__________________________________________ MOTION TO DISMISS DENIED: October 17, 1997 __________________________________________ GSBCA 13931-TD AMERICAN TELEPHONE AND TELEGRAPH CORPORATION, Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. Carl J. Peckinpaugh and Eric J. Marcotte of Winston & Strawn, Washington, DC, counsel for Appellant. Donald M. Suica and Greg M. Weinman, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. NEILL, Board Judge. Respondent has moved that we dismiss for lack of jurisdiction Count III and portions of Counts I and II of appellant s complaint in this case. For the reasons stated herein, we deny the motion. Background The contract in relation to which this dispute arises is one awarded by the Department of the Treasury s Internal Revenue Service (IRS) to American Telephone and Telegraph Corporation (AT&T) on July 15, 1991. The contract is for information technology products and services and is popularly known as the "Treasury Multiuser Acquisition Contract" or "TMAC." On December 9, 1994, the parties executed a bilateral contract modification entitled "IRS Oracle Server Enterprise License." Shortly thereafter, the IRS issued a delivery order in the amount of $8,000,000 to activate the Enterprise License. The Enterprise License has since expired. In view of this expiration, the IRS now contends that, pursuant to applicable contract provisions, it is entitled to a credit of $4,995,906 from the contractor. Appellant does not contest IRS s right to a credit but argues only that the IRS calculation is incorrect and that the credit amounts to no more than $301,062. The contracting officer has issued a decision on the matter. AT&T has filed a timely notice of appeal and a complaint. The complaint contains three counts. Count I alleges that IRS, in calculating its claim, has misinterpreted and thus breached the contract. According to appellant, a proper reading of the contract should lead to a credit of $301,062. Count II of the complaint states that this alleged departure from contract language by IRS constitutes a constructive change. Count III, like Count I, likewise alleges breach. In this count, however, it is not the credit calculation which is said to constitute a breach but rather an allegedly incorrect methodology used by the Government in calculating the number of "concurrent users." This methodology is said to be contrary to the understanding reached by the parties in agreeing to the Enterprise License modification and to two other subsequent contract modifications. In this Count III, appellant contends that this alleged breach entitles AT&T to compensation. No specific amount is sought, however. In its motion to dismiss, IRS refines an argument already raised in its answer to AT&T's complaint. IRS contends that much of what is in the three counts of the complaint constitutes monetary claims that are being asserted for the first time before the Board. Because these claims have not been submitted previously to the contracting officer, IRS argues that we lack jurisdiction to hear them. Discussion The uncertified and previously unsubmitted monetary claim which IRS says it detects in the first two counts of appellant s complaint is an alleged claim for the difference between the credit of $4,995,906 which the Government seeks from AT&T and the credit of $301,062 which AT&T contends is the proper amount. This alleged contractor claim for the difference of $4,694,844 is seen as based on either a theory of breach (Count I) or on a theory of recovery under the contract s Changes clause (Count II). As to Count III, IRS contends that the allegation of breach regarding the methodology for counting concurrent users "is not even remotely related to the credit calculation, the subject of the final decision, and the AT&T appeal." Furthermore, it notes the absence of any specific quantification or certification of the compensable damages said to flow from this alleged second breach. Respondent's Motion to Dismiss at 11. Based on our reading of appellant s original complaint and its opposition to IRS s motion (which has served to clarify its pleading much as a more definite statement would have), we believe IRS has read more into the complaint than is actually there or was intended. It is clear from the complaint and answer filed by the parties that there is a genuine dispute regarding how the credit in question should be calculated and what part the counting of concurrent users plays in this calculation. These are the basic issues upon which the parties and the Board must focus in their efforts to resolve this dispute. A record well developed on these issues should prove useful. We have no wish to restrict appellant's arguments on them -- even if IRS is of the opinion that some are irrelevant. It is indeed true that, in its complaint, AT&T has spoken of breach, change, and compensable breach in its three respective counts and that this terminology might be suggestive of a monetary claim. Nevertheless, appellant has now specifically asserted in its opposition to respondent s motion that it considers that this case "concerns adjudication of a government claim." Appellant s Opposition to Respondent's Motion to Dismiss at 13. AT&T characterizes its challenge to the Government's claim as one "based upon the defense that IRS has not properly calculated the number of licenses that must be used in the credit analysis." Id. Appellant assures us: This argument is directly in response to and in defense of the government claim and is not a separate affirmative claim by appellant. . . . . Appellant s claim does not seek affirmative damages. Rather it seeks to defend against the Government s claim against it. Id. at 13-15. Given these clarifications offered by AT&T, we see no need or justification for granting the IRS motion. We view the defense presented in the complaint not as an affirmative claim for damages but as nothing more than the appellant s position in opposition to the IRS claim. Furthermore, our appellate authority has expressly held that under the Contract Disputes Act, a contractor may appeal a government claim to the appropriate Board of Contract Appeal "without having to submit a monetary claim of its own to the C[ontracting] O[fficer]. 41 U.S.C.  605(a), 607(d)." Malone v. United States, 849 F.2d 1441, 1443 (Fed. Cir. 1988). We conclude, based on appellant's submitted comments, that this is precisely what AT&T purports to do in the instant case. IRS misperceives its burden when it asserts a Government claim. It is incumbent on IRS to establish that it is entitled to each dollar of credit it seeks. As is obvious from the three counts of appellant's complaint, this dispute focuses upon the calculations and methodologies to be used under the contract. The contractor has indicated its interpretation of the applicable contract provisions through its calculation of a credit of $301,062. Appellant assures us that the three counts of its complaint do not assert separate contractor claims, but rather serve to highlight the differences in approach and interpretation. Complaints of this nature help to foster an expeditious resolution of the dispute better than a complaint which simply asserts that the Government is not entitled to the credit it seeks. Decision Respondent's motion to dismiss portions of appellant's complaint is DENIED. _____________________ EDWIN B. NEILL Board Judge We concur: _____________________ ______________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge