vanquish a rating of “Marginal” for both the
“Quality” and “Management” evaluation factors. Compl. ¶¶ 58–59.

        On February 26, 2016, Vanquish submitted detailed comments on the evaluation
via CPARS. Id. ¶ 67; see also id. Ex. B. at 61–65.1 It strongly disagreed with the CO’s
evaluation and, in particular, with his characterization of the twelve shipments as “lost”
rather than stolen. See Compl. ¶ 67. In its comments, Vanquish also stated its belief that
the CPARS evaluation should be “removed” and “request[ed] [that] all [its] evaluation
area assessment ratings be raised to a ‘Satisfactory’ with all incorrect and misleading
comments removed prior to the approval by the Reviewing Official.” Id. Ex. B. at 65.
Vanquish, however, inadvertently selected the “I concur with this evaluation” option at
the conclusion of the comment submission process. See Compl. ¶ 68; id. Ex. B. at 65.

        On March 3, 2016, Vanquish’s Executive Vice President, Greg Guiney, sent an
email to the CO informing him that Vanquish had selected the “I concur with this
evaluation” option by mistake when it submitted its evaluation comments. Pl.’s Opp’n to
Def.’s Mot. to Dismiss the Compl. (Pl.’s Mot.) Ex. A at 2–3, ECF No. 18-1. Mr. Guiney
stated that Vanquish “need[ed] the ability to correct” the mistake and asked if the CO was
“able to assist or what your recommendation is to proceed.” Id.

        A few weeks later, on March 16, 2016, Vanquish’s outside counsel, Charles Lucy,
sent an email to TransCom’s counsel, John Harryman. Pl.’s Mot. Ex. C at 5, ECF No. 18-
3. Mr. Lucy also copied the CO on the email. Id. The bulk of the email concerned
demands for reprocurement costs that the CO had submitted to Vanquish following the
contract’s termination. See id. Mr. Lucy also noted, however, that Vanquish believed its
CPARS rating was “unjustified” and that it “should be rescinded.” Id. He closed the




1
 References to pagination in Vanquish’s exhibits are to the ECF pagination located in the
upper right-hand corner of the page.



                                             2
email by stating that Mr. Harryman’s “favorable consideration of the issues raised in this
email is appreciated.” Id.

        The next day, March 17, 2016, the CO replied to Mr. Guiney’s March 3, 2016
email. Pl.’s Mot. Ex. A at 2. He informed Mr. Guiney that he was “unable to send the
CPAR[] back to [Vanquish] for further comment,” but that he would “provide
[Vanquish’s] concerns to the Reviewing Official.” Id.

         Several days later, on March 21, 2016, the reviewing official, Lt. Col. Jarrett
Moffitt, finalized the CPARS evaluation. Compl. Ex. B at 66–67. Lt. Col. Moffitt
concurred with the “Marginal” ratings assigned by the CO and rejected Vanquish’s
explanations for the disappearance of the twelve shipments. Id. at 66. In particular, he
observed that Vanquish’s claim that the shipments were hijacked was “inaccurate” and
that “[t]he Government, on its own accord, was able to recover the cargo after Vanquish
declared it was a loss.” Id. Lt. Col. Moffitt also stated that an “investigation revealed
[that] the incident was caused by a contractor-subcontractor payment dispute.” Id.

       Lt. Col. Moffitt also noted that Vanquish had “request[ed] to change [its]
concurrence from CONCUR to NON-CONCUR” and stated that “[a]lthough
TRANSCOM was unable to re-open the CPAR for further editing,” Lt. Col. Moffitt had
applied the “CPARS business rules for contractor NON-CONCURRENCE.” Id. at 65.

        The following day, March 22, 2016, Mr. Lucy sent another email to TransCom’s
counsel. Pl.’s Mot. Ex. C at 3. He copied both the CO and Mr. Guiney on the email. Id.
Mr. Lucy asserted that Lt. Col. Moffitt had changed the “underlying rationale” behind
Vanquish’s Marginal ratings and that this “should have triggered an additional
opportunity for Vanquish to respond to the CPARS evaluation.” Id. Further, Mr. Lucy
opined that Vanquish “should have been allowed to review” the government’s
investigation of the incident and to “comment on its findings.” Id. Mr. Lucy thus
requested that Vanquish be allowed to “review the documents and investigation
surrounding the . . . recovery of the 12 shipments[] so that [Vanquish] can submit its
response,” and stated that “the CPARS review and rating should be rescinded or
suspended until Vanquish’[s] supplemental response can be considered.” Id.

       TransCom’s counsel responded on March 24, 2016. Id. at 2. He informed Mr.
Lucy that although the investigation had not been completely finalized, “the interviews
and fact gathering” were complete. Id. Further, and in any event, TransCom’s counsel
lacked “the authority to release the investigation” to Vanquish. Id. He did not mention
Mr. Lucy’s request to rescind or suspend the CPARS evaluation other than to say that his
“assessment [wa]s that all of the comments in the CPAR were based largely on
communications made by” Vanquish in performing the contract. Id.




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II.    This Action

       Vanquish filed its complaint on March 10, 2017.2 ECF No. 1. It alleges that the
CPARS evaluation is “unreasonable, unfair, inaccurate, arbitrary, capricious, inconsistent
with FAR 42.15, inconsistent with the terms of the Contract, and an abuse of the
Contracting Officer’s discretion.” Id. ¶ 12. It seeks a declaratory judgment vacating the
evaluation and remanding the matter to TransCom to perform a new evaluation. Id. at 29–
30.

        On May 22, 2017, the government moved to dismiss the complaint for lack of
subject matter jurisdiction, contending that Vanquish failed to submit a claim to the CO
before filing suit in this Court as required by the CDA. ECF No. 17. Vanquish filed a
response on June 22, 2017. ECF No. 18.

                                      DISCUSSION

I.     Standards for Motions to Dismiss Under Rule 12(b)(1) of the Rules of the
       Court of Federal Claims

        Whether this Court has subject-matter jurisdiction is a threshold matter, and, if no
jurisdiction exists, the Court must order dismissal without proceeding further. See PODS,
Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007) (citing Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94–95 (1998)). In deciding a motion to dismiss for lack
of subject matter jurisdiction, the court accepts as true all undisputed facts in the
plaintiff’s complaint and draws all reasonable inferences in favor of the plaintiff. Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). If subject matter
jurisdiction is challenged, however, the plaintiff cannot rely merely on allegations in the
complaint, but must instead bring forth relevant, competent proof to establish jurisdiction.
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The
party invoking a court’s jurisdiction bears the burden of establishing it, and must
ultimately do so by a preponderance of the evidence. Id.; see also Rocovich v. United
States, 933 F.2d 991, 993 (Fed. Cir. 1991).

II.    The Court’s Jurisdiction Over CDA Claims

       A.      The Tucker Act

        Pursuant to the Tucker Act, the United States Court of Federal Claims may
“render judgment upon any claim against the United States founded . . . upon any express
or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (2012). Subsection
(a)(2) of section 1491 further grants the Court of Federal Claims “jurisdiction to render
judgment upon any claim by or against, or dispute with, a contractor arising under section

2
 Vanquish has also filed another action in this Court arising out of the same contract, in
which it contests the government’s termination of the contract for cause. See Compl.,
Vanquish Worldwide, LLC v. United States, No. 17-96 (Fed. Cl. Jan. 23, 2017), ECF
No. 1.



                                             4
7104(b)(1) of title 41”—that is, the CDA—“including a dispute concerning termination
of a contract, rights in tangible or intangible property, compliance with cost accounting
standards, and other nonmonetary disputes on which a decision of the contracting officer
has been issued under section 6 of that Act.” Id. § 1491(a)(2).

       B.      The Contract Disputes Act

        The CDA covers all claims based upon “any express or implied contract . . . made
by an executive agency for—(1) the procurement of property, other than real property in
being; (2) the procurement of services; (3) the procurement of construction, alteration,
repair, or maintenance of real property; or (4) the disposal of personal property.” 41
U.S.C. § 7102(a) (2012). Under the CDA, “procurement” means “the acquisition by
purchase, lease or barter, of property or services for the direct benefit or use of the
Federal Government.” New Era Constr. v. United States, 890 F.2d 1152, 1157 (Fed. Cir.
1989) (quotation and emphasis omitted).

        The CDA sets forth its own jurisdictional requirements. See M. Maropakis
Carpentry, Inc. v. United States, 609 F.3d 1323, 1327–28 (Fed. Cir. 2010); Dalton v.
Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995) (“When the [CDA]
applies, it provides the exclusive mechanism for dispute resolution; [it] was not designed
to serve as an alternative administrative remedy, available at the contractor’s option.”). In
particular, the CDA states that a contractor may bring an action de novo in federal court
“within 12 months from the date of receipt of a contracting officer’s decision.” 41 U.S.C.
§ 7104(b)(3)–(4). Thus, for the Court of Federal Claims to possess jurisdiction, the
contractor must first submit a valid claim to the contracting officer and receive the
contracting officer’s final decision on that claim.3 M. Maropakis Carpentry, 609 F.3d at
1327–28.

        The definition of “claim” for purposes of the CDA derives from the FAR, which
implements the CDA. See id. at 1327. And FAR 2.101 provides, in pertinent part, that the
term “claim” means “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.” Id.; see also FAR 52.233-1 (setting forth, in a standard contract clause, the
same definition of “claim”).

        In interpreting the CDA, the Federal Circuit has explained that “a valid claim
under the CDA must contain ‘a clear and unequivocal statement that gives the contracting
officer adequate notice of the basis and amount of the claim,’” but that it “need not take
any particular form or use any particular wording.” Northrop Grumman Computing Sys.,
Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (quoting Contract Cleaning
Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)); see also Reflectone,
Inc. v. Dalton, 60 F.3d 1572, 1575–76 (Fed. Cir. 1995). Instead, “[a]ll that is required is

3
 If the CO does not respond to the claim, it is deemed denied sixty days after submission.
See 41 U.S.C. § 7103(f)(1)–(2), (5).



                                              5
that the contractor submit in writing to the contracting officer a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and amount of the
claim.” Northrop Grumman Computing Sys., 709 F.3d at 1112 (quoting Contract
Cleaning Maint., 811 F.2d at 592).

         Further, “[b]esides meeting the FAR definition of a claim, the CDA also requires
that all claims be submitted to the contracting officer for a decision.” James M. Ellett
Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996); see also M. Maropakis
Carpentry, 609 F.3d at 1327–28. The contractor is not required to make a single, “explicit
request for a final decision.” James M. Ellett Constr., 93 F.3d at 1543. Rather, “as long as
what the contractor desires by its submissions is a final decision, that prong of the CDA
claim test is met.” Id. (quoting Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works
v. United States, 973 F.2d 1572, 1576 (Fed. Cir. 1992), overruled on other grounds by
Reflectone, Inc., 60 F.3d at 1582–83).

III.   Application to This Case

        The Court concludes that Vanquish has not met the CDA’s jurisdictional
requirements. It so concludes because the correspondence between Vanquish and the
agency, read as a whole, reflects a continuing dialogue about Vanquish’s performance
rating that never ripened into a request for a final decision.

         Thus, Vanquish responded to the agency’s proposed (draft) evaluation by entering
detailed comments into CPARS. A few weeks later, while the review process was
ongoing, Mr. Lucy sent a March 16, 2016 email to agency counsel (with a copy to the
CO) which included an extended discussion of the government’s demands for
reprocurement costs, and also referred in passing to Vanquish’s belief that its CPARS
rating was “unjustified” and that it “should be rescinded.” See Pl.’s Mot. Ex. C at 5. Next,
on March 22, 2016, the day after the reviewing official finalized the ratings, Mr. Lucy
sent the agency’s counsel an email that was focused on what he called a “rush to
judgment,” which he claimed had denied Vanquish a fair opportunity to provide input
into its rating. See id. at 3. In that email, Mr. Lucy asserted that the reviewing official had
based his decision on a rationale that was different from the one that had been the basis of
the proposed rating. Id. (observing that that “the underlying rationale for the poor CPARS
rating, i.e., missing shipments, is no longer valid, forcing the reviewing official to come
up with a whole new rationale, i.e, [sic] Vanquish did not try hard enough to recover the
shipments”). He argued that “[t]his should have triggered an additional opportunity for
Vanquish to respond to the CPARS evaluation, but none has been offered.” Id.

        When raising these concerns about the fairness of the process in his March 22,
2016 email, however, Mr. Lucy did not demand that the marginal rating be permanently
withdrawn. Instead, he “reiterate[d] [Vanquish’s] request to review the documents and
investigation surrounding the mysterious recovery of the 12 shipments, so that it can
submit its response to the new information considered by the reviewing official, Lt Col
Moffitt.” Id. He then requested only a temporary reprieve while an “additional review
process is underway,” stating that “the CPARS review and rating should be rescinded or
suspended until Vanquish’[s] supplemental response can be considered.” See id.


                                              6
       In short, Mr. Lucy’s emails did not reflect that Vanquish was requesting a final
decision from the CO or that it was demanding a permanent withdrawal of the
performance rating. Instead, the emails appeared to be focused on flaws in the process,
with the purpose of giving Vanquish another opportunity to review additional material
and make additional comments that it hoped would change the rating decision. The
agency therefore would not have had notice, based on Mr. Lucy’s emails, that Vanquish
was asserting an entitlement to the permanent withdrawal of the rating as a matter of
right.

         Vanquish’s reliance on this Court’s decision in Federal Contracting, Inc. v. United
States (FCI), 128 Fed. Cl. 788 (2016) for a contrary conclusion is misplaced. In that case,
the contractor sent multiple letters to the CO after it received its interim rating, one of
which “formally request[ed]” the withdrawal of the performance assessment. Id. at 791
(alteration in original). Unlike Mr. Lucy’s email, which clearly contemplated further
dialogue between Vanquish and the agency, the letters in FCI were unequivocal and
presented a demand for relief as a matter of right. See id. at 797. Indeed, the agency so
read them, and notified the contractor in a show cause order that its requests were denied,
after which it formally entered a final rating into CPARS a week later. See id. at 791–92.
On the particular facts of FCI, requiring the contractor to make another demand for relief
after the agency formally designated the performance rating “final” would have been a
redundancy.

                                     CONCLUSION

        For the reasons discussed above, the Court concludes that Vanquish did not
submit a valid claim to the CO for a final decision as required by the CDA. The Court
therefore lacks jurisdiction over Vanquish’s claim. Accordingly, the government’s
motion to dismiss is GRANTED, and Vanquish’s complaint is DISMISSED without
prejudice. The Clerk is directed to enter judgment accordingly. Each side shall bear its
own costs.

       IT IS SO ORDERED.



                                                     s/ Elaine D. Kaplan
                                                     ELAINE D. KAPLAN
                                                     Judge




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