DISMISSED FOR LACK OF JURISDICTION:  May 27, 2025
CBCA 8423
5 STONES INTELLIGENCE, INC.,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Brian J. Talay, Chief Executive Officer of 5 Stones intelligence, Inc., Cleveland, TN,
appearing for Appellant; and Jason N. Workmaster and Elissa B. Harwood of Miller &
Chevalier Chartered, Washington, D.C., counsel for Appellant.1
John J. Bowers and Laura D. Mayberry, Office of General Counsel, Justice
Management Division, Department of Justice, Washington, DC, counsel for Respondent.
Before Board Judges LESTER, SHERIDAN, and KULLBERG.
LESTER, Board Judge.
1 Until May 23, 2025, appellant’s Chief Executive Officer, Brian J. Talay, served
as appellant’s sole representative in this appeal, and Mr. Talay filed the two motions to
dismiss discussed in this decision.  Mr. Workmaster and Ms. Harwood filed entries of
appearance on appellant’s behalf on May 23, along with a motion on behalf of both parties
to stay all pending deadlines until the parties’ motion to dismiss is resolved.  Because Mr.
Talay prepared the motions to dismiss, we have included him in the list of appellant’s party
representatives.  The parties’ May 23 motion to stay deadlines is denied as moot.

CBCA 8423 2
The parties filed a joint motion with the Board seeking dismissal of this appeal “for
lack of jurisdiction without prejudice.”2  Originally, the parties did not identify any basis for
believing that the Board lacks jurisdiction.  In response to the Board’s prompting, the parties
filed a revised motion in which they indicated, contrary to representations in the notice of
appeal, that appellant, 5 Stones intelligence, Inc. (5Si), has never submitted a certified claim
for the money that it is seeking here and that the contracting officer never issued a final
decision on such a claim.  Having reviewed that stipulation and the materials in the record,
we grant the parties’ joint request to dismiss this appeal for lack of jurisdiction.
Background
On April 30, 2025, the Clerk of the Board docketed a notice of appeal in which 5Si
alleged that it was appealing “the decision of [the Department of Justice (DOJ)] contracting
officer” arising under contract no. DJJ16PSSV2670, a contract under which 5Si was
allegedly providing services to support DOJ’s Organized Crime Drug Enforcement Task
Force (OCDETF).  In its notice of appeal, 5Si explained the basis of its claim as follows:
In the final months of the eight year [Asset Forfeiture Investigative Support
Services (AFISS)] contract and Task Order with OCDETF, [5Si] was provided
a final Mod[ification] of funding for the OCDETF Task Order in the amount
of $749,865.99.  Given the length of the contract (8+ years), [5Si] requested
a meeting with the OCDETF Unit Chief . . . for the specific purpose of
determining the remaining funding on the Task Order, to include any unused
funding from previous periods.  During that zoom meeting we were told . . .
of a specific amount of funding remaining ($948,471.93).  Immediately
following this meeting [the Unit Chief] sent an email (attached) articulating
the same amount of remaining funding ($948,471.93).  The DOJ Contracting
Officer was copied on this and all programmatic email correspondence.  [5Si]
executed exactly to this agreed upon amount.  The services were performed,
received and accepted by the Government and invoiced, however our invoice
was rejected stating we went over available funding.
During a subsequent call, it was stated by the [contracting officer] that [the
Unit Chief’s] email misstated the amount of remaining funding.  It was also
discussed that, given this error by the Government, . . . either OCDETF or
DOJ could pursue a “Ratification” process to pay the remaining invoice.  A
2 “Any dismissal for lack of jurisdiction is, by necessity, without prejudice.” 
SRA International, Inc. v. Department of State, CBCA 6563, et al., 20-1 BCA ¶ 37,543, at
182,314 n.1.

CBCA 8423 3
subsequent email from the DOJ [contracting officer] . . . stated that OCDETF
would not pursue a Ratification, but that DOJ [Asset Forfeiture Management
Staff (AFMS)] will possibly submit for OCDETF.  We have yet to hear of a
status from OCDETF regarding the pursuit of a Ratification, however[,] the
April 23, 2025 email from OCDETF is requesting to deobligate $198,471.98
from 2023, which almost exactly matches the amount owed to [5Si]
($198,605.94).  The attached email states that [5Si] does not concur with the
deobligation of the same amount that we are owed and from the same year.
The amount in dispute is $198,605.94.
Notice of Appeal (Apr. 30, 2025) at 1-2.
5Si indicated that what it identified as the “Contracting Officer’s Final Decision” was
attached to the notice of appeal.  The majority of the attachments to the notice, however,
were email chains between Brian Talay, 5Si’s Chief Executive Officer, and the OCDETF
Unit Chief about contract funding amounts that did not involve the contracting officer. 
Those chains included an April 23, 2025, email from the OCDETF Unit Chief, notifying 5Si
that OCDETF would be deobligating certain Fiscal Year (FY) 2023 monies from 5Si’s task
order, leaving an available amount of only $198,471.93.  Notice of Appeal, Attachment 1
at 2.  The contracting officer was not copied on or referenced in that email.  Mr. Talay
responded by email on April 24, 2025, asserting that 5Si “does not consent to the de-
obligation of funds $198,471.83,” that “[y]our email of May 08, 2023 . . . authorized [5Si]
to expend these funds,” and that, if 5Si could not resolve this issue soon and have OCDETF
pay its outstanding invoice, 5Si “reserve[d] the right to appeal this with DOJ and the [Small
Business Administration].”  Id. at 1.  Again, the contracting officer was not copied on or
referenced in this email.
The only pieces of correspondence accompanying the notice of appeal that involved
the DOJ contracting officer are from 2023.  The first was a letter from 5Si dated August 21,
2023, in which 5Si provided a chronological listing of events involving 5Si’s OCDETF labor
expenditures during the third quarter of FY2023, which 5Si said that it was submitting for
the purpose of seeking “to achieve complete clarity with [OCDETF] regarding the remaining
funding” on the task order and requesting that its “last invoice be approved.” Notice of
Appeal, Attachment 5 at 1-2.  The second is an email chain containing two emails to 5Si
from the contracting officer on July 26 and December 4, 2023, the first representing that an
invoice had been rejected “because it exceeds the order amount of $749,865.99,” Notice of
Appeal, Attachment 4 at 2, and the second “to provide [5Si] notice that OCDETF will not
be submitting a request to ratify any unauthorized commitments related to its order.”  Id. at 1. 
The third is a May 8, 2023, email from the OCDETF Unit Chief responding to an email from
Mr. Talay identifying the amount of the funds remaining on the contract at that time, on

CBCA 8423 4
which the Unit Chief copied the contracting officer.  Notice of Appeal, Attachment 7, at 1. 
The contracting officer is not included in any other correspondence accompanying 5Si’s
notice of appeal.
On May 8, 2025, Mr. Talay, on behalf of 5Si and respondent, filed a “joint motion to
dismiss for lack of jurisdiction without prejudice,” which reads in its entirety as follows:
[5Si] and [DOJ] (collectively, “the parties”) come before the Board to jointly
move to dismiss the above-captioned appeal for lack of jurisdiction, without
prejudice to [5Si’s] ability to file a new appeal from a future government final
decision on a certified claim made by [5Si] regarding this issue.
Respondent has authorized Appellant to file on behalf of both parties.
Motion to Dismiss (May 8, 2025) at 1.
In an order dated May 9, 2025, the then-presiding judge3 requested that the parties
“supplement the motion to identify at least one agreed basis evident in the notice of appeal
to dismiss for lack of jurisdiction.”  Order at 1.  Mr. Talay, again on behalf of both 5Si and
DOJ, filed a new motion to dismiss on May 12, 2025, repeating the representations from its
May 8 motion and adding that “[i]n support of this motion, the parties stipulate that, to date: 
(1) [5Si] has not submitted to the DOJ contracting officer a certified claim regarding the
issue presented by the appeal; and (2) the DOJ contracting officer has issued no final
decision regarding the issue presented by the appeal.”  Motion to Dismiss (May 12, 2025)
at 1.
Discussion
In their original motion to dismiss, the parties asked that we dismiss this appeal for
lack of jurisdiction, but they failed to identify any basis for that request.  We cannot dismiss
an appeal for lack of jurisdiction just because the parties tell us to do so.  Although “both
public and judicial policy look with favor on stipulations designed to simplify and shorten
litigation to the benefit of all parties,” we cannot “allow[] counsel to stipulate the law, a
function which, in the context of a judicial proceeding, is the province of judges.”  Hegeman-
Harris & Co. v. United States, 440 F.2d 1009, 1012 (Ct. Cl. 1971).  “Jurisdiction is an issue
of law.”  Xerox Corp. v. United States, 289 F.3d 792, 793 (Fed. Cir. 2002).  Just as parties
cannot create jurisdiction before a tribunal by mutual agreement, see Riggle v. United States,
3 This case was transferred to the current presiding judge on May 19, 2025.

CBCA 8423 5
131 F. App’x 273, 274-75 (Fed. Cir. May 5, 2005), they may not decide that the tribunal
lacks jurisdiction by stipulation.
“[T]he Board is not bound by any agreement of the parties to the extent that such
agreement affects the Board’s jurisdiction.”  Pope & Talbot, AGBCA 85-591-1, 85-3 BCA
¶ 18,486, at 92,848; see Swift & Co. v. Hocking Valley Railway Co., 243 U.S. 281, 289-90
(1917) (“If the stipulation is to be treated as an agreement concerning the legal effect of
admitted facts, it is obviously inoperative . . . since the court cannot be controlled by
agreement of counsel on a subsidiary question of law.”); Utica Mutual Insurance Co. v.
Department of Agriculture, CBCA 865, 2007 WL 3374991 (Nov. 8, 2007) (“[T]he parties
have no authority to independently determine whether the Board has jurisdiction.”).  It is the
Board’s duty to determine, as a matter of law, whether it possesses jurisdiction to entertain
an appeal, without deference to the parties’ agreement.  See McAllen Hospitals LP v.
Department of Veterans Affairs, CBCA 2774, et al., 14-1 BCA ¶ 35,758, at 174,969
(“[T]ribunals ‘have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party.’” (quoting Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006))).  In seeking dismissal for lack of jurisdiction, rather
than simply a dismissal without prejudice, the parties must provide the Board with more
information than they originally did here.4
That being said, even though “the parties may not, by stipulation, confer jurisdiction
where none exists” or eliminate it where it does, “they may, . . . by stipulation, agree to facts
which in themselves constitute a basis for jurisdiction” or which establish a lack thereof. 
Bar-Ray Products, Inc., ASBCA 3065, 58-1 BCA ¶ 1618, at 5928 (emphasis added); see
Johnson & Hayward, GSBCA 10373-P, 1989 WL 138827 (Nov. 14, 1989) (finding lack of
jurisdiction based on stipulated facts); Benton Corp., ASBCA 28277, 83-2 BCA ¶ 16,757,
at 83,322-23 (finding jurisdiction based on stipulated facts).  In their follow-on motion to
4 We understand the reasons that 5Si, wisely, would want the Board in its
dismissal order expressly to state that the Board lacks jurisdiction over this appeal rather than
simply dismiss without prejudice, given difficulties associated with the so-called “Election
Doctrine” that might result without the Board’s express resolution of the jurisdictional
question.  See, e.g., Bonneville Associates v. United States, 43 F.3d 649, 655 (Fed. Cir. 1994)
(affirming dismissal based on the Election Doctrine of a contractor’s suit in the Court of
Federal Claims, which the contractor had filed after withdrawing its previously filed appeal
with a board of contract appeals upon an incorrect belief that the board lacked jurisdiction
and without obtaining a jurisdictional determination from the board); Palafox Street
Associates, L.P. v. United States, 114 Fed. Cl. 773, 788 (2014) (dismissing suit in similar
procedural circumstances to Bonneville Associates).  Nevertheless, they must provide a basis
on which the Board can determine that jurisdiction is lacking.

CBCA 8423 6
dismiss, filed May 12, 2025, the parties stipulated that 5Si has not submitted a certified claim
to the contracting officer.  In its notice of appeal, 5Si indicates that it is seeking payment of
$198,605.94.  The CDA requires that a claim in excess of $100,000 be certified, 41 U.S.C.
§ 7103(b), and, although “[a] defect in the certification of a claim does not deprive a court
or an agency board of jurisdiction over the claim,” id. § 7103(b)(3), “[a] complete failure to
provide a certification at all may not be deemed a defective certification” and is a
jurisdictional defect.  NEDA of Puerto Rico, Inc. v. General Services Administration,
CBCA 6793, 20-1 BCA ¶ 37,611, at 182,563 (quoting Medina Construction, Ltd. v. United
States, 43 Fed. Cl. 537, 547 (1999)).  In addition, reviewing the attachments to 5Si’s notice
of appeal, it is clear that the communications upon which 5Si bases its current claim were
with the OCDETF Unit Chief, not the DOJ contracting officer, and that it was the Unit
Chief’s April 23, 2025, email that prompted 5Si to file the appeal.  Even if 5Si’s
communications with the Unit Chief could be viewed as involving some kind of request for
payment, the Board cannot assume jurisdiction over an appeal where the contractor never
submitted a claim “to the contracting officer,” Atlas Elevator Co. v. General Services
Administration, GSBCA 11655, 93-1 BCA ¶ 25,216, at 125,617 (1992), and did not, in such
a claim, expressly or implicitly request a final decision.  Foxy Construction, LLC v.
Department of Agriculture, CBCA 5632, 17-1 BCA ¶ 36,687, at 178,627.5  Based on the
parties’ factual stipulations and the Board’s separate review of the record, it is clear that we
lack jurisdiction to entertain this appeal.
5 To the extent that 5Si’s letter to the contracting officer on August 21, 2023,
might be viewed as a claim for payment of 5Si’s last invoice, the basis of this appeal appears
to be the OCDETF Unit Chief’s appropriation deobligation announcement in April 2025,
rather than the 2023 exchanges.  Even if the August 2023 letter involves the same payment
at issue here, an invoice “that is not in dispute when submitted” is not a claim, and it can
become a claim only “by written notice to the contracting officer” once “it is disputed either
as to liability or amount or is not acted upon in a reasonable time.”  Federal Acquisition
Regulation (FAR) 2.101 (48 CFR 2.101 (2023)); see OST, Inc. v. Department of Homeland
Security, CBCA 7077, et al., 23-1 BCA ¶ 38,414, at 186,666.  There is no evidence in the
record that, when 5Si sent its letter to the contracting officer on August 21, 2023, the invoice
was in dispute.  Further, the August 21, 2023, letter was not certified.

CBCA 8423 7
Decision
The parties’ joint motion to dismiss is granted.  This appeal is DISMISSED, without
prejudice, FOR LACK OF JURISDICTION.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
We concur:
    Patricia J. Sheridan          H. Chuck Kullberg         
PATRICIA J. SHERIDAN H. CHUCK KULLBERG
Board Judge Board Judge