MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: August 1, 2012 
CBCA 2573 
ePLUS TECHNOLOGY, INC., 
Appellant, 
v. 
FEDERAL COMMUNICATIONS COMMISSION, 
Respondent. 
James E. McCollum, Jr. of McCollum & Associates, LLC, College Park, MD, counsel 
for Appellant. 
Maureen Duignan, Frank Inserra, and Derek Yeo, Office of General Counsel, Federal 
Communications Commission, Washington, DC, counsel for Respondent. 
Before Board Judges STERN , McCANN , and SHERIDAN . 
SHERIDAN , Board Judge. 
Appellant, ePlus Technology, Inc. (ePlus), seeks $333,919 in costs associated with a 
termination for convenience on a $341,900 purchase order (PO) issued by respondent, the 
Federal Communications Commission (FCC). Among other things, respondent’s answer 
raised lack of subject matter jurisdiction as an affirmative defense, arguing the appeal is not 
ripe for review because appellant had not filed a certified claim.  Prior to proceeding with 
the case, the Board ordered the parties to brief the issue of whether the Board has proper 
jurisdiction to decide this matter. We treat the issue as if the FCC had filed a motion to 
dismiss the case for lack of jurisdiction. We have concluded that, based on the facts before 
us, the Board possesses jurisdiction to decide this appeal. 

 
               
         
              
                 
                 
          
         
           
        
          
             
           
            
            
           
           
          
          
            
          
           
             
       
   
    
   
          
      
     
     
    
2 CBCA 2573 
Background 
On or about September 15, 2010, 1 the FCC issued a PO, PUR1000403, to ePlus in the 
total amount of $351,900 for commercially available, common-off-the-shelf thin clients, 2 
associated software, and maintenance. Specifically, the PO called for: 50 units of Wyse P20s 
at $395 per unit for $19,775; 950 units of Wyse C50LEs at $247 per unit for $244,150; 2000 
units of Wyse PC extender seat licenses at $34 per unit for $68,000; and 2000 units of one 
year of software maintenance at $10 per unit for $20,000. 
The PO incorporated by reference Federal Acquisition Regulation (FAR) clauses 
pertinent to commercial item purchases, including the clause contained at FAR 52.212-4, 
Contract Terms and Conditions - Commercial Items (MAR 2009): 
(l) Termination for the Government’s convenience . The Government reserves 
the right to terminate this contract, or any part hereof, for its sole convenience. 
In the event of such termination, the Contractor shall immediately stop all 
work hereunder and shall immediately cause any and all of its suppliers and 
subcontractors to cease work. Subject to the terms of this contract, the 
Contractor shall be paid a percentage of the contract price reflecting the 
percentage of the work performed prior to the notice of termination, plus 
reasonable charges the Contractor can demonstrate to the satisfaction of the 
Government using its standard record keeping system, have resulted from the 
termination. The Contractor shall not be required to comply with the cost 
accounting standards or contract cost principles for this purpose. This 
paragraph does not give the Government any right to audit the Contractor’s 
records. The Contractor shall not be paid for any work performed or costs 
incurred which reasonably could have been avoided. 
48 CFR 52.212-4(l) (2009). 
1 The purchase order was misdated August 5, 2010.  
2 A “thin client” is a user machine that relies on the server to perform the data 
processing. Either a dedicated thin client terminal or a regular personal computer (PC) with 
thin client software is used to send keyboard and mouse input to the server and receive 
screen output in return. The thin client does not process any data; it processes only the user 
interface. The benefits are improved maintenance and security due to central administration 
of the hardware and software in the datacenter. See PC Magazine Encyclopedia, available 
at http://www.pcmag.com/encyclopedia (last visited July 25, 2012) (“thin client” defined). 

 
             
    
             
             
           
              
              
            
               
                
                 
  
              
      
              
              
               
               
              
     
            
        
        
         
    
   
    
      
    
          
     
      
    
3 CBCA 2573 
The FCC issued amendment 0001 to the PO on September 29, 2010, terminating the 
purchase order for convenience. 
On March 4, 2011, ePlus hand-delivered a letter to the FCC, addressed to the 
contracting officer who had terminated the PO. Under the letter’s letterhead was written 
“FOR SETTLEMENT PURPOSES ONLY .” The letter referenced the PO and began, 
“[P]ursuant to FAR 52.212-4 and FAR 52.249-2, ePlus . . . submits the following settlement 
proposal and claim regarding the above referenced order.” The letter went on to describe 
ePlus’ version of events, list its alleged costs associated with the termination for 
convenience, and request that the FCC pay ePlus $333,919 for its termination costs. The last 
page of the letter also stated, “pursuant to FAR 33.206, please also accept this letter as ePlus’ 
claim, as a matter of right, for payment in the amount of $333,919.00, and request for a final 
decision.”  The certification contained the language required by the Contract Disputes Act, 
41 U.S.C. § 7103(b) (Supp. IV 2011) (CDA), and was executed by ePlus’ senior vice 
president (VP) for business operations. 
When the contracting officer failed to respond to ePlus’ letter of March 4, 2011, ePlus 
appealed that failure to the Civilian Board of Contract Appeals, where it was docketed on 
September 29, 2011, as CBCA 2573. See 41 U.S.C. 
§ 7103(f)(5). Board Rule 2(b)(ii) 
provides that “[a]n appeal may be filed with the Board if the contracting officer fails or 
refuses to issue a timely decision on a claim submitted in writing, properly certified if 
required.” 48 CFR 6101.2(b)(ii) (2011). 
On December 1, 2011, the FCC’s senior procurement executive, who is also a 
contracting officer, sent an email message to 
ePlus’ VP attempting to start negotiations on 
ePlus’ March 4 proposal and claim. In that same message, the FCC provided an extensive 
list of documentation it would need to receive from ePlus to “fully consider [ePlus’] 
termination settlement proposal.” Additional correspondence ensued between the parties’ 
counsel regarding the additional information that respondent felt was pertinent to the 
termination settlement proposal, but it does not appear from the record that ePlus ever 
submitted additional information or agreed to negotiate.  
In its answer to ePlus’ complaint, the FCC raised lack of subject matter jurisdiction 
as an affirmative defense, arguing that the claim was not “ripe,” because appellant had not 
filed a certified claim and negotiations had not reached an impasse. The Board ordered the 
parties to brief the jurisdictional issue. The FCC asserts that the appeal should be dismissed 
because there is no impasse in negotiation of the termination settlement proposal and the 
proposal has not ripened into a claim. Alternatively, the FCC argues that the proposal and 

 
      
   
     
     
      
    
     
      
    
          
      
   
      
      
      
       
   
      
      
    
     
     
     
      
    
     
     
       
   
     
4 CBCA 2573 
claim are “insufficiently certain to afford a basis for relief.” Appellant asserts that the claim 
is ripe and an impasse in negotiations is not required under the facts of this case. 
Discussion 
In the matter before us, the contractor submitted a termination for convenience 
settlement proposal characterizing it also as a claim, certified the claim, and requested a 
contracting officer’s final decision. After six months of waiting for a response, and 
receiving none from the contracting officer, the contractor appealed that failure to issue a 
decision to this Board. The appeal was docketed. Once that occurred, the Government 
attempted to start negotiations, but appellant did not respond. The Government asserts that 
the Board lacks jurisdiction because the claim is not “ripe” because negotiations on the 
termination for convenience proposal had not reached an impasse.  We disagree. 
For the Board to have jurisdiction, the CDA requires that a contractor submit a 
written claim to the contracting officer for decision. 41 U.S.C. § 7103(a). Since the Act 
does not define the term “claim,” the definition that is set forth in FAR 2.201, 48 CFR 
2.201, is relied upon.  Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en 
banc); Essex Electro Engineers, Inc. v. United States , 960 F.2d 1576, 1581-82 (Fed. Cir. 
1992). FAR 2.201, in pertinent part, defines a claim 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.” No particular wording is required for a claim, but the demand 
must contain “a clear and unequivocal statement that gives the contracting officer adequate 
notice of the basis and amount of the claim.” Contract Cleaning Maintenance, Inc. v. 
United States, 811 F.2d 586, 592 (Fed. Cir. 1987). Additionally, the claim must indicate to 
the contracting officer that the contractor is requesting a final decision. See James M. Ellett 
Construction Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996); Mingus 
Constructors, Inc. v. United States, 812 F.2d 1387, 1395 (Fed. Cir. 1987). The request may 
be either explicit or implicit, so long as what the contractor desires by its submission is a 
final decision.  Ellett, 93 F.3d at 1543.  
To make a determination as to whether a submission is a proper claim, the Board 
looks at the totality of the circumstances, including the submissions and the communications 
surrounding them. See EBS/PPG Contracting v. Department of Justice, CBCA 1295, 09-2 
BCA ¶ 34,208; Guardian Environmental Services, Inc. v. Environmental Protection Agency, 
CBCA 994, 08-2 BCA ¶ 33,938. The intent of the communication governs, and a common 
sense analysis must be used to determine whether the contractor communicated its desire for 
a contracting officer’s decision. Guardian Environmental Services, Inc., 08-2 BCA at 
167,946. 

 
    
          
     
        
    
     
  
  
    
 
      
       
       
  
      
   
   
    
    
     
     
     
       
   
     
   
     
         
 
        
     
     
    
5 CBCA 2573 
Most of the termination for convenience clauses found in government contracts are 
found at FAR 52.249-1 through 52.249-10, and FAR 49.100 through 49.111 contain the 
prescription for the clauses, including the respective duties of the contracting officer and 
contractor. 48 CFR 49.100-.111, 52.249-1 to -10. FAR part 49 contemplates a process 
under which a contractor submits a settlement proposal and enters into negotiations on that 
proposal. The FAR part 49 convenience termination settlement process was reviewed by 
the Federal Circuit in Ellett 
3: 
When a contractor submits a termination settlement proposal, it is for the 
purpose of negotiation, not for a contracting officer’s decision. A settlement 
proposal is just that: a proposal. Indeed, it is a proposal that [the contractor] 
contractually agreed to submit in the event of a convenience termination. The 
parties agreed that they would try to reach a mutually agreeable settlement. 
If they were unable to do so, however, it was agreed, consonant with the 
FAR’s requirements, that a contracting officer would issue a final decision, 
which [the contractor] could appeal to the court or to the [appropriate] Board 
of Contract Appeals. Consequently, while [the contractor’s] termination 
settlement proposal met the FAR’s definition of a claim, at the time of 
submission it was not a claim because it was not submitted to the contracting 
officer for a decision. 
Once negotiations reached an impasse, the proposal, by the terms of the FAR 
and the contract, was submitted; it became a claim. In other words, in 
accordance with the contract’s prescribed method of compensating [the 
3 The Ellett case involved the interpretation of the termination for convenience 
clause found at 48 CFR 52.249-2 (Alternate I), which is substantially different from the 
commercial items termination for convenience clause found in this contract as well as at 48 
CFR 52.212-4(l). Among other things, the termination for convenience clause in the Ellett 
contract mandated that “the Contractor shall submit a final termination proposal to the 
Contracting Officer,” “the Contractor and Contracting Officer may agree upon the whole 
or any part of the amount paid,” and if they “fail to agree on the whole amount to be paid 
. . . the Contracting Officer shall pay the Contractor” the amounts the Contracting Officer 
determines are due under the FAR. 93 F.3d at 1540 (citing 48 CFR 52.249-2 (Alternate I)). 
In paragraph (j) the clause provides, “The Contractor shall have the right of appeal under 
the Disputes clause, from any determination made by the Contracting Officer . . . [except if] 
. . . the Contractor failed to submit the termination settlement proposal or request for 
equitable adjustment within the [appropriate time periods set by the clause].”  Id . 

 
 
     
    
   
    
   
      
     
      
  
      
   
      
         
   
      
         
    
       
     
       
   
         
    
       
      
     
   
     
6 CBCA 2573 
contractor] for a convenience termination, a request that the contracting 
officer issue a decision in the event the parties were unable to agree on a 
settlement was implicit in [the contractor’s] proposal. After ten months of 
fruitless negotiations, [the contractor] explicitly requested that the contracting 
office settle its claim. This demand is tantamount to an express request for a 
contracting officer’s decision.  
Ellett, 93 F.3d at 1543-44 (citations omitted). 
The Ellett Court concluded that as a termination for convenience proposal was a non-
routine submission, there is no requirement that the settlement proposal be “in dispute” to 
trigger the requirement for a timely final decision. Ellett, 93 F.3d at 1546. In a subsequent 
decision, Rex Systems, Inc. v. Cohen , 224 F.3d 1367, 1372 (Fed. Cir. 2000), the Federal 
Circuit noted that “the Ellett court held that such a request [for a final decision] could be 
implied if the settlement proposal negotiations were at ‘an impasse.’”  
While Rex Systems did not involve a jurisdictional challenge, the Court discussed 
what constitutes an impasse. It reviewed the factors encountered in Ellett, including fruitless 
negotiations, a subsequent written request to the contracting officer that he “settle” the 
claims, and a “unilateral decision” by the contracting officer. Rex Systems, 224 F.3d at 
1372-73 (citing Ellett, 93 F.3d at 1544). The Court noted that impasse had also been found 
where the contracting officer told the contractor that he would not consider the contractor’s 
proposal and where the contractor explicitly requested a final decision in conjunction with 
the contracting officer’s refusal to meet to negotiate. Id. at 1372. “In Ellett and [the 
aforementioned cases], there was objective evidence that the negotiations had reached an 
impasse and clear indication by the contractor that it desired a final decision.” Id. The 
Federal Circuit in Rex Systems concluded that “in determining whether the instant 
negotiation had reached an impasse, we must look to the parties’ actions and statements with 
regard to the negotiations initiated by the termination settlement proposal.”  Id. at 1373. 
In looking at the circumstances presented here, we see a settlement proposal as well 
as certified claim being presented to the contracting officer. No attempt was made by the 
contracting officer to contact the appellant to discuss either the settlement proposal or the 
certified claim. After more than six months had passed, the contractor got fed up, filed the 
appeal, and refused to negotiate on the settlement proposal or certified claim. It is clear that 
in filing the appeal the contractor decided that an impasse had been reached. 
Further, we find no applicable precedent prohibiting a contractor from presenting its 
termination for convenience settlement proposal and at the same time fashioning the 
proposal as a CDA claim. Granted, FAR part 49 envisions negotiations on the proposal 

 
       
   
      
    
     
    
      
     
    
 
       
          
     
  
           
           
       
 
               
             
     
    
   
 
     
     
    
   
   
7 CBCA 2573 
prior to the submission of a claim and, in a contract that includes a FAR part 49 clause, the 
contractor agrees to negotiate. However, the requirement to negotiate is not absolute. No 
consequences ensue if either party refuses to negotiate. When a contractor does not wish to 
negotiate it submits the proposal with a proper claim and requests a final decision; when the 
Government does not wish to negotiate it issues a determination as to what it agrees to pay 
or, as occurred here, simply ignores the proposal. 
We do not view Ellett as requiring that both parties agree that an impasse has been 
reached before a termination for convenience proposal can be submitted as a claim. To hold 
otherwise would, as happened here, allow the Government to unduly delay the claims 
process until it decides to agree that an impasse has been reached. 
We note that this commercial items contract did not contain a FAR part 49 
termination for convenience clause.  There was no contractual agreement by the parties to 
follow the FAR part 49 settlement process mandated in the termination for convenience 
clauses found at FAR 52.249-1 through 52.249-10 to negotiate and reach an impasse. 
Accordingly, the contractor did not contractually agree to submit a termination for 
convenience settlement proposal and negotiate that proposal until an impasse was reached. 
While the Board might consider most attempts to limit the termination for 
convenience settlement process foolhardy, it believes that under the circumstances of this 
case the contractor submitted a proper claim for termination costs to the contracting officer 
for final decision, and the contracting officer was obligated to issue a final decision on that 
claim. The fact that the contracting officer provided no response at all to the settlement 
proposal or claim for over six months makes this situation all the more egregious. 
The fact that the Government may desire more or better information in which to make 
a decision on a claim does not obviate the requirement for a timely final decision, 
particularly where it is clear that the contractor has no desire to provide further information 
regarding the claim.  As we stated in EBS/PPG Contracting, 09-2 BCA at 169,112: 
[R]epeated requests for more information in the face of [the contractor’s] clear 
desire to have a final decision on its claim did not negate the requirement for 
a final decision. The contractor here had the right to decide when it wished 
to move its termination for convenience settlement proposals into the claim 
phase. 
Appellant has properly moved its termination for convenience settlement proposal 
into the claim phase and the Government can no longer delay resolution of this matter. 

 
                                                          
                                                                                                                
8 CBCA 2573 
Decision 
The Board has jurisdiction to consider this matter.  The FCC’s MOTION TO 
DISMISS FOR LACK OF JURISDICTION IS DENIED . 
PATRICIA J. SHERIDAN 
Board Judge 
We concur: 
JAMES L. STERN R. ANTHONY McCANN 
Board Judge Board Judge