DISMISSED FOR LACK OF JURISDICTION: June 1, 2007 
CBCA 605, 606, 607 
FRANK BONNER AND KEN ALPIN, 
Appellants, 
v. 
DEPARTMENT OF HOMELAND SECURITY, 
Respondent. 
Donna U. Grodner and Charlotte C. McDaniel of Grodner and Associates, Baton 
Rouge, LA, counsel for Appellants. 
Jean B. Hardin and Mary A. Mitchell, Office of Chief Counsel, Federal Emergency 
Management Agency, Department of Homeland Security, Washington, DC, counsel for 
Respondent. 
Before Board Judges GILMORE , POLLACK , and SOMERS . 
SOMERS , Board Judge. 
These appeals involve disputes between Frank Bonner and Ken Alpin (appellants or 
contractors) and the Federal Emergency Management Agency (FEMA or Government). 
These disputes arose from three separate contracts for mobile home trailer pads in Louisiana. 1 
For the reasons that follow, we find that this Board does not possess jurisdiction over these 
appeals because appellants did not file claims with the contracting officer prior to pursuing 
their appeals.  
1  These appeals have not been consolidated.  However, because the jurisdictional issue 
is the same for each appeal, we have addressed all three appeals in this decision.   

 
  
  
   
   
 
  
 
 
 
  
 
 
            
      
 
 
 
   
   
2 CBCA 605, 606, 607 
Background 
FEMA awarded three contracts to appellants for lease of temporary housing units 
located in Louisiana in support of the hurricane relief efforts resulting from Hurricanes Rita 
and Katrina in 2005.  Contract HSFE-06-05-P-0090 (CBCA 605) required appellants to 
provide thirty mobile home lots, later revised to twenty-nine lots.  Contract HSFE-06-P-0023 
(CBCA 606) required appellants to provide seven lots. The third contract, contract HSFE­
06-05-P-6293 (CBCA 607), as revised, required appellants to provide sixty-one lots.  Each 
contract contained “Termination for Convenience” clauses pursuant to the Federal 
Acquisition Regulation (FAR), 48 CFR 52.249 (1996) (FAR 52.249).  In accordance with 
these regulations, the contractors were required to “submit a final termination settlement 
proposal to the Contracting Officer in the form and with the certification prescribed by the 
Contracting Officer,” after receiving notice from the contracting officer of the Government’s 
plan to terminate the contracts.  FAR 52.249-2(e).  
FEMA terminated each of these contracts for the convenience of the Government. 
The contracting officer advised the contractors that they must submit final invoices to the 
contracting officer if they believed that the Government owed payments under the lease 
agreements.  Nevertheless, the appellants elected not to submit final invoices to the 
contracting officer.  Instead, they appealed the action terminating the contracts to this Board 
and requested monetary and injunctive relief. Because the record before the Board does not 
contain any evidence that appellants submitted any claims to the contracting officer prior to 
filing the appeals, the Board ordered the parties to brief the issue of whether the Board 
possesses jurisdiction over the appeals.  The parties submitted position papers in accordance 
with the Board’s order.  
Discussion 
Jurisdiction is a matter over which the Board lacks discretion, as “jurisdiction is an 
absolute concept; it either exists or it does not.”  Universal Canvas, Inc. v. Stone , 975 F.2d 
847, 850 (Fed. Cir. 1992).  This Board’s jurisdiction, if any, is derived from the Contract 
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613, as amended.  Jurisdiction may be 
challenged by the parties or by the Board on its own motion at any time, and, if jurisdiction 
is found to be lacking, the Board must dismiss the action.  Universal Canvas, 975 F.2d at 
850.  In addition, when jurisdiction is challenged, the appellant bears the burden of 
establishing jurisdiction.  McNutt v. General Motors Acceptance Corp. of Indiana, Inc. , 298 
U.S. 178, 189 (1936); United States v. Newport News Shipbuilding and Dry Dock Co. , 933 
F.2d 996, 999 (Fed. Cir. 1991); Reynolds v. Army & Air Force Exchange Service , 846 F.2d 
746, 748 (Fed. Cir. 1988).  

 
  
   
      
             
 
  
 
 
 
 
       
     
   
   
   
   
   
     
   
3 CBCA 605, 606, 607 
In this framework, the strict limits of the CDA constitute “jurisdictional prerequisites 
to any appeal.”  England v. Swanson Group, Inc. , 353 F.3d 1375, 1379 (Fed. Cir. 2004) 
(citing Sharman Co. v. United States , 2 F.3d 1564, 1569 n.6  (Fed. Cir. 1993)).   Section 605 
of the CDA expressly requires that “[a]ll claims by a contractor against the government. . . 
shall be in writing and shall be submitted to the contracting officer for a decision.”  41 U.S.C. 
§ 605(a); see also England , 353 F.3d at 1379.  FAR 2.201 defines a claim as “a written 
demand or assertion by one of the contracting parties seeking, as a matter of right, the 
payment of money in a sum certain. . . .”  See also Reflectone, Inc. v. Dalton, 60 F.3d 1572, 
1575 (Fed. Cir. 1995) (en banc).  The legislative history shows the purpose of requiring 
contractors to submit written claims is so “government representatives can readily examine 
and evaluate” contractor  claims; otherwise “there is no sound basis for evaluation, 
negotiation, or legal claim settlement.”  Newell Clothing Co. , ASBCA 24482, 80-2 BCA  
¶ 14,774, at 72,917-19 (citing H.R. Rep. No. 95-1118 (1978)).  
In the case where a contract is terminated for the convenience of the Government, the 
contractor may submit a termination settlement proposal within one year from the effective 
date of termination.  FAR 52.249-2(e).  A settlement proposal is “a proposal for effecting 
settlement of a contract terminated in whole or in part, submitted by a contractor or 
subcontractor in the form, and supported by the data, required by this part.”  FAR 49.001. 
Under the FAR, a termination settlement proposal can be a valid claim, so long as it is 
submitted in writing to the contracting officer for a final decision within the time limits set 
forth in the FAR.   See Reflectone , 60 F.3d at 1575.  
In this case, the Government contends that appellants failed to file a termination 
settlement proposal, or, in fact, any written claim for monetary damages with the contracting 
officer prior to filing these appeals. In response, appellants state categorically that they have 
been in “constant contact with the contracting officer, Mr. Eddie Morris, during the entirety 
of this matter, and that during a hearing before a Louisiana state court in a related matter, Ms. 
Mary Mitchell, an attorney representing FEMA, attended each hearing and received copies 
of all documents from appellants’ counsel.”  See Appellants’ Memorandum In Support of 
Jurisdiction of the Board to Hear This Appeal at 1-2.  In addition, appellants argue that the 
letter from the contracting officer terminating the contracts constitutes the contracting 
officer’s final decision and that, in any event, an appeal to the contracting officer “would 
have been a vain and useless act because it was his determination to wrongfully terminate the 
contracts of Mr. Albin and Mr. Bonner,” citing J.E. Bernard & Co. v. United States , 80 Cust. 
Ct. 111, 119 (1978).  We address each of appellants’ arguments in turn. 
First, as we noted above, for appellants’ submissions to be considered a proper CDA 
claim, they must include a written demand or assertion by one of the contracting parties 
seeking, as a matter of right, the payment of money in a sum certain and a request for a final 

 
 
         
    
       
 
 
      
       
 
    
 
  
 
  
    
    
  
   
    
    
 
 
    
4 CBCA 605, 606, 607 
decision.  Appellants contend that their contacts with the contracting officer, combined with 
the court documents provided to counsel, fulfill the requirements for a CDA claim.  The 
CDA is clear that “[a]ll claims by a contractor against the government relating to a contract 
shall be in writing and shall be submitted to the contracting officer for a decision.”  41 U.S.C. 
§ 605(a). We find that appellants’ contacts with the contracting officer and their state court 
submissions cannot be construed as a written claim for monetary damages under the CDA. 
Consequently, because the contractors failed to submit written claims to the contracting 
officer, the contracting officer’s letters terminating the contracts cannot be construed as final 
decisions. 
Second, appellants argue that the letter from the contracting officer terminating the 
contracts constitutes the contracting officer’s final decision.  This argument fails in two 
respects. First, the notices issued by the contracting officer terminating the contracts did not 
decide a claim nor did they state a claim against appellants.  See Armentrout Construction, 
Inc., ASBCA 29118, 84-2 BCA ¶ 17,263, at 85,962 (citing R.G. Robbins Co. , ASBCA 
26521, 82-1 BCA ¶ 15,643).  Second, appellants did not file any claims in writing on which 
the contracting officer could have issued a decision.  The claims as first identified in the 
notices of appeal and later detailed in the complaints filed with the Board do not satisfy this 
requirement.  See at 85,962-63 (citing Fuel Storage Corp. , ASBCA 26994, 83-1 BCA 
¶ 16,418.  Nor do the discussions with the contracting officer substitute for a claim “in 
writing” and a contracting officer’s decision.  See at 85,963.  In sum, termination of a 
contract for the convenience of the Government is not in and of itself an appealable 
contracting officer decision within the terms of the CDA.  Larry G. Pyle , ASBCA 41155, 90­
3 BCA ¶ 23,252; Baranof Mental Health Clinic , ASBCA 33172, 87-1 BCA ¶ 19,346 (1986); 
Naranjo Sales, Inc ., ASBCA  32872, 86-3 BCA ¶ 19,214.  If appellants submit settlement 
proposals and a dispute ensues, appellants may then take an appeal.  BVR, Inc. , ASBCA No. 
38758, 90-1 BCA ¶ 22,345 (1989). 
Finally, appellants state that they did not submit termination proposals because 
submission of these proposals would have been  “vain and useless” actions, and that the law 
does not require the performance of useless acts, citing J.E. Bernard .  In J.E. Bernard , the 
plaintiff argued that it should not be required to comply with applicable customs regulations, 
because compliance would require the performance of useless acts.  80 Cust. Ct. at 119. The 
United States Customs Court rejected that argument, instead finding the importer had an 
obligation to comply with the statutorily mandated customs regulations.  Id .  We cannot 
discern why appellants have cited J.E. Bernard , as it clearly provides no support to 
appellants’ arguments.  Rather, it is consistent with our holding that the Board cannot 
exercise jurisdiction where appellants had an obligation to comply with CDA requirements 
prior to filing appeals with this Board.  

5 CBCA 605, 606, 607 
Decision
 
The appeals are DISMISSED  for LACK OF JURISDICTION . 
_________________________________ 
JERI KAYLENE SOMERS 
Board Judge 
We concur: 
____________________________ _________________________________ 
BERYL S. GILMORE HOWARD A. POLLACK 
Board Judge Board Judge