______________________________________ MOTION TO DISMISS DENIED: September 16, 1997 ______________________________________ GSBCA 14263 SPRINT COMMUNICATIONS COMPANY, L.P., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Anthony L. Cogswell of Sprint Communications Company, L.P., Herndon, VA, counsel for Appellant. Michael J. Noble, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and NEILL. NEILL, Board Judge. The General Services Administration (GSA) moves to dismiss this case for lack of jurisdiction. GSA contends that to date there has been no claim nor contracting officer's decision. For reasons set out below, we deny the motion. Background The dispute which is the subject of this appeal arose under a contract awarded by GSA to Sprint Communications Company, L.P. (Sprint) in December 1988. This contract, popularly referred to as the "FTS2000 contract," requires Sprint to provide telecommunication services to Government agencies and other authorized users. In issue here is the Government's withholding of $40,946.99 for which Sprint has submitted invoices. In a letter dated February 6, 1997, to the contracting officer, Sprint's senior contract administrator demanded full payment of approximately $100,000 in unpaid invoices. Among these invoices were those which are the subject of this dispute. The letter refers to an ongoing dispute but contends that there is no basis for it since Sprint complied with contract requirements and submitted proper invoices, and the Government used the service in question. The letter concludes with the following statement: If the government chooses to ignore this request, Sprint will file a claim with the Contracting Officer requesting full payment plus interest. By letter dated April 28, 1997, the contracting officer replied to Sprint's demand. His reply notes first that a substantial number of the invoices of concern to Sprint in its letter of February 6 had, by then, been paid. Still open, however, were invoices for a remaining $40,946.99. These, explained the contracting officer, were not paid because either no notice of service acceptance (NOSA) had been received or the charges in question were billed prior to the receipt of the NOSA. (A copy of the contract has not yet been provided for the record; however, we assume that the submission of a NOSA is a necessary prerequisite to the Government being obliged under the contract to pay for the service in question.) In apparent response to the comment made at the conclusion of Sprint's letter of February 6, concerning a claim for "full payment plus interest," the contracting officer's reply also advised Sprint that a claim by the contractor should be made in writing and submitted to the contracting officer for a written decision. By letter dated July 21, 1997, Sprint filed with this Board a notice of appeal from what it termed to be the contracting officer's final decision to withhold $40,946.99, as evidenced in the contracting officer's letter of April 28. The Board, noting the wording of the contracting officer's letter, particularly the comments made regarding the filing of a claim, issued an order on July 29 inviting counsel to comment on whether that letter could be considered a contracting officer's decision and whether the correspondence from Sprint to which it purports to be a reply constituted a claim. The Government's reply was in the form of a motion to dismiss. It is this motion which we consider here. Appellant's reply was filed shortly thereafter in the form of an opposition to GSA's motion to dismiss. Discussion The response provided by appellant to the Board's original inquiry and the Government's subsequent motion to dismiss is that this appeal does not concern the claim which Sprint in its letter of February 6 threatened to file, namely, a contractor claim for the amounts due on all unpaid invoices plus interest. Rather, the appeal, according to Sprint, concerns the contracting officer's decision on a Government claim as set out in the contracting officer's letter of April 28 to Sprint. Specifically, the Government is said to claim the right to withhold payment of invoices totaling $40,946.99 for the reasons stated in that letter. Under the Contract Disputes Act, for the Board to have jurisdiction, there must exist both a claim and a contracting officer's decision on the claim. Reflectone Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc). Although the Contract Disputes Act does not define the term "claim," the Federal Acquisition Regulation (FAR) defines it as: a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract. 48 CFR 33.201 (1988) (FAR 33.201). This definition has been applied by the Court of Appeals for the Federal Circuit. Reflectone, 60 F.3d at 1575. In his letter of April 28, the contracting officer does, in fact, assert, as a matter of right under the contract, that the Government is entitled to withhold from appellant the sum certain of $40,946.99. The essential elements of a claim, as defined in the FAR, thus are present. Furthermore, it is by now well established that such a withholding or deduction to a fixed-price contract qualifies as a Government claim. Placeway Construction Corp. v. United States, 920 F.2d 903, 906 (Fed. Cir. 1990); Sprint Communications Co. v. General Services Administration, GSBCA 13182, 96-1 BCA  28,068, at 140,171; P.A. Cavanaugh v. General Services Administration, GSBCA 12661, 94-2 BCA  26,772, at 133,161; Cleveland Telecommunications Corp., GSBCA 12450, 94-1 BCA  26,558, at 132,169. We, therefore, find appellant's explanation in its opposition to respondent's motion to dismiss persuasive. The contracting officer's letter of April 28 does indeed constitute a decision to deduct from payment of Sprint's invoices the specific amount of $40,946.99. The absence in the letter of any notice to Sprint of its appeal rights is immaterial. Placeway Construction Corp., 902 F.2d at 907. Decision The Government's motion to dismiss this case for lack of jurisdiction is DENIED. The parties are directed to proceed with the development of this case pursuant to directions set out in an order for further proceedings which the Board is issuing concurrently with this decision. __________________ EDWIN B. NEILL Board Judge We concur: __________________ __________________ STEPHEN M. DANIELS ROBERT W. PARKER Board Judge Board Judge