___________________________________________________ DISMISSED FOR LACK OF JURISDICTION: March 18, 1994 ___________________________________________________ GSBCA 12719 WITHERINGTON CONSTRUCTION CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. J. Edward Witherington, President of Witherington Construction Corporation, Mobile, AL, appearing for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges BORWICK, DeGRAFF, and GOODMAN. DeGRAFF, Board Judge. We lack jurisdiction to consider this case because the contractor did not submit a written claim to the contracting officer for decision before it filed this appeal. Accordingly, the appeal is dismissed. Findings of Fact On June 15, 1992, the General Services Administration (GSA) and Witherington Construction Corporation (Witherington) entered into contract GS-07P-92-HUC-0016 for repairs and alterations to the federal building in San Antonio, Texas. Appeal File, Exhibits 1, 4. During the course of performance, some confusion developed concerning the installation of an automatic transfer switch, which is a component of the sprinkler system. Complaint 4-10; Answer 4-10. On September 24, 1993, Witherington orally stated that it wanted the contracting officer to issue a decision concerning the automatic transfer switch, even though Witherington had not "formally requested" a decision. Appeal File, Exhibit 25. Apparently in response to Witherington's September 24, 1993 oral request, on October 6, 1993, the contracting officer sent Witherington a letter which discusses whether the contract documents contain inconsistent requirements for the automatic transfer switch. The final paragraph of this letter advises Witherington that it can appeal the contracting officer's "final decision" either to the Board or to the Court of Federal Claims. Appeal File, Exhibit 31. Witherington filed this appeal on December 28, 1993. On February 7, 1994, Witherington advised the Board that it wished to proceed under Rules 13 and 14. Rule 13 provides a procedure for resolving cases when there is a monetary amount in dispute and that amount is $10,000 or less. Rule 14 provides a procedure for resolving cases when there is a monetary amount in dispute and that amount is $50,000 or less.[foot #] 1 The Board reviewed the appeal file in order to determine whether there is a monetary amount in dispute in this appeal and, if so, how much is at issue. We were unable to find a copy of a claim, either for money or for other contract relief, in the record. As a result, we issued an order on February 18, 1994, which directed the parties to provide a copy of Witherington's written claim. In our order, we explained that the existence of a written claim is very important because we lack jurisdiction to consider this case unless Witherington submitted a written claim to the contracting officer for a decision before filing this appeal. On March 10, 1994, GSA responded to our February 18, 1994 order. In its response, GSA states that no written claim has ever been submitted to the contracting officer. Government Response to Order on Proceedings 6, 7. On March 14, 1994, Witherington responded to our order. Witherington does not dispute GSA's statement and does not contend that it submitted a written claim to the contracting officer. Instead, Witherington asserts that it stated its claim during negotiations for a contract modification and that it "used the vehicle of the modification to submit its claim." Witherington's Reply to Answer at 2-3. Discussion We lack jurisdiction to consider this case because Witherington did not submit a written claim to the contracting officer for a decision before filing this appeal. 41 U.S.C. 605(a) (1988). The fact that the contracting officer mistakenly described her October 6, 1993 letter as a "final decision" and included appeal language in the letter does not provide us with jurisdiction. The contracting officer's letter does not constitute a decision and should not have included any appeal language, because the Contract Disputes Act permits her to issue a decision upon a contractor claim only after she receives a written claim. In the absence of a written claim, no "final ----------- FOOTNOTE BEGINS --------- [foot #] 1 The procedures are inconsistent and an appellant must elect one or the other. ----------- FOOTNOTE ENDS ----------- decision" is possible. Paragon Energy Corp. v. United States, 645 F.2d 966 (Ct. Cl. 1981). The fact that we must dismiss this appeal does not bar Witherington from pursuing a claim. Witherington may submit a claim to the contracting officer and, if the contracting officer issues a decision which does not satisfy Witherington, it can file an appeal from that decision. Decision This appeal is DISMISSED FOR LACK OF JURISDICTION. ________________________________ MARTHA H. DeGRAFF Board Judge We concur: _____________________________ _______________________________ ANTHONY S. BORWICK ALLAN H. GOODMAN Board Judge Board Judge