  United States Court of Appeals
      for the Federal Circuit
               __________________________

     BOWERS INVESTMENT COMPANY, LLC,
              Plaintiff-Appellant,

                            v.
                   UNITED STATES,
                   Defendant-Appellee.
               __________________________

                       2011-5102
               __________________________

    Appeal from the United States Court of Federal Claims
in No. 10-CV-677, Chief Judge Emily C. Hewitt.
              ___________________________

                Decided: October 15, 2012
              ___________________________

   MICHAEL C. KRAMER, Borgeson & Kramer, P.C., of Fair-
banks, Alaska, for plaintiff-appellant.

     DANIEL B. VOLK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, of Washington, DC, for defendant-appellee. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KIRK T. MANHARDT,
Assistant Director.
                __________________________
BOWERS INVESTMENT   v. US                                 2


  Before NEWMAN, LOURIE, and PROST, Circuit Judges.
NEWMAN, Circuit Judge.

    Plaintiff Bowers Investment Company, LLC (“Bowers”)
appeals the dismissal by the United States Court of Federal
Claims of Bowers’ claim against the Federal Aviation Ad-
ministration (FAA) for nonpayment and underpayment of
rent.1 We affirm the ruling that these claims are precluded
by Bowers’ prior claim, which was appealed to and finally
decided by the Civilian Board of Contract Appeals (CBCA).
The present claims are based on the same transactional
facts, and could have been and should have been raised and
resolved in the prior proceeding.

                       BACKGROUND

    On October 1, 1993, Bowers and the FAA entered into a
Lease agreement for certain office and warehouse space in
South Fairbanks, Alaska. The FAA agreed to make monthly
rental payments beginning in January 1994, at a monthly
rent starting at $19,509.60 and payable each month “in
arrears.” Payment was “due on the first workday of each
month.” The parties agreed that Bowers would make vari-
ous initial build-outs. The Lease was renewable annually at
the FAA's option, and the parties modified the Lease eight
times until the termination date of September 30, 2006.

    On February 25, 2008, Bowers filed a claim totaling
$82,203.72 with the contracting officer. See 41 U.S.C. §
7103(a)(1) (“Each claim by a contractor against the Federal
Government relating to a contract shall be submitted to the
contracting officer for a decision.”). Bowers asserted enti-


   1   Bowers Inv. Co., LLC v. United States, 2011 U.S.
Claims LEXIS 657 (Fed. Cl. Apr. 22, 2011).
3                                  BOWERS INVESTMENT     v. US


tlement to compensation for the final month’s rent, and
other claims relating to damage to the property.

    With respect to the claim for the final month’s rent,
Bowers stated that because the contract provided for pay-
ment “in arrears,” the FAA's payment made on September
13, 2006 was for the August 2006 rent; thus Bowers stated
that the FAA did not pay the rent for September 2006. The
government responded that despite the contract payment
terms it was not paying the rent in arrears, but in advance.
The contracting officer agreed, and denied Bowers’ claim for
the September 2006 rent. The officer allowed other minor
claims, not here at issue.

     Bowers appealed to the CBCA, pursuant to 41 U.S.C. §
7104(a) (“A contractor, within 90 days from the date of
receipt of a contracting officer's decision . . . , may appeal
the decision to an agency board . . . .”). During the CBCA
proceedings, the FAA produced records of its historical
payments to Bowers. These records show monthly rental
payments starting with a payment made on May 2, 1994.
The records also show total payments of several hundred
thousand dollars during the first three months of 1994,
described by Bowers as for the agreed build-outs, but not
specified further in the record. The FAA records do not
show specific rental payments for January, February, and
March 1994. Bowers then argued to the CBCA that the rent
for the first three months of the leasehold was not paid, and
sought to amend his claim to request payment of the rent
for these three months. The CBCA denied the request,
stating: “For us to agree with Bowers’ argument would
require our acceptance of a scenario under which one or
more of the first three payments commencing January 1994
were not made and Bowers did not complain in writing or
otherwise regarding the FAA error.” Bowers Inv. Co. v.
Dep't of Transp., CBCA 1196, 09-2 BCA ¶ 34,238. Bowers
BOWERS INVESTMENT    v. US                                   4


signed a certificate of finality, stating that it accepted the
award from the CBCA as full and final satisfaction of its
case.

     On November 25, 2009 Bowers submitted to the con-
tracting officer two claims for rent under the Lease. The
first claim was for $56,640.78 (plus interest) for the assert-
edly unpaid rent for January, February, and March of 1994.
 The second claim stated that “the FAA has underpaid its
rental obligation by $664 every month from October 1, 1998
to October 1, 2006,” for a total of $64,408.00 (plus interest).
On January 27, 2010 these claims were denied by the con-
tracting officer. Bowers appealed to the Court of Federal
Claims.

     The government moved to dismiss under Rule 12(b)(1) of
the United States Court of Federal Claims, arguing that
Bowers had already proceeded in the CBCA with respect to
rents due under the Lease, and had received a decision from
which no appeal was taken. The government also moved to
dismiss under Rule 12(b)(6), arguing that Bowers could
have brought its rent underpayment claim when it brought
its nonpayment claim, and failed to do so. The government
asserted claim preclusion, res judicata, and lack of jurisdic-
tion.

     The Court of Federal Claims held that it had jurisdic-
tion, but that Bowers’ claims were precluded. Bowers
sought to excuse its failure to bring all its claims to the
CBCA, stating that it “did not notice the non-payment [of
rent for January, February, and March of 1994] before
because there was a significant amount of money being paid
to Bowers around this time by the FAA as a result of the
initial build-out called for under the lease.” The court was
skeptical of Bowers’ assertion that Bowers was unaware
that it had not received the three missing rent payments,
5                                   BOWERS INVESTMENT     v. US


and was not aware of the now-asserted miscalculation that
produced years of rental underpayments, until the FAA
provided its payment records in the CBCA proceeding. The
court observed that Bowers was a commercial entity,
“should have kept records of rental payments”, and “should
have known of the facts giving rise to its present [nonpay-
ment and underpayment] claims” prior to its appeal to the
CBCA. The court held that the CBCA’s final decision pre-
cluded litigation of these claims in the Court of Federal
Claims. This appeal followed.

                         DISCUSSION

     Claims arising from a contract with the federal govern-
ment must first be submitted to the contracting officer, 41
U.S.C. § 7103(a)(1), and the contracting officer's decision
may be appealed to either the appropriate board of contract
appeals or the Court of Federal Claims, at the contractor’s
election. 41 U.S.C. § 7104(a)-(b)(1); see Nat’l Neighbors, Inc.
v. United States, 839 F.2d 1539, 1542 (Fed. Cir. 1988)
(“Once a contractor makes a binding election under the
Election Doctrine to appeal the contracting officer's adverse
decision to the appropriate board of contract appeals, that
election must stand and the contractor can no longer pursue
its claim in the alternate forum.”).

    Bowers states that its claim in the Court of Federal
Claims is a different claim from that decided by the CBCA,
and thus is not limited by the Election Doctrine. The Court
of Federal Claims agreed with Bowers that the claims were
distinct to the extent that the Election Doctrine did not
deprive the court of jurisdiction, and declined to dismiss
under Rule 12(b)(1). The court held that the claims that
Bowers filed in 2008 and appealed to the CBCA were “sepa-
rate and distinct,” for purposes of the Election Doctrine,
from those filed in 2009 and appealed to the court. The
BOWERS INVESTMENT    v. US                                   6


court premised this distinction on the fact that the claim for
the final rental payment of September 2006 was the only
rental claim that had been presented to the contracting
officer in 2008, while the 2009 claim was for other under-
payments or nonpayments of rent.

     The court granted the government’s motion to dismiss
under Rule 12(b)(6). “In ruling on a 12(b)(6) motion to
dismiss, the court must accept as true the complaint’s
undisputed factual allegations and should construe them in
a light most favorable to the plaintiff.” Cambridge v. United
States, 558 F.3d 1331, 1335 (Fed. Cir. 2009). The Court of
Federal Claims held that the current rental claims could
have been and should have been brought in the prior action.
 The court held that the current rental claims all “arise from
the same set of transactional facts” as the claims previously
before the CBCA, and that the claims are now precluded.

     Bowers agrees that it requested the Lease payments for
January, February, and March 1994 from the CBCA in the
2008 action, but contends that the CBCA “chose not to
address that issue.” That is inaccurate, for the CBCA
received this argument but did not grant the requested
payments, expressing doubt that Bowers would have re-
mained silent if the FAA actually failed to pay three
months’ rent. Bowers explained to the Court of Federal
Claims that it had not raised this question in its first sub-
mission to the contracting officer because Bowers was
unaware of the nonpayment and underpayments until the
FAA produced its payment history in the CBCA. The Court
of Federal Claims again expressed skepticism that Bowers
had been unaware that it was not receiving rental payments
for the first three months of the Lease, and not receiving the
agreed rent over the entire lease term. We do not discern
clear error in the court’s findings, and in its ruling that the
7                                  BOWERS INVESTMENT     v. US


claims for rent were precluded by the final decision of the
CBCA.

    Claim preclusion requires (1) an identity of parties or
their privies, (2) a final judgment on the merits of the first
suit, and (3) the later claim to be based on the same set of
transactional facts as the first claim such that the later
claim should have been litigated in the prior case. Ammex,
Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003).
Cases that meet these criteria preclude later litigation of
issues that could have and should have reasonably been
brought in the earlier case. Nevada v. United States, 463
U.S. 110 (1983). In essence, the preclusion doctrine oper-
ates to give a party one, and only one, full and fair opportu-
nity to litigate its matter. Taylor v. Sturgell, 553 U.S. 880,
892 (2008). We review without deference the decision that
claim preclusion applies. Acumed LLC v. Stryker Corp., 525
F.3d 1319, 1323 (Fed. Cir. 2008) ("Whether a claim is barred
by claim preclusion is a question of law that appellate courts
review de novo.").

    Courts decide whether two claims involve the same
transactional facts “pragmatically, giving weight to such
considerations as whether the facts are related in time,
space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms
to the parties’ expectations or business understanding or
usage.” Phillips/May Corp. v. United States, 524 F.3d 1264,
1271 (Fed. Cir. 2008) (quoting Restatement (Second) of
Judgments §24(2) (1982)). In contract disputes, the rule has
been refined to create a presumption that all claims arising
from the same contract should be brought together.
“[C]laims arising out of the same contract” are presumed to
“constitute the same claim for res judicata purposes.” Id. at
1272. Here, the claims arise from the same contract, and
raise the same issue of payment of the rent provided in the
BOWERS INVESTMENT    v. US                                  8


Lease. Treatment of the claims for rent “as a unit conforms
to the parties’ expectations,” id. at 1271, and serves the aim
of relieving parties “of the cost and vexation of multiple
lawsuits,” Allen v. McCurry, 449 U.S. 90, 94 (1980).

    In sum, the Court of Federal Claims did not err in hold-
ing that it had jurisdiction of the subject matter, and cor-
rectly held that the claims now raised arose from the same
transactional facts and the same Lease contract, and could
have been and should have been raised in the prior proceed-
ing. We agree that Bowers’ claims for underpaid or unpaid
rent are precluded by the prior proceeding. The decision of
the Court of Federal Claims is affirmed.


                       AFFIRMED.
