NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GUY W. PARKER (DOING BUSINESS AS PARKER
INTERNATIONAL),
Appellant,
v.
MICHAEL B. DONLEY, SECRETARY OF THE AIR
FORCE,
Appellee.
__________________________
2010-1153
__________________________
Appeal from the Armed Service Board of Contract Ap-
peals in No. 56742, Administrative Judge Monroe E.
Freeman, Jr.
____________________
Decided: June 9, 2009
____________________
GUY W. PARKER, of Poway, California, pro se.
MATTHEW H. SOLOMSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for appellee. With
him on the brief were TONY WEST, Assistant Attorney
PARKER v. AIR FORCE 2
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director.
__________________________
Before BRYSON, SCHALL, and GAJARSA, Circuit Judges.
PER CURIAM.
This is an appeal of a government contract case from
the Armed Service Board of Contract Appeals (“Board”).
Guy W. Parker appealed the denial of two claims for
payment of invoices for services provided pursuant to a
contract with the government. The Board dismissed Mr.
Parker’s appeal for lack of jurisdiction. Guy W. Parker
dba Parker International, ASBCA No. 56,742, 09-2 B.C.A.
P 34,260 (2009). Mr. Parker appeals to this court from
that decision. At issue is whether the Board correctly
dismissed Mr. Parker’s case because the appeal of one of
Mr. Parker’s claims was untimely and because Mr. Parker
failed to request and obtain a final decision by a contract-
ing officer on his other claim pursuant to the Contract
Disputes Act (“CDA”). 41 U.S.C. §§ 601--13. For the
reasons explained below, we affirm the decision of the
Board.
BACKGROUND
On March 22, 2004, the United States Air Force (“Air
Force”) entered into Contract No. FA8621-04-D-6250 (“the
Contract”) with Mr. Parker. Under the terms of the
Contract, Mr. Parker was to provide a software use li-
cense, software enhancements, and other supporting
services to the USAF for the Predator MQ-1 Unmanned
Aerial Vehicle Multi-Task Trainer (“PMTT”). The Con-
tract could have been renewed for up to four additional
one-year periods through the issuance of annual delivery
orders by the contracting officer.
3 PARKER v. AIR FORCE
On February 15, 2006, contracting officer Betty W.
Clingerman informed Mr. Parker that the Air Force
would not be placing any additional delivery orders under
the Contract following calendar year 2006. Ms. Clinger-
man further cautioned Mr. Parker “not to do any work
outside the scope of the current Delivery Order, D004.” In
subsequent correspondence, Mr. Parker was informed
that any issue relating to his contract should be ad-
dressed to contracting officer Clingerman.
On May 2, 2007, Mr. Parker submitted a certified
claim for payment of Invoice SER 0805 to contracting
officer Michael Grove and to two administrative contract-
ing officers (“ACOs”) at the Defense Contract Manage-
ment Agency (“DCMA”), allegedly for service rendered to
update a version of the PMTT software installed at two
Air Force bases for the period of April 1 to December 22,
2006. On June 27, 2007, Ms. Clingerman, the contracting
officer assigned to the Contract, rendered a final decision
denying the certified claim in full on the ground that the
upgrade was not part of the current delivery order and
advising Mr. Parker that he could either appeal to the
Board within 90 days of his receipt of the final decision or
bring an action directly in the United States Court of
Federal Claims within 12 months of his receipt of the
final decision. Although Mr. Parker received that final
decision on June 30, 2007, he did not file his notice of
appeal to the Board until February 6, 2009.
On January 19, 2009, Mr. Parker forwarded a Certi-
fied Claim and Invoice SER 9-11 to various contracting
officers at the Defense Finance Accounting Service and
DCMA, but not to Ms. Clingerman. In that invoice, Mr.
Parker sought payment of a total of $1,518,000, allegedly
for “use of the [PMTT]” for calendar years 2007 and 2008.
On January 26, 2009, an administrative contracting
PARKER v. AIR FORCE 4
officer rejected Invoice SER 9-11. The ACO’s rejection
letter did not state that it was a final decision.
On February 6, 2009, Mr. Parker submitted a notice
of appeal to the Board, primarily challenging the denial of
certified claims relating to Invoice SER 0805 and Invoice
SER 9-11, but also pursuing a variety of other nonmone-
tary “[r]equest[s].”
With respect to Mr. Parker’s appeal relating to In-
voice SER 0805, the Board, sua sponte, ordered Mr.
Parker to show cause why his appeal should not be dis-
missed as untimely. After considering Mr. Parker’s
submissions to the Board in response to the show cause
order, the Board found that “[t]here is no evidence of
timely appeal of the [final decision] by [Mr.] Parker either
to this Board or to the Court of Federal Claims.”
With respect to Invoice SER 9-11, the Board found
that the SER 9-11 invoice “did not expressly refer to the
CDA or the Disputes clause of the Contract, or use the
word ‘claim,’ or request a contracting officer’s final deci-
sion on the invoice . . . .” Accordingly, the Board dis-
missed Mr. Parker’s appeal for lack of jurisdiction on
September 21, 2009. In doing so, the Board also con-
cluded that Mr. Parker’s other “[r]equest[s]” likewise were
not submitted to the contracting officer as part of any
CDA claim. This appeal followed.
DISCUSSION
We review decisions of the Board on questions of law
de novo. 41 U.S.C. § 609(b); Randa/Madison Joint Ven-
ture III v. Dahlberg, 239 F.3d 1264, 1269 (Fed. Cir. 2001).
Whether or not the Board had jurisdiction is a question of
law. Transamerica Ins. Corp. v. United States, 973 F.2d
1572, 1576 (Fed. Cir. 1992). The Board’s decisions on
questions of fact are deemed final, unless found to be
5 PARKER v. AIR FORCE
arbitrary, capricious, fraudulent, so grossly erroneous as
to suggest bad faith, or unsupported by substantial evi-
dence. 41 U.S.C. § 609(b); 239 F.3d at 1269.
With respect to Invoice SER 0805, Mr. Parker’s ap-
peal was untimely. Section 606 of the CDA authorizes a
contractor to appeal the final decision of a contracting
officer to an agency board of contract appeals within 90
days of the contractor’s receipt of the decision. 41 U.S.C.
§ 606. Mr. Parker does not appear to challenge the
Board’s finding that his claim relating to Invoice SER
0805 was denied in a final decision of contracting officer
Clingerman on June 27, 2007 and that there is no evi-
dence of a timely appeal being filed by Mr. Parker either
to the Board or to the Court of Federal Claims. Rather,
Mr. Parker appears to dispute Ms. Clingerman’s author-
ity as a contracting officer. The Board found that “argu-
ment is without merit,” since the record clearly indicates
that Ms. Clingerman has been a duly appointed contract-
ing officer and has performed contracting officer duties on
Contract 6250 since 2005. Accordingly, the Board prop-
erly dismissed Mr. Parker’s appeal as time-barred. See,
e.g., Renda Marine, Inc. v. United States, 509 F.3d 1372,
1380-81 (Fed. Cir. 2007); Cosmic Constr. Co. v. United
States, 697 F.2d 1389, 1391 (Fed. Cir. 1982) (upholding
dismissal of an appeal filed outside of the 90-day statu-
tory period for appealing a final decision to a board of
contract appeals).
With respect to Invoice SER 9-11, Mr. Parker did not
submit a CDA claim to the contracting officer for payment
of that invoice prior to the filing of his appeal. The CDA
sets forth a detailed process that a contractor must follow
prior to either filing an appeal with the Board or initiat-
ing suit in the Court of Federal Claims. See 41 U.S.C.
§§ 605(a)-(c). In particular, “[a]ll claims by a contractor
against the government relating to contract shall be in
PARKER v. AIR FORCE 6
writing and shall be submitted to the contracting officer
for a decision.” 41 U.S.C. § 605(a). As the Board noted,
Invoice SER 9-11 did not include an express request for
the contracting officer’s final decision under the CDA.
The Board further found that Mr. Parker deliberately
avoided submitting the invoice to the correct contracting
officer, Ms. Clingerman. In any event, Invoice SER 9-11
cannot be considered a proper CDA “claim” because an
invoice is a classic example of a submission that, standing
alone, cannot constitute a CDA claim. See, e.g., James M.
Ellett Const. Co., Inc. v. United States, 93 F.3d 1537, 1542
(Fed. Cir. 1996); Reflectone, Inc. v. Dalton, 60 F.3d 1572,
1577-78 (Fed. Cir. 1995) (en banc); Federal Acquisition
Regulation 2.101 (providing that an “invoice, or other
routine request for payment that is not in dispute when
submitted is not a claim”).
Therefore, we affirm the decision of the Board dis-
missing the claims for lack of jurisdiction because the
Board correctly dismissed Mr. Parker’s appeal relating to
Invoice SER 0805 as untimely and the Board also cor-
rectly dismissed Mr. Parker’s appeal relating to Invoice
SER 9-11 on the ground that Mr. Parker failed to submit
a CDA claim to the contracting officer seeking a final
decision for that invoice’s payment.
No costs.
AFFIRMED