Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________________________________ MOTION TO DISMISS DENIED: September 18, 1998 __________________________________________ GSBCA 14614-TD ASSOCIATED PRODUCTS SUPPLY COMPANY, Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. Jay S. Belshaw, Torrance, CA, counsel for Appellant. Barbara H. Vail, Office of Chief Counsel, Department of the Treasury, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and WILLIAMS.. NEILL, Board Judge. In this case, Associated Products Supply Company (APSCO) has appealed the decision of a contracting officer denying APSCO's request for an extension of the time provided under its contract for the removal of goods purchased at auction. The Government now moves that we dismiss the appeal for lack of jurisdiction. The Government contends that a demand for $22,000 raised by APSCO for the first time in its complaint constitutes a new claim which has never been the subject of a contracting officer's decision. In the absence of such a decision, the Government argues that we do not have jurisdiction to hear this appeal. For the reasons set out below, we deny the motion. Background On August 27, 1997, APSCO purchased 4653 cases of assorted liquor at the Department of the Treasury auction held in Fort Lauderdale, Florida. The auction was conducted by EG&G Services (EG&G) on behalf of the United States Customs Service. The liquor was designated "For Export Only." The Government contends that under the sales contract, APSCO had sixty days to remove the liquor from the United States or else be deemed in default -- in which case, APSCO would likewise be deemed to have forfeited any rights, title, and interest previously acquired. In mid-September, APSCO contacted the contracting officer's technical representative to determine if the liquor could be sold domestically. A similar inquiry was also made to the Bureau of Alcohol, Tobacco, and Firearms. In late November, EG&G denied a request from APSCO to allow potential clients to inspect the liquor. EG&G advised APSCO that the sixty-day period for exportation has expired and that APSCO no longer held title to the liquor. The liquor was rescheduled for sale "For Export Only" at Government auction on January 28, 1998. Prior to that date, APSCO requested both in writing and orally an additional thirty days to arrange for the exportation of the liquor. The requests were denied. On January 28, the liquor was sold at Government auction. By decision dated March 17, 1998, the contracting officer provided APSCO with a written decision in which she confirmed her earlier denials of the requests for an extension and provided a detailed rationale for the decision. The final paragraph of the contracting officer's decision advised APSCO of its right to appeal to this Board or to the United States Court of Federal Claims. This paragraph also explained that if appeal is made to the Board and the claim is $50,000 or less, the contractor could elect the small claims procedure or, if the claim is for $100,000 or less, the accelerated procedure. APSCO appealed the contracting officer's decision and thereafter filed a complaint in response to the Board's order for further proceedings. In that complaint APSCO takes issue with the contracting officer's conclusion that the sixty-day period for removal of the liquor expired on October 26 and that the liquor was thereby forfeited. In addition, the complaint closes with the statement: "The amount in controversy is $22,000.00." This statement in ASPCO's complaint has prompted the Government to submit a motion to dismiss the appeal for lack of jurisdiction. The Government contends that appellant, through this case, is actually attempting to pursue a claim for a sum certain which has never been the subject of a contracting officer's decision. Discussion Under the Contract Disputes Act (CDA), 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). Because the CDA does not itself 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. In this case we have a claim. It is not, however, a claim for a sum certain. Rather, APSCO sought an extension of time to dispose of the liquor purchased at public auction. We likewise have a contracting officer's decision denying that claim. A notice of appeal of that decision has been timely filed. Any motion to dismiss this case for lack of jurisdiction based upon the absence of a contracting officer's decision is, therefore, obviously without merit. The Government's concern over the nature of appellant's allegation that $22,000 is in controversy, however, is understandable. The record, as it currently stands, sheds little light on the nature of the statement. What is in controversy in this case is the contracting officer's decision not to grant APSCO's request for an extension of the original sixty-day period for removal of the liquor purchased. APSCO is apparently of the opinion that, as a matter of right, it was entitled to the extension and that the contracting officer, in refusing to approve the request, has rendered contract performance impossible. If, in stating that $22,000 is in controversy, APSCO simply intends to allege that the Government's retention of the amount paid for the auctioned liquor is improper since the Government itself has breached the contract, then we do not view the statement as constituting an independent claim. On the other hand, if in stating that $22,000 is in controversy, APSCO intends to indicate that this dispute is over a claim for the return of that amount as a result of the Government's subsequent resale of the liquor to a third party, then this is clearly a separate claim. Since it has not been addressed by the contracting officer, we lack the jurisdiction to resolve a dispute concerning it. In responding to the Government's motion to dismiss, counsel for appellant argues that the contracting officer's decision expressly granted APSCO the right to appeal under the Small Claims Procedure for monetary claims. In support of this contention, counsel refers us to the language concerning small claims procedure which appears in the final paragraph of the decision. Counsel also reminds us that the decision was written after the actual resale of the liquor when the only remaining remedy would be monetary damages. We find these arguments insufficient to justify retaining this case if appellant's contention is that this case primarily involves a claim for a sum certain. The language concerning small claims referred to by appellant is in the nature of a boilerplate provision routinely inserted into decisions issued by agency contracting officers. Standing by itself, it cannot serve as the predicate for our statutory jurisdiction. As to the restriction of relief to monetary damages, this may well be true at this point in time. Nevertheless, by counsel's own admission, APSCO's written claim was submitted prior to the resale of liquor at auction and, therefore, could not include a claim for monetary damages. Consequently, the only reasonable conclusion to be drawn from this fact is that the contracting officer's decision on that claim, although issued after the resale, did not address any claim for monetary damages. In this case, we look to counsel for appellant to clarify matters. We are denying the Government's motion on the assumption that appellant wishes to contest the contracting officer's decision which is the subject of this appeal. We do not read APSCO's complaint as precluding this. If, however, it is appellant's intention to do nothing more in this case than pursue a refund of the $22,000 already paid for the liquor based on the fact that it has been resold by the Government to a third party, then APSCO would be well advised to file a claim to this effect with the contracting officer and move for the dismissal of the current appeal. Decision Respondent's motion to dismiss this appeal is DENIED. Appellant's request for small claims procedure, however, is denied since the claim, which is the subject of this appeal, is not for a sum certain. The Board will, however, work closely with counsel for the parties for an expeditious resolution of this dispute. _____________________ EDWIN B. NEILL Board Judge We concur: _____________________ _______________________________ ROBERT W. PARKER MARY ELLEN COSTER WILLIAMS