DISMISSED: April 22, 2013
CBCA 3126
R&G FOOD SERVICES, INC. d/b/a PORT-A-PIT CATERING,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
John Lukjanowicz of the Law Offices of John Lukjanowicz, PC, Seattle, WA,
counsel for Appellant.
The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.
Antonio T. Robinson, Office of the General Counsel, Department of Agriculture, Washington, DC, counsel for Respondent.
Before Board Judges BORWICK, McCANN, and GOODMAN.
BORWICK, Board Judge.
Respondent has filed a motion to dismiss for lack of jurisdiction because the certified claim did not contain a “sum certain.” The appellant does not oppose respondent’s motion. We have reviewed the record and agree with the parties. Because the appeal is jurisdictionally deficient, the appeal must be dismissed for lack of jurisdiction.
Background
In this appeal, the certified claim sought a sum “not less than $535,039.66.” Appeal File, Exhibit 9. Under the Contract Disputes Act (CDA) and its implementing regulations, a claim submitted to the contracting officer for the payment of money must be in a sum certain. 41 U.S.C. § 7103(a)(2) (Supp. IV 2011); 48 CFR 2.101 and 52.233-1(c)(2012); Essex Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1581-82 (Fed. Cir. 1992). A claim seeking “not less than” a stated sum is not a claim for a sum certain. See Atlantic Industries, Inc, ASBCA 34,832, 88-1 BCA ¶ 20,244, at 102,472 (1987); Sandoval Plumbing Repair, ASBCA 54640, 05-2 BCA ¶ 33,072 at 163,933. A prerequisite to Board jurisdiction is a contracting officer’s decision on a claim. Sharp Electronics Corp. v. McHugh, 707 F.3d 1367, 1371 (Fed. Cir. 2013). Since there was not a proper CDA claim decided by the contracting officer, the Board lacks jurisdiction.
Decision
This appeal is DISMISSED for lack of jurisdiction. ________________________________ ANTHONY S. BORWICK
Board Judge
We concur:
R. ANTHONY McCANN
Board Judge
ALLAN H. GOODMAN
Board Judge
This is a verbatim capture of the text layer of the Board's own document in R&G Food Services, INC. d/b/a Port-A-Pit Catering, CBCA 3126. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.