MOTION TO DISMISS DENIED; PETITION GRANTED: September 1, 1993 GSBCA 11896-TD LaSALLE BANK NORTHBROOK, Petitioner, v. DEPARTMENT OF THE TREASURY and GENERAL SERVICES ADMINISTRATION, Respondents. Julie Swanson of Altheimer & Gray, Chicago, IL, counsel for Petitioner. Christopher K. Bullard, Office of General Legal Services, Internal Revenue Service, Mid-Atlantic Region, Philadelphia, PA, counsel for Respondent Department of the Treasury. John E. Cornell, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent General Services Administration. Before Board Judges PARKER, BORWICK, and NEILL. NEILL, Board Judge. This petition was filed by LaSalle Bank Northbrook on June 19, 1992. The petition is a request for the Board to issue an order directing a contracting officer at the Department of the Treasury to render a decision on a termination for convenience settlement proposal which the petitioner submitted to the Department of the Treasury, Internal Revenue Service (IRS) in August 1990. The transaction in question is for the lease of Toshiba copiers. On June 25, 1992, the Board directed the IRS to issue a contracting officer's decision on the matter in question. On August 6, 1992, the IRS brought a motion asking the Board to dismiss this case. The principal argument raised by IRS in support of its motion to dismiss is that the contract, in relation to which this claim arises, was a general schedule contract awarded by the General Services Administration (GSA). Respondent IRS claims to have been nothing more than an ordering agency under that contract. IRS maintains that the termination for convenience which occurred was the result of directions received from GSA directing ordering officers to terminate for convenience certain purchase orders issued under the contract. The Board did not immediately rule on IRS' motion to dismiss. Based on representations made in that motion, however, it added GSA to these proceedings and requested GSA to issue a contracting officer's decision on the claim. GSA thereupon made a limited appearance for purposes of objecting to our jurisdiction. Counsel for GSA pointed out that no claim had been presented to the GSA contracting officer by the schedule contractor. Counsel for GSA did, however, take the useful and additional step of referring this matter to the GSA schedule contracting officer for review. This led to the issuance on September 18, 1992, of a letter from the contracting officer to counsel for the petitioner. In that letter, the contracting officer explains in detail why he has concluded that the purchase order which was terminated for convenience was not issued pursuant to a schedule contract but rather amounted to an open market order for which the IRS and not GSA is responsible. On November 20, 1992, the Board issued an order to IRS and petitioner to show cause why, in light of the GSA contracting officer's determination, IRS rather than GSA is the real party at interest in the transaction to which the current dispute relates. During the following month of December, both petitioner and IRS filed replies. This prompted further inquiry from the Board to which both parties have also replied. Based on the information provided thus far for the record, the Board concludes that the GSA is not a proper party to this proceeding and that the IRS is. Accordingly, the IRS motion to dismiss is denied and the petition is granted. Findings of Fact 1. The GSA Federal Supply Schedule (FSS) contract, number GS-OOF-03105, with Toshiba American, Inc. (TAI) is for a contract period of October 13, 1987 to September 30, 1990. An FSS contract price list issued by TAI specifies the products which were available to ordering agencies under that contract. IRS Reply of December 10, 1992, Exhibit 1. 2. This TAI schedule contract price list includes the following instructions on placing orders: All orders placed under this Contract must be issued to Toshiba America, Inc., Copier Products Division--Attn: GSA, 9740 Irvine, [sic] Blvd., Irvine, California 92718. To place an order through one of the TOSHIBA DEALERS Listed on pages 49-58 the order must be forwarded to TAI (address listed above) but issued to TAI, c/o dealer's name and address, so it can be properly filled [sic] and invoiced under this Contract. Orders placed directly with a dealer are OPEN MARKET and, as such, this contract Number MAY NOT be used. No deviation from the terms (pricing, discount, warranty, etc.) specified in this schedule is authorized. Any prices or terms other than as stated herein are Open Market and this Contract Number MAY NOT be used. All contract items will be supplied by Toshiba Copier Products Division. OPEN MARKET ORDERS MUST COMPLY WITH GSA PROCUREMENT REGULATIONS. IRS Reply of December 10, 1992, Exhibit 1 at 4. 3. The TAI schedule contract price list also contains the following provision regarding payment: Invoices will be submitted directly to all ordering agencies by TAI. All checks must be made payable to TAI and no other name shall appear for payment. Payment must be sent directly to TAI Copier Products Division, Attn. GSA, 9740 Irvine Blvd., Irvine, California 92718, or as indicated on the TAI invoice. IRS Reply of December 10, 1992, Exhibit 1 at 4. 4. One of the dealers listed in TAI's schedule contract price list was: Executive Copy, Inc., P.O. Box 2380, One Allison Drive, Cherry Hill, NJ, 08034. IRS Reply of December 10, 1992, Exhibit 1 at 55. 5. On October 18, 1988, the IRS issued purchase order MA-89-0339-V. IRS Reply of December 10, 1992, Exhibit 2. The purchase order referenced contract number GS-OOF-03105 and was signed by Ms. Gladys Wiggins. Id. The purchase order was for the lease of four copiers for a one-month period and the lease of eleven copiers for a twelve-month period. Id. These items are described under Special Item Numbers (SIN) 51-55 of the contract price list. See Id., Exhibit 1. The order was issued to: TOSHIBA AMERICAN INC. C/O EXECUTIVE COPY ATTN: S. MURPHY MARLKRESS RD & ALLISON DRIVE CHERRY HILL, NJ 08034 Id., Exhibit 2. 6. Counsel for IRS, in response to an express inquiry from the Board, states: There is no evidence in the agency's file to suggest that its personnel ever forwarded a copy of the purchase order to Toshiba America, Inc. in California. The agency has no evidence to suggest that Executive Copy did either. IRS Submission of June 9, 1993, at 2. 7. The record for this case contains a Fiscal Term Rental Agreement (FTRA) consisting of two parts. The first is a "Notice of Acceptance" signed by Ms. Cass Ryan, Facilities Manager for IRS' Philadelphia district office. The second part is a "Form GL51340." Both the first and second part of the FTRA show Executive Copy to be the "Vendor, Rentor [sic], Lessor or Supplier." IRS Reply of December 10, 1992, Exhibit 3. 8. The FTRA "Notice of Acceptance" is signed by Ms. Ryan but is undated. It references purchase order MA-89-0339-V (see Finding 5) and refers to that purchase order for a description of the equipment covered by the agreement. It states in part: As evidenced by this Notice of Acceptance, we acknowledge receipt, in good condition and satisfactory installation, of all the items as described in the above referenced Purchase Order or as described below and acknowledge the same to be in good working order and satisfactorily installed. We acknowledge and accept ther [sic] terms of form GL51340 (FISCAL TERM RENTAL AGREEMENT), and verify that "Vendor" has fully and satisfactorily performed each, every, and all covenants and conditions to be performed by it. IRS Reply of December 10, 1992, Exhibit 3. 9. The form GL51340 shows a signature by Ms. Ryan which is dated November 14, 1988. It likewise references purchase order MA-89-0339-V.[foot #] 1 It states in part: ----------- FOOTNOTE BEGINS --------- [foot #] 1 We note that it does, however, incorrectly state that the date of this purchase order is October 21, 1988, rather than October 18. ----------- FOOTNOTE ENDS ----------- This agreement is effective as of the earlier of the date of the above referenced Purchase Order, (hereinafter the "Purchase Order") or, the date of issuance by Customer of a Notice of Acceptance. The execution of said Purchase Order constitutes acceptance by Customer of all terms and conditions of this Agreement and the collateral agreements incorporated by reference herein. Acceptance of the Purchase Order by Vendor constitutes acceptance of the price and term of agreement provisions of the Purchase Order which are incorporated by reference herein, and no other terms and conditions of said Purchase Order shall apply. IRS Reply of December 10, 1992, Exhibit 3. The FTRA has an acceptance block bearing the signature of a David Fossler, Director of Government Accounts at Executive Copy, and dated November 14, 1988. Id. 10. Ms. Ryan, the IRS Facilities Manager, has subsequently stated in a recent memorandum to counsel that she signed the FTRA because the Government Account Representative for Executive Copy stated that the signed rental agreement would allow prompt delivery of the copiers to IRS. She also has stated in the same memorandum that she signed the form knowing that she was not a contracting officer and believing that the form was only to obtain delivery of the copiers. IRS Reply of December 10, 1992, Exhibit 11. 11. The GSA schedule contracting officer states that the terms set forth in the FTRA signed on November 14 by IRS and Executive Copy differ from schedule contract provisions. For example, the FTRA contains a liquidated damages clause which is not contained in the TAI contract price list. This clause states that: upon occurrence of any default . . . vendor is entitled to recover immediately as liquidated damages and not as a penalty any unpaid rent which accrued on or before the occurance [sic] of the default, plus an amount equal to the difference between the present value (as of the date of default) of the total rents due for the unexpired terms. Petitioner's Submission of October 2, Enclosure 2 at 3 (unnumbered). The GSA contracting officer writes: "No such agreement is present in the GSA contract." Contracting Officer's Determination of September 17, 1992, at 2. Furthermore, the FTRA has the following provision which effectively negates all different or conflicting provisions appearing in the TAI schedule contract: This Agreement and the collateral documents referred to herein set forth the entire Agreement and understanding of the parties in respect of the transactions contemplated hereby and relating to the subject matter hereof. No representation, promise, inducement or statement of intention has been made by Vendor which is not embodied in this Agreement or in the documents referred to herein and neither Vendor nor Customer shall be bound by or liable for any alleged representations, promise, inducement or statement of intention not so set forth. Petitioner's Submission of October 2, Enclosure 2 at 4 (unnumbered). 12. On November 18, 1988, shortly after the FTRA was executed, David Fossler, the Director of Special Programs at Executive Copy, wrote a letter to the IRS Facility Manager, Cass Ryan, stating that the letter was to recap a discussion regarding the new program for the copiers. Among other things, the letter stated that the purchase order should be amended to read "Issue To: Executive Copy for items #5 thru #15. Also add five year price protection per form GL51340." Petitioner's Submission of June 10, 1993, Exhibit A. 13. On November 23, 1988, Ms. Margaret Mannion, a contracting officer for the IRS, issued the first modification to purchase order MA-89-0339-V. This modification, which adds two Toshiba copiers, does not contain the changes requested by Executive Copy and described in the finding immediately above. Like the original purchase order, however, this modification references contract number GS-OOF-03105 and is issued to: TOSHIBA AMERICAN INC. C/O EXECUTIVE COPY ATTN: S. MURPHY MARLKRESS RD & ALLISON DRIVE CHERRY HILL, NJ 08034 IRS Reply of December 10, 1992, Exhibit 4. 14. Petitioner has submitted, for the record, a letter purportedly sent by Ms. Ryan at IRS to Executive Copy and dated November 29, 1988. The letter references purchase order MA-89-0339-V of contract number GS-OOF-03105. It states that section 7, which identifies the contractor, is amended to read "Executive Copy." Toshiba America is to be referenced "as the manufacture [sic] only." The letter further states that "[p]ayments are to made only to Executive Copy, Inc." Petitioner's Submission of June 10, 1993, Exhibit C. 15. Both IRS and petitioner have submitted documentation indicating that during the first half of December 1988, the agreement between Executive Copy and IRS was assigned, at least in part, to Great Lakes Financial Services and subsequently to LaSalle Bank Northbrook. The documentation is incomplete and leaves many questions unanswered. What is significant, however, for purposes of this decision, is that there is no mention of TAI as a party to the assigned contract in any of the material provided by the parties regarding these assignments. See Petitioner's Submission of June 10, 1993, Exhibit B; IRS Submission of June 9, 1993, Exhibits 2, 3. 16. A typewritten note on the final page of the copy of the original purchase order MA-89-0339-V in the possession of petitioner reads: "Items No 5 thru 15 will be invoiced by Executive Copy Inc." Unnumbered Enclosure in Petitioner's Initial Submission of June 11, 1992. IRS has submitted a letter from its files which was purportedly sent to IRS from Executive Copy. It is dated December 12, 1988. It advises IRS that the assignment to LaSalle Bank was a partial assignment of only items five to fifteen and entitles LaSalle to no more than $3,786 per month per system. All other amounts due are to be sent to Executive Copy. IRS Submission of June 9, 1993, Exhibit 2 at 2 (unnumbered). 17. Petitioner has provided examples of invoices covering some of the leased copiers. They appear to have been issued after the partial assignment and are issued by "Executive Copy, Inc. C/O LaSalle Bank Northbrook." Petitioner has also submitted copies of two U.S. Treasury checks payable to Executive Copy, C/O LaSalle Bank Northbrook. However, because the amounts shown on the checks do not correspond to the amounts shown on the invoices submitted, it is unclear whether they represent payment for use of the equipment said to have been leased to IRS in this case. Petitioner's Submission of June 10, 1993, Exhibit E. 18. Petitioner has also submitted for the record a letter purportedly sent by Ms. Ryan of IRS to Executive Copy and dated December 13, 1988. Possibly this letter was provided in conjunction with the assignments which were being carried out at the time. The letter states that Ms. Ryan "has the right to negotiate and enter into Fiscal Term Rental Agreements with [Executive Copy], and that Gladys Wiggins is authorized to sign Purchase Orders on behalf of the Internal Revenue Service." This letter, however, is not written on IRS stationery, but rather on a piece of paper bearing Executive Copy's name. Petitioner's Submission of June 10, 1993, Exhibit F. 19. In December 1988, Congress imposed trade restrictions which prohibited United States governmental agencies from procuring products or services from Toshiba Corporations. Executive Order 12661, dated December 27, 1988, specifically prohibited contracts between agencies of the United States and Toshiba Machine Company (and its subsidiaries) and Toshiba Corporation (but not its subsidiaries). In response, GSA's Office of Acquisition Policy directed that any contract with the sanctioned organizations that was awarded after June 30, 1987, must be canceled.[foot #] 2 IRS Reply of December 10, 1992, Exhibit 5. 20. On March 3, 1989, a GSA contracting officer unilaterally modified contract number GS-OOF-01305. IRS Reply of December 10, 1992, Exhibit 5 at 2 (unnumbered). The modification included a deletion of orders under SIN 51-55 which were the copier rental plans at issue. Id. at 3 (unnumbered). The effective date of the modification was thirty days from the date of issuance. Id. 21. On April 5, 1989, Ms. Gladys Wiggins, a contracting officer for the IRS, issued modification three to purchase order MA-89-0339-V. IRS Reply of December 10, 1992, Exhibit 6. This order was issued to the same address as shown on the original purchase order and modification one of that order.[foot #] 3 This third modification canceled the remaining copier rentals "due to cancellation of GSA contract." Id. A fourth purchase order modification, dated April 18, 1989, provided that the leased copiers were to be removed by April 17, 1989. Id., Exhibit 7. That modification of the purchase order also changed the "remit to" address to Executive Copy, c/o LaSalle Bank Northbrook. Id. 22. By letter dated August 13, 1990, counsel for petitioner submitted to IRS Procurement Officer, Ms. Gladys Wiggins, a termination settlement proposal in the amount of $245,851.26. The record also contains a letter dated October 22, 1990, transmitting a copy of the proposal to Ms. Cass Ryan at the IRS Consolidated Procurement Branch in Philadelphia. Correspondence submitted by petitioner indicates that during the course of 1991, inquiries were made by counsel for petitioner regarding the status of the proposal. A letter dated February 15, 1991, from counsel for petitioner to an IRS regional counsel mentions review of the proposal by the IRS Washington office. Unnumbered Enclosure in Petitioner's Initial Submission of June 11, 1992. 23. The chief of the small purchase section of the Philadelphia district of the IRS states in a declaration, which is neither sworn to nor provided under penalty of perjury, that ----------- FOOTNOTE BEGINS --------- [foot #] 2 The IRS alleges that GSA may have acted improperly in terminating the contract with Toshiba America, Inc. because Congress mandated sanctions against Toshiba Corporation, not against Toshiba America, Inc. IRS Reply of December 10, 1992, at 10. [foot #] 3 IRS counsel, in response to an inquiry from the Board, reports that the agency has no copy of modification 2 to purchase order MA-89-0339-V nor does it know whether there ever was one. He explains that there may have been an error in the numeration of the modifications. IRS Submission of June 9, 1993. ----------- FOOTNOTE ENDS ----------- in February 1991, she had a phone conversation with counsel for petitioner regarding a claim in the amount of $245,851.26, allegedly for wrongful cancellation of a purchase order issued under contract GS-OOF-03105. She further states that she forwarded copies of both the order and the modification canceling it to the GSA contracting officers responsible for the TAI schedule contract. They are said to have assured her "the IRS had acted exactly as GSA had advised," and that the IRS was "fully justified in canceling Toshiba America." This section chief states that she then passed this information on to counsel for petitioner. Shortly thereafter, she advised him that she was turning the matter over to the Office of General Legal Services. IRS Reply of December 10, 1992, Exhibit 10. 24. By letter dated June 11, 1992, counsel for petitioner requested this Board to direct the IRS contracting officer to render a decision on LaSalle's settlement proposal. Shortly thereafter, by letter dated June 30, 1992, counsel also provided the Board with a certification of its termination claim. The letter transmitting this certification to the Board shows a copy (with enclosures) was sent to IRS Procurement Officer, Gladys Wiggins, as well. Discussion The principal issue raised by this petition and IRS' motion to dismiss the case is whether we are dealing here with a transaction under TAI's schedule contract with GSA or with an open order transaction for which IRS would be responsible. A good deal of time has been spent developing the record on this issue. Upon review of the information and documentation submitted by the parties, we conclude that the transaction in question was not one which occurred under the TAI's schedule contract with GSA. We arrive at this conclusion first and foremost because the schedule contractor, TAI, is conspicuous by its absence from virtually all phases of the leasing transaction. The contract price list expressly requires that purchase orders -- even those to be ultimately filled by local dealers -- be sent to TAI's offices in Irvine, California. Users are advised that orders placed directly with a dealer will be considered open market orders and not orders issued under the schedule contract. Finding 2. In response to the Board's inquiry, IRS has been unable to demonstrate that purchase order MA-89-0339-V was ever placed with TAI's offices in Irvine. Finding 6. We also note that TAI does not appear to have been involved in the invoicing or payments made in conjunction with the lease of the Toshiba copiers. The schedule contract price list states that all invoicing shall be done by TAI and all payments will be made to TAI or as indicated by TAI on its invoice. Finding 3. By order dated May 4, 1993, the Board asked IRS to provide documentation regarding the entity actually invoicing and seeking payment for the use of the leased equipment. IRS initially indicated that the payment documentation was in storage but would be recalled. To date, however, no documentation has been provided by IRS indicating involvement of TAI in the invoice and payment process. Petitioner, on the other hand, has provided copies of invoices from Executive Copy C/O LaSalle Bank and copies of checks which possibly were sent in payment of invoices issued for use of the copiers leased to IRS. Finding 17. Although we find the Treasury checks inconclusive, the invoices are highly persuasive -- as is the notation on petitioner's copy of the original purchase order indicating Executive Copy would invoice for items "5 thru 15." Finding 16. In the absence of any evidence to the contrary, we conclude that TAI was simply not involved in the invoicing and payment process associated with the leasing of the Toshiba copiers. Our conclusion that the TAI schedule contract was not involved in the lease of the copiers, however, is based not only on the apparent absence of the schedule contractor from the leasing transaction but also on the conspicuous presence of Executive Copy as a would-be principal party to the leasing transaction. We have been provided with no evidence which convinces us that TAI either directly or indirectly through its agent accepted purchase order MA-89-0339-V. On the contrary, the record indicates that Executive Copy, TAI's "man" on location in Cherry Hill, effectively made off with what otherwise would have been TAI's business under the schedule contract. Executive Copy required the use of its own contract form, the FTRA. Findings 7, 8, 10, 12. This form substituted its terms and conditions for any other -- including, therefore, those of any general schedule contract. It likewise nullified all terms and conditions of the purchase order except those relating to the price and the term of the agreement. Findings 9, 11. Not only was Executive Copy insistent on itself being one of the two principal parties to the leasing transaction, it would appear that IRS' Facility Manager had no objection and was willing to modify the original purchase order to reflect this.[foot #] 4 See Findings 12, 14. Finally, documentation provided by IRS and the petitioner indicates that the contract which is said to have been entered into by IRS and Executive Copy was assigned to Great Lakes Financial Services of America and subsequently to LaSalle Bank. ----------- FOOTNOTE BEGINS --------- [foot #] 4 We draw no conclusion for purposes of this decision regarding the legal import of this letter or other documents allegedly signed by the IRS facility manager. We rely on this and similar documents solely to conclude that neither Executive Copy nor its customer contact considered that TAI had any interest whatsoever in the leasing transaction in question. ----------- FOOTNOTE ENDS ----------- Again, no mention is made of TAI in any of this documentation.[foot #] 5 We have no reason to doubt that the leasing agreement between IRS and Executive Copy was terminated because the IRS procurement official sincerely believed that it was a TAI schedule contract transaction. Furthermore, it may well be that the GSA schedule contracting officers, when consulted in 1991, reenforced this mistaken belief. See Findings 21, 23. Nevertheless, none of these individuals had the occasion to analyze the leasing transaction in the detail and to the degree which counsel and the Board have in this proceeding. Given the record, as developed for this proceeding, we are now convinced, for the reasons set out above, that the leasing of the Toshiba copiers by IRS was not a schedule contract transaction. The original purchase order certainly pointed in that direction. Some IRS procurement clerks may well have continued to operate on the assumption that the leasing was being done under the TAI contract. It is obvious, however, that the purchase order quickly became derailed and led not to a transaction under the schedule contract but to an arrangement involving only IRS and Executive Copy. Accordingly, we find IRS to be the real party in interest in this case. We, therefore, rescind our earlier action adding GSA to these proceedings. The motion previously brought by IRS to dismiss this case is denied.[foot #] 6 Before granting petitioner's request, however, there is the additional question of whether the matter concerning which petitioner seeks a contracting officer's decision is in fact a "claim" as that term is used in the Contract Disputes Act (CDA). It is well established that a dispute is a necessary prerequisite to a valid claim under the CDA. Dawco Construction, Inc. v. United States, 930 F.2d 872 (Fed. Cir. 1991). In ----------- FOOTNOTE BEGINS --------- [foot #] 5 The record for this proceeding does not provide us with sufficient information to determine whether these assignments have been carried out in accordance with applicable statute and regulation. Neither has that issue been put in controversy here by IRS. For purposes of this decision, therefore, we simply rely on the fact that there is no evidence that the schedule contractor, TAI, was actively involved in any way in either of the alleged assignments. [foot #] 6 An alternative argument raised by IRS for dismissal of this case is that petitioner's "appeal" has been "filed outside the 90 day limit prescribed by the Contract Disputes Act of 1978." Motion to Dismiss at 3. We reject this argument since this proceeding does not involve an appeal but rather a petition for a decision from which petitioner may or may not elect to appeal. ----------- FOOTNOTE ENDS ----------- particular, it has been recognized that this applies to termination for convenience settlement proposals, which generally are nothing more than an initial step for opening negotiations and do not normally, at that early juncture, represent a final demand for a contractor's final decision on what is proposed. Mayfair Construction Co. v. United States, 841 F.2d 1576 (Fed. Cir. 1988). This is not to say, however, that a settlement proposal cannot become a bona fide claim, as that term is used in the CDA, and become the basis of a dispute between the parties. To determine whether this has occurred, we must look to the facts of each case. In a section dealing expressly with disputes and appeals, the Federal Acquisition Regulation (FAR) provides a definition of "claim" for purposes of that section. It is said that any routine request for payment may be converted to a claim for dispute or appeal purposes by written notice to the contracting officer "if it is disputed either as to liability or amount or is not acted upon in a reasonable time." 48 CFR 33.201 (1992). We find that in this case, IRS' extraordinary delay in responding to petitioner's proposal is ample evidence that it has, by now, with the submission of the petition which is the subject of this proceeding, ripened into a claim for purposes of a dispute or appeal. See Findings 22-24. Where a disputed claim is for money, as in this case, the demand must also be for a sum certain. Essex Electro Engineers, Inc., v. United States, 960 F.2d 1576, 1581 (Fed. Cir. 1992). Petitioner's proposal requesting the specific amount of $245,851.26 satisfies this requirement.[foot #] 7 See Finding 22. In conclusion, we are convinced that petitioner's termination for convenience settlement proposal has become a bonafide claim, as that term is defined in the FAR section relating to disputes and appeals. For the reasons set out above, we are also of the opinion that this claim arises in relation to a transaction for which IRS and not GSA is accountable. Decision ----------- FOOTNOTE BEGINS --------- [foot #] 7 We recognize that until the recent amendment of the CDA, it would also be necessary for a claim of this magnitude to be certified before we could direct a contracting officer to render a decision on it. In this case, a certification has been provided. Finding 24. If its adequacy were to be successfully challenged, however, this would still not deprive us of jurisdiction over the claim. Defects in certification no longer deprive a board of contract appeals of jurisdiction over a claim provided the claim has not been the subject of an appeal prior to October 29, 1992. 41 U.S.C. 605(c) (1988), amended by Federal __________ Courts Administration Act of 1992, Pub. L. No. 102-572, 907, 106 Stat. 4518-19 (1992). ----------- FOOTNOTE ENDS ----------- IRS' motion to dismiss is DENIED. The petition of LaSalle Bank Northbrook asking that we direct the IRS contracting officer to issue a decision on LaSalle's claim for termination for convenience costs is GRANTED. It is ORDERED that an IRS contracting officer issue a decision on the claim by September 30, 1993. A failure to issue this decision within the period herein prescribed will be deemed to be a decision denying the claim, and will authorize the commencement of an appeal before this Board or a suit on the claim before the United States Court of Federal Claims pursuant to the Contract Disputes Act, 41 U.S.C. 605(c)(5), 606, or 609, as appropriate. _________________________ EDWIN B. NEILL Board Judge We concur: ________________________ _________________________ ROBERT W. PARKER ANTHONY S. BORWICK Board Judge Board Judge