Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________________________________________________ DISMISSED FOR LACK OF JURISDICTION: August 3, 1999 ____________________________________________________ GSBCA 14517 PAUL A. PRESTON, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Elli M.A. Mills, Redding, CA, counsel for Appellant. Margaret M. Haggerty, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. Before Judges DANIELS (Chairman), PARKER, and NEILL. PARKER, Board Judge. This appeal concerns a tugboat which was put out for auction sale by the General Services Administration (GSA). The high bidder, Mr. Paul A. Preston, claims that GSA breached the contract when it canceled the sale after being advised that the Maritime Administration could not certify that the tugboat was free of polychlorinate biphenyls (PCBs), which are hazardous substances. The matter is before the Board on respondent s motion to dismiss and for summary relief. GSA maintains in its motion that (1) no contract was ever formed with appellant and (2) even if such a contract had been formed, appellant is not entitled to the relief he seeks. For the reasons discussed below, we hold that the Board lacks jurisdiction over this appeal and, consequently, we dismiss it. Background GSA issued an invitation for bids for the sale of personal property consisting of two barges and one tugboat. Bid opening was scheduled for September 4, 1997. Appeal File, Exhibit 1. Mr. Preston s bid of $38,987 for the tugboat was the highest of the nine bids received by GSA. Along with his bid, Mr. Preston submitted a deposit (by credit card) of $8800. Id., Exhibits 5, 6. On September 5, the GSA contracting officer contacted Mr. Preston by telephone. According to Mr. Preston, the contracting officer informed him that his bid was the highest received and that he had been awarded the contract. Appellant s Reply to Respondent s Second Motion to Dismiss and Motion for Summary Relief, Attachment A (Declaration of Paul A. Preston). The contracting officer states that she never advised Mr. Preston that he had been awarded the tug boat [sic] (item 001). Appeal File, Exhibit 12 (Declaration of Sondra L. Johnson). Later the same day, the Maritime Administration, the agency on whose behalf GSA was conducting the auction, faxed a letter to GSA asking it to delay awarding contracts for the auction items, pending the Maritime Administration s review of whether the agency had authority to offer the vessels for commercial reuse, given that the vessels may contain PCBs. Appeal File, Exhibit 7. By letter dated October 9, GSA informed Mr. Preston that, because the Maritime Administration had been unable to certify that the tugboat was free of PCBs, GSA was canceling the sale. The letter also informed Mr. Preston that GSA had never processed his credit card deposit of $8800. Appeal File, Exhibit 9. Appellant s attorney wrote to the contracting officer on November 19, demanding that the sale be completed immediately, and that Mr. Preston be reimbursed for costs related to GSA s failure to timely conclude the transaction. These costs were not quantified but were described as consulting fees, telephone and postage charges, and loss of use costs. Appeal File, Exhibit 10. On March 5, Mr. Preston appealed from the deemed denial of his claim. Discussion When evaluating a motion to dismiss, a court (or board of contract appeals) is obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiff s favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The non-moving party, however, bears the burden of establishing jurisdiction. J & E Salvage Co. v. United States, 37 Fed. Cl. 256, 260 (1997) (citing Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746 (Fed. Cir. 1988)). We agree with GSA that Mr. Preston has not established the Board s jurisdiction over this appeal, although for different reasons than those asserted by the agency. Mr. Preston has made two demands on GSA, and neither of them constitutes a claim congnizable under the Contract Disutes Act of 1978, 41 U.S.C. 601-613 (1994 & Supp. III 1997). First, Mr. Preston has requested the Board to require GSA to turn over the tugboat, which Mr. Preston claims is his by virtue of a valid contract. However, even if a contract had been formed and then breached (issues which we do not here decide), Mr. Preston would not be entitled to the relief that he seeks. Boards of contract appeals do not have authority to grant specific performance relief. Western Aviation Maintenance, Inc. v. General Services Administration, GSBCA 14165, 98-2 BCA 29,816. The remainder of the relief sought by Mr. Preston includes unquantified damages consisting of such things as consulting fees, telephone and postage charges, and loss of use costs. We must dismiss this portion of the appeal for lack of jurisdiction because the letter of November 19 from Mr. Preston s attorney to the contracting officer did not comply with statutory and regulatory requirements for filing a claim. In the absence of a valid claim, there is nothing for the Board to review. Under the Contract Disputes Act, [a]ll claims against the government relating to a contract shall be in writing and shall be submitted to the contracting officer. 41 U.S.C. 605(a) (1994). [A] final decision by a [contracting officer] on a claim is a prerequisite for Board jurisdiction. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc). Although the term "claim" is not defined in the CDA, 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 relating to the contract. . . . 48 CFR 33.201 (1997). The three basic requirements for a claim for monetary relief are: (i) a written demand, (ii) seeking, as a matter of right, (iii) the payment of money in a sum certain. D.L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir. 1997) (citing Reflectone). A demand for damages which fails to set forth a sum certain is not a claim under the statute. Iowa- Illinois Cleaning Co. v. General Services Administration, GSBCA 12595, 95-2 BCA 27,628; P.A. Cavanagh Co. v. General Services Administration, GSBCA 12661, 94-2 BCA 26,772. Here, although Mr. Preston clearly seeks relief in the form of monetary damages for GSA s alleged breach of contract (consulting fees, telephone and postage charges and loss of use costs), he never quantified those damages. Lacking a demand for the payment of money in a sum certain, Mr. Preston s attorney s letter to the contracting officer did not constitute a claim which could serve as the basis for a decision -- actual or deemed -- of the contracting officer. Accordingly, the Board lacks jurisdiction over this aspect of the dispute as well. Decision The appeal is DISMISSED FOR LACK OF JURISDICTION. ______________________ ROBERT W. PARKER Board Judge We concur: _____________________ _____________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge