Board of Contract Appeals General Services Administration Washington, D.C. 20405 MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: May 3, 2000 GSBCA 15261 WILLIAM D. EUILLE & ASSOCIATES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Stephen J. Annino of Kasimer & Annino, P.C., Falls Church, VA, counsel for Appellant. David M. Smith, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), WILLIAMS, and DeGRAFF. DANIELS, Board Judge. The General Services Administration (GSA), respondent, moves the Board to dismiss for lack of jurisdiction an appeal filed by William D. Euille & Associates, Inc. (Euille). We deny the motion. Background GSA contracted with Euille for modifications to four floors of the high-rise building in the Columbia Plaza office complex in Washington, D.C.[foot #] 1 In the course of its work, ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Columbia Plaza office complex includes both a low-rise building and a high-rise building. This is the first (continued...) ----------- FOOTNOTE ENDS ----------- Euille's electrical subcontractor installed metal clad (MC) cable and flexible metal conduit. GSA directed Euille to have some of this cable and conduit removed and replaced with other materials. Euille believes that the contract permits the use of the cable and conduit its subcontractor installed. On November 15, 1999, Euille sent to a GSA contracting officer a letter which concluded with these two paragraphs: The government's direction to remove these materials and install EMT [electrical metallic tubing] raceways and conductors is a change to our Contract for which we are entitled to an equitable adjustment to both the price and time of performance of this Contract. Therefore, in accordance with Clause 118 Disputes of the Construction Contract Clauses, we hereby request a Final Decision of the Contracting Officer. Since our preliminary estimates indicate the price of this change to be less than $100,000.00. [sic] We request that the final decision for this claim be issued within 60 days of the receipt of this request by the government. Appeal File, Exhibit 15 at 3. On December 17, 1999, the contracting officer responded to this letter. After reviewing contract provisions she considered pertinent to the dispute, she concluded: Based on the information provided herein, we disagree that the use of MC Cable for power wiring and Flexible Metal Conduit for telephone/data raceways is specifically allowed by the contract. Specific use of electrical materials is designated in respective sections of the electrical specifications for each method and application listed as described herein. Your request for equitable adjustment to both price and time of performance is hereby denied. ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) case filed with us regarding renovation of the high-rise structure. Renovation of the low-rise building has its own lengthy and tortured litigation history. See the following ___ decisions and dismissal orders, each of which is captioned Twigg _____ Corp. v. General Services Administration: GSBCA 14386, et al., __________________________________________ 00-1 BCA 30,772; GSBCA 14715 (Apr. 20, 1999); GSBCA 14388 (Jan. 25, 1999); GSBCA 14388, 98-2 BCA 29,835; GSBCA 14387, 98-2 BCA 29,803; GSBCA 13594 (June 4, 1998); GSBCA 13901, 98-1 BCA 29,569; GSBCA 14064, 98-1 BCA 29,452 (1997); GSBCA 14104 (Sept. 19, 1997); GSBCA 13976 (Mar. 7, 1997); GSBCA 13592 (Nov. 27, 1996); GSBCA 13593 (Nov. 12, 1996). ----------- FOOTNOTE ENDS ----------- This is the final decision of the Contracting Officer. Appeal File, Exhibit 18 at 2-3. Discussion The Contract Disputes Act of 1978 (CDA) establishes that "[e]ach agency board [of contract appeals] shall have jurisdiction to decide any appeal from a decision of a contracting officer." 41 U.S.C. 607(d) (Supp. IV 1998). Contracting officer decisions are as to "claims." Id. 605. Thus, "[u]nder the CDA, 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) (citing Sharman Co. v. United States, 2 F.3d 1564, 1568-69 (Fed. Cir. 1993)); see also D. L. Braughler Co. v. West, 127 F.3d 1476, 1480 (Fed. Cir. 1997); Writing Co. v. Department of the Treasury, GSBCA 15097-TD, slip op. at 9-10 (Mar. 13, 2000), reconsideration denied (Mar. 21, 2000); Preston v. General Services Administration, GSBCA 14517, 99-2 BCA 30,515, at 150,687. The question posed by GSA's motion to dismiss is whether Euille ever submitted a "claim" regarding the matter under dispute to the contracting officer. If it did not, the contracting officer's decision was a nullity, insufficient to serve as a prerequisite for our jurisdiction over this appeal. Braughler, 127 F.3d at 1480-81; Preston, 99-2 BCA at 150,687. The Federal Acquisition Regulation defines "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 relating to the contract." 48 CFR 33.201 (1999). The Court of Appeals for the Federal Circuit has adopted this definition of the term. Braughler, 127 F.3d at 1480; Reflectone, 60 F.3d at 1575-80; Essex Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1580-81 (Fed. Cir. 1992). According to GSA, Euille's November 15, 1999, letter did not make a claim because it did not "demand . . . , as a matter of right, the payment of money in a sum certain." GSA characterizes the letter as merely asserting entitlement to an equitable adjustment in an amount estimated to be somewhere between $1 and $99,999. Euille responds that because a "claim" may demand something other than 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" -- whether the contractor's letter demanded the payment of money in a sum certain or not, it may still be a claim. Euille maintains, "[T]he fact is that despite the inclusion of a cost estimate, the claim was a request for contract interpretation. . . . If Appellant prevails, and the Board accepts its interpretation of the contract, it will give rise to a claim for additional costs, which will have to seek a sum certain." Memorandum in Opposition to Motion to Dismiss at 2.[foot #] 2 We agree with Euille. A demand which does not mention a sum certain may nonetheless come within the definition of "claim" if it is for the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. The contractor asked for an interpretation of contract terms here, and the contracting officer responded with exactly that. Thus we have before us a claim, a contracting officer's decision on that claim, an appeal of that decision, and consequently jurisdiction in the Board to resolve the parties' dispute. The Board's decision in this appeal will be restricted to the matter before us -- contract interpretation. Because the claim is not for money, the decision will not address the amount of recovery, even if the contractor prevails. Consequently, we will not be able to grant Euille one of the alternative forms of relief it seeks in its complaint -- "judgment in the amount of $75,000.00 or such other amounts as the evidence may show is due and payable, together with costs and interest." Additionally, we must rescind the contractor's election to have the case considered under the accelerated procedure for the disposition of appeals. The accelerated procedure is available only "where the amount in dispute is $100,000 or less." 41 U.S.C. 607(f); see also Board Rule 203(a)(1) (48 CFR 6102.3(a)(1) (1999)): "The accelerated procedure is available . . . only when there is a monetary amount in dispute and that amount is $100,000 or less." Although Euille has provided estimates of the amount it will seek if it prevails, no amount is in dispute in this case.[foot #] 3 GSA contends, in opposition to this conclusion, that "if a contracting party's written demand asserts a monetary impact, then the demand is seeking the payment of money and not merely the interpretation of a contract." Respondent's Reply to Appellant's Memorandum in Opposition to Motion to Dismiss at 1. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Indeed, Euille has already made such a claim. On April 11, 2000, it sent to the contracting officer a letter "to submit our claim for an equitable adjustment to the Contract price in the total amount of $75,152.00 for the additional work required to perform the electrical raceway and wiring work using EMT conduit and wiring as directed by the government in lieu of using MC Cable as planned by our electrical subcontractor." Respondent's Reply to Appellant's Memorandum in Opposition to Motion to Dismiss, Exhibit 1. [foot #] 3 Of course, if Euille appeals the contracting officer's decision on the monetary claim, the Board would consider the monetary impact of the contracting officer's contract interpretation in that appeal, and the contractor could elect the accelerated procedure there. ----------- FOOTNOTE ENDS ----------- We think this understanding is too broad. Government contracts are all about money. Virtually every "adjustment or interpretation of contract terms, or other relief arising under or relating to the contract" has a monetary impact. (Demands which involve money only indirectly -- through specific performance -- are not encompassed within the Contract Disputes Act. Western Aviation Maintenance, Inc. v. General Services Administration, GSBCA 14165, 98-2 BCA 29,816.) By including matters such as contract interpretation, separate from "the payment of money in a sum certain," within the definition of the term "claim," the Federal Acquisition Regulation provides that a matter with monetary implications but not in a sum certain may be the subject of a claim. The cases GSA cites in support of its conclusion are distinguishable from the case at bar. In Writing Co., slip op. at 11-12, demands which might be construed as for contract adjustment or interpretation were considered moot because the contract itself had been terminated for the convenience of the Government; the demands were more properly addressed through a termination for convenience settlement proposal. In M. A. Mortenson Co. v. General Services Administration, GSBCA 13570, 96-2 BCA 28,451, the case was dismissed for lack of jurisdiction because the purported "claims" involved were not demands for anything; rather, they were merely attempts to continue negotiations. In 301 Howard Street Associates v. General Services Administration, GSBCA 10971, et al., 94-1 BCA 26,450, at 131,593-96, 131,599 (1993), some of the contractor's demands were found not to be "claims" because they were generalized requests for money, not in sums certain, and were not susceptible to resolution based on analysis of any particular contract provisions. The fact that the contractor in 301 Howard Street contended that some of its demands were for the adjustment or interpretation of contract terms, but the Board did not accept that proposition, does not mean, of course, that such a contention cannot prevail in different circumstances. Decision GSA's motion to dismiss this appeal for lack of jurisdiction is DENIED. The presiding judge will convene a telephonic conference with counsel to discuss further proceedings in the case. _________________________ STEPHEN M. DANIELS Board Judge We concur: ________________________________ _________________________ MARY ELLEN COSTER WILLIAMS MARTHA H. DeGRAFF Board Judge Board Judge