Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________________ DISMISSED: March 3, 1998 ____________________________ GSBCA 14318, 14319, 14320, 14321, 14322, 14323 INFORMATION HANDLING SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Sharon E. Nelson, Arlington, VA, counsel for Appellant. Michael D. Tully, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and HYATT. NEILL, Board Judge. Respondent moves that we dismiss these appeals for lack of jurisdiction based upon the fact that the claims in question have previously been before the Board and should now be deemed as dismissed with prejudice to their reinstatement. Upon review of the pertinent facts regarding the original submissions, appellant's first appeals, dismissal of these appeals, subsequent supplements to the original submissions and discussions between the parties, we conclude that the appeals should be dismissed. We, therefore, grant the motion to dismiss. We do not dismiss, however, for lack of jurisdiction but because we agree with respondent that the claims in question were the subject of prior appeals the dismissal of which has since become final. Findings of Fact Several of the factual statements set out below are based on documentation contained in the Board's files for the appeals previously filed by Information Handling Services Inc. (IHS) in 1993. These files contain copies of IHS's original claim submissions to the contracting officer, the contracting officer's rejection of the claims, IHS's appeals from deemed denials of the claims, and the Board's orders regarding these appeals. Other factual determinations are based upon revised claim submissions, correspondence between the parties, and pleadings contained in the Board's files for the instant appeals. Finally, some findings are based upon statements provided in the background section of briefs submitted by counsel for the parties. In her initial reply brief, counsel for appellant did not take issue with the background facts offered by Government counsel in the brief supporting his motion to dismiss. Counsel for IHS did, however, supplement the Government's facts with additional factual statements, some of which are supported by affidavits from IHS employees. From the final round of reply briefs, it is clear that counsel are in disagreement concerning the relevance and significance of many of these supplemental facts. Their disagreement, however, seldom if ever extends to the truth of whether the events described actually occurred. Based on these sources, therefore, we make the following findings. 1. The contracts at issue in this case are three Federal Supply Service multiple award schedule contracts awarded by respondent, the General Services Administration (GSA), to IHS. These contracts are GS-01F-09034, GS-02F-4029A, and GS-02F-48507. 2. By letter dated October 23, 1992, IHS submitted to the contracting officer four packages purporting to be claims. For each contract, IHS sought with one submission the payment of Prompt Payment Act interest on many allegedly late payments. Through the second submission, IHS sought the return with interest of numerous prompt payment discounts allegedly unearned on payments made under the same contract. 3. For Contract GS-01F-09034, IHS claimed payment of $47,509.41 in Prompt Payment Act interest and $42,815.48 for unearned prompt payment discounts plus interest. For Contract GS-02F-48507, IHS claimed $697,223.65 in Prompt Payment Act interest and $532,951.56 for unearned prompt payment discounts plus interest. 4. Each of IHS's packaged submissions contained a claim letter, a certification (when the claim exceeded $50,000), and several exhibits. 5. By letter dated November 20, 1992, IHS made a similar two-fold submission to the contracting officer for Prompt Payment Act interest and refund of unearned prompt payment discounts on many payments made under Contract GS-02F-4029A. The claim for Prompt Payment Act interest amounted to $95,396.60 and the claim for unearned prompt payment discounts was for $52,149.39. Like the other submissions, each of the two packaged submissions contained a claim letter, a certification, and various exhibits. 6. Each of the six claim letters submitted by IHS to the contracting officer in 1992 followed a similar format and had similar attachments. For example, the claim letter dated November 20, 1992, for repayment of allegedly unearned prompt payment discounts taken under Contract GS-02F-4029A began by stating: This is a claim submitted by Information Handling Services (IHS) pursuant to the Contract Disputes Act of 1978, as amended (CDA) and the Disputes clause of Contract No. GS-02F-4029A. Paragraph two of the same letter states in part: This UED [unearned prompt payment discount] claim is based on the DISCOUNTS FOR PROMPT PAYMENT clause in the Contract (552.232-8, DEVIATION FAR 52.232-8 - APR 1989) which provides a 3% prompt pay discount for payments made within 20 days of receipt of the invoice, and the 3 Prompt Payment Act and PROMPT PAYMENT (52232-25(4/89)) clause of the Contract. The third paragraph of appellant's claim letter of November 20, 1992, also states: Since the amounts are clearly in dispute, IHS requests that you consider the claim and issue a contracting officer's decision paying the $48,255.72 plus $3,893.67 PPA interest, as well as any other interest which may be due. If you are unable to issue a decision within 60 days, please notify us as to when the contracting officer's decision will be issued. Paragraph four of this same letter states: The claim documentation included in support of the amount certified is attached as Exhibit 1, in the form of a computer-generated report which presents all pertinent facts drawn from the hard copy documents and upon which each calculation is based. The hard copy support for each UED consists of the Government delivery order, IHS invoice, copy of Federal check or electronic deposit notification, and other related documents. It is so voluminous that it is impossible to copy and transmit to your offices. However, it is available for copying and verification in IHS' archives storage facility in Denver, Colorado. 7. All of IHS's claim letters for amounts of $50,000 or more contain a certification which states: I certify that this claim by IHS for [$ ] is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief and the amount requested accurately reflects the contract adjustment for which IHS believes the Government is liable. The certifications are signed by David F. Blunk, Vice President and Controller of IHS. 8. The GSA contracting officer replied to all six claims by one letter dated April 6, 1993. The letter read: We have reviewed your case and have determined that the material submitted does not constitute valid claims. Computer reports generated for the purpose of establishing claims are not sufficient substitute for the actual documents pertaining to the transactions in question. In addition, your firm has provided no documentation of government purchase orders. Government agencies cannot investigate the transactions involved without this information. For example, even transactions concerning General Services Administration activities could not be confirmed by this office in the absence of purchase order numbers. 9. On April 20, 1993, IHS having received no final decision from the GSA contracting officer in response to its four claim letters of October 23, 1992, and its two additional claim letters of November 20, 1992, filed six notices of appeal at this Board. The appeals were based upon deemed denials. The Board docketed 4 these appeals as GSBCA 12393, 12394, 12395, 12396, 12397, and 12398. 10. On May 26, 1993, counsel for the parties to these six appeals participated in a telephonic conference-call convened by the Board. A Board order dated June 3, 1993, states: During a telephone conference held on May 26, 1993, the parties to these appeals requested and were granted a temporary stay in these appeals for thirty days. The parties also requested that the stay convert to a dismissal without prejudice after thirty days if no action is taken. Accordingly, proceedings in these appeals are suspended for thirty days. If neither party requests further action within thirty days of this order, this order will automatically convert to a dismissal without prejudice. On July 15, 1993, the Board, noting that no action had been taken by the parties within the aforementioned thirty-day period, issued an order advising the parties that, as of July 6, 1993, the appeals were dismissed without prejudice pursuant to Rule 28 of the Board's Rules of Procedure. 11. In 1993, Board Rule 28 (entitled "Dismissals"), which was in effect at the time IHS filed its original appeals, read, in part, as follows: (a) Voluntary dismissal. (1) Upon motion of the appellant or by stipulation of the parties, a case may be dismissed by the Board. Unless otherwise stated in the appellant's motion or in the stipulation, the dismissal is without prejudice, except that such a dismissal operates as an adjudication upon the merits when requested by an appellant whose case based on or including the same claim has previously been dismissed by the Board. (2) When a case has been dismissed without prejudice and has not been reinstated by the Board upon application of any party within three years of the date of dismissal, or within such shorter period as the Board may prescribe, the case shall be deemed to have been dismissed with prejudice as of the expiration of the applicable period. 48 CFR 6101.28 (1992)[foot #] 1 12. It is not altogether clear, from the documentation currently available to us, precisely why the parties wished to have IHS's original six appeals dismissed by the Board. From what occurred, however, it is apparent that, at the time, the parties were intent on approaching IHS's claims in a positive fashion and were willing to suspend and, later, dismiss the formal litigation for this purpose. ----------- FOOTNOTE BEGINS --------- [foot #] 1 In 1994, the Board amended Rule 28. The rule has since undergone additional amendments. In its current form, it is Rule 128. ----------- FOOTNOTE ENDS ----------- 5 13. Counsel for GSA is said to have urged IHS to provide information on delivery orders, particularly the numbers of the orders in question, so that a concerted effort could be undertaken by GSA and other agencies ordering off IHS's contracts to verify the contractor's claims. IHS agreed to do this and authorized its computer programmers to design a program to retrieve the delivery order numbers and compile them into a report corresponding to reports already provided with the claims. IHS contends that this was a time-consuming task. Nevertheless, on December 10, 1993, this data was provided on late payments and unearned discounts associated with the Department of Defense (DOD), GSA, and the Department of the Navy portions of IHS's three contracts. The information was provided to the contracting officer with the request that she confirm that this was the information which she had identified in her letter of April 6, 1993, as necessary for an investigation of the transactions in question. 14. IHS contends that by mid-March 1994, it had yet to receive any response from the contracting officer concerning the adequacy or inadequacy of the data submitted in December 1993. During this period, however, IHS had been working with another GSA contracting officer on similar claims. Data on delivery orders similar to that prepared for the contracting officer for the claims that were the subject of GSBCA 12393-98 was provided to this contracting officer for review. When he advised that it was sufficient to review the amounts, IHS decided to continue to develop the data on the remaining delivery orders involved in the claims which had been the subjects of GSBCA 12393-98. 15. While this information was being developed, IHS learned that the contracting officer originally associated with its claims had been replaced. The new contracting officer, when asked in June 1994 about the status of IHS's claims, replied that he knew nothing about them and would be leaving his position shortly. He suggested, however, that IHS provide him with information which would enable him to look into the matter. IHS forwarded to him copies of the cover letters which had accompanied the data sent to the contracting officer s predecessor in December 1993. In a voice mail message left in late August 1994 for an IHS representative, this new contracting officer advised that he had located the revised claim data but found it inadequate owing to the lack of customer addresses. IHS contends that it was unable to reach this contracting officer before his departure to explain that the address data was already in the original submission. 16. By mid-September 1994, IHS finished gathering the information on delivery order numbers for all remaining claims on which this information had not already been submitted in December 1993. By letter dated September 14, 1994, IHS forwarded this information to the Acting Director of the GSA regional office in New York City. In a separate letter of the same date to this director, IHS asked for assistance in getting the claims resolved. The letter explained that the detailed customer addresses were submitted with the original claims and that data regarding all delivery order numbers had now been gathered and submitted. The letter closed with a request for a meeting with GSA representatives, at their earliest convenience, to discuss the status and specifics of the claims. 17. IHS received no reply to its letter of September 14, 1994, to the Acting Regional Director. Neither did it move to 6 reinstate GSBCA 12393, 12394, 12395, 12396, 12397, or 12398 within the three year period running from July 6, 1993. 18. Over two and one half years after September 14, 1994, the date of its last written communication with GSA concerning its claims, IHS again wrote GSA regarding the unresolved claims. By letter dated May 30, 1997, to the Director of the General Products Procurement Division of GSA's Region 2 in New York City, IHS once more asked for assistance in resolving the claims. The letter provides a detailed account of their history and the various steps taken since 1992 to resolve them. 19. By letter dated August 18, 1997, a GSA contracting officer advised IHS that the claims discussed in the contractor's letter of May 30 to the Director of the General Products Procurement Division of Region 2 would not be given further consideration. The letter noted that appeals involving contracts which had expired in 1990, 1993, and 1996 and claims which had been the subject of those appeals had been previously filed at the Board and dismissed by the Board without prejudice as of July 6, 1993. The letter went on to note that, under Board Rules of Procedure in effect at the time, this dismissal must now be deemed to be "with prejudice" in view of the failure of either party to reinstate the appeals within three years of the effective date of the original dismissal. Because litigation of the claims before the Board was no longer possible under Board Rules, the contracting officer advised IHS that the claims would not be considered further. 20. On September 23, 1997, IHS again appealed from a deemed denial of its claims. As occurred in 1993 with the first appeal, each claim was assigned an individual docket number. The appeals were docketed as GSBCA 14318, 14319, 14320, 14321, 14322, and 14323. In a prehearing conference with the Board on December 4, 1997, counsel for appellant confirmed to the Board that the claims which are the subject of these new appeals are essentially those provided initially in 1992. The only difference is that some elements in the original submission have since been deleted and delivery order numbers are included in the resubmissions. 21. The Government has since filed a motion to dismiss these appeals for lack of jurisdiction based upon the fact that the claims in question have been the subject of prior litigation previously dismissed by the Board, which dismissal must now be deemed to be with prejudice. Discussion Were IHS's Submissions of October 23 and November 20, 1992, Claims? The first and fundamental issue to be addressed here is whether IHS's submissions of October 23 and November 20, 1992, were "claims" as that term is understood in the CDA. Under the 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). If IHS's four submissions of October 23 and the two submissions of November 20 were not claims, then any order from this Board dismissing litigation regarding them would obviously be of no significance. 7 Because the Contract Disputes Act itself does not define the term "claim," we look to the Federal Acquisition Regulation (FAR) for a definition. The FAR has defined "claim" 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 (1992) (FAR 33.201). This definition has been applied by the Court of Appeals for the Federal Circuit. Reflectone, 60 F.3d at 1575. Given the facts set out above, IHS's submissions to the contracting officer of October 23 and November 20, 1992, unquestionably met the requirements of the FAR definition of claim. They are written demands by the contractor seeking, as a matter of right, the payment of money in a sum certain. Because they are claims, as that term is used in the CDA, the Board, therefore, did have jurisdiction over IHS's appeals of the contracting officer's decision to deny them -- in this case "deemed" denials pursuant to section 605(c)(5) of the CDA. In opposing respondent's motion to dismiss these appeals, IHS now contends that its initial claim submissions were not claims because, as presented, they lacked an essential operative fact, namely the individual delivery order numbers. Appellant's Reply to Respondent's Motion to Dismiss at 9. We disagree. The six detailed submissions of IHS provided the contracting officer with adequate notice of the basis and amount of each claim. This is sufficient information to constitute a claim H.L. Smith, Inc. v. United States, 49 F.3d 1563, 1565 (Fed. Cir. 1995). While the contracting officer in the instant case may have desired additional information regarding delivery order numbers, this was solely for purposes of evaluating the claims. His desire for this additional information did nothing to change the "claim" status of IHS's six claim letters. Should the Board's Dismissal Order be Vacated? Having determined that IHS's submissions to the contracting officer were in fact claims and that the Board, therefore, had jurisdiction over an appeal of their deemed denial, we come now to the issue of whether our order, which has now become a dismissal with prejudice, should be vacated. In support of its motion to dismiss for lack of jurisdiction, respondent refers us to Bonneville Associates, Ltd. v. General Services Administration, GSBCA 13134(11595)-REIN, 96-1 BCA 28,122, appeal docketed, No. 96-1325 (Fed. Cir. Apr. 26, 1996). Our decision in Bonneville is not on point here. In that case, the Board refused to reinstate appellant's case, but not because the original dismissal had already been converted to one with prejudice. Rather, the majority concluded that the case could not be reinstated because the ninety-day statute of limitations in the CDA for appealing a contracting officer's decision was deemed to have already run. The Board concluded that, so far as this statute was concerned, the effect of the first dismissal was to place the parties in a position identical to that they would have been in had the action never been brought. Hence, Bonneville's second filing at the Board was not treated as relating back to the date of the first filing but rather as the equivalent of an initial filing which, in that 8 case, was well in excess of ninety days from the date of the contracting officer's decision. Accordingly, the Board dismissed the appeal for lack of jurisdiction. Unlike the situation in Bonneville, there is no problem in this case with the CDA statute of limitation. IHS's appeals in this case were from deemed denials. It is well settled that the period within which a contractor must file suit challenging a contracting officer's decision does not begin to run until the contracting officer has rendered an actual written decision on the claim. Pathman Construction Co. v. United States, 817 F.2d 1573 (Fed. Cir. 1987). Respondent, however, also relies on a second Board decision which is very much on point, namely University Research Corp., GSBCA 6279-ED, 88-2 BCA 20,718. In that case we refused to reinstate an appeal where the original dismissal had been "without prejudice" but had automatically converted to a dismissal "with prejudice." The conversion occurred pursuant to an earlier version of Board Rule 28(a)(2) which is applicable here. The version of the rule in University Research, however, was identical in effect to Rule 28(a)(2). The original dismissal of University Research's appeal "without prejudice" converted to one "with prejudice" upon the contractor's failure to move for reinstatement within three years of the original dismissal. In enforcing this provision, we observed that the purpose of the rule was threefold. It is to encourage (1) the speedy resolution of litigation, (2) the avoidance of litigating stale claims, and (3) finality of the Board's actions. Id. at 104,686. In the instant case, we see no reason for frustrating this fundamental purpose of the rule by vacating our order of dismissal. Upon receipt of the contracting officer's letter of April 6, 1993, appellant elected to file a formal appeal from a deemed denial. In so doing, appellant set in motion a structured process which operates according to its own predetermined rules. Those electing to follow this process are expected to familiarize themselves with these rules and abide by them. We, in turn, must apply them fairly and consistently. In this case, the delays in generating the information on the dates of the individual delivery orders were certainly understandable. GSA's delay in using this data to verify the claims was not. The onus, however, in pressing these matters rested with the claimant. A motion to reinstate the appeals in response to GSA's inexplicable delay was clearly the step to be taken given IHS's initial determination to bring its claims before this Board. To its own detriment, however, IHS sat on its right to seek reinstatement before July 6, 1996. Instead, from September 14, 1994 -- well before the expiration on July 6, 1996, of the three-year period allowing reinstatement -- to May 30, 1997, IHS left its claims to languish. These are certainly not the kinds of hard facts which might persuade us to consider vacating our original order of dismissal. As noted earlier, it is not altogether clear from the record precisely why the parties were disposed to have the original six appeals dismissed by the Board in July 1993. An affidavit submitted by an IHS official describes a meeting she and appellant s counsel attended with the GSA attorney representing the Government in the six appeals. The affidavit states that, during that meeting, counsel for GSA stressed the need for information on delivery order numbers so that the contracting 9 officer could verify the alleged claims. The affidavit also states that Government counsel expressed the opinion that the claims were premature and that the Board lacked jurisdiction to decide any appeals concerning them. The affidavit further states that, on May 26, 1993, counsel for IHS reported to the affiant and her supervisor on the outcome of a prehearing conference on IHS s appeals which had been convened by the Board earlier on that same date. At that conference, counsel for GSA was reported to have again expressed reservations regarding the Board s jurisdiction over the appeals and indicated that GSA intended to file a motion to dismiss. IHS counsel is said to have advised her clients that the presiding judge agreed with GSA counsel. There is no official Board memorandum of this prehearing conference. We see no need, however, to develop additional information concerning it. Given the state of the case law at the time regarding the requirements of a valid CDA claim, the IHS official s version of events may well be correct. Nevertheless, this does nothing to alter our decision here. On April 3, 1991, the Court of Appeals for the Federal Circuit issued its decision in Dawco Construction, Inc. v. United States, 930 F.2d 872 (Fed. Cir. 1991). Many interpreted that decision as imposing an additional requirement for a valid CDA claim, namely, that there be a pre-existing dispute between the contractor and the Government over the claim in question. Subsequent to that decision, it was not uncommon for contracting officers and Government counsel to assert that a specific claim was invalid owing to the Government's inability to determine if it had merit. The contracting officer's letter of April 6, 1993, suggests just such a concern. The letter complained that without delivery order numbers Government agencies could not investigate the transactions involved. The alleged inability of the contracting officer to validate IHS s claims may well, therefore, have raised serious questions regarding the validity of those claims in the light of Dawco and hence the Board s jurisdiction over any dispute involving those claims. Counsel for the parties have not discussed the impact of the Dawco decision on the events leading to the dismissal of IHS s appeals in 1993. Nevertheless, we consider it highly likely, especially in view of an affidavit provided by an IHS official, that, by the time the Board dismissed IHS s appeals in July 1993, IHS may well have had its own doubts concerning the Board s jurisdiction over the appeals. Indeed, if Dawco had not been overruled before the automatic conversion of that dismissal into a dismissal with prejudice, IHS might conceivably have been able to mount a strong argument that it was reasonable for it to ignore the order and its implications since, on the basis of existing case law, the order could be considered a nullity. Events, however, took a different turn. In July 1995, approximately one year before the expiration of the three-year period following the original dismissal of IHS's original appeals, the Court of Appeals for the Federal Circuit issued its decision in Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995). In that decision, the Court concluded that there is no requirement that a payment demand contained in a purported CDA claim be in dispute before being submitted unless that demand is a voucher, invoice or other routine request for payment. To the extent that Dawco and other cases relying on it could be read to suggest otherwise, they were to be considered overruled. 10 If, indeed, IHS did believe in the light of Dawco that the Board s original order of dismissal was of no particular significance, it had more than ample time to reassess the situation in the light of Reflectone before that order converted to one with prejudice. Consequently, we remain convinced that our order of dismissal, as rendered final three years from its original effective date, should stand for the reasons stated in University Research. Decision Respondent s motion to dismiss these appeals is GRANTED. These appeals concern claims which were the subject of other appeals previously dismissed by the Board. Those earlier dismissals have now become final pursuant to the Board's Rules of Procedure. The time for reinstating litigation of those claims, either under the original docket numbers or under fresh docket numbers, has now expired. The appeals are, therefore, DISMISSED. ____________________ EDWIN B. NEILL Board Judge We concur: _____________________ _____________________ STEPHEN M. DANIELS CATHERINE B. HYATT Board Judge Board Judge