In the United States Court of Federal Claims
No. 10-204 C
(Filed April 2, 2014)
*********************
UNIGLOBE GENERAL TRADING *
& CONTRACTING CO., W.L.L., * Contract; Contract Disputes
* Act, 41 U.S.C. §§ 7101-7109
Plaintiff, * (Supp. V 2011); One-Year
* Statute of Limitations for
v. * Challenging a Contracting
* Officer’s Final Decision, 41
THE UNITED STATES, * U.S.C. § 7104(b)(3).
*
Defendant. *
*********************
Geoffrey W. Veith, Philadelphia, PA, for plaintiff.
James Sweet, United States Department of Justice, with whom were
Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and
Steven J. Gillingham, Assistant Director, Washington, DC, for defendant.
_________________________
OPINION
_________________________
BUSH, Senior Judge.
Now pending before the court is defendant’s motion for partial dismissal of
plaintiff’s amended complaint pursuant to Rule 12(b)(1) of the Rules of the United
States Court of Federal Claims (RCFC). The amended complaint, like plaintiff’s
original complaint, alleges that the United States Department of the Army (Army)
breached three contracts with Uniglobe for the lease of vehicles to be used in
support of Operation Iraqi Freedom in Kuwait. The court previously dismissed a
portion of Uniglobe’s original complaint alleging breach of one of Uniglobe’s
three contracts with the Army. See Uniglobe Gen. Trading & Contracting Co. v.
United States, 107 Fed. Cl. 423 (2012) (Uniglobe I). Defendant’s pending motion,
filed April 22, 2013, seeks to dismiss a portion of the amended complaint alleging
breach of the same contract at issue in Uniglobe I. After three rounds of
supplemental briefing, which were finally concluded on February 7, 2014,
defendant’s motion is now ripe for decision. Oral argument was neither requested
by the parties nor deemed necessary by the court. Because the court concludes that
it lacks jurisdiction over a portion of Uniglobe’s amended complaint, defendant’s
motion for partial dismissal is granted in part and denied in part.
BACKGROUND 1
A detailed description of the factual background and procedural history of
this case is provided in Uniglobe I. The court will summarize below only those
facts most pertinent to the motion currently before the court.
In this case, plaintiff Uniglobe General Trading and Contracting Company,
W.L.L. (plaintiff or Uniglobe) seeks damages stemming from the government’s
alleged breach of three separate contracts for the lease of vehicles in Kuwait. On
September 27, 2012, the court granted defendant’s motion to dismiss Uniglobe’s
claims based on one of those contracts under RCFC 12(b)(1) because the court
concluded that (1) Uniglobe had failed to submit that claim to the contracting
officer within six years of the date on which that claim first accrued as required by
§ 7103(a) of the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a) (Supp. V
2011), and (2) Uniglobe did not file suit in this court within one year of receiving
the contracting officer’s final decision on that claim as required by § 7104(b)(3) of
the CDA, 41 U.S.C. § 7104(b)(3) (Supp. V 2011).2 See Uniglobe I, 107 Fed. Cl. at
1
/ The facts recounted in this opinion are taken from the amended complaint and the
parties’ submissions in connection with defendant’s pending motion for partial dismissal.
Except where otherwise noted, the facts recited here are undisputed.
2
/ On January 4, 2011, Congress amended the CDA and moved its provisions to sections
7101 through 7109 of Title 41 of the United States Code. Pub. L. No. 111-350, 124 Stat. 3677
(2011). The amendment did not make any substantive changes to the sections of the CDA at
issue in this case. In Uniglobe I, the court referred to the section numbers that were superseded
by the January 2011 amendments to the CDA because the parties in Uniglobe I referenced those
superseded section numbers in their briefing. See 107 Fed. Cl. at 425 n.2. By contrast, the
(continued . . .)
2
432-35. Uniglobe subsequently filed an amended complaint in which it attempted
to cure the jurisdictional defects in its original complaint. The government now
moves to dismiss a portion of the amended complaint relating to the same claim
that was at issue in defendant’s previous motion for partial dismissal. The sole
basis for the government’s pending motion for partial dismissal is that Uniglobe
did not file suit in this court within one year of receiving the contracting officer’s
final decision with respect to that claim.
I. Factual Background
Uniglobe is a Kuwaiti corporation with its principal place of business in
Kuwait. Am. Compl. ¶ 4. In 2003, Uniglobe entered into three contracts with the
Army, under which Uniglobe agreed to lease various types of vehicles to the Army
to be used in support of Operation Iraqi Freedom. Id. ¶¶ 6-8 & Exs. A-C. Under
those contracts, the Army leased from Uniglobe: (1) a number of Chevrolet
Suburbans under Contract DABM06-03-P-0363 (the 363 contract); (2) six trucks
under Contract DABM06-03-P-0432 (the 432 contract); and (3) five Caterpillar
bucket loader construction vehicles (Caterpillars) under Contract DABM06-03-P-
0442 (the 442 contract). Id. ¶¶ 44, 63, 88 & Exs. A-C. Because defendant’s
pending motion for partial dismissal pertains solely to the 442 contract, the court
will limit the remainder of its discussion of the facts to only those relevant to the
442 contract.
A. The 442 Contract
The 442 contract provided that the Army would lease five Caterpillars from
Uniglobe for a six-month period from March 31, 2003 to October 1, 2003. Am.
Compl. Ex. C at 2-3. Under the contract, lease fees for the Caterpillars were to be
determined in accordance with monthly rates, which were to accrue from the
beginning of the contract or the delivery of the vehicles, and would continue until
the expiration or termination of the contract. Id. Ex. C at 3 (incorporating by full
parties’ briefs in connection with defendant’s pending motion for partial dismissal reference the
current version of the CDA. Accordingly, the court refers to the current version of the CDA in
this opinion.
3
text Federal Acquisition Regulation (FAR) 52.208-4(b)).3 The contract also
provided, however, that lease fees “shall not accrue for any vehicle that the
Contracting Officer determines does not comply with the Condition of Leased
Vehicles clause of this contract or otherwise does not comply with the
requirements of this contract, until the vehicle is replaced or the defects are
corrected.” Id. Ex. C at 4 (incorporating FAR 52.208-4(c)). The “Condition of
Leased Vehicles” clause of the 442 contract provided as follows:
Each vehicle furnished under this contract shall be of
good quality and in safe operating condition, and shall
comply with the Federal Motor Vehicle Safety Standards
(49 CFR 571) and State safety regulations applicable to
the vehicle. The Government shall accept or reject the
vehicles promptly after receipt. If the Contracting
Officer determines that any vehicle furnished is not in
compliance with this contract, the Contracting Officer
shall promptly inform the Contractor in writing. If the
Contractor fails to replace the vehicle or correct the
defects as required by the Contracting Officer, the
Government may (a) [b]y contract or otherwise, correct
the defect or arrange for the lease of a similar vehicle and
shall charge or set off against the Contractor any excess
costs occasioned thereby, or (b) [t]erminate the contract
under the Default clause of this contract.
Id. (incorporating FAR 52.208-5). The “Payment” provision of the
contract’s terms and conditions required the government to pay only for
those items actually accepted by the government. Id. Ex. C at 5
(incorporating FAR 52.212-4(i)).
In addition to setting forth the terms and conditions regarding the
government’s payment of lease fees for the Caterpillars, the 442 contract
required the government to compensate Uniglobe for “loss of or damage to .
. . [l]eased [Caterpillars], except for (i) normal wear and tear and (ii) loss or
3
/ All references to the FAR in this opinion are to the 2012 version of Title 48 of the
Code of Federal Regulations.
4
damage caused by the negligence of the Contractor, its agents, or
employees.” Am. Compl. Ex. C at 7 (incorporating FAR 52.228-8(a)(1));
see id. ¶ 89. The contract further provided that the government was to
assume the risk of loss of or damage to leased Caterpillars upon delivery.
Id. ¶ 89 & Ex. C at 5-6 (incorporating FAR 52.212-4(j)).
Finally, the 442 contract provided that it would be “subject to the
Contract Disputes Act of 1978, as amended,” and that the parties’ failure to
reach an agreement with respect to any claim under the contract should be
resolved in accordance with FAR 52.233-1. Am. Compl. Ex. C at 5-6.
B. The Parties’ Performance under the 442 Contract
In accordance with the terms of the 442 contract, Uniglobe delivered five
Caterpillars to an Army encampment in Kuwait on April 1, 2003. Am. Compl. Ex.
J at 1. On April 10, 2003, the Army contacted Uniglobe to express its concerns
regarding the condition of four of those vehicles. Id. ¶ 91 & Ex. J at 1. In response
to the Army’s concerns, Uniglobe delivered four replacement Caterpillars to the
encampment the same day and removed two of the original vehicles for off-site
maintenance, leaving the Army with a total of seven Caterpillars at the
encampment. Id. ¶¶ 92-94 & Ex. J at 1-2.
In May 2003, the Army informed Uniglobe that it was cancelling the 442
contract. Am. Compl. ¶ 98 & Ex. J at 2. Uniglobe sent field drivers to the Army
encampment on May 25, 2003 to recover the seven Caterpillars still in the Army’s
possession, but two of the vehicles could not be located at that time. Id. ¶¶ 99-100
& Ex. J at 2. The two missing Caterpillars were subsequently recovered from
Camp Arifjan and Camp Virginia in Kuwait in September and October 2003,
respectively. Id. ¶ 101 & Ex. J at 2, 19-21; Pl.’s Second Supplemental Br. Ex. B at
3. The Caterpillar recovered from Camp Virginia had been transported by Army
personnel to Iraq and returned to Kuwait in August 2003, and was so severely
damaged by October 2003 that its removal from Camp Virginia required the use of
salvage equipment. Am. Compl. ¶ 102 & Ex. J at 2, 19-21; Def.’s Mot. Ex. B at 2;
Pl.’s Second Supplemental Br. Ex. B at 34-35.
C. Uniglobe’s 2003 Lease Fees Claim
5
On November 30, 2003, Dr. Iesa M. Jasem, Uniglobe’s President and Chief
Executive Officer, submitted to the Army’s contracting command several invoices
demanding payment of lease fees in the amount of 29,313.33 Kuwaiti dinar
(KWD) 4 for Caterpillars leased to the government under the 442 contract (the 2003
Lease Fees Claim). 5 See Def.’s Mot. at 2 & Ex. A.
In a January 29, 2004 Determination and Findings (D&F), contracting
officer Michelle L. Weinert concluded that Uniglobe was entitled to receive only
KWD 7200 in additional lease fees under the 442 contract. See Def.’s Mot. Ex. B
at 3. Ms. Weinert reasoned that the Army had rejected all but one of the five
Caterpillars originally delivered by Uniglobe, as well as all of the replacement
Caterpillars delivered by Uniglobe, because they were determined to be in poor
and unacceptable condition. Id. at 1. Ms. Weinert therefore concluded that
Uniglobe had failed to comply with the “Condition of Leased Vehicles” clause of
the 442 contract and “shall only receive payment for three (3) months [of lease
fees] at the rate of [KWD] 2,400.00/month, which is the rate contained in the [442]
contract. This [KWD] 7,200.00 would cover the cost of the one (1) bucket loader
taken to Iraq and returned in the month of August 2003.” Id. at 3. However, Ms.
Weinert further concluded that “since Uniglobe has already received [KWD]
15,520.000 [in lease fees under the 442 contract], the [KWD] 7,200.000 shall not
be paid and [Uniglobe is] not entitled to any other payments under this contract
because poor equipment was provided.” Id.
On February 18, 2004, Anthony Adolph, legal counsel for the Army, issued
a “Legal Review” of Ms. Weinert’s D&F in which he characterized the D&F as a
“final decision on claims against the government arising from bucket loader
Contract DABM06-03-P-0442.” Def.’s Supplemental Br. Ex. 1, Attach. 2 at 1.
Finding the D&F to be “legally sufficient,” Mr. Adolph stated that “[i]t is clear
from the facts that the Government did not accept the equipment as provided by
Uniglobe,” and therefore “only a portion of [Uniglobe’s] claims [for lease fees
4
/ The Kuwaiti dinar (KWD) is the official currency of Kuwait. The exchange rate
during the relevant time period was 0.28 KWD for each U.S. dollar. Uniglobe I, 107 Fed. Cl. at
426 n.4; Def.’s Mot. Exs. E at 3, G at 2.
5
/ Dr. Jasem is sometimes referred to in invoices as “Dr. Iesa M. Jassem.” See Am.
Compl. Ex. F at 4-7, 15; Def.’s Mot. Ex. A at 1-4, 12.
6
under the 442 conract] had merit[] and were payable.” Id. In that regard, Mr.
Adolph concurred with Ms. Weinert’s determination that Uniglobe was entitled to
receive only KWD 7200 in lease fees under the 442 contract, and further stated that
“[a]s a result of the [KWD] 15,520 overpayment [of lease fees to Uniglobe],
Uniglobe has a debt to the Government in the amount of [KWD] 8,320 ([KWD]
15,520 – [KWD] 7,200 = [KWD] 8,320).” Id. at 2. Mr. Adolph concluded by
stating that “[c]ollection action shall be initiated to recover the [KWD] 8,320 owed
to the Government by Uniglobe.” Id.
On February 23, 2004, Erin Quinn of the Army’s contracting command e-
mailed Uniglobe a document titled “Amendment of Solicitation/Modification of
Contract” (Contract Modification). See Pl.’s Second Supplemental Br. Ex. B at
18-22. This document, which was dated February 23, 2004 and prepared and
signed by Ms. Weinert pursuant to FAR 53.243, indicated in a section titled
“Description of Amendment Modification” that “the total contract value has been
reduced to [KWD] 15,520 ($53,417.24)” and “[n]o further payments are to be
made” as a result of the findings and conclusions made by Ms. Weinert in her
January 29, 2004 D&F. Def.’s Mot. Ex. C at 1, 4; Pl.’s Second Supplemental Br.
Ex. B at 19, 22. The Contract Modification restated Ms. Weinert’s findings and
conclusions with respect to Uniglobe’s 2003 Lease Fees Claim nearly verbatim.
Def.’s Mot. Ex. C at 3-4; Pl.’s Second Supplemental Br. Ex. B at 21-22.
Additionally, echoing the language of Mr. Adolph’s Legal Review, the Contract
Modification stated that “[a]s a result of the [KWD] 15,520 overpayment [of lease
fees to Uniglobe], Uniglobe has a debt to the Government in the amount of [KWD]
8,320 ([KWD] 15,520 – [KWD] 7,200 = [KWD] 8,320),” and therefore
“[c]ollection action shall be initiated to recover the [KWD] 8,320 owed to the
Government by Uniglobe.” Def.’s Mot. Ex. C at 3; Pl.’s Second Supplemental Br.
Ex. B at 21.
D. Uniglobe’s 2004 Repair Claim
On March 21, 2004, Uniglobe submitted to the Army’s contracting
command a claim under the 442 contract in the amount of KWD 24,282.59 to
cover the cost of repairing the damaged Caterpillar that was recovered from Camp
Virginia in October 2003 (the 2004 Repair Claim). See Am. Compl. ¶ 14 & Ex. D;
Def.’s Mot. Ex. D. This claim did not seek damages for lease fees under the 442
contract.
7
Eighteen months later, on September 26, 2005, Major Rosiher Sibaja of the
Army’s contracting command sent an e-mail to a Uniglobe employee named Dina
Quinto attaching a “Memorandum for Record,” dated August 30, 2005, setting
forth Major Sibaja’s decision on Uniglobe’s 2004 Repair Claim (the September
2005 Decision). 6 See Def.’s Mot. Ex. E. Major Sibaja’s transmittal e-mail
identified the attached Memorandum for Record as “my Contracting Officer[’]s
Final Determination” and asked Uniglobe, if it was “satisfied with the
determination, [to] let me know by email, or by writing so on the document and
faxing/emailing it back to me.” Id. at 1. In the attached Memorandum for Record,
Major Sibaja noted, under a heading titled “Description of Claim,” that Uniglobe
“submitted a claim on March 21[], 2004 . . . . [r]equesting KWD 24,282.590 for
damages to a Caterpillar 950E that was taken to Iraq and then returned to Kuwait.”
Id. at 2. Major Sibaja also noted, in the same section, that Uniglobe had filed a
previous claim for lease fees which the contracting officer had denied based on her
determination that the Army had overpaid Uniglobe for the lease of the
Caterpillars:
The contractor has . . . previously been overpaid for the
lease of the equipment. The contract was cancelled due
[to] the unsatisfactory equipment being delivered to [the]
customer. The contractor has previously filed a claim for
lease charges against the equipment in this contract. The
contracting officer’s final decision and legal opinion on
this previous claim for lease charges is included in the
support[ing] documents tab B. The contractor was
overpaid for equipment that the government had not
accepted due to its poor condition. These are
overpayments for which the contractor still owes the US
government KWD 8,320.
6
/ In e-mail correspondence, Army personnel sometimes referred to Ms. Quinto as
“Deena.” See Def.’s Mot. Ex. E at 1 (September 26, 2005 e-mail from Major Sibaja to “Deena
Uniglobe”), G at 1 (October 23, 2005 e-mail from Major Sibaja to “Deena Uniglobe”); Def.’s
Supplemental Br. Ex. 2 (October 26, 2006 e-mail to Lieutenant Colonel (LTC) Raymond
Strother from “Deena Uniglobe” and signed by “Dina R. Quinto”).
8
Id.
In a section of the attached Memorandum for Record titled “Final Decision,”
Major Sibaja stated that “the amount requested by [Uniglobe in the 2004 Repair
Claim] is beyond the reasonable cost of the [damaged Caterpillar], and “[a]
reasonable cost for this equipment is determined to be $40,000.00 which converts
to KWD 11,200 at the current exchange rate of [0].28 KWD per [U.S. dollar].”
Def.’s Mot. Ex. E at 2-3. Subtracting the lease fees overpayment of KWD 8320
referenced in Ms. Weinert’s D&F, Major Sibaja determined that “[t]he total
amount due the contractor is KWD 2,880.” Id. at 3. Major Sibaja concluded by
stating that “[t]his is the final decision of the Contracting Officer,” and that
Uniglobe could appeal the decision to the Board of Contract Appeals within ninety
days or to the Court of Federal Claims within one year of receiving the decision.
Id.
On October 23, 2005, Major Sibaja sent a second e-mail to Ms. Quinto at
Uniglobe attaching a revised “Memorandum for Record,” also dated August 30,
2005, setting forth Major Sibaja’s revised determination with respect to Uniglobe’s
2004 Repair Claim (the October 2005 Revised Decision). See Def.’s Mot. Ex. G.
In his transmittal e-mail, Major Sibaja identified the attachment as his “revision of
claim DABM06-P-0442” and asked Uniglobe to “respond with a[n] email or fax
stating that you have seen the memorandum and either concur or [do not] concur.” 7
Id. at 1. In the attached revised Memorandum for Record, Major Sibaja again
described the claim at issue as “a claim on March 21[], 2004 . . . . [r]equest[ing]
KWD 24,282.590 for damages to a Caterpillar 950E that was taken to Iraq and
then returned to Kuwait.” Id. at 2. Major Sibaja noted, however, that he had
increased the “reasonable cost” of the damaged Caterpillar from KWD 11,200 to
KWD 14,000. Id. As a result of that change, and again subtracting the lease fees
overpayment of KWD 8320 described in Ms. Weinert’s D&F and referenced in
Major Sibaja’s September 2005 Decision, Major Sibaja concluded that “[t]he total
amount due the contractor is KWD 5,680.” Id. Like the September 2005
Decision, the October 2005 Revised Decision stated that it was the “final decision
of the Contracting Officer,” and noted that any suit challenging the decision in this
court had to be filed within one year of Uniglobe’s receipt of the decision. Id. at 3.
7
/ Major Sibaja also stated that “[t]he name of my replacement is Lieutenant Colonel Ray
Strother,” and provided Colonel Strother’s e-mail address to Uniglobe. Def.’s Mot. Ex. G at 1.
9
On October 26, 2005, Ms. Quinto at Uniglobe e-mailed Colonel Strother
stating that she had “received already the [f]inal determination for Contract No.
0442 which Major Rosiher Sibaja sent to me on 24th Oct[ober] 2005.” Def.’s
Supplemental Br. Ex. 2. Thereafter, on February 5, 2006, Ms. Quinto e-mailed
Colonel Strother “to confirm that [Uniglobe] agree[s] to the settlement as stated in
the Memorandum for [R]ecord . . . dated August 30, 2005 [for a] total amount [of]
[KWD] 5,680.000.” Pl.’s Second Supplemental Br. Ex. B at 47.
E. Uniglobe’s 2009 Consolidated Claim
Nearly four years later, on November 5, 2009, Uniglobe submitted to the
Army what it characterizes as a “consolidated claim, which sought to amend,
modify, bring together and update all prior claims” under the three contracts at
issue in this suit (the 2009 Consolidated Claim). Am. Compl. ¶ 30; see id. Ex. J.
With respect to the 442 contract, the 2009 Consolidated Claim demanded lease
fees for the two Caterpillars recovered from Camp Arifjan and Camp Virginia
from the date of the Army’s purported termination of the 442 contract (May 2003)
to the dates on which the two Caterpillars were recovered (September and October
2003). Id. Ex. J at 2.
II. Procedural History
Uniglobe filed a complaint in this court on April 6, 2010, seeking damages
for the Army’s alleged breach of its three contracts with Uniglobe. With respect to
the 442 contract, plaintiff alleged that it was entitled to damages for lease fees for
the two Caterpillars recovered from Camp Arifjan and Camp Virginia from the
date of the Army’s purported termination of the 442 contract (May 2003) to the
dates on which the two Caterpillars were recovered (September and October 2003).
Plaintiff also sought damages for the costs of repairing the damaged Caterpillar
that was recovered from Camp Virginia in October 2003.
Defendant filed a motion for partial dismissal pursuant to RCFC 12(b)(1) on
June 7, 2010. In that motion, the government requested dismissal of Uniglobe’s
claims arising from the government’s alleged breach of the 442 contract
(hereinafter, the 442 contract claims) because the government contended that those
claims had been filed with the contracting officer more than six years after they
10
had accrued, and because Uniglobe filed suit in this court more than one year after
receiving the contracting officer’s final decision on those claims. 8
In a published opinion issued September 27, 2012, the court granted the
government’s motion to dismiss Uniglobe’s 442 contract claims. See Uniglobe I,
107 Fed. Cl. 423. In its opinion, the court found that Uniglobe had filed at least
two separate written claims related to the 442 contract with the contracting officer:
the 2004 Repair Claim and the 2009 Consolidated Claim. See id. at 432. In
addition, the court noted that the documentation provided by plaintiff referred to
“an even earlier claim seeking the payment of late lease fees for the Caterpillar
construction vehicles” but that “[n]either of the parties provided a copy of the
referenced claim or decision related to the late leasing fees.” Id. at 432 n.15.
Based on the record before it – which did not include Uniglobe’s 2003 Lease Fees
Claim, Ms. Weinert’s January 29, 2004 D&F or February 23, 2004 Contract
Modification, or Mr. Adolph’s February 18, 2004 Legal Review – the court first
concluded that the 2009 Consolidated Claim was untimely under the CDA’s six-
year presentment requirement set forth in § 7103(a) because Uniglobe had
submitted that claim to the contracting officer more than six years after the claim
had accrued. Id. at 432-34. Next, the court concluded that Uniglobe had received
the contracting officer’s final decision on the 2004 Repair Claim no later than
October 23, 2005, and therefore that claim was untimely under the CDA’s one-
year statute of limitations set forth in § 7104(b)(3) because Uniglobe filed suit in
this court more than four years later. See id. at 434-35.
On December 3, 2012, plaintiff filed a motion to amend its complaint for the
purpose of correcting the jurisdictional deficiencies with respect to the 442 contract
claims. The amendment also sought to add new factual allegations related to
plaintiff’s other claims as well as a new claim for breach of the implied duty of
good faith and fair dealing. The court granted the motion to amend on March 28,
2013, and Uniglobe filed its amended complaint on April 4, 2013.
8
/ The government initially sought to dismiss Uniglobe’s entire complaint on the ground
that Uniglobe had not met the requirements of the Reciprocity Act, 28 U.S.C. § 2502 (2012).
The government subsequently filed a motion to withdraw its arguments based upon the
Reciprocity Act, which the court granted. As a result, the government’s motion for partial
dismissal pertained only to Uniglobe’s 442 contract claims.
11
Plaintiff’s amended complaint, like its initial complaint, seeks, with respect
to the 442 contract, damages for lease fees for the two Caterpillars recovered from
Camp Arifjan and Camp Virginia from the date of the Army’s purported
termination of the 442 contract (May 2003) to the dates on which the two
Caterpillars were recovered (September and October 2003), as well as the costs of
repairing the damaged Caterpillar recovered from Camp Virginia. Am. Compl. ¶¶
87-114 (Count III). 9 Plaintiff alleges in its amended complaint that it never
received a valid final decision from the contracting officer with respect to any of
its 442 contract claims. In that regard, Uniglobe asserts that the only written
decision issued by the contracting officer with respect to Uniglobe’s 442 contract
claims was Major Sibaja’s October 2005 Revised Decision.10 Am. Compl. ¶ 15 &
Ex. E. Plaintiff contends that this decision “related solely to [Uniglobe’s] 2004
Contract Repair Cost Claim,” id. ¶ 16, and “was ineffective as it was provided to
[Uniglobe] by electronic mail, rather than ‘by certified mail, return receipt
requested, or by any other method that provides evidence of receipt,’ as required
by [FAR] 33.211(b),” id. ¶ 17. Accordingly, plaintiff asserts that its 442 contract
claims were “deemed denied as a matter of law after sixty (60) days” and,
consequently, the CDA’s one-year statute of limitations never commenced with
respect to those claims. Id. ¶¶ 24-28.
The government filed a motion for partial dismissal of plaintiff’s amended
complaint under RCFC 12(b)(1) on April 22, 2013. That motion, like the
government’s previous motion for partial dismissal, seeks to dismiss only
Uniglobe’s 442 contract claims. Unlike the government’s previous motion for
partial dismissal, however, the government’s pending motion is based solely on
defendant’s assertion that Uniglobe filed its lawsuit more than one year after
receiving the contracting officer’s final decision on its 442 contract claims. See
9
/ The amended complaint also includes an alternative claim for breach of the implied
duty of good faith and fair dealing with respect to each of Uniglobe’s contracts with the Army.
Am. Compl. ¶¶ 115-120 (Count IV).
10
/ In its amended complaint, plaintiff alleges that “[o]n August 30, 2005, Major Rosiher
Sibaja transmitted by electronic mail a Memorandum and Record relating to the 2004 442 Repair
Cost Claim, which purports to be a final decision (the ‘Final Decision’).” Am. Compl. ¶ 15. The
“Memorandum and Record” to which plaintiff refers, and which is attached as Exhibit E to the
amended complaint, is identical to Major Sibaja’s revised Memorandum for Record e-mailed to
Ms. Quinto on October 23, 2005. Compare id. Ex. E, with Def.’s Mot. Ex. G.
12
Def.’s Mot. at 7-10. Plaintiff filed its response on June 3, 2013, and the
government filed its reply on June 20, 2013.
In an order dated August 12, 2013, the court noted that the September 2005
Decision and October 2005 Revised Decision, both of which were attached as
exhibits to defendant’s motion, each referred to and purported to attach a “final
decision” and “legal opinion” with respect to Uniglobe’s claim for lease fees under
the 442 contract but, in fact, omitted those attachments. See Def.’s Mot. Ex. E at 2,
Ex. G at 2. The court therefore ordered the government to supplement the record
to include the missing documents.
On September 20, 2013, defendant filed with the court a declaration
prepared by Charles J. Wilder, II, Legal Counsel for the Army Contracting
Command in Kuwait. Mr. Wilder’s declaration includes two attachments:
Attachment 1 is Ms. Weinert’s January 29, 2004 D&F, which Mr. Wilder asserts is
the “final decision” on Uniglobe’s claim for lease fees referenced in the September
2005 Decision and October 2005 Revised Decision; Attachment 2 is Mr. Adolph’s
February 18, 2004 Legal Review, which Mr. Wilder asserts is the “legal opinion”
on Uniglobe’s claim for lease fees.
In an order dated September 27, 2013, the court noted that the parties, in
addition to submitting incomplete documents, had not sufficiently addressed the
issue of whether – and, if so, when and how – Uniglobe received Attachment 1
and/or Attachment 2 to Mr. Wilder’s declaration. Additionally, the court noted
that Uniglobe had not specifically stated in its briefs whether – and, if so, when and
how – it received from the government any written correspondence or other
documentation responding to Uniglobe’s claim for lease fees under the 442
contract. The court therefore ordered the parties to file supplemental briefing
addressing these issues, and to support their assertions in that regard with
documentary evidence and/or declarations of knowledgeable persons.
The government filed its supplemental brief on November 6, 2013 in which
it asserted that “at the latest, the [Army] transmitted the D&F and the Legal
Review to Uniglobe as an enclosure to the August 30, 2005 Memorandum for
Record (MFR), which the Army sent to Uniglobe via e-mail on September 26,
2005, and again on October 23, 2005.” Def.’s Supplemental Br. at 1. In support of
this claim, the government relied upon Mr. Wilder’s declaration, which the
13
government resubmitted with its supplemental brief, id. Ex. 1, as well as Ms.
Quinto’s October 26, 2005 e-mail in which she confirmed that she had received
“the Final Determination for Contract No. 0442,” id. Ex. 2.
Plaintiff, in its supplemental brief filed November 15, 2013, speculated that
“[t]he only fair and logical inference from [the] record” is that Major Sibaja’s
September 2005 Decision “was never delivered to or received by Uniglobe.” Pl.’s
Supplemental Br. at 4. Furthermore, Uniglobe suggested that the court should
“infer[] that Maj[or] Sibaja omitted the D&F and the Legal Review from his
revised decision emailed on October 23[, 2005] because the express purpose of
Maj[or] Sibaja’s October 23[, 2005] email was to communicate his ‘revision’ to his
first [Memorandum for Record] and not to reiterate the bases for the earlier
[Memorandum for Record].” Id.
The court, in an order dated January 24, 2014, found Uniglobe’s
supplemental brief to be noncompliant with the court’s September 27, 2013 order
because plaintiff had failed to answer the court’s simple factual questions and had
failed to support its assertions with citations to any documentary evidence or
declarations of knowledgeable persons. The court therefore ordered Uniglobe to
submit a second supplemental brief that complied with the court’s September 27,
2013 order.
Uniglobe filed a second supplemental brief on February 7, 2014, asserting
again that it “never received Attachment 1 (the January 29, 2004 [D&F]) or
Attachment 2 (the February 18, 2004 Legal Review).” Pl.’s Second Supplemental
Br. at 1. As support for this claim, plaintiff submitted a declaration prepared by
Dr. Jasem. In his declaration, Dr. Jasem states that he “reviewed the relevant
documents in Uniglobe’s possession . . . . [and] found no original or copy of the
D&F or the Legal Review . . . in Uniglobe’s records.” Id. Ex. A (Jasem Decl.) ¶ 3.
Dr. Jasem admits, however, that Uniglobe received Major Sibaja’s September and
October 2005 decisions, as well as the Contract Modification prepared by Ms.
Weinert and e-mailed by Ms. Quinn on February 23, 2004. Id. ¶ 4 (“Uniglobe
acknowledges receiving the two[-]page August 30, 2005 Memorandum [f]or
Record by [Major] Rosiher Sibaja and the revised August 30, 2005 Memorandum
[f]or Record by [Major] Rosiher Sibaja . . . .”), ¶ 7 (“I acknowledge receipt by
Uniglobe of an email from Erin Quinn sent at about 3:44 PM on February 23,
14
2004, transmitting Modification P00001 to Contract DABM06-03-P-0442
(‘Contract Modification’) . . . .”).
DISCUSSION
I. Standard of Review under RCFC 12(b)(1)
The relevant issue in a motion to dismiss under RCFC 12(b)(1) “‘is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.’” Patton v. United States, 64 Fed. Cl. 768,
773 (2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on
other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In considering the
issue of subject matter jurisdiction, this court must presume all undisputed factual
allegations to be true and construe all reasonable inferences in favor of the
plaintiff. Scheuer, 416 U.S. at 236; Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 747 (Fed. Cir. 1988) (citations omitted).
Where the court’s jurisdiction is challenged, the plaintiff bears the burden of
establishing subject matter jurisdiction by a preponderance of the evidence and by
presenting competent proof. Alder Terrace, Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298
U.S. 178, 189 (1936)); Reynolds, 846 F.2d at 748 (citations omitted). If the
plaintiff fails to meet its burden, and jurisdiction is therefore found to be lacking,
the court must dismiss the action. RCFC 12(h)(3).
In considering a motion to dismiss for lack of subject matter jurisdiction
which challenges the truth of jurisdictional facts alleged in the complaint, the court
may make findings of fact pertinent to its jurisdiction. Ferreiro v. United States,
350 F.3d 1318, 1324 (Fed. Cir. 2003) (citing Moyer v. United States, 190 F.3d
1314, 1318 (Fed. Cir. 1999), and Reynolds, 846 F.2d at 747); Rocovich v. United
States, 933 F.2d 991, 993 (Fed. Cir. 1991) (“In determining whether a motion to
dismiss should be granted, the Claims Court may find it necessary to inquire into
jurisdictional facts that are disputed.”). In making findings of fact pertinent to its
jurisdiction, the court is not restricted to the face of the pleadings, but may review
evidence extrinsic to the pleadings, including declarations or affidavits. Rocovich,
933 F.2d at 994 (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947), and
Reynolds, 846 F.2d at 747).
15
II. The CDA’s One-Year Statute of Limitations
The CDA contains a one-year statute of limitations that applies to appeals to
this court from the final decisions of contracting officers. Under 41 U.S.C. §
7104(b)(3), a contractor “shall file any action [challenging a contracting officer’s
final decision on the contractor’s claim] within 12 months from the date of receipt
of a contracting officer’s decision.” Satisfaction of this one-year statute of
limitations is a jurisdictional prerequisite to filing a CDA claim in this court. See
41 U.S.C. § 7103(g) (“The contracting officer’s decision on a claim is final and
conclusive and is not subject to review by any forum, tribunal, or Federal
Government agency, unless an appeal or action is timely commenced as authorized
by this chapter.”); Inter-Coastal Xpress, Inc. v. United States, 296 F.3d 1357,
1365-66 (Fed. Cir. 2002) (“Although characterized as a statute of limitations, the
filing period[] established by . . . the CDA [is] jurisdictional in nature, for [it]
operate[s] as [a] limit[] on the waiver of sovereign immunity by the Tucker Act,
which otherwise entitles a contractor to sue the government in the Court of Federal
Claims.”) (citations and internal quotation marks omitted).
The one-year statute of limitations under § 7104(b)(3) does not begin to run,
however, until the contractor has received from the contracting officer a final
decision on its claim. E.g., Int’l Air Response v. United States, 302 F.3d 1363,
1366 n.2 (Fed. Cir. 2002) (“The one-year period within which to challenge a
contracting officer’s final decision in the Court of Federal Claims begins to run
from the ‘date of the receipt by the contractor of the decision.’” (quoting 41 U.S.C.
§ 609(a)(3), the predecessor to § 7104(b)(3))); Borough of Alpine v. United States,
923 F.2d 170, 172 (Fed. Cir. 1991) (“Receipt is the ‘critical event that starts the
running of the limitations period.’” (quoting Pathman Constr. Co. v. United States,
817 F.2d 1573, 1577 (Fed. Cir. 1987))).
When a contracting officer fails to issue a final decision on a contractor’s
claim within the required time period – generally, sixty days after receipt of the
claim – the claim is deemed denied for the purposes of seeking review in this
court. See 41 U.S.C. § 7103(f)(5); see also FAR 33.211(g). A deemed denial does
not trigger the running of the limitations period under § 7104(b)(3). Decker & Co.
v. West, 76 F.3d 1573, 1580 (Fed. Cir. 1996) (citing Pathman, 817 F.2d at 1578-
79).
16
III. Analysis
In its motion for partial dismissal, defendant argues that this court lacks
jurisdiction over Uniglobe’s 442 contract claims because Uniglobe did not file suit
in this court within one year of receiving the contracting officer’s final decision
with respect to those claims as required by § 7104(b)(3). In evaluating whether
Uniglobe satisfied the CDA’s one-year statute of limitations with respect to its 442
contract claims, the court must determine: (1) when Uniglobe submitted written
claims to the contracting officer with respect to the 442 contract; (2) when
Uniglobe received final decisions on those claims from the contracting officer; and
(3) whether Uniglobe filed this suit within one year of receiving those final
decisions.
A. Uniglobe’s Written Claims under the 442 Contract
The court finds, at the outset, that Uniglobe filed at least three separate
written claims with the contracting officer related to the 442 contract. First,
plaintiff filed a written claim on or about November 30, 2003. That claim
requested the payment of lease fees in the amount of KWD 29,313.33. See Def.’s
Mot. Ex. A.
Second, as the court previously found in Uniglobe I, plaintiff filed a written
claim on March 21, 2004. 107 Fed. Cl. at 432. That claim requested damages in
the amount of KWD 24,282.59 to cover the cost of repairing the damaged
Caterpillar that was recovered from Camp Virginia in October 2003. Id.; Am.
Compl. ¶ 14 & Ex. D; Def.’s Mot. Ex. D. The 2004 Repair Claim did not seek
damages for unpaid lease fees.
Third, plaintiff filed a written claim on November 5, 2009. Am. Compl. ¶
30 & Ex. J. That claim “sought to amend, modify, bring together and update all
prior claims” under Uniglobe’s three contracts and demanded lease fees under the
442 contract for the two Caterpillars recovered from Camp Arifjan and Camp
Virginia. Am. Compl. ¶ 30; see id. Ex. J at 2. As noted, the court has already held
that the 2009 Consolidated Claim was untimely under § 7103(a), and therefore not
within the court’s jurisdiction, because Uniglobe submitted that claim to the
contracting officer more than six years after the claim had accrued. Uniglobe I,
17
107 Fed. Cl. at 432-34. Plaintiff does not attempt to remedy this jurisdictional
deficiency in its amended complaint, and the parties’ briefs submitted in
connection with defendant’s motion for partial dismissal do not address the 2009
Consolidated Claim. Accordingly, the court need not address the 2009
Consolidated Claim further.
Plaintiff argues that it submitted a fourth claim under the 442 contract.
Specifically, on October 3, 2005, Dr. Jasem of Uniglobe provided Major Sibaja
with a letter enclosing several invoices for lease fees under the 442 contract. See
Am. Compl. ¶ 18 & Ex. F; Pl.’s Resp. at 2, 7; see also Def.’s Mot. Ex. F. These
invoices, which Dr. Jasem described as “required documents for [Uniglobe’s]
claims,” see Def.’s Mot. Ex. F at 1, comprised the same invoices that Uniglobe had
submitted on November 30, 2003 plus one additional invoice demanding payment
of KWD 48,800 in lease fees for five Caterpillars for a four-month period from
June 1, 2003 to October 1, 2003, see id. at 2-15. In his letter, Dr. Jasem described
the additional invoice as “Complete Invoices for 5 units of Caterpillar (as per
Invoice attached).” Id. at 1. Plaintiff asserts that Dr. Jasem’s October 3, 2005
letter to Major Sibaja constituted an additional, separate, claim for lease fees under
the 442 contract in the amount of KWD 48,800. See Am. Compl. ¶ 18 & Ex. F at
2; Pl.’s Resp. at 2-3, 7. The government responds that “Uniglobe’s October 3,
2005 submission was not a new claim . . . . [b]ut rather . . . [merely] enclose[d]
documents required to support [Uniglobe’s] pending lease fees claim.” Def.’s
Mot. at 8; see also Def.’s Reply at 2-3.
It is well-established that a single government contract may give rise to more
than one CDA claim. Placeway Constr. Corp. v. United States, 920 F.2d 903, 907
(Fed. Cir. 1990). Whether the contractor has presented a fragmented single claim
or separate claims is determined by the operative facts. Id. “If the court will have
to review the same or related evidence to make its decision, then only one claim
exists. . . . On the other hand, if the claims as presented to the [contracting officer]
will necessitate a focus on a different or unrelated set of operative facts as to each
claim, then separate claims exist.” Id.; accord Kinetic Builder’s Inc. v. Peters, 226
F.3d 1307, 1312 (Fed. Cir. 2000) (citing Placeway, 920 F.2d at 907); AAB Joint
Venture v. United States, 68 Fed. Cl. 363, 365 (2005) (“A new claim is one that
does not arise from the same set of operative facts as the claim submitted to the
contracting officer.”) (citations and internal quotation marks omitted).
18
Applying these authorities to the instant case, the court agrees with the
government that Dr. Jasem’s October 3, 2005 submission was not a new claim
under the 442 contract. As noted, Dr. Jasem’s letter enclosed, with one exception,
the very same invoices that Uniglobe had submitted in its 2003 Lease Fees Claim.
Therefore, Dr. Jasem’s submission necessarily arose from essentially the same
operative facts as Uniglobe’s 2003 Lease Fees Claim. See Def.’s Mot. Ex. F at 2-
15.
Dr. Jasem’s submission of a new invoice requesting additional lease fees in
the amount of KWD 48,800 did not change the operative facts underlying
Uniglobe’s claim for lease fees. The United States Court of Appeals for the
Federal Circuit has recognized that an increase in the amount of a claim which is
reasonably based on further information pertaining to damages does not
necessarily alter the operative facts underlying the claim. Contract Cleaning
Maint., Inc. v. United States, 811 F.2d 586, 591 (Fed. Cir. 1987) (holding that an
increase of the contractor’s claim from $23,232.98 to $99,265.43 “did not change
the fundamental character of the claim” but rather “was ‘reasonably based on
further information’” regarding the contractor’s damages, i.e., the inclusion of
additional amounts resulting from “the nonpayment of the final invoice and the
government’s audit of the second year of the contract” (quoting Tecom, Inc. v.
United States, 732 F.2d 935, 938 (Fed. Cir. 1984))). Likewise, this court and its
predecessor have found the same set of operative facts where the contractor
submits “additional evidence pertaining to damages to support the same factual
claim.” AAB Joint Venture, 68 Fed. Cl. at 365-66 (citing J.F. Shea Co. v. United
States, 4 Cl. Ct. 46, 55 (1983)). Here, Dr. Jasem did not describe the additional
invoice as a separate claim for lease fees but, instead, merely as one of several
“required documents for [Uniglobe’s] claims.” 11 Def.’s Mot. Ex. F at 1. His
October 3, 2005 submission therefore did not present a new claim for lease fees
11
/ It is also worth noting that plaintiff, in its brief in opposition to defendant’s initial
motion for partial dismissal, likewise characterized the invoices attached to Dr. Jasem’s October
3, 2005 letter as “additional documents . . . [for the Army] to consider before finalizing
settlement based upon the findings in [Major Sibaja’s] [d]etermination” – not as a new claim for
lease fees under the 442 contract. Pl.’s Br. of Aug. 27, 2010, at 3. Uniglobe apparently now
seeks to characterize these “additional documents” as a new claim under the 442 contract to
avoid the jurisdictional holding of Uniglobe I.
19
under the 442 contract, but rather provided additional evidence in support of
Uniglobe’s 2003 Lease Fees Claim.
B. Uniglobe’s Receipt of Written Decisions on Its 2003 Lease Fees
Claim and 2004 Repair Claim
It is undisputed that Ms. Weinert’s January 29, 2004 D&F and February 23,
2004 Contract Modification set forth her findings and conclusions with respect to
Uniglobe’s 2003 Lease Fees Claim. See Def.’s Supplemental Br. at 1 & Ex. 1, ¶¶
3-4, 6, 9; Pl.’s Supplemental Br. at 5 (“[I]t cannot be denied that the Army
considered the D&F/Legal Review to constitute the contracting officer’s final
decision on Uniglobe’s November 30, 2003 lease payment claim.”). In addition, it
is undisputed, and this court has already determined, that Major Sibaja’s
September 2005 Decision and October 2005 Revised Decision addressed
Uniglobe’s 2004 Repair Claim. Uniglobe I, 107 Fed. Cl. at 434-35.
Uniglobe nonetheless contends that it never received a valid final decision
with respect to either its 2003 Lease Fees Claim or its 2004 Repair Claim, and
therefore the limitations period under § 7104(b)(3) never commenced for those
claims. See Am. Compl. ¶¶ 14-17, 24-28; Pl.’s Resp. at 2-8. In that regard,
plaintiff first argues that Major Sibaja’s September 2005 Decision and October
2005 Revised Decision addressed only the 2004 Repair Claim, not the 2003 Lease
Fees Claim. See Am. Compl. ¶ 16; Pl.’s Resp. at 3, 6-8. Second, plaintiff
contends that defendant has failed to demonstrate that Uniglobe actually received
any written decision on its 442 contract claims. See Am. Compl. ¶ 17; Pl.’s Resp.
at 6. Finally, Uniglobe asserts that Ms. Weinert’s D&F and Contract Modification,
as well as Major Sibaja’s September and October 2005 decisions, are invalid
because they did not comply with the requirements for final decisions set forth in
FAR 33.211(a)(4). See Pl.’s Resp. at 4-6, 8. The court will address these
arguments in turn.
1. The September 2005 Decision and October 2005 Revised
Decision Addressed Only the 2004 Repair Claim, Not the
2003 Lease Fees Claim
Plaintiff first argues that while Major Sibaja’s September 2005 Decision and
October 2005 Revised Decision decided Uniglobe’s 2004 Repair Claim, they did
20
not decide Uniglobe’s 2003 Lease Fees Claim. See Am. Compl. ¶ 16; Pl.’s Resp.
at 3, 6-8. The government asserts, in response, that the September 2005 Decision
and October 2005 Revised Decision addressed both the 2003 Lease Fees Claim
and the 2004 Repair Claim. See Def.’s Mot. at 7-8; Def.’s Reply at 1-2, 4-7. In
that regard, the government contends that the September 2005 Decision and
October 2005 Revised Decision “reaffirmed” Ms. Weinert’s findings and
conclusions with respect to lease fees in her January 29, 2004 D&F and February
23, 2004 Contract Modification. Def.’s Reply at 5 (citing England v. Sherman R.
Smoot Corp., 388 F.3d 844 (Fed. Cir. 2004) (Smoot), and Oman-Fischbach Int’l
(JV) v. Pirie, 276 F.3d 1380 (Fed. Cir. 2002)).
The court concludes that the September 2005 Decision and October 2005
Revised Decision do not constitute final decisions with respect to Uniglobe’s 2003
Lease Fees Claim. By their very terms, these decisions responded only to
Uniglobe’s 2004 Repair Claim. Under sections titled “Description of Claim,” each
decision referred to the relevant claim as “a claim on March 21[], 2004 . . . .
[r]equesting KWD 24,282.590 for damages to a Caterpillar 950E that was taken to
Iraq and then returned to Kuwait.” Def.’s Mot. Exs. E at 2, G at 2; see also id. Ex.
E at 2 (“This claim is for damages sustained to one bucket loader, which was taken
to Iraq and returned.”). Although both decisions referred to and purported to
enclose the contracting officer’s “final decision and legal opinion” on Uniglobe’s
previous claim for lease fees, see Def.’s Mot. Exs. E at 2, G at 2, they did not
themselves purport to resolve that previous claim.
The Federal Circuit’s decisions in Smoot and Oman-Fischbach are of no
help to defendant. In Smoot, the Federal Circuit rejected the so-called “McMullan
presumption,” under which, when “faced with a claim by a contractor for costs
incurred as a result of a delay, and the government extended the period of contract
performance, the [Armed Services] Board [of Contract Appeals] will invoke a
presumption, subject to rebuttal, that the government was at fault for the delay.”
388 F.3d at 851 (citing, e.g., Robert McMullan & Son, Inc., ASBCA No. 19023,
76-1 BCA ¶ 11,728 (McMullan)). At issue in Smoot were contract modifications
by which the contracting officer had extended the contract completion date, and
upon which the contractor based its unsuccessful assertion of the McMullan
presumption. In addition to its decision regarding the substantive effect of the
disputed contract modifications, and of significance to the case at hand, the Federal
Circuit was called upon to determine whether those disputed modifications were,
21
in effect, “final decisions” under the CDA. In that regard, the Federal Circuit held
that
taken together, the modifications are indistinguishable
from final decisions, save for the absence of a notice of
the right to appeal. Although they do not constitute a
final decision allowing [the contractor] to appeal, they
effectively became final with the deemed denial of the
claim, and they are the only written decisions expressing
the contracting officer’s resolution of the dispute between
the contractor and the government.
Id. at 857. Thus, in Smoot, the Federal Circuit determined that although the
contract modifications, as originally issued, were inadequate to constitute a final
decision, where those modifications were the only written expression of the
contracting officer’s dispute resolution and where the contractor subsequently
submitted a “deemed denial” appeal (showing a lack of prejudice from the absence
of an appeal notification), the modifications sufficed, at that point and under those
circumstances, to serve as a contracting officer final decision.
Defendant characterizes Oman-Fischbach, the second case upon which it
relies, as holding that a contract modification became “part of” a subsequent final
decision “where a contracting officer issued the modification, the contractor then
resubmitted a claim, and the final decision re-affirmed the earlier modification.”
Def.’s Reply at 5 (citing Oman-Fischbach, 276 F.3d at 1383). However, the
scenario that defendant describes in Oman-Fischbach bears no resemblance to the
circumstances of this case. To the extent that Oman-Fischbach has any
conceivable relevance to the instant case, it is only by virtue of the Federal
Circuit’s passing reference to Oman-Fischbach in Smoot, where the court cited
Oman-Fischbach for the proposition that “final decisions themselves often refer to
. . . interim decisions.” 388 F.3d at 857 (citing Oman-Fischbach, 276 F.3d at
1383). Defendant relies upon this single sentence from Smoot to argue that the
September 2005 Decision and October 2005 Revised Decision became final
decisions with respect to Uniglobe’s 2003 Lease Fees Claim merely by mentioning
the contracting officer’s previous determination regarding the amount by which the
Army had overpaid Uniglobe for lease fees under the 442 contract. See Def.’s
Reply at 5.
22
The government’s attempts to frame the present case to resemble the facts in
Smoot are useless. In Smoot, the contracting officer issued contract modifications
which contained all of the elements of a final decision except for the notice of a
right to appeal. As previously stated, upon the contractor’s filing of a deemed
denial appeal, the Federal Circuit held that those contract modifications, which the
court likened to an interim decision, effectively became a final decision. In the
present case the circumstances are drastically different. Here, two contracting
officer final decisions on Uniglobe’s 2004 Repair Claim made passing reference to
the existence of a separate, previously issued final decision on Uniglobe’s 2003
Lease Fees Claim. Unlike the circumstances in Smoot, nothing akin to an interim
decision was ever issued with regard to Uniglobe’s 2003 Lease Fees Claim, and
the fact that the final decisions on Uniglobe’s 2004 Repair Claim made mention of
the existence of a previously issued final decision on Uniglobe’s 2003 Lease Fees
Claim does not serve to convert the repair claim decisions into final decisions on
the 2003 Lease Fees Claim as well.
The court therefore rejects defendant’s reliance upon Smoot and Oman-
Fischbach, and concludes that the September 2005 Decision and October 2005
Revised Decision constitute final decisions only with respect to Uniglobe’s 2004
Repair Claim, not its 2003 Lease Fees Claim.
2. Uniglobe Received the September 2005 Decision and
October 2005 Revised Decision by October 24, 2005, and
Received the Contract Modification by February 23, 2004;
Uniglobe Did Not Receive the D&F or Legal Review
Plaintiff next asserts that the government has failed to demonstrate
Uniglobe’s receipt of any written decision on the 2003 Lease Fees Claim or the
2004 Repair Claim. See Am. Compl. ¶ 17; Pl.’s Resp. at 6; Pl.’s Supplemental Br.
at 3-5; Pl.’s Second Supplemental Br. at 1 & Ex. A (Jasem Decl.) ¶ 3.
The CDA provides that a contracting officer “shall mail or otherwise furnish
a copy” of his written decision to the contractor. 41 U.S.C. § 7103(d). The
Federal Circuit has interpreted receipt by the contractor to mean “‘actual physical
receipt’” of that decision by the contractor. Riley & Ephriam Constr. Co. v. United
States, 408 F.3d 1369, 1372 (Fed. Cir. 2005) (quoting Borough of Alpine, 923 F.2d
23
at 172); see also Pathman, 817 F.2d at 1577. The government bears the burden of
proving the contractor’s receipt of a contracting officer’s final decision. Riley &
Ephriam, 408 F.3d at 1372 (citation omitted). That burden is satisfied if the
government demonstrates “‘objective indicia of receipt.’” Id. (quoting Borough of
Alpine, 923 F.2d at 172); accord FAR 33.211(b) (stating that “[t]he contracting
officer shall furnish a copy of the decision to the contractor by certified mail,
return receipt requested, or by any other method that provides evidence of receipt”)
(emphasis added).
The court has before it five decisional documents which are relevant to
determining whether Uniglobe actually received a written decision on its 442
contract claims: Major Sibaja’s September and October 2005 decisions; Ms.
Weinert’s January 29, 2004 D&F; Mr. Adolph’s February 18, 2004 Legal Review;
and Ms. Weinert’s February 23, 2004 Contract Modification.
a. Major Sibaja’s Decisions
Although Uniglobe does not go so far as to assert that it never received
either Major Sibaja’s September 2005 Decision or his October 2005 Revised
Decision,12 it claims that these decisions were “ineffective” because they were sent
to Uniglobe by e-mail rather than “by certified mail, return receipt requested, or by
any other method that provides evidence of receipt” as required by FAR 33.211(b).
See Am. Compl. ¶ 17; Pl.’s Supplemental Br. at 3. The government responds that
“there is no issue but that Uniglobe received the [September 2005 Decision and
October 2005 Revised Decision]” because “there [are] objective indicia of receipt.”
Def.’s Mot. at 10.
The court concludes that defendant has presented sufficient evidence to
demonstrate that Uniglobe received Major Sibaja’s September and October 2005
12
/ To the contrary, as previously noted, Dr. Jasem states in his declaration that
“Uniglobe acknowledges receiving” both the September 2005 Decision and the October 2005
Revised Decision. See Pl.’s Second Supplemental Br. Ex. A (Jasem Decl.) ¶ 4. Uniglobe made
a similar concession in its opposition to the government’s previous motion for partial dismissal.
See Uniglobe I, 107 Fed. Cl. at 434 (noting that “Uniglobe does not contend that it never
received [the September 2005 Decision and the October 2005 Revised Decision]”).
24
decisions no later than October 24, 2005. As previously noted, Major Sibaja stated
in his September 26, 2005 transmittal e-mail to Ms. Quinto at Uniglobe that he
“[i]ncluded . . . my Contracting Officer[’]s Final Determination,” and the “Attach”
line of the e-mail listed a document titled “Contracting Officers Final
Decision.doc.” Def.’s Mot. Ex. E at 1. In his October 23, 2005 transmittal e-mail
to Ms. Quinto, Major Sibaja referred to an attached “revision of claim DABM06-
P-0442,” and the “Attach” line of the e-mail again listed a document titled
“Contracting Officers Final Decision.doc.” Def.’s Mot. Ex. G at 1. In addition, on
October 26, 2005, Ms. Quinto confirmed that she had received “the Final
Determination for Contract No. 0442 which Major Rosiher Sibaja sent to me on
24th Oct[ober] 2005.” Def.’s Supplemental Br. Ex. 2. Based on this evidence, the
court concludes that the government has demonstrated objective indicia of
Uniglobe’s receipt of a written decision on its 2004 Repair Claim no later than
October 24, 2005. 13
b. The D&F and Legal Review
With regard to Ms. Weinert’s January 29, 2004 D&F and Mr. Adolph’s
February 18, 2004 Legal Review, the government notes that Major Sibaja’s
September and October 2005 decisions each referenced an “enclosure,” see Def.’s
Supplemental Br. at 1 (citing Def.’s Mot. Exs. E at 3, G at 3), and surmises that the
referenced enclosures must have included the D&F and Legal Review because
Major Sibaja’s decisions each referred to those documents and because Mr. Wilder
asserted in his declaration that Army personnel located copies of those documents
in proximity to copies of Major Sibaja’s decisions in the Army’s paper files, see id.
& Ex. 1 (Wilder Decl.) ¶¶ 5-7. Defendant therefore contends that Uniglobe
received the D&F and Legal Review no later than October 2005. See id. at 1.
13
/ In Uniglobe I, the court concluded that “Uniglobe received the contracting officer’s
final decision on its written claims [there, the 2004 Repair Claim] by October 23, 2005.” 107
Fed. Cl. at 435. However, the record before the court in Uniglobe I did not include the October
26, 2005 e-mail from Ms. Quinto to Colonel Strother confirming her receipt of “the Final
Determination for Contract No. 0442 which Major Rosiher Sibaja sent to me on 24th Oct[ober]
2005.” Def.’s Supplemental Br. Ex. 2. The record currently before the court reveals that
Uniglobe received a final decision on the 2004 Repair Claim no later than October 24, 2005. In
any event, regardless of whether Uniglobe received a written decision on its 2004 Repair Claim
by October 23, 2005 or October 24, 2005, its appeal from that decision would be untimely under
§ 7104(b)(3), provided that the decision was valid under the CDA and the FAR. See infra.
25
Uniglobe is correct to point out, however, that none of this evidence
demonstrates that the D&F and Legal Review were actually transmitted to and
received by Uniglobe. See Pl.’s Supplemental Brief at 3-4. The fact that Major
Sibaja’s September and October 2005 decisions referred to a previous “final
decision” on Uniglobe’s claim for lease fees does not prove that Major Sibaja
actually attached the referenced decision to his transmittal e-mails. To the
contrary, as previously noted, Major Sibaja’s transmittal e-mails purported to
attach only one document titled “Contracting Officers Final Decision.doc.” See
Def.’s Mot. Exs. E at 1, G at 1. Nor does the fact that Army personnel located
copies of the D&F and Legal Review in close proximity to copies of Major
Sibaja’s decisions in the Army’s paper files establish that the D&F and Legal
Review were actually sent to and received by Uniglobe. 14
The government also relies, unpersuasively, on Ms. Quinto’s October 26,
2005 e-mail confirming her receipt of “the Final Determination for Contract No.
0442 which Major Rosiher Sibaja sent to me on 24th Oct[ober] 2005.” Def.’s
Supplemental Br. at 2 & Ex. 2. Defendant does not assert, nor could it, that this e-
mail confirmed Uniglobe’s receipt of the D&F or Legal Review themselves;
indeed, the e-mail does not reference either document. Instead, the government
suggests that “if Uniglobe had not received the D&F and the Legal Review, one
would expect that Uniglobe would have inquired about the content of those
documents . . . given that [the September 2005 Decision and October 2005
Decision] referred to, and relied upon, those documents.” Id. at 2. Defendant
posits that “[t]he fact that Uniglobe did not indicate in [the October 26, 2005] e-
mail that [Major Sibaja’s decisions were] incomplete, or that the D&F and Legal
Review relied upon by [Major Sibaja] were missing[,] strongly suggests that
14
/ It would not be unreasonable to surmise that both the D&F and the Legal Review
might have been prepared as internal, deliberative documents drafted to assist the contracting
officer in reaching a determination on the contractor’s claims or as a review to determine the
legal sufficiency of such a decision prior to issuance. In that case, it would not have been at all
unusual for these two documents to be co-located with Major Sibaja’s decisions within the
Army’s files. If these were, in fact, internal documents, there is nothing to indicate that, as a
matter of practice, such documents would have been released outside of the agency. Indeed,
neither of these two documents is directed to Uniglobe, and the subject line of Mr. Adolph’s
Legal Review expressly states that it was intended “for [the] Contracting Officer.” See Def.’s
Supplemental Br. Ex. 1, Attach. 2 at 1.
26
Uniglobe had access to the D&F and the Legal Review by the time it sent the
confirming e-mail.” Id. The court rejects this “implication-by-silence” argument
as mere speculation, which is plainly insufficient to meet the government’s burden
to demonstrate objective indicia of Uniglobe’s receipt of Ms. Weinert’s D&F or
Mr. Adolph’s Legal Review.
Because the government has failed to present any evidence that Uniglobe
actually received the D&F or the Legal Review, the court concludes that neither
document could have triggered the one-year statute of limitations under §
7104(b)(3).
c. The Contract Modification
With respect to Ms. Weinert’s February 23, 2004 Contract Modification,
although the government has not proffered any evidence of Uniglobe’s receipt of
that document, plaintiff has provided such evidence through its supplemental
briefing. Specifically, as noted supra, plaintiff attached to its second supplemental
brief a February 23, 2004 e-mail from Erin Quinn of the Army’s contracting
command to Uniglobe attaching a copy of the Contract Modification. See Pl.’s
Second Supplemental Br. Ex. B at 18. Dr. Jasem “acknowledge[s] receipt” of that
e-mail. See id. Ex. A (Jasem Decl.) ¶ 7. Based upon this evidence, the court finds
objective indicia of Uniglobe’s receipt of Ms. Weinert’s February 23, 2004
Contract Modification no later than February 23, 2004.
Having found that Uniglobe received Ms. Weinert’s February 23, 2004
Contract Modification no later than February 23, 2004, and received Major
Sibaja’s September and October 2005 decisions no later than October 24, 2005, the
court next addresses plaintiff’s argument that none of these documents constitute
valid final decisions.
3. The September 2005 Decision and October 2005 Revised
Decision Were Valid Final Decisions on Uniglobe’s 2004
Repair Claim, But the Contract Modification Was Not a
Valid Final Decision on Uniglobe’s 2003 Lease Fees Claim
Plaintiff’s final argument is that the Contract Modification, September 2005
Decision, and October 2005 Revised Decision all failed to satisfy the applicable
27
requirements for contracting officers’ final decisions, and therefore could not have
triggered the running of the limitations period under § 7104(b)(3). 15 See Pl.’s
Resp. at 4-6, 8; Pl.’s Second Supplemental Br. Ex. A (Jasem Decl.) ¶ 12.
The CDA and the FAR set forth various substantive and procedural
requirements for the decisions of contracting officers. Under the CDA, a
contracting officer’s “final decision” must be written, must state the reasons for the
decision, and must inform the contractor of the contractor’s appeal rights. 41
U.S.C. § 7103(d)-(e). The FAR elaborates upon the CDA’s requirements for final
decisions. The FAR provision most relevant to the instant dispute is FAR
33.211(a), which provides that a contracting officer’s final decision “shall include”
the following provisions:
(i) A description of the claim or dispute;
(ii) A reference to the pertinent contract terms;
(iii) A statement of the factual areas of agreement and
disagreement;
(iv) A statement of the contracting officer’s decision,
with supporting rationale;
(v) Paragraphs substantially as follows:
“This is the final decision of the Contracting
Officer. You may appeal this decision to the
agency board of contract appeals. If you decide to
appeal, you must, within 90 days from the date you
receive this decision, mail or otherwise furnish
written notice to the agency board of contract
appeals and provide a copy to the Contracting
Officer from whose decision this appeal is taken.
The notice shall indicate that an appeal is intended,
reference this decision, and identify the contract by
number.
15
/ Plaintiff also contends that the D&F failed to satisfy the requirements for contracting
officers’ final decisions. See Pl.’s Resp. at 4-6. The court need not address that issue, however,
because the government has failed to meet its burden to demonstrate that Uniglobe actually
received the D&F. See supra.
28
....
Instead of appealing to the agency board of
contract appeals, you may bring an action directly
in the United States Court of Federal Claims . . .
within 12 months of the date you receive this
decision[.]”
(vi) Demand for payment prepared in accordance with
[FAR] 32.604 and [FAR] 32.605 in all cases where the
decision results in a finding that the contractor is
indebted to the Government.
FAR 33.211(a)(4).
Failure to satisfy these requirements may render a contracting officer’s
decision on a CDA claim invalid. See, e.g., Sharman Co. v. United States, 2 F.3d
1564, 1570 (Fed. Cir. 1993) (holding that a letter from the contracting officer
seeking repayment of progress payments was not a valid final decision under the
CDA because it was not designated as a final decision), overruled on other
grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995) (en banc);
Atkins N. Am., Inc. v. United States, 106 Fed. Cl. 491, 497 (2012) (Atkins) (citing
cases). An invalid contracting officer’s decision does not trigger the one-year
statute of limitations under § 7104(b)(3). E.g., Pathman, 817 F.2d at 1577-78.
Accordingly, the court has the authority to rule on the validity of a contracting
officer’s decision as part of its jurisdictional inquiry under § 7104(b)(3). See
Renda Marine, Inc. v. United States, 509 F.3d 1372, 1380 (Fed. Cir. 2007) (noting
that a court “may declare a contracting officer’s final decision invalid – for
whatever reason”); Atkins, 106 Fed. Cl. at 498.
Although plaintiff does not dispute the fact that Ms. Weinert’s Contract
Modification and Major Sibaja’s decisions contain conclusive determinations as to
liability and damages with respect to Uniglobe’s 2003 Lease Fees Claim and 2004
Repair Claim, respectively, plaintiff argues that these documents are not valid final
decisions because they omitted certain provisions required by FAR 33.211(a)(4).
As set forth below, the court concludes that Major Sibaja’s decisions satisfied the
requirements for final decisions under the CDA and the FAR, but the Contract
Modification did not.
29
a. Major Sibaja’s Decisions
Plaintiff first contends that Major Sibaja’s September and October 2005
decisions are not valid as final decisions on Uniglobe’s 2004 Repair Claim because
they failed to reference pertinent provisions of the 442 contract or factual areas of
agreement and disagreement as required by FAR 33.211(a)(4)(ii)-(iii), and also
failed to set forth the contracting officer’s decision with supporting rationale as
required by FAR 33.211(a)(4)(iv). See Pl.’s Resp. at 8. The government,
unsurprisingly, disagrees, and argues that these decisions contained all of the
information that is required by FAR 33.211(a)(4)(ii)-(iv). See Def.’s Reply at 7-9.
The court must agree with defendant that the September 2005 Decision and
October 2005 Revised Decision complied with FAR 33.211(a)(4)(ii)-(iv). First,
both decisions referenced FAR 52.228-8 under headings titled “Pertinent Contract
Terms and Clauses.” See Def.’s Mot. Exs. E at 2, G at 2. That FAR provision,
titled “Liability and Insurance – Leased Motor Vehicles (May 1999),” is
incorporated in full into the 442 contract and provides, in pertinent part, that “[t]he
Government shall be responsible for loss of or damage to . . . [l]eased vehicles,
except for (i) normal wear and tear and (ii) loss or damage caused by the
negligence of the Contractor, its agents, or employees.” FAR 52.228-8(a)(1); see
Am. Compl. Ex. C at 7-8. The September 2005 Decision and October 2005
Revised Decision therefore complied with FAR 33.211(a)(4)(ii) because each
decision referenced the provision of the 442 contract serving as the basis for the
government’s obligation to compensate Uniglobe for the cost of repairing damaged
Caterpillars.
Second, the September 2005 Decision and October 2005 Revised Decision
each set forth factual areas of agreement and disagreement with respect to
Uniglobe’s 2004 Repair Claim and also stated Major Sibaja’s final decision with
supporting rationale. See Def.’s Reply at 8 (citing Def.’s Mot. Exs. E at 2-3, G at
2). In the September 2005 Decision, Major Sibaja stated that Uniglobe requested
KWD 24,282.59 “for damages to a Caterpillar 950E that was taken to Iraq and then
returned to Kuwait,” but that “[a] reasonable cost for this equipment is determined
to be $40,000.00 which converts to KWD 11,200 at the current exchange rate.”
Def.’s Mot. Ex. E at 2-3. Based on this determination, and subtracting the lease
fees overpayment of KWD 8320 referenced in Ms. Weinert’s D&F, Major Sibaja
30
concluded that “[t]he total amount due the contractor is KWD 2,880.” Id. at 3.
The October 2005 Revised Decision contained virtually identical language, except
that it increased the “reasonable cost” of repairing the damaged Caterpillar from
KWD 11,200 to KWD 14,000, and concluded based on that revised amount (and
again subtracting the lease fees overpayment referenced in Ms. Weinert’s D&F)
that “[t]he total amount due the contractor is KWD 5,680.” Def.’s Mot. Ex. G at 2.
Although Major Sibaja apparently neglected to set forth this information under
headings titled “Areas of Agreement and Disagreement [B]etween Gov[ernmen]t
and Contractor,” he nevertheless provided such information elsewhere in his
decisions. See Def.’s Mot. Exs. E at 2-3, G at 2. The September 2005 Decision
and October 2005 Revised Decision therefore complied with FAR 33.211(a)(4)(iii)
and FAR 33.211(a)(4)(iv).
Accordingly, the court concludes that Uniglobe received a valid final
decision on its 2004 Repair Claim no later than October 24, 2005, and the one-year
limitations period under § 7104(b)(3) therefore began to run on the 2004 Repair
Claim as of October 24, 2005. Because Uniglobe did not file suit in this court until
April 6, 2010, its claim for repair costs under the 442 contract is untimely under §
7104(b)(3) and must be dismissed for lack of subject matter jurisdiction.
b. The Contract Modification
Plaintiff next argues that Ms. Weinert’s Contract Modification was invalid
as a final decision on Uniglobe’s 2003 Lease Fees Claim because it lacked
language of finality and a notice of appeal rights as required by FAR
33.211(a)(4)(v), and lacked a demand for payment as required by FAR
33.211(a)(4)(vi). See Pl.’s Resp. at 4-6; Pl.’s Second Supplemental Br. Ex. A
(Jasem Decl.) ¶ 12. The government again disagrees, arguing that whether the
Contract Modification complied with FAR 33.211(a)(4) “is beside the point”
because it was “reaffirmed” by, and effectively incorporated into, the September
2005 Decision and October 2005 Revised Decision. See Def.’s Reply at 4-5 (citing
Smoot, 388 F.3d at 857, and Oman-Fischbach, 276 F.3d at 1383).
The court notes, preliminarily, that the issue of whether the Contract
Modification itself constitutes a valid final decision on Uniglobe’s 2003 Lease
Fees Claim is not, as the government puts it, “beside the point.” See Def.’s Reply
31
at 4. To the contrary, the court must address that issue as part of its jurisdictional
inquiry under § 7104(b)(3). 16
Uniglobe is correct to point out that the Contract Modification lacked the
standard indicia of a final decision. The Contract Modification was not framed as
a final decision with respect to Uniglobe’s 2003 Lease Fees Claim; indeed, the
Contract Modification employed the words “final decision” only once, in reference
to a previous “final decision” on Uniglobe’s “claim for payment for the lease of
seven (7) bucket loaders.” See Def.’s Mot. Ex. C at 3; Pl.’s Second Supplemental
Br. Ex. B at 21; Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1267
(Fed. Cir. 1999) (noting that a final decision typically contains “standard language
announcing that it constitutes a final decision” (citing Placeway, 920 F.2d at 907)).
Nor did the Contract Modification list Uniglobe’s appeal rights, as required for any
final decision on a CDA claim by 41 U.S.C. § 7103(e) and FAR 33.211(a)(4)(v).
Furthermore, the Contract Modification lacked a demand for payment in
accordance with FAR 33.211(a)(4)(vi). That section of the FAR provides that a
contracting officer’s final decision must include a “[d]emand for payment prepared
in accordance with [FAR] 32.604 and [FAR] 32.605 in all cases where the decision
results in a finding that the contractor is indebted to the Government.” FAR
33.211(a)(4)(vi). FAR 32.604 sets forth various required components of a demand
for payment, including, inter alia,
(1) A description of the debt, including the debt
amount[;]
(2) A distribution of the principal amount of the debt by
line(s) of accounting . . . . [;]
(3) The basis for and amount of any accrued interest or
penalty[;]
(4)(i) For debts resulting from specific contract terms
16
/ As discussed supra, the court rejects defendant’s argument, based upon the Federal
Circuit’s decisions in Smoot and Oman-Fischbach, that the Contract Modification effectively
became “part of” the September 2005 Decision and October 2005 Revised Decision because
those later decisions allegedly “reaffirmed” the reasoning set forth in the Contract Modification.
See Def.’s Reply at 5.
32
. . . , a notification stating that payment should be made
promptly, and that interest is due in accordance with the
terms of the contract. . . . [;]
(ii) For all other contract debts, a notification stating that
any amounts not paid within 30 days from the date of the
demand for payment will bear interest. . . . [;]
(5) A statement advising the contractor . . . [t]o contact
the contracting officer if the contractor believes the debt
is invalid or the amount is incorrect[] and . . . [i]f the
contractor agrees, to remit a check payable to the
agency’s payment office . . . . [; and]
(6) Notification that the payment office may initiate
procedures, in accordance with the applicable statutory
and regulatory requirements, to offset the debt against
any payments otherwise due the contractor.
FAR 32.604(b)(1)-(6). The Contract Modification included the first of these
requirements insofar as it stated that “[a]s a result of the [KWD] 15,520
overpayment [of lease fees to Uniglobe], Uniglobe has a debt to the Government in
the amount of [KWD] 8,320 ([KWD] 15,520 – [KWD] 7,200 = [KWD] 8,320),”
and further stated that “[c]ollection action shall be initiated to recover the [KWD]
8,320 owed to the Government by Uniglobe.” See Def.’s Mot. Ex. C at 3; Pl.’s
Second Supplemental Br. Ex. B at 21. However, the Contract Modification failed
to include any of the other required provisions set forth in FAR 32.604, and
therefore failed to include a demand for payment in accordance with FAR
33.211(a)(4)(vi).
That the Contract Modification failed to satisfy certain requirements for final
decisions does not necessarily deprive that document of legal effect as a final
decision, however. Under Federal Circuit precedent, a contracting officer’s
decision that fails to technically comply with all of the statutory or regulatory
requirements for final decisions on CDA claims may nevertheless be valid and
therefore sufficient to trigger the CDA’s statute of limitations. Decisions which
address the validity of a technically deficient contracting officer decision focus
upon the extent to which the deficiencies prejudiced the contractor’s ability to
perfect a timely appeal of the decision. See, e.g., Fla. Dep’t of Ins. v. United
States, 81 F.3d 1093, 1098 (Fed. Cir. 1996) (holding that the contracting officer’s
33
failure to explain the contractor’s appeal rights in a notice of default termination
was harmless error because the contractor had already received notice of its appeal
rights and was able to appeal the decision); Decker, 76 F.3d at 1579-80 (holding
that a contracting officer’s final decision which omitted a notice of appeal rights
was nevertheless effective with respect to triggering the CDA’s one-year statute of
limitations because the contractor was not prejudiced in its ability to prosecute a
timely appeal); Placeway, 920 F.2d at 906-07 (holding, on a contractor’s timely
appeal from a contracting officer’s adverse decision on the contractor’s CDA
claim, that the decision was “no less final because it failed to include boilerplate
language usually present for the protection of the contractor,” i.e., language of
finality and notice of appeal rights); Philadelphia Regent Builders, Inc. v. United
States, 634 F.2d 569, 572-73 (Ct. Cl. 1980) (holding that a technically deficient
notice of termination was nonetheless effective as a final decision of the
contracting officer because the contractor was not harmed by the defects insofar as
it had completed performance, the notice contained essential information, and the
contractor was able to make a timely appeal of the contracting officer’s decision).
As the Federal Circuit explained in Decker, the “focus” of the requirement to
notify the contractor that a final decision has been rendered on its CDA claim, and
to inform the contractor of its appeal rights with respect to that decision, “is the
protection of the contractor.” 76 F.3d at 1579; accord Placeway, 920 F.2d at 907.
Where defects in a contracting officer’s decision do not affect the contractor’s
ability to make an informed choice as to whether, and in what forum, it will pursue
an appeal, the decision “continues to be . . . effective” for the purposes of
triggering the applicable limitations period under the CDA. Decker, 76 F.3d at
1580. In contrast, where defects in a contracting officer’s decision “actually
prejudiced [the contractor’s] ability to prosecute its timely appeal,” such defects
render the decision invalid and therefore insufficient to trigger the running of the
applicable limitations period. Id. (citing Pathman, 817 F.2d at 1578-79).
Applying these authorities to this case, the court concludes that the
aforementioned deficiencies in the Contract Modification were not harmless.
Uniglobe filed its complaint in this court on April 6, 2010 – over six years after
receiving Ms. Quinn’s February 23, 2004 e-mail attaching the Contract
Modification. Were the court to conclude that the Contract Modification
constituted a valid final decision on Uniglobe’s 2003 Lease Fees Claim, Uniglobe
would unquestionably be prejudiced insofar as that claim would be barred by §
34
7104(b)(3). The Contract Modification was therefore invalid and did not trigger
the running of the limitations period under § 7104(b)(3) with respect to Uniglobe’s
2003 Lease Fees Claim.
Because the government has failed to produce any evidence that Uniglobe
received a valid final decision on its 2003 Lease Fees Claim, the court concludes,
based upon this record, that the one-year limitations period under § 7104(b)(3)
never began to run on that claim. See 41 U.S.C. § 7103(f)(5); Decker, 76 F.3d at
1580 (citing Pathman, 817 F.2d at 1578-79). Defendant’s motion for partial
dismissal must therefore be denied with respect to Uniglobe’s claim for lease fees
under the 442 contract.
CONCLUSION
For the foregoing reasons, the court concludes that it lacks jurisdiction over
Uniglobe’s claim for repair costs under the 442 contract but does have jurisdiction
over Uniglobe’s claim for lease fees under the 442 contract. Accordingly, it is
hereby ORDERED that
(1) Defendant’s Partial Motion to Dismiss the Amended Complaint, filed
April 22, 2013, is GRANTED in part as to the portions of Counts III
and IV of the Amended Complaint which relate to plaintiff’s claim for
repair costs under Contract DABM06-03-P-0442;
(2) Defendant’s Partial Motion to Dismiss the Amended Complaint, filed
April 22, 2013, is DENIED in part as to the portions of Counts III
and IV of the Amended Complaint which relate to plaintiff’s claim for
lease fees under Contract DABM06-03-P-0442;
(3) The parties are directed to CONFER to determine how they wish to
proceed with respect to the remaining claims in the Amended
Complaint and whether this case may be settled by the parties;17 and
17
/ The court encourages the parties to consider settlement discussions or ADR as the
most efficient options for disposing of the remaining claims in this litigation. The court notes
that this case was originally assigned to alternative dispute resolution (ADR) Judge Bohdan A.
(continued . . .)
35
(4) The parties shall FILE a Joint Status Report on or before May 2,
2014 proposing the next steps in this litigation.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
Futey, who has since retired. Should the parties decide to pursue ADR, the undersigned will
facilitate the assignment of this matter to an ADR judge.
36