M. Maropakis Carpentry, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

M. MAROPAKIS CARPENTRY, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2009-5024
__________________________

Appeals from the United States Court of Federal
Claims in 03-CV-2825, Judge Lawrence M. Baskir.
__________________________

Decided: June 17, 2010
__________________________

STEPHANIE E. DIVITTORE, Rhoads & Sinon LLP, of
Harrisburgh, Pennsylvania, argued for plaintiff-
appellant. Of counsel on the brief was KELLY H. DECKER.

KENT C. KIFFNER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and DONALD E. KINNER, Assistant Director.
__________________________
M MAROPAKIS CARPENTRY v. US 2

Before NEWMAN, LOURIE, and LINN, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN.
Dissenting opinion filed by Circuit Judge NEWMAN.
LINN, Circuit Judge.
This action arises under the Contract Disputes Act
(“CDA”), 41 U.S.C. §§ 601-613. M. Maropakis Carpentry,
Inc. (“Maropakis”) appeals the decision of the United
States Court of Federal Claims dismissing Maropakis’s
complaint for lack of subject matter jurisdiction because it
failed to present to the contracting officer a “claim” within
the meaning of the CDA. Maropakis further appeals the
grant of the government’s counterclaim for liquidated
damages. Because Maropakis has demonstrated no errors
of law or clearly erroneous factual findings, we affirm.
BACKGROUND
On April 6, 1999 the Navy awarded a contract to Ma-
ropakis for, among other things, the replacement of
windows and a roof at a warehouse building located at
Naval Inventory Control Point in Mechanicsburg, Penn-
sylvania. M. Maropakis Carpentry, Inc. v. United States,
84 Fed. Cl. 182, 185 (2008). The contract specified a
completion date of January 16, 2000, though this was
later modified by extensions to February 4, 2000. The
contract also included a liquidated damages clause, in the
form of 48 C.F.R. § 52.211-12, which provided that Ma-
ropakis would be liable to the government for $650 per
day for each day of delay beyond the contract completion
date.
Maropakis did not begin work until after the specified
completion date. The project was completed May 17,
2001, 467 days after the modified completion date. On
August 20, 2001, Maropakis sent a letter addressed to
3 M MAROPAKIS CARPENTRY v. US

“Mr. W.L. Robertson O.I.C., Navfac Contracts” requesting
“an extension of contract time . . . from January 16, 2000
to April 17, 2001, a total of 447 consecutive calendar days”
based on five alleged delays: (1) 187 days due to the
inability to locate a window manufacturer; (2) 32 days in
time lost from the start date of fabrication of windows due
to the need to re-submit plans; (3) 107 days due to the
discovery of lead-based paint; (4) 20 days due to the
Navy’s prohibition of the use of asphalt as a roofing
adhesive; and (5) 101 days for time lost while searching
for a metal fabricator. Id. at 191. On August 28, 2001,
James Nihoff, the contracting officer (“Contracting Offi-
cer”) on Maropakis’s contract responded to the August 20
letter to Robertson by stating that Maropakis did not
“present[] sufficient justification to warrant the time
extension” requested. Id. The Contracting Officer re-
jected each of the requested extensions, noting that,
among other problems, some of the dates of delay were
overlapping. In closing, the Contracting Officer invited
Maropakis to “submit additional information” in support
of its request and stated that “[t]his letter is not a Final
Decision of the Contracting Officer.” Id. at 192.
On June 28, 2002, the Navy sent Maropakis another
letter, pointing out that Maropakis had neither “re-
sponded [to the August 2001 letter] with additional in-
formation” nor “requested a Contracting Officers [sic]
final decision for these matters.” Id. The letter also
indicated that the government had made payments to
Maropakis in the amount of $1,053,115, $244,036 less
than the total contract price of $1,297,151. Finally, the
letter informed Maropakis that it would owe liquidated
damages of $303,550 representing $650 per day for the
467 days of delay in completing the project. The Navy
applied this amount against the remaining contract
M MAROPAKIS CARPENTRY v. US 4

balance, $244,036, resulting in a total due from Ma-
ropakis of $59,514.
Maropakis responded in a letter on July 22, 2002 reit-
erating its earlier request for an extension but mentioning
specifically only the 107-day extension for the removal of
lead contaminated windows. This letter referred to
multiple delays but did not specify a total number of days
of extension requested. The letter then stated, “we will
dispute . . . the liquidated damages amount of $303,550.00
and will indicate that M. Maropakis was not responsible
for the delays.” Id. at 193 (emphases added). There was
no follow-up to this correspondence by either party.
Maropakis did not file a separate formal claim regarding
the time extension.
On December 20, 2002 the Navy issued Final Decision
#03-002F which reiterated the government’s demand for
liquidated damages. The government characterizes this
letter as a final decision pertaining only to the Navy’s
demand for liquidated damages. Maropakis contends that
this letter was a final decision applying to each of its
previous requests for extension of the contract period.
There was no further activity by either party until
Maropakis filed a complaint on December 17, 2003 in the
Court of Federal Claims alleging (1) breach of contract
due to government delay and seeking resulting time
extensions, and (2) breach of contract due to the govern-
ment’s assessment of liquidated damages and seeking
remission of the full $303,550. Amended Compl., ¶¶ 50-
52, 54-55, M. Maropakis, 84 Fed. Cl. 182. The govern-
ment responded by asserting a counterclaim for the
$59,514 balance it contended was due the government in
liquidated damages. On October 3, 2008, the Court of
Federal Claims granted the government’s motion to
dismiss Maropakis’s claim for time extensions for lack of
5 M MAROPAKIS CARPENTRY v. US

subject-matter jurisdiction, finding that Maropakis had
not submitted a “claim” for contract modification as
required under the CDA. The Court of Federal Claims
also granted the government’s motion for summary judg-
ment as to its counterclaim on the liquidated damages
issue. Maropakis appeals both decisions, arguing that its
July 22, 2002 letter was sufficient to constitute a claim
under the CDA. In addition, Maropakis argues that it
was not required to comply with the jurisdictional prereq-
uisites of the CDA to assert its claim for a time extension
as a defense to the government’s counterclaim for liqui-
dated damages.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
I. Standard of Review
We review de novo the decision of the Court of Federal
Claims to dismiss for lack of jurisdiction. RadioShack
Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir.
2009). A plaintiff bears the burden of establishing sub-
ject-matter jurisdiction by a preponderance of the evi-
dence. Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988).
We also review de novo the grant of summary judg-
ment by the Court of Federal Claims, “drawing justifiable
factual inferences in favor of the party opposing the
judgment” and reapplying the standard applicable to
proceedings before the Court of Federal Claims. Long
Island Savs. Bank, FSB v. United States, 503 F.3d 1234,
1244 (Fed. Cir. 2007). In the Court of Federal Claims,
once the moving party comes forward with evidence
satisfying its initial burden on a motion for summary
judgment, the party opposing the motion must present
evidence creating a genuine issue of material fact. Id.
M MAROPAKIS CARPENTRY v. US 6

Whether a particular defense is permitted under the CDA
is also a question of law, which we review de novo. See
Frazer v. United States, 288 F.3d 1347, 1351 (Fed. Cir.
2002) (holding that “this court reviews de novo all legal
determinations” including the defense of equitable toll-
ing).
II. Time Extensions
The parties in this case dispute whether Maropakis
submitted a valid claim for time extensions to its contract-
ing officer sufficient to give the Court of Federal Claims
jurisdiction over the issue. Under the CDA, the Court of
Federal Claims has jurisdiction over actions filed within
twelve months of a contracting officer’s decision on a
claim. 41 U.S.C. § 609(a). This Court has found that
jurisdiction thus requires both a valid claim and a con-
tracting officer’s final decision on that claim. James M.
Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42
(Fed. Cir. 1996). Since the CDA itself does not define the
term “claim,” we look to the Federal Acquisition Regula-
tions (FAR) implementing the CDA for the definition. See
Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir.
1995) (en banc). The FAR 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 C.F.R. § 33.201. While a CDA claim
need not be submitted in any particular form or use any
particular wording, it must contain “a clear and un-
equivocal statement that gives the contracting officer
adequate notice of the basis and amount of the claim.”
Contract Cleaning Maint., Inc. v. United States, 811 F.2d
586, 592 (Fed. Cir. 1997).
7 M MAROPAKIS CARPENTRY v. US

The CDA also requires that a claim indicate to the
contracting officer that the contractor is requesting a final
decision. Ellett, 93 F.3d at 1543 (“Besides meeting the
FAR definition of a claim, the CDA also requires that all
claims be submitted to the contracting officer for a [final]
decision.”). “This does not require an explicit request for a
final decision, as long as what the contractor desires by its
submissions is a final decision. . . .” Id. (internal quota-
tion marks omitted). These requirements of the CDA are
jurisdictional prerequisites to any appeal. England v.
Swanson, 353 F.3d 1375, 1379 (Fed. Cir. 2004). Thus, for
the Court of Federal Claims to have jurisdiction under the
CDA, the contractor must submit a proper claim─a writ-
ten demand that includes (1) adequate notice of the basis
and amount of a claim and (2) a request for a final deci-
sion. In addition, the contractor must have received the
contracting officer’s final decision on that claim. Ellett, 93
F.3d at 1541-42.
In its complaint, Maropakis alleged it was entitled to
damages because of various “delays, impacts and disrup-
tions” by the government. M. Maropakis, 84 Fed. Cl. at
184. The Court of Federal Claims found that it lacked
subject matter jurisdiction over this claim for time exten-
sion because Maropakis had not satisfied the require-
ments of the CDA. The trial court thoroughly analyzed
each communication between Maropakis and the govern-
ment and found that none of them, either alone or in
combination, contained a clear and unequivocal statement
sufficient to qualify as a claim. Id. at 196-203.
On appeal, Maropakis argues that its letter of July 22,
2002 was sufficient to constitute a claim under the CDA.
Specifically, Maropakis argues that because the July 22,
2002 letter “was the product of continuing discussions
between the parties concerning the assessment of liqui-
dated damages and cause of Project delay, the letter was
M MAROPAKIS CARPENTRY v. US 8

sufficient to give the contracting officer adequate notice of
the basis of Maropakis’s claim.” Maropakis’s Principal
Br. at 20-21. The trial court found, however, that “[a]t
best, a generous reading of the July 22, 2002, correspon-
dence can be interpreted as Maropakis’s request for a
final decision on the government’s liquidated damages
assessment.” M. Maropakis, 84 Fed. Cl. at 203. We agree
that Maropakis’s letter of July 22, 2002 was not sufficient
to provide the contracting officer adequate notice of the
basis and amount of Maropakis’s claim and therefore does
not satisfy the CDA. As noted by the trial court, this
letter mentioned specifically only the 107-day extension
previously requested. Id. The letter did not state the
total number of days requested in extension and did not
request a final decision. In fact, the letter appears to
promise a forthcoming written claim, which never materi-
alized. A claim cannot be based merely on intent to assert
a claim without any communication by the contractor of a
desire for a contracting officer decision. See Transamerica
Ins. Corp., Inc. v. United States, 973 F.2d 1572, 1579 (Fed.
Cir. 1992), overruled in part by Reflectone, 60 F.3d 1572
(holding that submissions qualified as CDA claims when
the contractor “asserted in writing and with sufficient
specificity a right to additional compensation” and “the
contractor communicated his desire for a contracting
officer decision”); Mingus Constructors Inc. v. United
States, 812 F.2d 1387, 1394 (Fed. Cir. 1987) (finding that
letters indicating an intent to file a claim in the future for
an unspecified amount were not claims as defined by the
contract where the contractual definition of claim was
substantially the same as the FAR definition: “a written
demand or assertion by one of the parties seeking, as a
legal right, the payment of money, adjustment or inter-
pretation of contract terms, or other relief, arising under
or relating to this contract”).
9 M MAROPAKIS CARPENTRY v. US

Maropakis also argues that even if it was not in tech-
nical compliance with the CDA, the United States had
actual knowledge of the amount and basis of Maropakis’s
claim and therefore the Court of Federal Claims had
jurisdiction. However, Maropakis provides no evidence
that the government was ever placed on actual notice of
the specific number of days of extension that Maropakis
would ultimately request. Instead, Maropakis points to
the government’s demand for liquidated damages and
asserts that since it refers to Maropakis’s July 22, 2002
letter, the government was fully aware that at least the
amount of damages assessed for the 107-day extension
was in dispute.
Even assuming the government’s knowledge of Ma-
ropakis’s contentions along the way, there is nothing in
the CDA that excuses contractor compliance with the
explicit CDA claim requirements. See 41 U.S.C. § 605
(requiring that “[a]ll claims by a contractor against the
government relating to a contract shall be in writing,”
“shall be submitted to the contracting officer for a deci-
sion,” and “[f]or claims of more than $100,000, the con-
tractor shall certify [] the claim”). Indeed, we have
recognized that the CDA is a statute waiving sovereign
immunity. Winter v. FloorPro, Inc., 570 F.3d 1367, 1370
(Fed. Cir. 2009). A “waiver of sovereign immunity must
be strictly construed in favor of the sovereign.” Orff v.
United States, 545 U.S. 596, 601-02 (2005). Such a waiver
“must be unequivocally expressed in statutory text and
will not be implied.” Lane v. Pena, 518 U.S. 187, 192
(1996) (citations omitted). Thus, we have enforced the
“strict limits of the CDA as ‘jurisdictional prerequisites to
any appeal.’” England, 353 F.3d at 1379 (quoting Shar-
man Co. v. United States, 2 F.3d 1564, 1568-69 n.6 (Fed.
Cir. 1993), overruled on other grounds by Reflectone, 60
F.3d 1572). Maropakis’s argument that this court may
M MAROPAKIS CARPENTRY v. US 10

ignore the jurisdictional requirements of the CDA based
on Maropakis’s allegations of knowledge by the govern-
ment is without merit.
Maropakis’s letter of July 22, 2002 was not a valid
claim under the CDA because it did not provide the
Contracting Officer adequate notice of the total number of
days actually requested in extension, it did not state a
sum certain, and it did not request a final decision. The
absence of notice and the failure to request a final deci-
sion were jurisdictional impairments for a claim under
the CDA. Ellett, 93 F.3d at 1541-42. Moreover, while
technical compliance with certification is not a jurisdic-
tional prerequisite to litigation of a contractor’s claim
under the CDA, it is a requirement to the maintenance of
such an action. 41 U.S.C. § 605(c)(6); see Sharman, 2 F.3d
at 1569. Here, in addition to the jurisdictional defects
noted above, Maropakis’s letter was not certified.
Because Maropakis did not meet the jurisdictional
prerequisites of a claim against the government for con-
tract modification under the CDA, the Court of Federal
Claims correctly dismissed Maropakis’s breach of contract
claim for lack of jurisdiction.
III. Liquidated Damages
Maropakis also claimed that the government’s as-
sessment of damages was improper and sought its remis-
sion in full. The government made a motion for summary
judgment on this claim and on its corresponding counter-
claim for the assessed liquidated damages. The Court of
Federal Claims found that Maropakis “failed to establish
a material issue as to whether the government’s liqui-
dated damages provision was an unenforceable penalty.”
It therefore granted the government’s summary judgment
motion, finding Maropakis liable for the retained balance
11 M MAROPAKIS CARPENTRY v. US

of the contract and an additional $59,514 in liquidated
damages. M. Maropakis, 84 Fed. Cl. at 208.
On appeal, Maropakis argues that “the Court did not
consider Maropakis’s factual defenses.” Maropakis’s
Principal Br. at 27. Maropakis argues that its right to
assert a defense against the government’s claim for liqui-
dated damages means that the CDA requirements that
would otherwise apply to Maropakis’s affirmative claim
for entitlement to time extensions no longer apply and
Maropakis can raise these issues to defend against the
government’s claim. We disagree.
Maropakis relies on Placeway Construction Corp. v.
United States, 920 F.2d 903 (Fed. Cir. 1990), as authority
for the proposition that a valid CDA claim is not required
prior to raising excusable delay as a defense to the gov-
ernment’s liquidated damages claim. 1 However, the

1 The dissent agrees with Maropakis’s argu-
ment citing Garrett v. General Electric Co., 987 F.2d 747,
749 (Fed. Cir. 1983) as authority for the assertion that
claims and defenses are distinct. Slip op. at 3-4. How-
ever, Garrett is inapposite. The issue in Garrett was
whether the Board of Contract Appeals had jurisdiction
over a contracting officer’s decision that GE must correct
a problem under a contract at no additional cost to the
Navy even though GE submitted no claims itself to the
contracting officer. Thus, the only issue addressed by this
Court in Garrett was whether the Board had “jurisdiction
over the Navy’s claims under the contract” and “whether
the Navy’s directives under the contract’s inspection
clause are appealable CDA claims.” Garrett, 987 F.2d at
749. The Court found that this was a government claim
over which the Board correctly determined it had jurisdic-
tion despite the Navy’s choice of a nonmonetary remedy.
Id. Garrett did not discuss GE’s defenses to the govern-
ment claim at issue or whether those defenses themselves
involved contractor claims that must adhere to the re-
quirements of the CDA. Therefore, Garrett like Placeway
M MAROPAKIS CARPENTRY v. US 12

Placeway decision does not support such a rule. In Place-
way, the contractor had submitted a written demand for
payment of an unpaid contract balance of $297,226 to its
contracting officer along with other demands for payment.
Id. at 905. Placeway’s demands, like Maropakis’s re-
quests, were not valid claims under the CDA. Id. In
response to Placeway’s demands, the contracting officer
refused to release the contract balance because Placeway
had failed to complete the contract “in a timely manner.”
Id. Placeway filed a complaint in the Claims Court seek-
ing, among other amounts, the contract price balance.
The United States Claims Court determined that the
government’s decision to keep the contract balance was a
government claim as opposed to a contractor claim and
thus did not require certification. However, the Claims
Court nevertheless concluded that it did not have jurisdic-
tion over the dispute because the government had not
made a final decision on its claim and thus had itself not
made a valid CDA claim. On appeal, we determined that
the contracting officer had effectively made a final deci-
sion on the government claim notwithstanding the fact
that the contracting officer reserved the authority to
redetermine the amount of the setoff claimed based upon
the receipt of additional information on the actual costs
incurred by the government. Id. at 906-07. Therefore, we
concluded that the Claims Court did have jurisdiction
over the government’s claim for liquidated damages. Id.
However, we did not address whether the Claims Court
had jurisdiction over any of Placeway’s defenses.
In this case, there is no dispute that the Court of Fed-
eral Claims had jurisdiction over Maropakis’s claim
relating to liquidated damages and the government’s

does not support the rule advocated by Maropakis and
agreed to by the dissent.
13 M MAROPAKIS CARPENTRY v. US

corresponding counterclaim. The parties also agree that
the claim for liquidated damages was a government claim
that did not require certification and that the contracting
officer properly made a final decision on the issue. The
Court of Federal Claims correctly found that Placeway
had no bearing on the CDA’s requirements for contractor
claims. M. Maropakis, 84 Fed. Cl. at 204. Several other
Court of Federal Claims cases have directly addressed
this issue and have all concluded that even when used as
a defense to a government claim, a contractor’s claim for
contract modification must adhere to the jurisdictional
requirements of the CDA. Sun Eagle Corp. v. United
States, 23 Cl. Ct. 465, 477 (1991) (“This court holds that
the plaintiff is challenging a government claim to liqui-
dated damages and making its own contractor claim to
recover amounts withheld for liquidated damages. The
latter must be certified.”) 2 (emphasis added); Elgin Build-

2 The dissent quotes portions of this same lan-
guage in Sun Eagle when describing the proposition that
claims and defenses are distinct. Slip op. at 5. However,
the dissent, with all due respect, ignores the actual hold-
ing of Sun Eagle, which states as follows:

In the case at bar, plaintiff is seeking an adjustment
of contract terms or monetary relief because it de-
fends against the assessment of liquidated damages
on the basis that the Army caused the delay. The
claim is a claim by the contractor. The contractor
made the claim in its claim letter and, if it recovers,
the CDA would award the contractor interest on its
claim. Plaintiff’s contractor claim must be certified, as
required by 41 U.S.C. § 605(c). In this case plaintiff
did certify its claim. Defendant asserts that the certi-
fication is insufficient because the contractor failed to
certify that the data supporting its claim were “accu-
rate and complete to the best of the contractor’s
knowledge and belief,” as required by section 605(c).
The court need not address this issue, as the case is
M MAROPAKIS CARPENTRY v. US 14

ers, Inc. v. United States, 10 Cl. Ct. 40, 44 (1986) (stating
that “where . . . the contractor seeks to contest the as-
sessment of liquidated damages by claiming entitlement
to time extensions or other relief, the court is presented
with a claim by the contractor against the government
and that must first be presented to the CO” and the
contractor’s defenses in such a case are “limited to the
nature of, and the issues present in, the assessment
itself─that is, for example, to contest that there was any
delay in contract completion”).
The statutory language of the CDA is explicit in re-
quiring a contractor to make a valid claim to the contract-
ing officer prior to litigating that claim. The purpose of
this requirement is to encourage the resolution of dis-
agreements at the contracting officer level thereby saving
both parties the expense of litigation. See 48 C.F.R.
§ 33.204; Reflectone, 60 F.3d at 1580. Maropakis does not
point to any authority that provides an exception to the

in settlement. However, if the issue were resolved ad-
versely to plaintiff, the result would call for the dis-
missal of all of its contractor claims, and the court
would retain jurisdiction only over the government
claim. As a practical consequence, plaintiff likely
would agree to the stay of the government claim
while it recertified its contractor claims, obtained a
contracting officer decision thereon, and refiled in the
Claims Court. That action would be joined with the
instant action and proceedings scheduled on an expe-
dited basis.

Sun Eagle, 23 Cl. Ct. at 482 (emphases added) (internal
citations omitted). Thus, Sun Eagle does not, as stated by
the dissent, support the proposition that the absence of
CDA prerequisites on Maropakis’s claims of government
delay does not bar its right to raise them in defense of the
government’s liquidated damages claim. Instead, Sun
Eagle stands for the exact opposite.
15 M MAROPAKIS CARPENTRY v. US

CDA claim requirements when a contractor’s claim for
contract modification is made in defense to a government
claim. And we see no reason to create such an exception.
Thus, we hold that a contractor seeking an adjustment of
contract terms must meet the jurisdictional requirements
and procedural prerequisites of the CDA, whether assert-
ing the claim against the government as an affirmative
claim or as a defense to a government action.
Here, the Court of Federal Claims correctly required
Maropakis to comply with the CDA requirements not-
withstanding Maropakis’s styling of its claim as a defense
to a government counterclaim for liquidated damages.
Because the Court of Federal Claims correctly held that it
did not have jurisdiction over Maropakis’s claim for time
extensions, and because Maropakis’s extension claim was
the only defense asserted against the government’s coun-
terclaim for liquidated damages, we affirm the grant of
summary judgment to the government on its counterclaim
for liquidated damages.
CONCLUSION
The Court of Federal Claims’s determination that it
lacked jurisdiction over Maropakis’s claim for breach of
contract is affirmed. We also affirm the Court of Federal
Claims’s grant of summary judgment to the government
on its counterclaim for liquidated damages.
AFFIRMED
 United States Court of Appeals
for the Federal Circuit
__________________________

M. MAROPAKIS CARPENTRY, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2009-5024
__________________________

Appeal from the United States Court of Federal
Claims in 03-CV-2825, Judge Lawrence M. Baskir.
__________________________

NEWMAN, Circuit Judge, dissenting.
The court holds that the contractor M. Maropakis
Carpentry, Inc. is barred, in its appeal to the Court of
Federal Claims of the contracting officer’s grant of the
government’s claim for delay damages, from defending
against that claim by showing that the government
caused and contributed to the delay. Thus my colleagues
grant summary judgment to the government on its claim
for $303,550 in delay damages, on the theory that the
court “lack[s] subject matter jurisdiction” to consider the
defense that Maropakis had raised with the Contracting
Officer. I do not share the view that there is no “jurisdic-
tion” to consider the defense to the government’s claim,
whereby the claim was summarily granted without per-
mitting inquiry as to its merits and defenses.
M MAROPAKIS CARPENTRY v. US 2

During performance of the contract, Maropakis had
requested various extensions of time, in light of various
performance delays. The government does not deny that
it had a role in delay. 1 My colleagues’ ruling that the
court does not have “subject matter jurisdiction” of the
contractor’s defense that the government contributed to
the delay, is based on the theory that Maropakis “had not
submitted a ‘claim’ for contract modification as required
under the CDA.” Maj. Op. at 5. My colleagues hold that
the courts are deprived of jurisdiction because no separate
claim to modify the contract was made. However, Ma-
ropakis is not seeking contract reformation. Nor is Ma-
ropakis seeking damages or additional compensation.
Maropakis is simply raising an objection to the merits of
the government’s claim for delay damages, defending on
the ground that the government had contributed to the
delay.
The question is not whether Maropakis could have or
should have submitted a claim for some sort of contract
modification; the question is whether Maropakis is per-
mitted to defend against the government’s claim for delay
damages. The majority cites the FAR’s inclusion of “the
adjustment . . . of contract terms” in the definition of
“claim.” However, this definition does not mean that the
FAR requires that the government contract be presented
for modification before a contractor can defend against a
government claim arising from contract performance.

1 It was not disputed that the government ordered
cessation of all work and did not authorize Maropakis to
proceed to remove the lead paint until 107 days after
discovery of the paint by Maropakis. It was not disputed
that when Maropakis found that the windows specified by
the government did not exist, the government refused to
change the specifications, and by the time the windows
were custom made and the lead paint removed, the entire
performance time set in the contract had elapsed.
3 M MAROPAKIS CARPENTRY v. US

Indeed, the contracting officer did not require Maropakis
to file a request for contract modification in order for the
contracting officer to consider Maropakis’ various re-
quests for extensions of performance time. These re-
quests were simply denied for various reasons relating to
substance, not procedure.
When a claim is within a tribunal’s jurisdiction, like
the government’s claim for delay damages, the tribunal
routinely has jurisdiction to consider defenses to the
claim. This rule is not negated by any provision of the
Contract Disputes Act. Yet my colleagues sustain the
government’s CDA claim and its sizable monetary award,
permitting no defense and imposing obstacles that have
been negated by statute and precedent. For example, my
colleagues hold that Maropakis was required to “certify”
its defense, as if it were a monetary claim. Precedent is
contrary. My colleagues hold that Maropakis was re-
quired to state a “sum certain” that it is claiming; how-
ever, Maropakis is not claiming a sum; it is objecting to
the damages claimed by the government, raising the
defense that the government contributed to the delay.
And my colleagues hold that Maropakis was required to
somehow seek and obtain “contract modification” before it
could raise this defense; this curious theory is devoid of
support.
In Garrett v. General Electric Co., 987 F.2d 747 (Fed.
Cir. 1993), the court considered whether the government’s
directive to the contractor to do certain remedial work at
the contractor’s expense was a government “claim”; this
court held that it was, and that the contractor could
appeal and raise its objections without filing a separate
“claim” of its own. Jurisdiction was based on the govern-
ment’s claim, not the contractor’s objection to that claim.
This court was explicit in holding that the contractor did
not have to submit its own claim:
M MAROPAKIS CARPENTRY v. US 4

GE submitted no claims to the CO on the engine
defects at the time of the decision. The Act, how-
ever, provides that a contractor may appeal a Gov-
ernment claim to the appropriate board without
submitting a claim of its own to the CO. Thus,
only jurisdiction over the Navy’s claims under the
contract are at issue in this appeal.
Id. at 749 (citation omitted). This holding is contravened
by the court’s decision today, for although jurisdiction of
the government’s claim for delay damages is undisputed,
the court now requires a separate jurisdictional basis for
the contractor’s objection to the government’s claim.
Placeway Construction Corp. v. United States, 920
F.2d 903 (Fed. Cir. 1990) arose on facts analogous to those
of Maropakis. In Placeway the appeal was from the
contracting officer’s decision not to release the contract
balance, the government asserting delay damages. Like
Maropakis, the contractor raised the defense that the
government had caused some of the delay. See Placeway
Constr. Corp. v. United States, 18 Cl. Ct. 159, 162 (1989),
aff’d in part, vacated in part, and remanded, 920 F.2d 903
(Fed. Cir. 1990). This court agreed with the Claims Court
that the government’s withholding of the contract balance
as a setoff against its claim for delay damages was a
government claim. Placeway, 920 F.2d at 906. Because
the contracting officer’s decision on the government claim
was final, jurisdiction was proper, despite the absence of a
contractor claim complying with CDA procedures includ-
ing certification. That is, the contractor’s complaint
seeking recovery of the contract balance was not a con-
tractor claim, and did not require certification. This
5 M MAROPAKIS CARPENTRY v. US

court’s ruling today conflicts with its holding in Place-
way. 2
Other decisions have explored various aspects of the
difference between a claim and a defense, as particular
facts and circumstances have tested the boundary. In
Sun Eagle Corp. v. United States, 23 Cl. Ct. 465 (1991),
the Claims Court explained that while certification is
required of a contractor’s claim for payment under the
contract, for it constitutes a “contractor claim,” a defense
to a government claim need not be certified. The Sun
Eagle court summarized:
Placeway held that a contractor’s challenge to a
government claim need not be certified. This
court holds that plaintiff is challenging a govern-
ment claim to liquidated damages and making its
own contractor claim to recover amounts withheld
for liquidated damages. The latter must be certi-
fied.
Id. at 477.
Precedent respects the distinction between a claim
and a defense. My colleagues’ selective quotation from
the opinion in Sun Eagle, Maj. Op. at 13 n.2, implements
the holding in Sun Eagle that the contractor’s letter was
indeed a “claim,” made “in a claim letter,” 23 Cl. Ct. at
480. The Sun Eagle court then held that since the con-
tractor had made such a claim, it needed to be certified.
The court explicitly did not hold that a contractor raising
a defense to a government claim “must meet the jurisdic-
tional requirements and procedural prerequisites of the

2 The majority posits that Placeway dealt only with
government claims, and not contractor defenses. Maj. Op.
at 12. That is precisely the point: in Placeway this court
based jurisdiction on the government’s claim; a defense
does not have a jurisdictional dimension.
M MAROPAKIS CARPENTRY v. US 6

CDA,” Maj. Op. at 15. The routine defense that the
government contributed to delay is a defense, not a con-
tract modification. Failure to meet the CDA requirements
for certification, naming a sum certain, requesting a final
decision, or modifying the contract, does not preclude
defending against the government’s claim.
Indeed, whether Maropakis’ several requests for time
extensions met the CDA’s “claim” requirements is irrele-
vant – although these letters stated that the contractor
would dispute any assessment of delay damages. The
issue here is not whether Maropakis perfected a monetary
claim of its own, but whether Maropakis is to be permit-
ted to defend against the government’s claim. No rule or
precedent holds that a contractor forfeits its right of
defense if it does not file its own claim. And the court is
misguided in its ruling that the government’s claim for
damages cannot be defended against unless the contractor
first undertakes the formal procedures of contract modifi-
cation. In Garrett this court explained that the CDA
“provides that a contractor may appeal a Government
claim to the appropriate board without submitting a claim
of its own to the CO.” 987 F.2d at 749. See also 41 U.S.C.
§609(a)(1) (“[I]n lieu of appealing . . . to an agency board,
a contractor may bring an action directly on the claim in
the United States Court of Federal Claims, notwithstand-
ing any contract provision, regulation, or rule of law to the
contrary.”). No statute or rule withholds subject matter
jurisdiction from such actions when the contractor chal-
lenges a government claim.
The government did not dispute that it owed Ma-
ropakis the unpaid balance of the contract, and the con-
tracting officer’s recognition of that obligation is not
appealed. The only issue is the summary grant of judg-
ment to the government for the delay damages in the
government’s claim, while denying, on “jurisdictional”
7 M MAROPAKIS CARPENTRY v. US

grounds, Maropakis’ right of defense. The right to defend
against an adverse claim is not a matter of “jurisdiction,”
nor of grace; it is a matter of right. The denial of that
right, argued by the government on a theory of “jurisdic-
tion” that was supported by the Court of Federal Claims
and is now supported by this court, is contrary to the
purposes of the CDA, contrary to precedent, and an af-
front to the principles upon which these courts were
founded. 3 I respectfully dissent.

3 “It is as much the duty of Government to render
prompt justice against itself, in favor of citizens, as it is to
administer the same, between private individuals.” A.
Lincoln, First Annual Message (Dec. 3, 1861), engraved at
the entrance to this courthouse, 717 Madison Place NW,
Washington, DC.