Lumbermens Mutual Casualty Co. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

LUMBERMENS MUTUAL CASUALTY COMPANY,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
__________________________

2010-5086, -5087
__________________________

Appeal from the United States Court of Federal
Claims in case no. 04-CV-1255, Senior Judge Robert H.
Hodges, Jr.
___________________________

Decided: August 3, 2011
___________________________

MARK G. JACKSON, Ball Janik, LLP, of Seattle, Wash-
ington, argued for plaintiff-cross appellant. With him on
the brief was MATTHEW C. HOYER, of Washington, DC.

DONALD E. KINNER, Assistant Director, Attorney,
Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued
for defendant-appellant. With him on the brief were
TONY WEST, Assistant Attorney General, JEANNE E.
DAVIDSON, Director and CHRISTOPHER L. KRAFCHEK, Trial
Attorney. Of counsel was LESLIE CAYER OHTA.
LUMBERMENS MUTUAL CASUALTY CO v. US 2

EDWARD G. GALLAGHER, The Surety & Fidelity Asso-
ciation of America, of Washington, DC, for amicus curiae
The Surety & Fidelity Association of America.
__________________________

Before BRYSON, MAYER and DYK, Circuit Judges.
DYK, Circuit Judge.
This case requires us to decide three issues concern-
ing the jurisdiction of the United States Court of Federal
Claims (“Claims Court”) in actions brought by Miller Act
sureties against the United States. See 40 U.S.C.
§ 3131(b) (2006) (formerly 40 U.S.C. § 270a).
In Insurance Company of the West v. United States,
243 F.3d 1367, 1375 (Fed. Cir. 2001) [hereinafter ICW],
we held that the Claims Court has jurisdiction under the
Tucker Act, 28 U.S.C. § 1491, over sureties’ claims against
the government that are based upon the theory of equita-
ble subrogation. The first issue presented in this appeal
is whether the surety’s claim against the United States
seeking to recover allegedly improper progress payments
made to the contractor is an equitable subrogation claim
and is therefore within Tucker Act jurisdiction under
ICW. We conclude that the surety’s claim is not an equi-
table subrogation claim because the United States made
the payments in question before it received notice of the
contractor’s default.
The second issue is whether the Claims Court has
Tucker Act jurisdiction over impairment of suretyship
claims against the government apart from the theory of
equitable subrogation. We hold that the United States’
waiver of sovereign immunity under the Tucker Act does
not extend to such claims.
3 LUMBERMENS MUTUAL CASUALTY CO v. US

The final question is whether the administrative re-
quirements of the Contract Disputes Act (“CDA”), 41
U.S.C. § 601 et seq., apply to a surety’s claim against the
United States arising from a takeover agreement which
the government and surety have entered into for the
completion of a bonded contract following the principal
obligor’s default. We hold that such claims fall within the
scope of the CDA and that, as such, the Claims Court
lacks jurisdiction over a surety’s takeover agreement
claim where the surety has failed to satisfy the CDA’s
jurisdictional prerequisites.
BACKGROUND
I
On April 11, 2000, Landmark Construction Company
(“Landmark”) and the United States Navy (“Navy”) en-
tered into a contract under which Landmark agreed to
repair and renovate 160 military family housing units for
the price of $9,878,026. The contract required construc-
tion to be completed by October 23, 2002, and it provided
for liquidated damages of $75 per unit, per day past that
date. In accordance with the Miller Act, 40 U.S.C.
§ 3131(b) (2006) (formerly 40 U.S.C. § 270a), the contract
required Landmark to furnish performance and payment
bonds.
To fulfill the construction contract’s bond require-
ment, Landmark entered into two suretyship agreements
with Lumbermens Mutual Casualty Company (“Lumber-
mens”) on April 20, 2000, under which Lumbermens
issued a payment bond (for $2.5 million) and a perform-
ance bond (for the $9,878,026 contract price). The United
States was not a party to either suretyship agreement,
but both contracts expressly identified the United States
as the intended third-party beneficiary of the bond in the
event Landmark breached its obligations.
LUMBERMENS MUTUAL CASUALTY CO v. US 4

On February 27, 2001, Landmark and the Navy
agreed to add 21 housing units to the construction con-
tract (for a total of 181 units) in exchange for increasing
the contract price by $1,884,174. The modification did not
extend the contract’s completion date, which remained
October 23, 2002. Lumbermens did not provide payment
or performance bonds for the additional units.
On July 20, 2001, Landmark informed the Navy that
it was unable to complete the construction contract due to
financial problems, and it abandoned the construction site
soon thereafter. The Navy terminated Landmark for
default on August 2, 2001. At that time, Landmark had
completed only 22 (about 12%) of the 181 housing units,
but the Navy had already given Landmark payments
equal to $4,793,633—approximately 40% of the modified
contract price. In making these payments, the govern-
ment allegedly ignored multiple Federal Acquisition
Regulation (“FAR”) provisions incorporated into the
contract that were purportedly aimed at ensuring pro-
gress payments would correspond to the amount of work
actually completed. For example, under the FAR pay-
ment provisions, progress payments were not to be issued
until Landmark provided a Schedule of Prices (an itemi-
zation of the contract price detailing how all funds would
be spent), a Network Analysis Schedule (a chart breaking
down the contractor’s work schedule into a series of tasks
and dates), and, for each invoice, a Certification of Com-
pletion (a document certifying that the invoice submitted
by the contractor only requests payment for services
within the contract). Lumbermens contends that the
government did not enforce these FAR provisions; that
the provisions were intended to benefit the surety as well
as the government; and that Lumbermens was injured as
a result of the government’s lax enforcement.
5 LUMBERMENS MUTUAL CASUALTY CO v. US

Following Landmark’s default, the United States ex-
ercised its rights as an intended third-party beneficiary of
the performance bond and demanded that Lumbermens
complete the construction contract. Lumbermens ac-
cepted its obligation and hired Atherton Construction
(“Atherton”) to complete the job. The three parties—
Lumbermens, Atherton, and the United States—entered
into a “takeover agreement” on November 20, 2001, under
which Lumbermens agreed that, “in accordance with [its]
obligations under [the] Performance Bond,” “it [would]
undertake the completion of the work and [would] con-
tract with [Atherton] for completing the work remaining
under the contract.” J.A. 314. Atherton agreed to com-
plete the entire modified contract, including the 21 addi-
tional units that were not part of the original contract
bonded by Lumbermens, and it contracted with another
surety to bond the additional units. Lumbermens and
Atherton also entered into a separate “completion” con-
tract under which they agreed that Lumbermens would
be responsible for all liquidated damages assessed by the
government between October 23, 2002, and June 22, 2003,
and Atherton would be liable for assessments thereafter.
In January 2002, after beginning construction, Ather-
ton discovered safety code violations in the electrical work
completed by Landmark. The Navy had previously been
notified of the faulty wiring issue by Landmark during a
design review meeting on August 24, 2000. Though the
electrical issue delayed Atherton’s work by 46 days, the
Navy denied Atherton’s requests for an extension.
Atherton completed the construction project on June
6, 2003. Because this was after the contract’s October 23,
2002, completion date, the Navy assessed Atherton liqui-
dated damages of $1,015,125—including $713,475 for its
delay in finishing the base units from the original con-
struction contract and $301,650 for its delay in complet-
LUMBERMENS MUTUAL CASUALTY CO v. US 6

ing additional units under the modified contract. Because
these liquidated damages were all assessed for the period
between October 23, 2002, and June 22, 2003, Lumber-
mens was required to reimburse Atherton pursuant to the
parties’ completion contract.
II
Following completion of the construction project,
Lumbermens brought suit against the government in the
Claims Court under the Tucker Act, 28 U.S.C. § 1491,
seeking to recover damages under three theories, which
we now discuss.
A. Equitable Subrogation
Lumbermens’ first claim sought to recover damages
under the theory of “equitable subrogation.” J.A. 43.
Lumbermens contended the government improperly
increased Lumbermens’ suretyship costs by making
overpayments to Landmark in violation of FAR payment
provisions in the bonded contract that were aimed at
ensuring progress payments corresponded to work actu-
ally completed. Lumbermens argued that these provi-
sions were included in the construction contract in part
for Lumbermens’ protection as a surety. As such, Lum-
bermens argued, the government owed it a duty to admin-
ister the contract according to these provisions so that it
did not materially increase Lumbermens’ risk under its
bond obligations. By making payments to Landmark
before the corresponding work was completed, Lumber-
mens argued, the government prematurely depleted the
contract fund that Lumbermens relied on to support its
bond, thereby increasing the amount Lumbermens ulti-
mately was required to pay out to complete the contract
following Landmark’s default.
7 LUMBERMENS MUTUAL CASUALTY CO v. US

The government moved to dismiss Lumbermens’ equi-
table subrogation claim for lack of jurisdiction, contending
that the United States has not waived sovereign immu-
nity for claims by a surety based on alleged overpayments
on a bonded contract made prior to receiving notice from
the surety of the contractor’s default. In considering the
government’s motion to dismiss, the court noted that we
recognized in ICW that the Claims Court has Tucker Act
jurisdiction over sureties’ equitable subrogation claims
against the government. See Lumbermens Mut. Cas. Co.
v. United States, 67 Fed. Cl. 253, 255 (2005) (citing ICW,
243 F.3d at 1375) [hereinafter Lumbermens I]. The court
described “[t]he doctrine of equitable subrogation [as]
entitl[ing] a surety taking over [a] contract[’s] perform-
ance . . . to rights that the defaulting contractor would
have had against the government.” Id. at 255. However,
the court further noted that “[t]he Government’s equitable
duty to retain contract funds for the surety is triggered
upon notice from the surety that the contractor is in
default or that payment should be made to the surety.”
Id. Thus, the court dismissed Lumbermens’ “equitable
subrogation” claim because it “did not notify the Govern-
ment that Landmark was approaching default or that the
Navy should withhold or divert progress payments” before
the payments were made. Id.
B. Impairment of Suretyship / Pro Tanto Discharge
For its second claim, Lumbermens asserted identical
counts to that of its “equitable subrogation” claim on an
alternative theory of impairment of suretyship (a.k.a. pro
tanto discharge), J.A. 31, pointing out that state contract
law recognizes such claims. The government moved to
dismiss Lumbermens’ impairment of suretyship / pro
tanto discharge claim for lack of jurisdiction, contending
that the United States has not waived sovereign immu-
nity for such claims. After a trial, the Claims Court
LUMBERMENS MUTUAL CASUALTY CO v. US 8

determined it had jurisdiction over Lumbermens’ impair-
ment of suretyship claim without addressing the sover-
eign immunity issue. See Lumbermens Mut. Cas. Co. v.
United States, 90 Fed. Cl. 558, 560 (2009) [hereinafter
Lumbermens II].
The court found that the FAR provisions were in-
cluded for the benefit of the surety as well as the govern-
ment. Id. at 562. The court concluded that, by making
overpayments to Landmark, the government had improp-
erly “impaired collateral that Lumbermens relied on to
support its bond.” Id. at 569. The court accordingly
awarded Lumbermens $1,375,420.11 in damages. Id.
The court rejected Lumbermens request for additional
damages based on the government’s alleged overpayment
of Landmark’s personnel costs, finding that these costs
were properly paid as “fixed overhead” costs that were
“allocated across the length of [the] contract.” Id. at 567.
C. Takeover Agreement
Lumbermens’ final claim alleged that the United
States breached the parties’ takeover agreement by
withholding an improper amount of Atherton’s contract
payments as liquidated damages for the contract’s late
completion. Lumbermens contended the government’s
liquidated damages assessment against Atherton (ulti-
mately paid by Lumbermens) 1 was excessive because (1)
the government was at fault for the 46 day delay caused
by its faulty electrical wiring, and (2) the government had
no right to assess liquidated damages against Lumber-
1 The parties agree that, by obligating itself under
the completion contract to reimburse Atherton for the
liquidated damages, Lumbermens was equitably subro-
gated to Atherton’s rights and could assert any claim
Atherton had against the government, including Ather-
ton’s claim for remission of improperly assessed liqui-
dated damages.
9 LUMBERMENS MUTUAL CASUALTY CO v. US

mens based on the late completion of the 21 housing units
added to the contract which Lumbermens did not bond.
The government moved to dismiss Lumbermens’ takeover
agreement claim on the grounds that Lumbermens failed
to satisfy the jurisdictional prerequisites of the CDA, such
as the requirement under 41 U.S.C. § 605(a) and (c)(1)
that it first submit a certified claim to the contracting
officer.
The court found that the CDA’s jurisdictional re-
quirements were inapplicable to Lumbermens’ claim
because the CDA applies to “contractor[s]” that enter
“contract[s] for the procurement of materials or services,”
whereas Lumbermens signed the takeover agreement “in
its capacity as a surety.” Lumbermens II, 90 Fed. Cl. at
561. With respect to the merits, the court accepted Lum-
bermens’ first argument, rejected its second argument,
and awarded Lumbermens $326,700 in remitted liqui-
dated damages. Id. at 568–69.
The United States appealed the Claims Court’s judg-
ment in favor of Lumbermens to this Court. Lumbermens
cross-appealed seeking additional damages with respect
to both its impairment of suretyship and takeover agree-
ment claims. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
I
We first consider the government’s contention that
the United States has not waived its sovereign immunity
with respect to Lumbermens’ claims for damages based on
the allegedly premature progress payments made by the
government to Landmark.
The United States is immune from suit absent “a
clear statement . . . waiving sovereign immunity . . .
LUMBERMENS MUTUAL CASUALTY CO v. US 10

together with a claim falling within the terms of the
waiver.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 498
(2006) (quoting United States v. White Mountain Apache
Tribe, 537 U.S. 465, 472 (2003)). The government’s
waiver of sovereign immunity “‘must be unequivocally
expressed in statutory text’ and ‘will be strictly construed,
in terms of its scope, in favor of the sovereign.’” Gomez-
Perez v. Potter, 553 U.S. 474, 491 (2008) (quoting Lane v.
Peña, 518 U.S. 187, 192 (1996)). Whether the United
States has waived sovereign immunity with respect to a
particular claim is a question of law, which we review de
novo. ICW, 243 F.3d at 1370.
The sole basis alleged for the Claims Court’s jurisdic-
tion over Lumbermens’ claim is the Tucker Act, 28 U.S.C.
§ 1491(a)(1), which provides in relevant part:
The United States Court of Federal Claims
shall have jurisdiction to render judgment upon
any claim against the United States founded . . .
upon any express or implied contract with the
United States . . . .
It is clear that Lumbermens was not in privity of con-
tract with the United States prior to executing the take-
over agreement. The United States was not a party to
either suretyship agreement, although the government
was named as the intended third-party beneficiary in
both. See J.A. 327, 329. 2 Lumbermens nevertheless

2 It is well settled that, in this type of suretyship
arrangement, the obligee and the surety are not in privity
of contract. See ICW, 243 F.3d at 1370 (noting that we
have “held that there is no [privity of contract]” between
the surety and obligee in such cases); Admiralty Constr.,
Inc. v. Dalton, 156 F.3d 1217, 1220–21 (Fed. Cir. 1998)
(finding that “the Navy was not a party to the surety
agreement,” so the surety could not file a Contract Dis-
putes Act claim with the contracting officer); Fireman’s
11 LUMBERMENS MUTUAL CASUALTY CO v. US

contends that “express or implied contracts” jurisdiction
exists under the Tucker Act.
A. Equitable Subrogation
Lumbermens first contends that it can recover dam-
ages based on the government’s alleged overpayments to
Landmark under an “equitable subrogation” theory, J.A.
43, relying on our decision in ICW, 243 F.3d at 1374–75.
In ICW, a surety provided performance and payment
bonds for a government contract, and the United States
was not a party to the suretyship agreements. Id. at
1369–70. Upon incurring financial difficulties, the con-
tractor notified the United States that it would be unable
to continue performing, and the surety notified the gov-
ernment that it was to receive all further payments on the
contract. Id. at 1369. Nonetheless, the government
thereafter continued making payments to the contractor.
Id. The surety brought suit against the United States
seeking to recover the wrongfully disbursed funds under
the theory of equitable subrogation. Id. We held that the
Claims Court had jurisdiction because, under the doctrine
of equitable subrogation, the surety “step[s] into the shoes
of [the] government contractor” and may bring suit under
the Tucker Act based on the contractor’s privity with the
United States under the construction contract. Id. at
1369, 1374–75; see also Nat’l Am. Ins. Co. v. United
States, 498 F.3d 1301, 1304 (Fed. Cir. 2007) (reaffirming
that a surety may “invoke the doctrine of equitable subro-
gation to step into the shoes of the contractor for the

Fund Ins. v. United States, 909 F.2d 495, 499 (Fed. Cir.
1990) (finding no privity between the surety and the
obligee because, “while the [obligee was] identified as the
intended third-party beneficiary of the performance bond,
it did not sign the bond or undertake any obligation to
Fireman’s Fund in it”); Ransom v. United States, 900 F.2d
242, 244–45 (Fed. Cir. 1990) (same).
LUMBERMENS MUTUAL CASUALTY CO v. US 12

purpose of satisfying the jurisdictional requirements of
the Tucker Act”).
The Claims Court dismissed Lumbermens’ “equitable
subrogation” claim here because, before the payments
were made, Lumbermens “did not notify the Government
that Landmark was approaching default or that the Navy
should withhold or divert progress payments.” Lumber-
mens I, 67 Fed. Cl. at 255. We agree. The theory of
equitable subrogation is based on the view that the trig-
gering of a surety’s bond obligation gives rise to an im-
plied assignment of rights by operation of law whereby
the surety “is subrogated to the [principal obligor’s]
property rights in the contract balance.” Balboa Ins. Co.
v. United States, 775 F.2d 1158, 1161 (Fed. Cir. 1985)
(emphasis omitted). That is, the surety “step[s] into the
shoes” of the principal obligor and is entitled to all of its
rights relating to the construction contract. ICW, 243
F.3d at 1374; see also Nat’l Am. Ins. Co., 498 F.3d at 1304,
1307. Here, equitable subrogation is not implicated.
Equitable subrogation can be used to recover improper
payments to a principal obligor only if made after the
obligee received notice of the principal obligor’s default
(i.e., notice that the bond obligation has been triggered
and an implied assignment of the contract rights to the
surety has occurred). 3 The alleged overpayments in this

3 See ICW, 243 F.3d at 1371 (explaining that
“[n]otice from the surety to the [obligee is] essential” for a
surety to recover under the theory of equitable subroga-
tion); Fireman’s Fund, 909 F.2d at 498 (same); Balboa,
775 F.2d at 1162–64 (same); U.S. Fid. & Guar. Co. v.
United States, 475 F.2d 1377, 1384 (Ct. Cl. 1973) (same);
see also Restatement (Second) of Contracts § 338(1)
(“[N]otwithstanding an assignment, the assignor retains
his power to discharge or modify the duty of the obligor to
the extent that the obligor performs or otherwise gives
value until but not after the obligor receives notification
13 LUMBERMENS MUTUAL CASUALTY CO v. US

case were all made before the obligee received notice of
Landmark’s default. Thus, stepping into the shoes of
Landmark at the time of the default notice would not
enable Lumbermens to assert a claim for damages based
on the government’s alleged overpayments to Landmark.
This is so because Landmark itself would have no claim
against the government for funds the government had
already paid it under the contract (as opposed to a right to
recover future payments). As we stated in Fireman’s
Fund, “[o]nly when the surety may be called upon to
perform, that is, only when it may become a party to the
bonded contract, should the government owe it any duty.”
909 F.2d at 499.
Contrary to Lumbermens’ assertions, this court did
not hold to the contrary in National Surety Corp. v.
United States, 118 F.3d 1542 (Fed. Cir. 1997). The court
in National Surety merely found that the notice require-
ment for an equitable subrogation claim was satisfied
where “the government had knowledge of the default . . .
and so informed the surety.” Id. at 1547. While the
National Surety court may have arguably misappre-
hended the particular facts of that case when applying the
prevailing rule, the court did not purport to eliminate the
longstanding rule that equitable subrogation permits a
surety to recover improper payments only if made after
the obligee was on notice of the principal obligor’s default.
Indeed, a panel of this court would lack the authority to
eliminate this rule in view of our prior precedents explic-
itly holding that equitable subrogation only applies to

that the right has been assigned and that the perform-
ance is to be rendered to the assignee.” (emphasis added));
id. cmt. e, illus. 4; id. § 336(2) (“The right of an assignee is
subject to any defense or claim of the obligor which ac-
crues before the obligor receives notification of the as-
signment . . . .”).
LUMBERMENS MUTUAL CASUALTY CO v. US 14

payments made after the obligee receives notice of the
default. See Fireman’s Fund, 909 F.2d at 498; Balboa,
775 F.2d at 1162–64; U.S. Fid. & Guar., 475 F.2d at
1384. 4
Here, Lumbermens does not allege that any improper
payments were made to Landmark after July 2001, when
Landmark first informed the government of its default.
Lumbermens I, 67 Fed. Cl. at 254. Because the govern-
ment did not make progress payments to Landmark after
notice of its default, the Claims Court correctly held that
Lumbermens cannot recover the alleged overpayments
under the theory of equitable subrogation.
B. Impairment of Suretyship / Pro Tanto Discharge
Alternatively, Lumbermens asserts it was entitled to
bring its claim based on the theory of impairment of
suretyship / pro tanto discharge. We find that the United
States has not waived sovereign immunity as to such
claims.
Essential to an understanding of this issue is a dis-
cussion regarding the origins of, and theoretical basis for,
an impairment of suretyship / pro tanto discharge claim.
The theory of discharge began as a state law defense that
a surety could assert to avoid enforcement of its bond
obligation on the grounds that the obligee (the beneficiary
of the bond) had taken improper actions which prejudiced
the surety by increasing its financial risk. For example,
one ground for discharge is when material modifications
that increase the surety’s risk are made to the bonded

4 This court applies the rule that earlier decisions
prevail unless overruled by the court en banc, or by other
controlling authority such as intervening statutory
change or Supreme Court decision.” Tex. Am. Oil Corp. v.
Dep’t of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en
banc).
15 LUMBERMENS MUTUAL CASUALTY CO v. US

contract without the surety’s consent. See Restatement
(First) of Security § 128 (1941); see also Restatement
(Third) of Suretyship and Guaranty §§ 37(2), 41. If such a
modification substantially increases the surety’s risk by a
factor “which cannot fairly be measured,” then “the surety
is discharged [of its bond obligations] entirely”; otherwise,
the surety’s bond obligation “is discharged only to the
extent of [its] loss”—i.e., a pro tanto discharge. Restate-
ment (First) of Security § 128, cmt. (f); see also Reliance
Ins. Co. v. Colbert, 365 F.2d 530, 535 (D.C. Cir. 1966).
Another ground for pro tanto discharge—which corre-
sponds to Lumbermens theory in this case—is that the
obligee has prejudiced the surety by improperly making
early contract payments or overpayments to the principal
obligor in a manner inconsistent with specific payment
schedules, conditions, or retainage provisions in the
bonded contract. Early payments or overpayments to the
principal obligor prematurely deplete the bonded contract
fund to which the surety expects a right of equitable
subrogation in the event that the principal defaults and
the surety is required to perform. See Restatement
(Third) of Suretyship and Guaranty §§ 37(3)(f), 44 (dis-
cussing impairment of right of subrogation); see also id.
§§ 37(3)(d), 42 (discussing impairment of collateral—i.e.,
the contract balance). That is, by wasting the contract
funds in contravention of the contract’s terms, the obligee
may impair the surety’s future right of equitable subroga-
tion and increase its risk of loss, thereby discharging it
from its bond obligation pro tanto. 5

5 See, e.g., United States v. Cont’l Cas. Co., 512 F.2d
475, 478 (5th Cir. 1975) (“[A] surety is entitled to be
subrogated to the benefit of all securities and means of
payment under the [obligee’s] control, and any act by the
[obligee] depriving the surety of this right discharges it
pro tanto . . . . [The obligee] . . . must act in good faith
LUMBERMENS MUTUAL CASUALTY CO v. US 16

While pro tanto discharge, as the government admits,
may be asserted as a defense to a government claim
asserted under a bond, the problem here is that Lumber-
mens is asserting the theory of impairment of suretyship
not as a defense, but as an affirmative cause of action.
Lumbermens correctly points out that, over time, the
state law theory of impairment of suretyship / pro tanto
discharge evolved to encompass not only a defense, but
also an affirmative cause of action that allows a surety to
seek damages from an obligee after fully performing its
bond obligation despite having an impairment of surety-
ship defense. See Restatement (Third) of Suretyship and
Guaranty § 37(4) (“If the obligee impairs the [surety’s]
suretyship status . . . the [surety] has a claim against the
obligee with respect to such performance to the extent
that such impairment would have discharged the [surety]
with respect to that performance.”); id. cmt. a (noting that
“this section and §§ 39–44 provide rules discharging the
[surety] from liability . . . and providing for recovery from
the obligee if the loss has already occurred because the
[bond] obligation has been performed”). When a surety
fully performs even though it would have had a right to
withhold some amount of performance had it asserted a
pro tanto discharge defense, the surety has effectively
overpaid on its bond obligation. In such cases, “the
[surety] is harmed and, but for [a cause of action to re-
cover the excess amount paid], the obligee would receive a

and not unreasonably prejudice the surety’s right to
subrogation.”); Fort Worth Indep. Sch. Dist. v. Aetna Cas.
& Sur. Co., 48 F.2d 1, 4 (5th Cir. 1931) (“It is well settled
that a stipulation in a building contract that a percentage
of the price shall be retained until the final completion
and acceptance of the work, is as much for the benefit of
the surety as for the protection of the [obligee], and a
failure to comply therewith releases the former in so far
as the rights of the latter are concerned.”).
17 LUMBERMENS MUTUAL CASUALTY CO v. US

windfall.” Id. at § 37(4) cmt. d. Thus, the surety’s af-
firmative cause of action for impairment of suretyship
stems not from an equitable assignment of rights (like
equitable subrogation), but rather is based on an implied-
in-law contract theory—i.e., a recovery in the nature of
quantum meruit or quantum valebant.
Here, Lumbermens alleged it was prejudiced by the
government’s overpayments to Landmark that were
inconsistent with progress payment provisions in the
construction contract and that it was discharged of its
bond obligation to the extent of the allegedly improper
payments. 6 Lumbermens therefore sought reimburse-
ment from the government under the theory that, by fully
performing its bond obligation, Lumbermens conferred
more benefit on the government than was legally required
and the government was unjustly enriched. While this
may be a sound legal theory for recovery against an
obligee as a matter of state law, we conclude that the
United States has not waived sovereign immunity as to
such claims.
In Department of the Army v. Blue Fox, 525 U.S. 255
(1999), the Supreme Court directly addressed the issue of
sovereign immunity with respect to non-contractual rights
created by state law. In Blue Fox, an insolvent prime
contractor working on a government contract failed to pay
a subcontractor for its work. Id. at 256. The subcontrac-
tor sued the government in federal district court under
§ 10(a) of the Administrative Procedure Act (“APA”)
seeking to enforce an equitable lien on any contract funds

6 The government disputes whether the FAR pay-
ment provisions at issue were included in the contract for
Lumbermens’ benefit and, if they were, whether those
provisions were violated. We need not reach this question
because we find that the Claims Court lacked jurisdiction
over Lumbermens’ claim.
LUMBERMENS MUTUAL CASUALTY CO v. US 18

remaining in the government’s possession. Id. at 256–57,
260. Section 10(a) of the APA waives sovereign immunity
for claims “seeking relief other than money damages.” 5
U.S.C. § 702. The Supreme Court noted that “a waiver of
sovereign immunity is to be strictly construed, in terms of
its scope, in favor of the sovereign.” Blue Fox, 525 U.S. at
261. The Court concluded that the plaintiff’s claim for an
equitable lien was a claim for money damages and thus
outside the APA’s waiver of sovereign immunity. Id. at
262–63.
But the Court also made clear that state law equitable
theories could not be asserted as monetary claims against
the government by subcontractors and suppliers. The
Court noted that “sovereign immunity left subcontractors
and suppliers without a remedy against the Government
when the general contractor became insolvent,” and that
the Miller Act bond requirement was designed to cure
that problem. Id. at 264. 7 “But the Miller Act by its
terms only gives subcontractors the right to sue on the
surety bond posted by the prime contractor, not the right
to recover their losses directly from the Government.” Id.
The Court explicitly rejected the theory “that subcontrac-
tors and suppliers can seek compensation directly against
the Government.” Id. The Court also expressly rejected
the plaintiff’s contention that its claim was supported by
the Court’s prior opinions in Pearlman v. Reliance Insur-
ance Co., 371 U.S. 132 (1962), Henningsen v. United
States Fidelity & Guaranty Co., 208 U.S. 404 (1908), and
Prairie State Bank v. United States, 164 U.S. 227 (1896)—
three Supreme Court cases involving the rights of sureties
who stepped into the shoes of the defaulting contractor.
Blue Fox, 525 U.S. at 264. The Court stated:

7 In Blue Fox, no bond had been provided. Id. at
257–58.
19 LUMBERMENS MUTUAL CASUALTY CO v. US

None of the cases relied upon by [Blue Fox] in-
volved a question of sovereign immunity, and, in
fact, none involved a subcontractor directly assert-
ing a claim against the government. Instead,
these cases dealt with disputes between private
parties over priority to funds which had been
transferred out of the Treasury and as to which
the Government had disclaimed any ownership.
They do not in any way disturb the established
rule that, unless waived by Congress, sovereign
immunity bars subcontractors and other creditors
from enforcing liens on Government property or
funds to recoup their losses.
Id. at 265 (emphases added). Like the claim seeking to
enforce a lien in Blue Fox, Lumbermens’ impairment of
suretyship / pro tanto discharge claim is a non-contractual
cause of action based on state law. As in Blue Fox, we see
no waiver of sovereign immunity that unambiguously
consents for the government to be sued based on non-
contractual rights arising under state equitable princi-
ples.
At most, Lumbermens’ impairment of suretyship / pro
tanto discharge claim can be viewed as being based on an
implied-in-law contract theory (i.e., a quasi-contract or
unjust enrichment theory). While the Tucker Act does
cover “implied contract[s],” the Supreme Court has long
held that the scope of the Tucker Act’s waiver of sovereign
immunity “extends only to contracts either express or
implied in fact, and not to claims on contracts implied in
law.” Hercules Inc. v. United States, 516 U.S. 417, 423
(1996). 8 Generally speaking, implied-in-law contracts

8 See also United States v. Mitchell, 463 U.S. 206,
218 (1983); Army & Air Force Exch. Serv. v. Sheehan, 456
U.S. 728, 738 n.10 (1982); Hatzlachh Supply Co. v. United
LUMBERMENS MUTUAL CASUALTY CO v. US 20

“impose duties that are deemed to arise by operation of
law” in order to prevent an injustice, whereas implied-in-
fact contracts are “founded upon a meeting of the minds,
which, although not embodied in an express contract, is
inferred, as a fact, from conduct of the parties showing, in
light of the surrounding circumstances, their tacit under-
standing.” City of Cincinnati v. United States, 153 F.3d
1375, 1377 (Fed. Cir. 1998) (quoting Baltimore & Ohio
R.R. v. United States, 261 U.S. 592, 597 (1923)).
Lumbermens’ theory of recovery is based on the view
that it has paid more than it owed and the government
was unjustly enriched. Such a claim which “relies on
equitable principles” is “presumably based on an implied-
in-law contract theory.” Barrett Refining Corp. v. United
States, 242 F.3d 1055, 1062 (2001); see also Royal Indem.
Co. v. United States, 313 U.S. 289, 296 (1941) (stating
that equitable principles relate to “recovery on quasi
contractual obligations arising from payment of money by
mistake”). We have held in other contexts that the mere
provision of goods or services to the government in excess
of a party’s legal obligation does “not create an implied-in-
fact contract [for the government] to pay for them,” and
that such cases constitute “implied-in-law contract sce-
narios [that] are beyond the purview of the Tucker Act.”
Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1327
(Fed. Cir. 1997) (finding claim barred by sovereign immu-
nity where medical contractor sought payment for x-ray

States, 444 U.S. 460, 465 n.5 (1980); Ala. v. United States,
282 U.S. 502, 507 (1931); Goodyear Tire & Rubber Co. v.
United States, 276 U.S. 287, 292–93 (1928); United States
v. Minn. Mut. Inv. Co., 271 U.S. 212, 217 (1926); Merritt v.
United States, 267 U.S. 338, 341 (1925); Hill v. United
States, 149 U.S. 593, 598 (1893).
21 LUMBERMENS MUTUAL CASUALTY CO v. US

services which the government accepted but was not
contractually obligated to pay for). 9
Thus, because Lumbermens’ impairment of surety-
ship / pro tanto discharge claim is based on a non-
contractual state law cause of action, or at most an im-
plied-in-law contract theory, we hold that the Claims
Court lacked jurisdiction to consider Lumbermens’ claim.
Contrary to Lumbermens’ assertions, this court’s
opinion in National Surety does not support its theory
that the government has waived its sovereign immunity
as to impairment of suretyship / pro tanto discharge

9 See also Int’l Data Prods. Corp. v. United States,
492 F.3d 1317, 1325 (Fed. Cir. 2007) (“A recovery in
quantum meruit is based on an implied-in-law contract.
That is, a contract in which there is no actual agreement
between the parties, but the law imposes a duty in order
to prevent injustice. The [Claims Court], however, lacks
jurisdiction over contracts implied in law.”); Perri v.
United States, 340 F.3d 1337, 1343–44 (Fed. Cir. 2003)
(“The Court of Federal Claims’ jurisdiction over claims
founded on an express or ‘implied contract with the
United States’ ‘extends only to contracts either express or
implied in fact, and not to claims on contracts implied in
law.’ Recovery in quantum meruit, however, is based
upon a contract implied in law.” (citations omitted));
Fincke v. United States, 675 F.2d 289, 296 (Ct. Cl. 1982)
(“Plaintiff’s difficulty with this claim is that a suit to
recover compensation on a quantum meruit basis is an
action on a contract implied in law . . . . It is well settled
that this court does not have jurisdiction of claims based
on an alleged contract implied in law.”); but see Union
Pac. Ins. Co. v. United States, 464 F.3d 1325, 1329–30
(Fed. Cir. 2006) (recognizing an exception whereby an
implied-in-fact contract to pay the fair value of goods or
services exists when they are rendered to the government
pursuant to an express contract that turns out to be
illegal and therefore void); United States v. Amdahl Corp.,
786 F.2d 387, 393 (Fed. Cir. 1986) (same).
LUMBERMENS MUTUAL CASUALTY CO v. US 22

claims. As discussed above, National Surety was decided
based on the theory of equitable subrogation. 118 F.3d at
1545–48. The National Surety court expressly stated that
it viewed the “doctrine of [equitable] subrogation” as “the
appropriate theory of liability” in that case. Id. at 1545.
National Surety therefore has no bearing on the issue of
whether the government has waived sovereign immunity
with respect to claims based on the unapplied theory of
impairment of suretyship / pro tanto discharge. 10
In its amicus brief, the Surety & Fidelity Association
of America contends that finding no waiver of sovereign
immunity with respect to impairment of suretyship / pro
tanto discharge claims would leave sureties without a
remedy when the government impairs the surety’s collat-
eral. This is incorrect. If a surety concludes that the
government has improperly impaired its collateral, the
surety has the right to withhold payment on the bond, to
the extent the surety has been prejudiced, based on the
defense of impairment of suretyship / pro tanto discharge.
We simply hold that, once a surety makes overpayments
on its bond obligation, it has no right to affirmatively
recover against the United States.
Thus, we find that the Claims Court lacked jurisdic-
tion over Lumbermens’ affirmative claim against the
government on the theory of impairment of suretyship /
pro tanto discharge.

10 We have consistently held that panel authority
that does not address an issue is not binding as to the
unaddressed issue.” Ark. Game & Fish Comm’n, 637 F.3d
1366, 1378 n.7 (Fed. Cir. 2011); see also Sacco v. United
States, 452 F.3d 1305, 1308 (Fed. Cir. 2006); Boeing N.
Am., Inc. v. Roche, 298 F.3d 1274, 1282 (Fed. Cir. 2002);
Nat’l Cable Television Ass’n, Inc. v. Am. Cinema Editors,
Inc., 937 F.2d 1572, 1581 (Fed. Cir. 1991).
23 LUMBERMENS MUTUAL CASUALTY CO v. US

II
We next turn to the Government’s contention that the
Claims Court lacked jurisdiction over Lumbermens’
breach of contract claim based on the takeover agreement
because Lumbermens failed to satisfy the jurisdictional
prerequisites imposed by the CDA. “The determination of
jurisdiction under the CDA is a question of law” and “is
therefore subject to de novo review.” Winter v. FloorPro,
Inc., 570 F.3d 1367, 1369 (Fed. Cir. 2009) (quoting Eng-
land v. Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed. Cir.
2004)).
Pursuant to § 602(a), the CDA
applies to any express or implied contract . . . en-
tered into by an executive agency for—(1) the pro-
curement of property, other than real property in
being; (2) the procurement of services; (3) the pro-
curement of construction, alteration, repair or
maintenance of real property; or (4) the disposal of
personal property.
41 U.S.C. § 602(a). The Act requires that “[a]ll claims by
a contractor against the government relating to a contract
shall be in writing and shall be submitted to the contract-
ing officer for a decision.” Id. § 605(a). For claims of more
than $100,000, the contractor is further required to
“certify that [its] claim is made in good faith.” Id.
§ 605(c)(1). We have held that “submission of a certified
claim to the contracting officer in the first instance is a
jurisdictional prerequisite to filing a suit in the Claims
Court.” Thoen v. United States, 765 F.2d 1110, 1116 (Fed.
Cir. 1985); see also 41 U.S.C. § 609(a)(3) (“Any action
[filed in the Claims Court] shall be filed within twelve
months from the date of the receipt by the contractor of
the decision of the contracting officer concerning the claim
. . . .”). Lumbermens did not submit a certified claim to
LUMBERMENS MUTUAL CASUALTY CO v. US 24

the contracting officer as required by the Act. However,
the Claims Court found that the CDA did not apply to
Lumbermens’ claim because (a) the “takeover agreement
[was] not a contract for the procurement of materials or
services,” and (b) “Lumbermens signed the takeover
agreement as a surety fulfilling its performance bond
obligation, not as a contractor completing a construction
project.” Lumbermens II, 90 Fed. Cl. at 560–61. We
disagree on both points.
First, we find that the takeover agreement is clearly a
contract for “the procurement of construction, alteration,
repair or maintenance of real property.” 41 U.S.C.
§ 602(a)(3). The agreement expressly states that “[t]his
Takeover Agreement is for completion of defaulted Con-
tract N44255-97-C-5515,” which it describes as a contract
“for Whole Site Repair/Revitalization [of the] Maylor
Capehart Housing Area, Naval Air Station, Whidbey
Island, Oak Harbor, WA.” J.A. 314.
Lumbermens argues that the takeover agreement
“does not itself procure construction services” but “instead
arranges for and leads to a contract for the procurement
of construction.” Appellee’s Br. 44. Lumbermens con-
tends this case is analogous to Coastal Corp. v. United
States, 713 F.2d 728 (Fed. Cir. 1983), in which we held
that an implied contract requiring the government “to
treat a bid [on a government contract] honestly and fairly”
was not a procurement contract because it was “prelimi-
nary and ancillary to any contract . . . for goods or ser-
vices.” Id. at 730. That is not the situation here. Unlike
the implied contract in Coastal, the takeover agreement
in this case directly procured “the performance of all work
and other obligations of the defaulted contract not pres-
ently completed or fulfilled.” J.A. 314. The contract itself
contained all material terms of the agreement, including
provisions covering the payment terms, the required date
25 LUMBERMENS MUTUAL CASUALTY CO v. US

of completion for the construction work, and liquidated
damages. J.A. 315. As such, the takeover agreement
itself created a binding contract between the parties for
the procurement of construction services.
We are similarly unpersuaded by Lumbermens’ ar-
gument that the takeover agreement is “analogous . . . to
a settlement agreement” and that “a claim alleging a
breach by the government of a settlement agreement is
not covered by the CDA.” Appellee’s Br. 45–46. We need
not decide the issue of whether a settlement agreement
can ever be covered by the CDA, because the takeover
agreement here was not analogous to a settlement agree-
ment. The agreement contains no language regarding a
settlement of any dispute between the parties, and it
contains no release of liability by either party—a feature
common to settlement agreements. To the contrary, the
takeover agreement expressly states that it “shall [not] be
construed . . . as modifying, limiting or releasing [Lum-
bermens] from its obligations to the United States under
its Performance and Payment Bonds” and that it “does
not waive, prejudice, or in any way adversely affect or
limit any claim that [Lumbermens] might have against
the Government.” J.A. 315–16. In short, no legal dispute
was settled by the takeover agreement; rather, a binding
contract was formed for the performance of all construc-
tion work left uncompleted under the defaulted contract.
Second, we find that the Claims Court erred in con-
cluding that Lumbermens did not enter the takeover
agreement as a “contractor” within the meaning of the
CDA. The Act defines “contractor” as “a party to a Gov-
ernment contract other than the Government.” 41 U.S.C.
§ 601(4). Lumbermens argues that the takeover agree-
ment in this case is somehow outside the scope of the
CDA because it is a three-party agreement between
Atherton (referred to as the “Completing Contractor”),
LUMBERMENS MUTUAL CASUALTY CO v. US 26

Lumbermens (referred to as the “Surety”), and the United
States, rather than a two-party agreement between a
surety and the government. See J.A. 314. Lumbermens
contends this takeover agreement “merely memorialized
and reaffirmed [its] pre-existing obligations as [a] per-
formance bond surety” and that “Atherton—and not
Lumbermens—is clearly and expressly considered the
‘contractor’” under the agreement. Appellee’s Br. 47–48.
Lumbermens cites the following language of the takeover
agreement for support:
It is understood and agreed that the Surety, by
entering into this Agreement, is not acting as a
contractor but is instead acting in its capacity as a
performance bond surety. The Surety, who will
have no employees on the project site, shall have
no obligation to furnish any insurance under the
contract, and any insurance required under the
contract shall be provided by the Completing Con-
tractor.
J.A. 316 (emphasis added). Lumbermens contends that
the agreement’s express designation of it as a “surety”
rather than a “contractor” exempts it from the jurisdic-
tional requirements of the CDA. Appellee’s Br. 50. We
disagree. 11

11 Lumbermens cites this court’s opinion in Admi-
ralty Construction for the proposition that “Congress
simply had an entirely different set of problems in mind
when it passed the CDA, and we see no reason to judi-
cially transform sureties into ‘contractors’ where
[C]ongress has not done so.” 156 F.3d at 1221 (quoting
United States v. Seaboard Sur. Co., 817 F.2d 956, 962 (2d
Cir. 1987)). However, both Admiralty and Seaboard
involved situations where the surety “did not execute a
takeover agreement with the [government] to complete
the defaulted contract” and therefore “[could not] show
27 LUMBERMENS MUTUAL CASUALTY CO v. US

Despite the takeover agreement’s reference to Lum-
bermens as “the Surety,” the agreement makes clear that
Lumbermens became bound to complete the defaulted
construction contract by assuming the role of a prime
contractor and hiring Atherton as its subcontractor. The
takeover agreement expressly incorporated “[t]he provi-
sions and clauses of the defaulted contract,” J.A. 314, and
it further provided that:
[T]he Government has made demand upon the
Surety for completion of the work in accordance
with the Surety’s obligations under its Perform-
ance Bond.
[T]he Surety has advised the Government that
it will undertake the completion of the work and
will contract with the Completing Contractor for
completing the work remaining under the contract
in accordance with its terms and conditions of the
terminated contract . . . .
....
The Government and Surety agree that
$7,392,381.24 is the unpaid contract balance, in-
cluding retainages. The Completing Contractor
will be paid by the Government in accordance
with and in the manner provided by the defaulted
contract and this Agreement. In addition, the
Completing Contractor shall be paid by the Surety
in accordance with its Completion Agreement with
the Surety.

that it ‘entered into’ a contract with ‘an executive agency’”
as required by the CDA. Admiralty, 156 F.3d at 1221; see
also Seaboard, 817 F.2d at 961 (noting that the surety-
ship agreement at issue was “not a contract to which the
government [was] a party”).
LUMBERMENS MUTUAL CASUALTY CO v. US 28

J.A. 314–15 (emphases added). As required by the take-
over agreement, Lumbermens thereafter entered into a
completion contract with Atherton, which stated that
“[t]he Parties expressly acknowledge and understand that
Completing Contractor [Atherton] is a subcontractor to
Surety [Lumbermens].” J.A. 324 (emphasis added). The
completion contract further specified that Atherton had
“no authority to negotiate . . . any Change Order with
respect to any issues” arising with the government, and it
required that any claims Atherton had against the gov-
ernment “be submitted . . . to [Lumbermens] for process-
ing . . . . in [Lumbermen’s] name.” J.A. 324–25.
We have previously recognized that where, as here, a
surety enters a takeover agreement with the government
under which the surety agrees to complete the perform-
ance of a defaulted contract, the surety assumes the role
of a prime contractor and becomes “a party to a Govern-
ment contract” in direct privity with the United States.
41 U.S.C. § 601(4).
For example, in Fireman’s Fund, a surety and the
government entered into a takeover agreement following
the contractor’s default. 313 F.3d at 1346. In the inverse
of the present situation, the surety followed CDA proce-
dures and filed claims with the contracting officer (rather
than the Claims Court) seeking remission of assessed
liquidated damages based on delays allegedly caused by
the government both before and after the takeover
agreement was executed. Id. at 1347. On appeal to the
Board of Contract Appeals (“Board”), the Board dismissed
the surety’s claims that arose before the takeover agree-
ment on the ground that the surety was not a “contractor”
under the CDA at the time those claims arose. Id. We
affirmed, finding that the surety was not “a ‘contractor’
with the United States . . . with respect to its pre-takeover
claims,” id. at 1352, because “[i]t was not a party to any
29 LUMBERMENS MUTUAL CASUALTY CO v. US

contract with the government prior to the takeover agree-
ment it had with the government, and its pre-takeover
claims did not arise under such a contract,” id. at 1351
(emphasis added). We subsequently affirmed our Fire-
man’s Fund decision on nearly identical facts in United
Pacific Insurance Co. v. Roche, 380 F.3d 1352 (Fed. Cir.
2004), holding that “the Board had no jurisdiction over
[the surety’s] claims that were based upon events that
occurred prior to the takeover agreement.” Id. at 1356
(emphasis added). These cases reflect a clear understand-
ing that a surety does become a “contractor” within the
meaning of the CDA when it enters into a takeover
agreement, and the CDA applies to any post-takeover
claims arising out of that agreement. The Claims Court
has reached this same conclusion in earlier cases. 12
We finally reject Lumbermens’ contention that the
applicability of the CDA to its takeover agreement claim
would violate the so-called “single point of contact” princi-
ple due to the fact that Atherton is also a party to the
takeover agreement in privity of contract with the United
States. In discussing the reasons for limiting the CDA to

12 See, e.g., Westech Corp. v. United States, 20 Cl. Ct.
745, 749 (1990) (noting that, while a surety “may not
bring a claim directly under the CDA,” it can do so if it
“execute[s] a takeover contract with [the government] to
complete the contract”); Travelers Indem. Co. v. United
States, 16 Cl. Ct. 142, 153 (1988) (“[W]here a surety has
executed a takeover agreement, as here, upon the default
of the prime contractor in order to complete the work
under the construction contract, it becomes a ‘party to a
Government contract’ and thus, logically, a ‘contractor’
within the meaning of § 601(4) of the CDA.”); Universal
Sur. Co. v. United States, 10 Cl. Ct. 794, 800 (1986)
(“[Where a] separate takeover agreement[ ] [is entered]
between the government and the surety after default by
the contractor. . . . the surety in effect becomes the con-
tractor, subject to the terms of the new agreement.”).
LUMBERMENS MUTUAL CASUALTY CO v. US 30

claims by “contractors,” the legislative history of the CDA
states:
The recommendations of the Procurement Com-
mission specifically exclude bringing subcontrac-
tors under the provisions of [the Act]. . . . By
administering its procurement through a single
point of contact, the Government’s job is made
both simpler and cheaper. The single point of con-
tact approach also helps suppress frivolous claims.
. . . By forcing the prime contractor to administer
its subcontractor network, the Government per-
mits prime contractors and subcontractors at all
tiers to use to some extent their familiar commer-
cial procedures in contract award and administra-
tion. . . . Finally, by denying the subcontractors
direct access to administrative remedies, the Gov-
ernment is forcing the prime contractor and the
subcontractor to negotiate their disputes.
S. Rep. No. 95-1118, at 16–17, reprinted in 1978
U.S.C.C.A.N. at 5250 (emphases added). This legislative
history suggests that claims by third parties who are not
in privity of contract with the government are not covered
by the CDA. See Winter, 570 F.3d at 1371 (stating that a
subcontractor not in contractual privity with the United
States was not a “contractor” within the meaning of the
CDA); Admiralty Constr. Inc., 156 F.3d at 1220–21 (stat-
ing that a surety not in privity with the United States
was not a “contractor”). In the present case, however,
both Lumbermens and Atherton are parties to the take-
over agreement in direct privity of contract with the
United States. We see nothing in the CDA, its legislative
history, or our prior cases that would prohibit multiple
obligors on a contract with the government from being
considered “contractors” within the meaning of the Act.
31 LUMBERMENS MUTUAL CASUALTY CO v. US

Accordingly, because Lumbermens failed to submit a
certified claim to the contracting officer as required by
§ 605(a) and (c)(1), the Claims Court lacked jurisdiction
over the claim.
CONCLUSION
Because we find that the Claims Court lacked juris-
diction over Lumbermens’ claims, we reverse the court’s
decision and remand with instructions to dismiss the
complaint. Due to the Claims Court’s lack of jurisdiction,
we hold that Lumbermens’ cross-appeal seeking addi-
tional damages is moot.
REVERSED and REMANDED