DISMISSED FOR LACK OF JURISDICTION: December 13, 2016
CBCA 5534
AGBAYANI CONSTRUCTION CORPORATION,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Respondent.
Michael J. Gardner of Troutman Sanders, LLP, Virginia Beach, VA, counsel for
Appellant.
James Rhodes and Lauren Didiuk, Office of the General Counsel, Department of
Commerce, Washington, DC, counsel for Respondent.
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.
Before Board Judges SHERIDAN, KULLBERG, and RUSSELL.
SHERIDAN, Board Judge.
The appellant, Agbayani Construction Corporation (ACC) and the respondent, Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) jointly move to dismiss the above-captioned appeal for lack of jurisdiction.
Background
On August 31, 2016, ACC submitted a certified claim in the amount of $208,502, to a NOAA contracting officer concerning contract AB1330-12-CN-0117. Pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), the contracting officer has sixty days from receipt of a certified claim over $100,000 to either “issue a decision” or “notify the contractor of the time within which a decision will be issued.” 41 U.S.C. § 7103(f)(2). The implementing regulations in the Federal Acquisition Regulation (FAR) include the same time frame. 48 CFR 33.211(c)(2) (2015). The FAR also adds that in the event the contracting officer notifies the contractor within sixty days of a later date for issuing the decision, “[t]he contracting officer shall issue a decision within a reasonable time, taking into account — (1) The size and complexity of the claim; (2) The adequacy of the contractor’s supporting data; and (3) Any other relevant factors.” Accordingly, the statutory and regulatory framework is clear that the contracting officer had until October 31, 2016, to either issue a decision or notify ACC of a later date by which the decision would be issued. On Friday, October 28, 2016, the contracting officer sent an email message to ACC’s counsel indicating that a final decision would be issued “on or before February 28, 2016 [sic].” This notification was received within the sixty-day limitation set forth in the CDA. Accordingly, the Government’s actions do not constitute a “deemed denial” in accordance with the CDA. See 41 U.S.C. § 7103(f)(5) (stating that “[F]ailure by a contracting officer to issue a decision on a claim within the required time period is deemed to be a decision by the contracting officer denying the claim and authorizes an appeal” to the Board). Since the time period for issuing a final decision has not elapsed, this appeal is premature and, as a result, the Board lacks jurisdiction. See Fire Security Systems, Inc. v. General Services Administration, GSBCA 12350, 93-3 BCA ¶ 26,047 (dismissing appeal as premature when sixty days had not passed since appellant’s request for a contracting officer’s final decision).
Decision
Accordingly, this appeal is DISMISSED FOR LACK OF JURISDICTION. PATRICIA J. SHERIDAN
Board Judge
We concur:
H. CHUCK KULLBERG
Board Judge
BEVERLY M. RUSSELL
Board Judge
This is a verbatim capture of the text layer of the Board's own document in Agbayani Construction Corporation, CBCA 5534. 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.