__________________________________________________ DISMISSED FOR LACK OF JURISDICTION: July 30, 1993 __________________________________________________ GSBCA 11068 MAULDIN DORFMEIER CONSTRUCTION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Patrick Mauldin, President, and Kim N. Bethell, Project Manager, of Mauldin Dorfmeier Construction, Inc., Fresno, CA, appearing for Appellant. Thomas Y. Hawkins, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. Before Board Judges PARKER, NEILL, and DeGRAFF. DeGRAFF, Board Judge. Appellant, Mauldin Dorfmeier Construction, Inc. (MDC), entered into a contract with the General Services Administration (GSA) to renovate a building. In this appeal, MDC seeks to recover approximately $130,000, based upon GSA's refusal to reimburse MDC for payments that it made to a consultant during the course of contract administration. Because MDC never submitted a claim to the contracting officer, we dismiss the appeal for lack of jurisdiction. Findings of Fact On September 27, 1989, GSA awarded a contract to MDC for the renovation of court facilities in the B.F. Sisk Federal Building and Courthouse in Fresno, California. Appeal File, Exhibits 1, 2. On May 16, 1990, MDC wrote a letter to GSA and explained that MDC had hired Special Systems to Protect the Economy of Contractors, Inc. (SSPEC) in order to minimize or eliminate disputes and claims. MDC described SSPEC as "contracting dispute avoidance and resolution experts." Concerning SSPEC's authority, MDC's letter advises, "SSPEC is authorized to speak for MDC in all matters except price adjustments." MDC's letter also states, "SSPEC fees are compensable under FAR." Id., Exhibit 8. On September 19, 1990, MDC wrote a letter to GSA's Construction Engineer that states, "We have previously stated that the services of SSPEC So Cal are compensable under the FAR's [sic]. Please find the attached invoices and back-up documentation, and issue a change order for $17,011.00 to reimburse Mauldin-Dorfmeier for services provided through August 1990."[foot #] 1 Appeal File, Exhibit 15. Apparently, GSA received this letter on September 26, 1990. Id., Exhibit 20. In a letter to GSA dated October 9, 1990, MDC states that there appears to be "some confusion" concerning MDC's relationship with SSPEC. In the letter, MDC explains that an employee of SSPEC "is authorized to speak for Mauldin-Dorfmeier Construction, Inc., on all issues except change order pricing. It is our intent to use [the SSPEC employee's] services to avoid disputes with the government, as this is his area of expertise." Letter from MDC to the Board (May 24, 1993), Attachment. On November 6, 1990, SSPEC wrote to the contracting officer concerning the invoices that MDC sent to GSA's construction engineer on September 19, 1990. In its letter, SSPEC asserts that GSA had not responded to MDC within a reasonable time. SSPEC states, "This is a formal request for COFD [Contracting Officer's Final Decision] on this dispute." Appeal File, Exhibit 20. There is no evidence before the Board to suggest that a dispute existed between the parties on September 19, 1990, when MDC submitted its SSPEC invoices to GSA for payment. Similarly, there is no evidence before the Board to suggest that a dispute existed on November 6, 1990, when SSPEC sent its letter to GSA. In a June 17, 1993 letter to the Board, MDC states that no dispute existed between the parties on September 19, 1990, and alleges that a dispute arose at some unspecified time after that date. There is no evidence in the record that the parties exchanged any correspondence, held any meetings, or conducted any discussions concerning MDC's request for payment between September 19, 1990, and November 6, 1990. MDC states that it never received a response to its September 19, 1990 letter to GSA. Appeal File, Exhibit 36. GSA suggests that MDC could have ----------- FOOTNOTE BEGINS --------- [foot #] 1 On April 11, 1991, MDC notified the Board that it wished to revise its request for damages from $17,011 to $61,684. On May 24, 1993, MDC notified the Board that it wished to revise its request for damages from $61,684 to $130,364.58. ----------- FOOTNOTE ENDS ----------- "inferred" from GSA's silence that GSA did not intend to pay MDC. GSA Response to Order on Proceedings, June 22, 1993. On January 22, 1991, MDC filed this appeal with the Board. On June 27, 1991, GSA filed a motion to dismiss for failure to state a claim or, in the alternative a motion for summary judgment. MDC filed a response to GSA's motion on July 16, 1991, and supplemented that response on February 9, 1993. On May 21, 1993, the Board issued an order on proceedings that advises the parties that, upon reviewing the appeal file and the documentation provided by the parties during the course of this appeal, we are not certain that we possess jurisdiction to entertain this case. We directed the parties to clarify the jurisdictional facts by providing information concerning whether MDC ever submitted a claim to the contracting officer. In a series of submissions, the parties provided the Board with responses to the Board's May 21, 1993 order.[foot #] 2 Discussion In order for the Board to possess jurisdiction to consider this appeal, the Contract Disputes Act of 1978 provides that MDC must have submitted a claim to the contracting officer. 41 U.S.C. 605 (1988). The Disputes clause of the parties' contract provides that a "claim" is a written demand by one of the contracting parties seeking the payment of money in a sum certain. The clause also provides that a request for payment which is not in dispute when submitted is not a claim. Appeal File, Exhibit 1. MDC's September 19, 1990 letter to GSA requests that GSA issue a change order and adjust the contract price by $17,011 in order to reimburse MDC for payment of SSPEC's fee. Although this letter constitutes a written demand by a contracting party seeking the payment of money in a sum certain, no dispute existed concerning the payment of SSPEC's fees at the time this letter was sent. Because the parties were not in dispute when MDC sent its September 19, 1990 letter to GSA, the letter does not constitute a claim. Dawco Construction Co. v. United States, 930 F.2d 872 (Fed. Cir. 1991). The Disputes clause of the parties' contract provides that a request for payment which is not in dispute when submitted may be converted into a claim if a dispute develops concerning the request and if the submission requirements of the Disputes clause are then met. Appeal File, Exhibit 1. Based upon this provision, MDC's September 19, 1990 request for payment could ----------- FOOTNOTE BEGINS --------- [foot #] 2 GSA has not filed a motion to dismiss this appeal for lack of jurisdiction. Even so, we are obligated to consider our jurisdiction and to dismiss this appeal if jurisdiction is lacking. ----------- FOOTNOTE ENDS ----------- have been converted to a claim by SSPEC's November 6, 1990 letter, if a dispute existed by November 6, 1990, and if SSPEC's letter meets the submission requirements of the Disputes clause. After examining all of the evidence, we conclude that no dispute had developed by November 6, 1990. The fact that GSA did not respond to MDC's September 19, 1990 letter does not establish whether GSA intended to pay SSPEC's fee, deny MDC's request for payment, or request additional information concerning MDC's request. Silence does not necessarily establish the existence of a dispute. Because no dispute existed on November 6, 1990, SSPEC's letter does not convert MDC's September 19, 1990 letter into a claim. The Disputes clause provides one other means by which MDC's September 19, 1990 request for payment could have been converted into a claim by SSPEC's November 6, 1990 letter: If GSA did not take any action concerning the request within a "reasonable time" and if the submission requirements of the Disputes clause were then met, the request would have been converted into a claim. Appeal File, Exhibit 1. Here, forty-one days passed between the date that GSA received MDC's request for payment and the date that SSPEC sent its letter to GSA. Although the contract does not define "reasonable time," the Contract Disputes Act provides that a contracting officer is entitled to sixty days to consider a claim of $50,000 or less. 41 U.S.C. 605. This provision serves as a guideline for deciding whether a contracting officer acts within a reasonable time in responding to a request for payment which does not constitute a claim. Olympic Industries, Inc., NASA BCA 66-0292, 92-2 BCA 24,901. Because the contracting officer would have been entitled to sixty days to consider a claim, and because a claim could have been submitted only after the parties had engaged in discussions and reached an impasse, it is reasonable to expect that the contracting officer would have needed at least sixty days to consider MDC's request for payment, given that the parties had not engaged in any discussions concerning MDC's request, much less formulated their positions. The fact that GSA did not act upon MDC's request for payment within forty-one days does not establish that GSA failed to act within a reasonable time. Because no dispute existed and because GSA did not fail to act within a reasonable time, we do not need to decide whether SSPEC's November 6, 1990 letter fulfills the submission requirements of the Disputes clause. We note, however, that MDC withheld from SSPEC the authority to speak for MDC concerning price adjustments and change order pricing. Thus, it is possible that SSPEC lacked the authority to demand, on MDC's behalf, that GSA issue a change order and make an accompanying contract price adjustment, which is what MDC's September 19, 1990 letter requests. If SSPEC lacked the authority to speak on behalf of MDC with regard to such matters, then SSPEC's November 6, 1990 letter does not fulfill the submission requirements of the Disputes clause. In summary, we lack jurisdiction to consider this case unless MDC submitted a claim to the contracting officer for decision. MDC's September 19, 1990 letter to GSA does not constitute a claim because no dispute existed between the parties at the time the letter was sent. After a dispute developed or after GSA failed to act within a reasonable period of time, MDC could have converted its letter into a claim by fulfilling the submission requirements of the contract's Disputes clause. Decision Because appellant did not submit a claim to the contracting officer as required by the Contract Disputes Act of 1978, the appeal is DISMISSED FOR LACK OF JURISDICTION. _______________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ _______________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge