DISMISSED FOR LACK OF JURISDICTION: July 23, 2009 
CBCA 1295 
EBS/PPG CONTRACTING,
                                                                   Appellant, 
v. 
DEPARTMENT OF JUSTICE,
                                                                                      Respondent. 
Stephen A. Hess of Sherman & Howard L.L.C., Colorado Springs, CO, counsel for 
Appellant. 
William Robinson, Office of General Counsel, Federal Bureau of Prisons, Department 
of Justice, Washington, DC, counsel for Respondent. 
Before Board Judges DRUMMOND , STEEL , and SHERIDAN . 
SHERIDAN , Board Judge. 
Respondent, the Department of Justice, on behalf of its Bureau of Prisons (BOP) 
requests that the Board dismiss the appeal filed by appellant, EBS/PPG Contracting (EBS), 
for lack of jurisdiction pursuant to Board Rule 8 (48 CFR 6101.8 (2008)).  The BOP argues 
that dismissal is warranted because EBS did not submit a legally sufficient claim under the 
Contract Disputes Act (CDA), 41 U.S.C. §§ 601-613 (2006). Furthermore, respondent avers 
that EBS’s termination for convenience settlement proposals did not ripen into CDA claims 
because EBS did not allow sufficient time for negotiations to reach an impasse to rightfully 
demand a final decision from the contracting officer.  
EBS asserts that the Board has jurisdiction under the letter and spirit of the law and 
that its termination for convenience settlement proposals constitute proper claims.  Appellant 

  
    
  
   
   
 
 
 
  
  
      
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argues that the BOP’s failure to properly act on any or all of the proposals constitutes a 
contracting officer’s deemed denial of its claims.  
The issues to be decided are whether appellant submitted a proper claim to the 
contracting officer and whether it was entitled to a final decision pursuant to the CDA.  For 
the reasons stated below, the Board finds that the termination for convenience proposal EBS 
submitted on November 29, 2007, ripened into a CDA claim on January 16, 2008.  However, 
due to appellant’s submission of reformatted and recalculated settlement proposals, and its 
subsequent withdrawal of each of those proposals, the contracting officer was left without 
a claim on which to render a final decision. Without a proper claim pending before the 
contracting officer, the Board is without jurisdiction to decide this appeal.  The 
Government’s motion to dismiss is granted.  
Background 
On March 20, 2007, the BOP issued a request for proposals (RFP) for the installation 
of a sprinkler system in a special housing unit at the Englewood Federal Correctional 
Institution located in Englewood, Colorado.  The RFP was set aside for appellant, EBS, a 
service-disabled veteran-owned small business.  The BOP awarded EBS the $86,900 contract 
on May 7, 2007, and a pre-construction meeting was held on May 9, 2007.  During a meeting 
held on June 21, 2007, a disagreement arose between the parties regarding the scope of work 
under the contract.  Throughout June and July 2007, the parties attempted to negotiate the 
disputed scope of work.  After it became apparent that the parties would not be able to 
resolve the scope issue, on August 24, 2007, EBS requested a contracting officer’s final 
decision addressing whether the BOP intended to terminate the contract for its convenience 
or suspend the work until the scope question was resolved and a notice to proceed was 
issued.  On September 20, 2007, EBS received notice that the BOP had terminated the 
contract for its convenience. 
On October 22, 2007, EBS forwarded to the BOP a termination for convenience 
settlement proposal in the amount of $9900 from its subcontractor, Sedlak Electric Company 
(Sedlak), and informed the BOP that it would be submitting its own prime contractor 
settlement proposal shortly. EBS submitted its settlement proposal on November 29, 2007, 
in the amount of $27,772.87.   The settlement proposal contained the following language: 
If a final settlement proposal is not accepted within 60 calendar days 
from [the] date of [this] submittal and/or goes into a formal dispute we reserve 
the right to withdraw this settlement proposal and submit a new settlement 
proposal to include other costs such as: administrative overhead, G&A, 
additional other [direct costs] (insurance, etc.), additional labor cost[s], 
interest, standby costs, etc. in accordance with Part 31 of the FAR [Federal 

  
     
 
   
 
   
 
            
  
 
 
 
    
          
  
     
 
      
3 CBCA 1295 
Acquisition Regulation].  These costs do not include preparation of the 
settlement proposal.  The preparation of the settlement proposal costs will be 
submitted after settlement is reached since it may require legal representation, 
accounting, etc. 
In early November, the contracting officer requested breakdowns and greater detail, 
and in response, EBS submitted additional documentation on December 5, 2007.  Having 
received no response to its October 22, November 29, or December 5 submissions, EBS 
wrote to the BOP on January 16, 2008, implicitly requesting a final decision on its 
November 29 proposal and stating that “[i]f we have not received a final decision by 
February 1, 2008, we will consider your final decision as a denial which we intend to 
appeal.”  EBS took the position that the BOP had “ample and reasonable time to respond to 
[it] with either a final decision and payment or other final decision.” 
A contract specialist at the BOP responded to EBS on January 25, 2008, indicating 
that the previous contracting officer no longer worked for the BOP.  EBS was informed that 
the contract specialist and the BOP Field Acquisitions Office were reviewing the proposals, 
and “[c]urrently the Government finds your costs to be very excessive.”  The contract 
specialist informed EBS: “I will contact you soon and explain what is needed from you and 
your subcontractor.” 
Four days later, on January 29, 2008, the BOP informed EBS that another contracting 
officer would be reviewing its settlement proposal. The third contracting officer told EBS 
to disregard previous correspondence from the BOP and informed EBS that the method it had 
used to submit its initial settlement proposal was not “suitable” for a termination settlement. 
EBS was told to resubmit its termination for convenience proposal in a new format.  Using 
the BOP-prescribed format, through its attorney, EBS resubmitted the termination for 
convenience proposal on February 28, 2008, this time for $38,239.37.
1 
On May 21, 2008, EBS’s attorney wrote the contracting officer: “Nearly three months 
have passed since I submitted a settlement proposal on behalf of [EBS], and more than two 
weeks since I called to inquire as to the status.  Please consider the settlement proposal 
withdrawn.”  While purportedly withdrawing the settlement proposal, in a later paragraph 
1 The BOP format required that prime and subcontractor settlement proposals be 
submitted together. EBS’s resubmission proposed essentially the same settlement as earlier, 
except that Sedlak’s proposal was increased by $586.50 to reflect travel and copying 
expenses.  The cover letter for the submission indicated an ongoing desire for a final 
decision, closing with: “Please consider this proposal as our final offer, and we look forward 
to a response.” 

  
       
  
 
       
  
     
   
 
 
 
 
  
 
  
 
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the attorney went on to propose settlement for ten cents less than the February 28 settlement 
proposal, plus interest, claim preparation, and legal costs: 
Although [EBS] is prepared to submit its total costs in a new offer, it 
would prefer to end this matter quickly, and to get paid sooner rather than 
later.  Accordingly, [EBS] will accept $38,239.27 plus interest and reasonable 
legal and accounting costs for its claim preparation so long as this offer is 
accepted in writing, delivered to me (e-mail is fine) no later than the close of 
business on May 31, 2008. If the offer is not accepted in writing by that date, 
it shall be considered withdrawn and no longer susceptible to acceptance by 
the Government. 
Not having received any communication from the contracting officer since its letter 
of May 21, and believing “that the proposal has been rejected finally and that there [would] 
be no further settlement discussions with the Government,” on July 23, 2008, EBS appealed 
to the Civilian Board of Contract Appeals the BOP’s failure to issue a final decision on the 
termination for convenience settlement proposal.  The matter was docketed by the Board as 
CBCA 1295.  
Discussion 
Interpreting the language of the CDA and the FAR implementing that Act, the Federal 
Circuit has established a step-by-step analysis for determining whether a CDA claim exists 
for jurisdictional purposes.  See Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995) (en 
banc).  The CDA provides that “[a]ll claims by a contracting officer 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).  If the request for a contract adjustment is nonroutine, the 
requirements are that the claim “be (1) a written demand, (2) seeking, as a matter of right, 
(3) the payment of money in a sum certain.”  60 F.3d at 1575.  There is no requirement that 
a dispute exists at the time of submission of a nonroutine request for it to be considered a 
claim.  Id. at 1576-78.
2 
Finding that “it is difficult to conceive of a less routine demand for payment than one 
which is submitted when the government terminates a contract for its convenience,” the 
Federal Circuit in James M. Ellett Construction Co. v. United States concluded that “a 
2   The Reflectone decision overruled Dawco Construction, Inc. v. United States , 
930 F.2d 872 (Fed. Cir. 1991), and other long-standing cases which stood for the proposition 
that there must be a preexisting dispute for a submission to be a claim.  Reflectone , 60 F.3d 
at 1575-80. 

 
     
   
 
  
  
      
 
  
 
 
 
 
    
   
     
 
 
     
 
  
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written assertion seeking, as a matter of right under the termination for convenience clause, 
the payment of [a sum certain] plus interest, costs, and attorneys fees . . . met the FAR’s 
requirements of a valid claim.”  93 F.3d 1537, 1543 (Fed. Cir. 1996).  Citing Reflectone , the 
Court noted, however, that not every nonroutine submission constitutes a claim, and that “the 
CDA also requires that all claims be submitted to the contracting officer for a decision.”  Id. 
at 1543 (citing Reflectone,  60 F.3d at 1577 n.7; 41 U.S.C. § 605(a); 48 CFR 33.206).  The 
Court went on to clarify: 
When a contractor submits a termination settlement proposal, it is for 
the purpose of a negotiation, not for a contracting officer’s decision.  A 
settlement proposal is just that: a proposal . . . . Consequently, while Ellett’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. 
Id. at 1543-44. 
While the CDA requires that a claim be submitted to the contracting officer for a 
decision, an explicit request for a final decision is not required “as long as what the 
contractor desires by its submissions is a final decision, that prong of the CDA claim test is 
met.”  Ellett , 93 F.3d at 1543 (citations omitted).  Thus, a “request for a final decision can 
be implied from the text of the submission.”  Id.  The Board must determine whether 
appellant explicitly or implicitly requested a contracting officer’s final decision. 
In its motion to dismiss for lack of jurisdiction, the BOP writes that “an implicit 
request for final decision must . . . be clear from its language and circumstances, and 
appellant cannot demand appeal of a decision it never affirmatively requested.”  Contrary to 
the Government’s assessment, the request for a contracting officer’s final decision need not 
be affirmative. “As long as the basic requirements of the CDA are met, and the contracting 
officer knows the bases of the claims and the final amounts sought, the ‘request’ for a final 
decision may be inferred from the circumstances of the case.”   Mega Construction Co. v. 
United States , 29 Fed. Cl. 396, 443 (1993).  Thus, the request for a decision may be either 
explicit or implied.  See generally Transamerica Insurance Corp. v. United States , 973 F.2d 
1572 (Fed. Cir. 1992) (finding that although the contractor did not use the explicit words, 
“we request a final decision from the contracting officer,” it was obvious that the contractor 
wanted a final decision on its equitable adjustment claim). 
Language expressly requesting a contracting officer’s final decision did not appear 
in EBS’s initial or subsequently submitted termination for convenience settlement proposals. 
However, the Board also looks to whether EBS’s submissions and the circumstances 

 
  
 
      
 
    
      
 
 
     
     
      
    
   
6CBCA 1295 
surrounding them imply a desire for a contracting officer’s final decision.  As previously 
stated by this Board: 
Whether a communication is deemed a claim sufficient to invoke the 
Board’s jurisdiction depends on an evaluation of the relevant contract 
language, the facts of the case, and the regulations implementing the CDA. 
The intent of the communication governs, and we must use a common sense 
analysis to determine whether the contractor communicated its desire for a 
contracting officer’s decision.  
Guardian Environmental Services, Inc. v. Environmental Protection Agency , CBCA 994, 
08-2 BCA ¶ 33,938, at 167,946 (citations omitted).  
Respondent maintains that there is no claim ripe for review by the Board because 
EBS’s submissions expressed an intent to negotiate and did not demand a contracting 
officer’s final decision.  While the October 22 and November 29 convenience settlement 
proposals were not claims when they were originally submitted, we find that a contracting 
officer’s final decision was implicitly requested by EBS in its letter of January 16, 2008, 
where it wrote: “[i]f we have not received a final decision by February 1, 2008, we will 
consider your final decision . . . [to be] a denial which we intend to appeal.”  As of January 
16, the contractor effectively put the Government on notice that as far as it was concerned, 
the Government’s opportunity to negotiate a settlement would expire on February 1 and a 
final decision should be issued by that date, or the contractor would treat the matter as a 
deemed denial by the contracting officer.  The Board finds that by the January 16 letter, EBS 
placed a claim before the contraction officer in the amount of $27,772.87. 
3 As the claim was 
for less than $100,000, the contracting officer was obligated to render a decision within sixty 
days.  41 U.S.C. § 605(c)(1).  
That the claim submission may not have been fully supported, or that the Government 
may have desired additional documentation, did not relieve the contracting officer of her 
statutory duty to choose between issuing a timely decision, or, if over $100,000, forecasting 
the date for a decision.  Westclox Military Products , ASBCA 25592, 81-2 BCA ¶ 15,270.
4 
3   The January 16 letter only referenced EBS’s prime contractor proposal dated 
November 29, so the Board limits its finding to the $27,772.87 amount specified in that 
proposal. 
4 If a contracting officer considers information submitted by a contractor to be 
insufficient, the contracting officer’s proper course is to deny the claim for lack of proof, not 
to decline to issue a decision.  Scott Timber Co. , IBCA 3771-97, 99-1 BCA ¶ 30,184 (1998); 

    
  
     
 
  
        
    
   
   
  
    
    
   
 
             
    
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EBS’s willingness to negotiate here did not impair what had already ripened into a claim 
requiring a decision.  See generally Transamerica . The BOP’s repeated requests for more 
information in the face of EBS’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. 
EBS effectively took the step from proposal to claim with its January 16 letter. 
If that had been all that occurred here, we would find that we had jurisdiction over this 
matter. However, events followed which lead the Board to conclude that it lacks the 
jurisdiction to decide this matter.  At the BOP’s request, EBS submitted a newly formatted 
proposal on February 28, 2009, for $38,239.37, essentially combining the October 22 and 
November 29 proposals. 
5 Then, on May 21, after the Government failed to respond to the 
proposal, EBS withdrew the February 28 proposal.  Inexplicably, in that same letter, EBS 
proposed a settlement offer of $38,239.27, adding a demand for interest, claim preparation, 
and legal costs. EBS placed a condition on its offer, that the BOP accept the offer by May 
31, 2009, or it would be withdrawn. The Government did not accept the offer, ergo, the offer 
was withdrawn. 
It is apparent that in its effort to get some sort of action from the BOP on any of its 
settlement proposals EBS became caught up in the nuances associated with CDA 
jurisdictional practice. Nevertheless, we find that by the time EBS was finished resubmitting 
and withdrawing its settlement proposals, it had neither a proposal nor a claim before the 
contracting officer.  
The jurisdictional prerequisites for an appeal to this Board require that the contractor 
submit a proper claim requesting a decision by the contracting officer, and that the 
contracting officer either issue a decision on the claim or fail to issue a final decision within 
the required time period.  England v. Sherman R. Smoot Corp. , 388 F.3d 844, 852 (Fed. Cir. 
2004).  To proceed in this matter, EBS should take steps to submit a proper claim to the 
contracting officer and wait the appropriate amount of time for a final decision on that claim. 
If it does not receive a timely decision, or is unwilling to accept the contracting officer’s 
decision, the contractor is free to exercise its right of appeal. 
John T. Jones Construction Co. , ASBCA 48303, 96-1 BCA ¶ 27,997 (1995) (holding that 
if the claim is sufficient, the contracting officer’s desire for more information does not 
change the “claim” status of the contractor’s submission).
5   The newly formatted February 28 proposal sought an additional $586.50 for 
subcontractor travel and copying settlement expenses. 

8 CBCA 1295
 

  
                                                     
                                                                                                                                 
            
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Decision 
Respondent’s motion to dismiss for lack of jurisdiction is granted.  The appeal is 
DISMISSED FOR LACK OF JURISDICTION . 
PATRICIA J. SHERIDAN 
Board Judge 
We concur: 
JEROME M. DRUMMOND CANDIDA S. STEEL 
Board Judge Board Judge