DISMISSED IN PART:  March 21, 2024
CBCA 7451
QUALITY TRUST, INC.,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Lawrence M. Ruiz, President of Quality Trust, Inc., Junction City, KS, appearing for
Appellant.
Amanda S. Wang and Rachel Grabenstein, Office of the Solicitor, Department of the
Interior, Albuquerque, NM, counsel for Respondent.
Before Board Judges RUSSELL, SULLIVAN, and CHADWICK.
SULLIVAN, Board Judge.
Quality Trust, Inc. (QTI) appealed the decision of the contracting officer (CO) for the
Department of the Interior (DOI or respondent) issued in June 2022.  DOI filed two motions
to dismiss—one seeking dismissal in part for lack of jurisdiction and the other seeking
dismissal for failure to prosecute.  We grant in part the motion to dismiss in part for lack of
jurisdiction and deny the motion to dismiss for failure to prosecute.


CBCA 7451 2
Background
I. Claim to the Contracting Officer
In September 2020, the DOI entered into a contract with QTI for bridge and road
repair.  Appeal File, Exhibit 7 at 2-4.1  In April 2021, the parties executed a bilateral
modification, adding almost $52,000 to the contract as the result of a mutual mistake. 
Exhibit 76 at 2 (modification 5).  In January 2022, DOI issued a unilateral modification that
partially terminated the work on the contract.  Exhibit 121 (modification 9).  By letter dated
January 10, 2022, QTI submitted a “time and cost modification request,” seeking payment
of $2000 per day for the period March through November 2021, a period during which QTI
alleged it was on standby due to “latent conditions and changes.”  Exhibit 129.
In April 2022, QTI filed a claim pursuant to Federal Acquisition Regulation (FAR)
Disputes clause 52.233-1 (July 2002) (48 CFR 52.233-1 (2021) (FAR 52.233-1)), seeking
payment of $481,109.75.  Exhibit 146.  QTI did not explain how it arrived at its $481,109.75
figure nor what “Lost Adjustment expenses” remained to be incurred.  See id.  QTI certified
that the supporting data it provided “are accurate and complete” and that the “amount
requested accurately reflects the contract adjustment for which the contractor believes the
Government is liable.”  Id.2
On May 23, 2022, the CO requested via email that QTI clarify the amount of its claim
and provide documentation showing “how [QTI] arrived at the amount claimed and explain
to the Government why [QTI was] entitled to the sum amount claimed.”  Exhibit 148.  In its
email reply the same day, QTI described a series of purported problems on the contract:
[T]his contract is royally messed up in many specific areas.  Let me reiterate,.
[sic]  When we had the problems on the bridge, a time and cost modification
was sent to you, of which you never responded to over a year ago.. [sic]  QTI
had taken into account that we must be ready and willing to mob and demob
two more times Which alone would easily add another $100,000.00 Because
1 All exhibits are found in the appeal file unless otherwise indicated.
2 QTI submitted four pages of what appears to be a proposal originally submitted
in 2021 with two pages titled “Shipping Point Data.”  One page is titled “Origin Offer Bids,”
and one page is titled “Offer Conditions.”  Exhibit 146 at 4-7.  None of the proposal pages
provide an explanation for the $481,109.75 sought.  See id.  The final page, titled “FWS
Application and Certificate for Payment,” requests payment in the amount of $62,159.75. 
Id. at 8.  Nothing on the application and certificate for payment explains how the document
supports QTI’s claim.  See id.

CBCA 7451 3
of all the changes, and a contract that never said, we were working on a
Department of Natural Resources (DNR) project was very deceiving from the
specifications and drawings.  Please note:  the project was out of scope and full
of differing site conditions and latent conditions to mention a few.  The more
I think about this . . . , QTI could easily justify the $481,109.75.
Exhibit 150 at 2.  QTI also stated that “we estimated $2,000.00 a day based on it being our
only project.”  Id.  On the same day as the email quoted above, May 23, 2022, QTI sent
another letter to the contracting officer, submitting a third payment request for $75,840.25. 
Exhibit 149.  QTI complained about a “unilateral Partial Termination . . . due to latent and
differing site conditions” and that “Amendment P0005 was never honored in good faith in
the Amount of $51,921, plus interest and penalties.”  Id. at 2.
On the following day, the contracting officer and QTI exchanged a series of emails
seeking to clarify the basis of QTI’s claim and the payment request for $75,840.25.  See
Exhibits 151, 152.  In its replies, QTI appears to assert that a nearly $52,000 modification to
the contract value (modification 05) formed the basis of its claim but does not explain how. 
See Exhibit 152.  On June 8, 2022, QTI sent the contracting officer three emails, the last of
which offered to “justify the $481,109.75.”  Exhibit 153 at 4.  QTI asserted that it could
support its claim with the use of the Eichleay formula.  See id. at 4 (“For the larger amount[,]
QTI will claim under the EIKLAY [sic] formula”).
On June 14, 2022, the contracting officer denied the claim.  Exhibit 154.  He
concluded that QTI had not provided support for the $481,000 that it sought.  Id. at 4.
II. Proceedings before the Board
In July 2022, QTI filed this appeal.  Following QTI’s submission of its complaint,
DOI moved to partially dismiss the appeal for lack of jurisdiction because several of the
allegations raised in the complaint were not presented to the contracting officer.  QTI
responded to the motion and provided further explanation of some, but not all, of the
paragraphs in its complaint.3
Following receipt of QTI’s response, the Board convened a teleconference and asked
QTI to provide an explanation of its claim to the contracting officer and any supporting
3 In September 2022, the Board stayed proceedings to allow the parties to
conduct mediation with another Board judge serving as a neutral.  After the mediation
proceedings were closed without resolving the case, the Board set a deadline for QTI’s
response.  Order (Jan. 24, 2023).

CBCA 7451 4
documentation.  The Board set the deadline for this submission as March 15, 2023.  QTI
failed to meet this deadline or ask for an extension.  The Board convened another conference
call on April 17, 2023.  During this conference, QTI’s owner and representative explained
that he had been unable to respond due to the press of other business.  When asked when he
could respond, the owner explained that medical issues would prevent him from responding
for an extended period of time.
Following this conference, the Board issued an order denying the request to stay the
case and setting a deadline of July 5, 2023, for a response to the Board’s request for a further
explanation of the claim.  QTI did not file its response on this date but sent an email on
July 6, 2023, asking that another teleconference be scheduled.  On July 7, 2023, DOI filed
its motion to dismiss for failure to prosecute.4
Discussion
I. DOI’s Motion to Dismiss in Part is Granted in Part
DOI moved to dismiss for lack of jurisdiction those portions of QTI’s complaint that
were not raised in QTI’s claim to the contracting officer.  The Board’s jurisdiction is
bounded by what is presented in the claim to the contracting officer for decision.  “A valid
claim does not require ‘magic words,’ but rather it must meet each component of a claim as
expressed in the regulation.”  Crystal Clear Maintenance v. General Services Administration,
CBCA 7547, 23-1 BCA ¶ 38,324, at 186,109 (citing Transamerica Insurance Corp. v. United
States, 973 F.2d 1572, 1578 (Fed. Cir. 1992)).  A claim is defined in the FAR and the
contract’s Disputes clause as “a written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a sum certain.”  48 CFR 2.101,
52.233-1(c).  Each claim brought under the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101–7109 (2018), “must be submitted in writing to the contracting officer, with adequate
notice of the basis for the claim.”  41 U.S.C. § 7103(a)(1); see Strawberry Hill, LLC v.
General Services Administration, CBCA 5149, 16-1 BCA ¶ 36,561, at 178,065 (citing Santa
Fe Engineers, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987)).  To determine the
basis of the claim, the Board may consider the correspondence between the parties.  French
4 On August 11, 2023, the Board issued a show cause order and notified the
parties that DOI’s motions and QTI’s request for a teleconference were held in abeyance
pending the decision on the show cause order.  Following the Court of Appeals for the
Federal Circuit’s decision in ECC International Constructors, LLC v. Secretary of the Army,
79 F.4th 1364 (Fed. Cir. 2023) (holding that the sum certain requirement is not a
jurisdictional requirement), the Board, under a separate order, withdrew the show cause
order.

CBCA 7451 5
Construction LLC v. Department of Veterans Affairs, CBCA 6490, 22-1 BCA ¶ 38,164, at
185,340; SRA International, Inc. v. Department of State, CBCA 6563, et al., 20-1 BCA
¶ 37,543, at 182,312.  An action brought under the CDA “must be ‘based on the same claim
previously presented to and denied by the contracting officer.’”  Qwest Communications Co.
v. General Services Administration, CBCA 3423, 14-1 BCA ¶ 35,655, at 174,564 (citing
Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003)).  “It must arise
from the same operative facts and claim essentially the same relief.”  Id.; see EHR Doctors,
Inc. v. Social Security Administration, CBCA 3522, 14-1 BCA ¶ 35,630, at 174,492.
QTI, in its claim and complaint, seeks payment of over $481,000.  Although not stated
in the claim itself, QTI explained in correspondence with the contracting officer that it seeks
payment of this amount for the period that it was on standby.  QTI’s complaint totals twelve
paragraphs.  Several of these paragraphs appear to be tied to the its constructive suspension
claim (paragraphs 1, 5, 7, 8, and 10).  Further proceedings before the Board will be limited
to this claim.
QTI also raises in the complaint issues related to modification 5 (reforming the
contract for mutual mistake), modification 9 (partial termination of the contract), and the
final payment owed.  While complaints about these items are found throughout QTI’s
correspondence with the contracting officer, none of these issues are tied to the amount
sought in the claim.  Therefore, we find that we lack jurisdiction to consider these issues and
grant DOI’s motion to dismiss the allegations in paragraphs 2–4, 6, 9, and 11–12.
II. The Board Denies DOI’s Motion to Dismiss for Failure to Prosecute
DOI also moved to dismiss for failure to prosecute, based upon QTI’s failure to meet
the deadline set by the Board for a fuller explanation of the claim.  The Board has the power
to dismiss a case for failure to prosecute.5  Medtek, Inc. v. Department of Veterans Affairs,
5 Board Rule 35(b) provides, in pertinent part:
If a party or its representative, attorney, expert, or consultant fails to comply
with any direction or order of the Board (including an order to provide or
permit discovery) or engages in misconduct affecting the Board, its process,
or its proceedings, the Board may make such orders as are just, including the
imposition of appropriate sanctions.  Sanctions may include, but are not
limited to:
. . . .

CBCA 7451 6
CBCA 1544, 09-2 BCA ¶ 34,285, at 169,367.  “This sanction has been described as ‘harsh’
and ‘severe,’ however, so we employ it sparingly.”  Id. (citing Kadin Corp. v. United States,
782 F.2d 175, 176 (Fed. Cir. 1986)).  The Board has used that power when an appellant has
repeatedly failed to respond to the Board’s orders.  Brandon Staffing Solutions LLC v.
Department of Veterans Affairs, CBCA 7044, 22-1 BCA ¶ 38,050, at 184,765; JDM, LLC
v. Department of Veterans Affairs, CBCA 5522, 17-1 BCA ¶ 36,729, at 178,893-94.  The
Board has declined to exercise the power when an appellant has not yet repeatedly failed to
reply and the conduct complained of has not risen to the level of being egregious.  Geo-
Imaging Consulting, Inc. v. Environmental Protection Agency, CBCA 1852, 10-1 BCA
¶ 34,443, at 169,973.
We deny DOI’s motion.  While QTI’s seeming refusal to provide the Board with the
requested explanation or support for its claim will hinder the Board’s ability to resolve the
claim, QTI has responded to communications and repeatedly requested that the Board
schedule teleconferences.  QTI’s actions do not meet the standard for abandonment that is
usually found when a case is dismissed for failure to prosecute.
Our denial of the motion to dismiss should not be a signal to QTI that it may continue
to fail to respond to the Board’s orders.  If QTI fails to comply with the Board’s future orders
for further proceedings in this case, the Board will consider whether such conduct warrants
sanctions, up to and including dismissal for failure to prosecute.
Decision
DOI’s motion to dismiss in part is granted in part, and the appeal is DISMISSED IN
PART.  DOI’s motion to dismiss for failure to prosecute is denied.  The presiding judge will
issue a separate order for further proceedings in this appeal.
   Marian E. Sullivan        
MARIAN E. SULLIVAN
Board Judge
(6) Dismissing the case or any part thereof; . . . .
48 CFR 6101.35(b).

CBCA 7451 7
We concur:
   Beverly M. Russell               Kyle Chadwick               
BEVERLY M. RUSSELL KYLE CHADWICK
Board Judge Board Judge