DISMISSED FOR LACK OF JURISDICTION: July 1, 2008 
CBCA 1063 
KENNETH W. BATTLEY, TRUSTEE FOR THE ESTATE OF MARTECH USA, INC.,
                                                                         Appellant, 
v. 
SOCIAL SECURITY ADMINISTRATION,
                                                                        Respondent. 
Robert G. Watt of Watt, Tieder, Hoffar & Fitzgerald, LLP, McLean, VA, counsel for 
Appellant. 
Clary Simmonds, Office of the General Counsel, Social Security Administration, 
Baltimore, MD, counsel for Respondent. 
Before Board Judges SOMERS , GOODMAN , and DRUMMOND . 
SOMERS , Board Judge.  
This appeal arises out of a contract between Martech USA, Inc. (Martech) and the 
Social Security Administration (SSA) for renovation services. After completing the scope 
of work under the contract, but before SSA paid Martech the remaining contract balance of 
$153,792.40, Martech filed a petition for bankruptcy on December 19, 1993. Due to the 
bankruptcy filing, SSA deferred payment to Martech pending resolution of various 
government claims on other Martech projects.  

 
 
 
    
        
  
      
 
  
  
 
  
  
  
            
    
  
     
2 CBCA 1063 
On May 20, 1999, Kenneth W. Battley, the trustee in bankruptcy for the estate of 
Martech, submitted a certified claim under the Contract Disputes Act of 1978 (CDA), 41 
U.S.C. §§ 601- 613, for the recovery of the outstanding contract balance.  An SSA 
contracting officer denied the claim on November 1, 1999.  In her final decision, the 
contracting officer stated: 
After you submitted your request for payment to SSA in July 1999, SSA 
received the enclosed request from the United States Air Force to setoff any 
amount that is owed by SSA to Martech.  We have confirmed that nothing in 
the bankruptcy proceeding precludes SSA from paying this Government setoff. 
As you know, the judge in the Martech bankruptcy proceeding issued an order 
in May, 1995, allowing Government setoff. Further, the Government’s setoff 
claim has a greater priority than your claim for payment as the debtor-trustee 
in bankruptcy.  
Based upon the foregoing, we have determined that no amount is payable to 
you.  
Complaint ¶  20, Exhibit 6. The decision concluded by stating that it was “the final decision 
of the Contracting Officer” and notified Martech of the ninety-day deadline for appeals to the 
General Services Board of Contract Appeals (GSBCA) and the twelve-month deadline for 
filing suits in the Court of Federal Claims.  Mr. Battley received the final decision by certified 
mail on December 8, 1999.  
Mr. Battley did not appeal the November 1, 1999, final decision to either the GSBCA 
or to the Court of Federal Claims.  Instead, on April 19, 2006, Mr. Battley requested a second 
final decision from the SSA concerning the same contract balance.  In the April 19 claim, Mr. 
Battley contends that he had recently learned that SSA had retained the contract balance, and 
that it had not been used to set off any debts due to the Air Force.  Mr. Battley certified the 
second claim and requested a final decision. By letter dated September 5, 2006, SSA 
informed Mr. Battley that it did not intend to issue another final decision.  On February 1, 
2008, Mr. Battley filed an appeal with this Board based upon the “deemed denial” of his April 
19, 2006, certified claim.   
SSA moves the Board to dismiss the appeal for lack of jurisdiction. The agency notes 
that the contractor received the contracting officer’s final decision on December 8, 1999; the 
decision advised the contractor that it could appeal to the GSBCA within the next ninety days; 
and the appeal was not filed until February 1, 2008, well beyond the ninety-day deadline.  The 
parties do not dispute the timing and content of the communications at issue.  Nonetheless, 

 
 
   
   
  
    
   
   
 
     
 
 
 
 
    
         
  
      
 
 
 
 
3 CBCA 1063 
Mr. Battley opposes the motion, arguing that the November 1, 1999, decision did not 
unequivocally and permanently deny the claim. 
SSA’s motion is well taken.  
The CDA, which governs the Board’s review of contracting officer decisions, requires 
that an appeal of such decision be filed “[w]ithin ninety days from the date of receipt of [the] 
decision.”  41 U.S.C. § 606 (2000). The plain language of the CDA clearly confers finality 
and unreviewability of a contracting officer’s decision that is not properly appealed within the 
statutory period provided.  That finality is not limited to the contracting officer’s authority to 
issue such a decision or the validity of the contracting officer’s decision.  See, e.g. , United 
States v. Kasler Electric Co. , 123 F.3d 341, 346 (6th Cir. 1997).  The statute affords the 
opportunity to challenge the authority and/or validity of the decision, provided the challenge 
is made within the statutory period.  If a challenge is not made within the statutory period, 
section 605(b) mandates that the contracting officer’s decision “be final and conclusive and 
not subject to review.”  41 U.S.C. § 605(b).  This deadline for filing has been strictly 
construed by the Court of Appeals for the Federal Circuit because the authorization to make 
the filing is a waiver of sovereign immunity.  A late filing divests the Board of jurisdiction 
to consider the case on its merits.  Three Rivers Timber, Inc. v. Department of Agriculture , 
CBCA 1044, 08-1 BCA ¶ 33,833, at 167,456 (citing Renda Marine, Inc. v. United States , 509 
F.3d 1372, 1381 (Fed. Cir. 2007); D. L. Braughler Co. v. West , 127 F.3d 1476, 1480 (Fed. Cir. 
1997); Cosmic Construction Co. v. United States , 697 F.2d 1389, 1390 (Fed. Cir. 1982); 
Robert T. Rafferty v. General Services Administration, CBCA 617, 07-1 BCA ¶ 33,577, at 
166,340).  Accordingly, because Mr. Battley did not file the appeal until after the ninetieth day 
from his receipt of the decision in question, we do not have jurisdiction to consider the appeal. 
In addition, we reject Mr. Battley’s argument that the appeal could be filed on a 
“deemed denial” basis resulting from the contracting officer’s failure to issue a final decision 
on the “new” April 19, 2006, claim. The established test for what constitutes a “new” claim 
is whether “claims are based on a common or related set of operative facts. If the court will 
have to review the same or related evidence to make its decision, then only one claim exists.” 
Environmental Safety Consultants, Inc. , ASBCA 54995, 06-1 BCA ¶ 33,230, at 164,666 
(citing Placeway Construction Corp. v. United States , 920 F.2d 903, 907 (Fed. Cir. 1990)). 
In the April 19, 2006, claim, Mr. Battley sought the remaining contract balance of 
$153,792.40, plus interest from November 7, 1994.  The amount sought is identical to that 
sought in the original claim, with the exception of  seeking CDA interest on the balance.  The 
fact that Mr. Battley identified a date from which interest should run does not make the claim 
of April 19, 2006, a “new” claim.  Id . (citing Aerojet Ordnance Tennessee , ASBCA 36089, 
91-3 BCA ¶ 24,130, at 120,773 (as long as the essential character of a claim remains the same, 
revision of the amount is permitted)).  

 
 
4 CBCA 1063 
Decision 
SSA’s  motion  is granted.   The case is DISMISSED FOR  LACK OF 
JURISDICTION . 
_____________________________ 
JERI KAYLENE SOMERS 
Board Judge 
We concur: 
____________________________ _______________________________ 
ALLAN H. GOODMAN JEROME M. DRUMMOND 
Board Judge Board Judge