DISMISSED FOR LACK OF JURISDICTION:  July 6, 2016
CBCA 4995
BASS TRANSPORTATION SERVICES, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Le’Mon J. Bass, III and LaMar Bass, co-owners of Bass Transportation Services,
LLC, Belleville, IL, appearing for Appellant.
Neil S. Deol, Office of Regional Counsel, Department of Veterans Affairs, Decatur,
GA, counsel for Respondent.
Before Board Judges HYATT, ZISCHKAU, and CHADWICK.
CHADWICK, Board Judge.
Bass Transportation Services, LLC (Bass or appellant), provided van transportation
to patients of a Department of Veterans Affairs (VA or respondent) medical facility in the
St. Louis, Missouri, area.  VA terminated Bass’s contract for cause in August 2014.  In
March 2015, Bass submitted a certified claim to the contracting officer for “damages”
totaling $1,490,193.62 “[a]s a result of VA’s termination and breach.”  The contracting
officer denied the claim in June 2015.  Bass filed a timely appeal from that decision.

CBCA 4995                                                                                                                          2
Although VA has now converted the termination to one for the convenience of the
Government, we must dismiss this appeal for lack of jurisdiction, because the underlying
claim necessarily questioned the validity of the termination for cause, which was no longer
reviewable by us when Bass filed the appeal.  We cannot entertain an appeal of VA’s latest
contract action unless and until Bass submits a new claim and it is decided or deemed denied.
Background
The facts bearing on jurisdiction can be briefly stated.  VA awarded van transportation
contract VA255-P-1771 to Bass in May 2011.  Appeal File, Exhibit 2.  VA exercised options
to continue the contract into 2014, Appeal File, Exhibit 3, but it terminated the contract for
cause after disputes arose about Bass’s performance obligations.  Appeal File, Exhibits 7-11. 
The VA contracting officer mailed Bass a notice terminating the contract in its entirety for
cause on August 29, 2014, but the letter was returned by the Postal Service, then resent and
received by Bass in early October 2014.  Complaint, Exhibit F; Appeal File, Exhibit 14.  The
notice said, among other things, that it “constitute[d] a final decision that the contractor is
in default as specified and that the contractor has the right to appeal under the Disputes
clause.”  Complaint, Exhibit F at 2.  The contract’s Disputes clause, Appeal File, Exhibit 2
at 40, incorporated by reference Federal Acquisition Regulation (FAR) clause 52.233-1 (48
CFR 52.233-1 (2009)), which stated that a contracting officer’s decision was final unless the
contractor appealed or filed suit under the Contract Disputes Act (CDA), now codified at 41
U.S.C. §§ 7101-7109 (2012).1
On March 27, 2015, Bass submitted to the contracting officer, through outside
counsel, a five-page certified claim alleging that “VA’s Termination for Cause was a breach
of contract . . . and Bass is entitled to be awarded damages it incurred as a result of said
breach.”  Appeal File, Exhibit 16 at 3 (respondent’s corrected copy, filed April 4, 2016). 
Bass sought $1,090,616.50 in “lost profits for the remaining [unperformed] 104 weeks of the
Contract”; $278,527.25 that Bass alleged it would have “recouped to cover [startup] costs
during the remaining 104 weeks of the Contract”; and $121,049.87 for “contractual
obligations that Bass has and will continue to incur during the remaining 104 weeks of the
Contract,” including financing costs, mortgage interest, taxes, and insurance.  Id. at 4.  The
claim did not ask VA to convert the termination for cause to a termination for the
convenience of the Government, or ask for other relief from the termination decision itself.
1 The CDA was recodified without substantive change after the contract was
awarded, by Public Law No. 111-350, 124 Stat. 367 (2011).

CBCA 4995                                                                                                                          3
A successor VA contracting officer issued a nine-page decision denying the claim on
June 30, 2015.  Appeal File, Exhibit 16.  After summarizing the contract, the history of the
dispute, and the claim, the contracting officer stated that “[t]he contract was properly
terminated for cause as a result of the Bass [sic] failure to perform,” and that “[g]iven the
propriety of the Government’s termination for cause, Bass is entitled to no measure of
damages” under the FAR.  Id. at 6.  The contracting officer added that “[e]ven if this case
was to be treated as a termination for the Government’s convenience, which it isn’t, Bass
would not be entitled to its requested anticipatory profits,” but, “[r]egardless . . . , no
damages are due Bass given that its contract was terminated for cause . . . .  Bass’s claim is
denied in its entirety.”  Id. at 7.  The decision concluded with the standard statement that
under the CDA, Bass could appeal the decision to a board of contract appeals or file suit in
the United States Court of Federal Claims.  Id. at 8-9.
Bass filed a notice of appeal from the June 30 decision on September 23, 2015, and
filed a complaint in December 2015, seeking the same damages as in its claim.  In March
2016, following discovery, the parties agreed to submit the appeal for decision on the record
without a hearing under Board Rule 19 (48 CFR 6101.19 (2013)).  In the Rule 19 briefing,
Bass requested the same damages as in its claim and complaint, or “[i]n the alternative, [that
the] Board reverse and remand this case back to the Contracting Officer for a new decision
based on the points expressed in this appeal.”  Appellant’s Initial Brief at 9.
In its initial brief, VA urged us to deny the appeal.  But VA attached to its response,
filed on April 14, 2016, an unsigned decision of the contracting officer, dated the same day,
“convert[ing] the Termination for Cause of contract VA255-P-1771 to a Termination for
Convenience under [FAR] clause 52.212-4(l).”  Respondent’s Response, Exhibit 1.  VA also
attached an unsigned affidavit of the contracting officer explaining how he had arrived at an
“appropriate settlement amount” for termination for convenience costs (which we need not
state, but was more than $100,000), based on an uncertified schedule of costs that Bass
submitted during the appeal.  Id., Exhibit 2.  VA argued that the appeal was now moot, but
that, if we disagreed and determined that the issue of the amount of termination for
convenience costs was properly before us, Bass could be entitled to an equitable adjustment
in the contract price.  Id. at 2-4. 
In a teleconference with the Board on June 21, 2016, counsel for VA confirmed that
the contracting officer had converted the termination to one for convenience and had offered
the indicated amount in settlement.  Bass’s representatives said they had rejected the offer.2
2 The appeal was subsequently transferred to the undersigned board judge.

CBCA 4995                                                                                                                          4
Discussion
The Board’s jurisdiction derives from the CDA, 41 U.S.C. §§ 7101-7109.  “[T]he
strict limits of the CDA” constitute “jurisdictional prerequisites to any appeal.”  England
v. Swanson Group, Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004).  Jurisdiction must be
“established at the time that a notice of appeal is filed.”  1-A Construction & Fire, LLP
v. Department of Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913, at 175,564, appeal
dismissed, No. 15-1623 (Fed. Cir. Jan. 28, 2016).  The Board gains jurisdiction under the
CDA only after a claim is presented to the contracting officer and is either decided or deemed
denied, and the contractor files a timely appeal.  Cosmic Construction Co. v. United States,
697 F.2d 1389, 1390 (Fed. Cir. 1982); C-Shore International, Inc. v. Department of
Agriculture, CBCA 1696, 10-1 BCA ¶ 34,379, at 169,741.
Termination of a contract for cause (or default) is a government claim.  Malone
v. United States, 849 F.2d 1441, 1443-44, modified on other grounds, 857 F.2d 787 (Fed. Cir.
1988); JR Services, LLC v. Department of Veterans Affairs, CBCA 4826, 16-1 BCA
¶ 36,238, at 176,808.  Upon receiving a contracting officer’s decision asserting a government
claim, a contractor has ninety days to appeal to the appropriate board of contract appeals, or
twelve months to file suit in the Court of Federal Claims, or else the decision becomes “final
and conclusive and . . . not subject to review by any forum, tribunal, or Government agency.” 
41 U.S.C. §§ 7103(g), 7104; see Bob L. Walker v. Department of Agriculture, CBCA 4735,
15-1 BCA ¶ 36,179; Total Engineering, Inc. v. United States, 120 Fed. Cl. 10, 14 (2015). 
The CDA does not allow us to consider Bass’s appeal.  The time for Bass to appeal
the termination of the contract for cause to this Board expired in January 2015, ninety days
after Bass received the termination notice.3  Bass appealed in September 2015, from the
contracting officer’s decision issued in June 2015, denying Bass’s March 2015 certified
claim.  While this appeal was timely on its face, the claim underlying the appeal could be
granted only by overturning the termination for cause—which was no longer reviewable by
us when Bass filed the appeal.  Bass’s claim sought profits and costs that Bass alleged it
would have recovered in the unperformed years of the contract.  Those theories of relief
necessarily implied that the termination for cause was wrongful.  Yet Bass did not timely
appeal the termination, nor did Bass’s claim ask the contracting officer to reconsider or
withdraw the unappealed termination decision. 
3 The notice adequately advised Bass of its appeal rights.  See FAR 49.402-
3(g)(7) (notice of termination for cause “shall” state that it “constitutes a decision that the
contractor is in default as specified and that the contractor has the right to appeal under the
Disputes clause”).

CBCA 4995                                                                                                                          5
The Armed Services Board of Contract Appeals (ASBCA) faced a similar situation
in Military Aircraft Parts, ASBCA 60139, 2016 WL 3353870 (June 3, 2016) (MAP).  We
find the ASBCA’s reasoning in MAP, while not binding on us, persuasive.  In MAP, the
Defense Logistics Agency had terminated three delivery orders for cause in April 2013. 
MAP submitted a claim in April 2015 “for breach of contract damages consisting of
anticipatory profit,” the alleged breach being the terminations for cause.  When the
contracting officer refused to act on the claim, MAP appealed from a deemed denial.  The
ASBCA dismissed the appeal for lack of jurisdiction, finding that MAP’s claim was an
“implicit challenge” to the terminations for cause, which MAP had not timely appealed.  Id.,
slip op. at 9.  The ASBCA explained that it saw “no way to give appropriate force and effect
to” the CDA provision on the finality of contracting officer’s decisions, 41 U.S.C. § 7103(g),
“except by declining to review contractor claims to the extent that they expressly or implicitly
challenge final decisions that were not timely appealed.”  Id.  The ASBCA distinguished
cases arising under the Fulford doctrine, id. at 7-8,4 as well as cases in which contractors had
pursued claims “independent of [an] unappealed default termination.”  Id. at 9 (citing Roxco,
Ltd. v. United States, 60 Fed. Cl. 39, 44 (2004); C.H. Hyperbarics, Inc., ASBCA 49375,
et al., 04-1 BCA ¶ 32,568; Gramercy Machine Corp., ASBCA 18188, 74-2 BCA ¶ 10,706).
Here, as in MAP, the appellant’s claim is not independent of the unappealed
termination decision, but arises from it.  A tribunal could award the breach damages that Bass
seeks (if at all)5 only by finding that VA should not have terminated the contract for
cause—an issue that the CDA places beyond our review, as it was the crux of a government
claim that was not appealed and is final.  Like the ASBCA, we recognize “some tension
between the CDA’s general provisions regarding review of decisions on contractor claims,”
which might appear to give us jurisdiction of this timely appeal, and the CDA’s “provisions
regarding the finality of contracting officers’ final decisions, 41 U.S.C. § 7103(g).”  MAP, 
slip op. at 9.  But we conclude, as the ASBCA did, that the statute bars review of claims that
in effect challenge unappealed contracting officer’s decisions.
4 Under the rule originated in Fulford Manufacturing Co., ASBCA 2143, et al.,
1955 WL 808 (May 20, 1955), a contractor may challenge the validity of a default
termination, after the initial appeal period, in a timely appeal from a government claim for
excess reprocurement costs.  See C-Shore International, Inc. v. Department of Agriculture,
CBCA 1697, 10-1 BCA ¶ 34,380, at 169,745.  That is not this case.
5  The remedy provided under the contract, Appeal File, Exhibit 2 at 44, for an
improper termination for cause is conversion to a termination for convenience, not breach
damages.  See Packer v. Social Security Administration., CBCA 5038, et al., 16-1 BCA
¶ 36,260, at 176,901.

CBCA 4995                                                                                                                          6
This appeal has three facts that MAP did not, none of which affects our jurisdiction. 
First, unlike in MAP, the contracting officer here issued a decision on the contractor’s claim,
which Bass appealed.  A contracting officer’s expression of willingness to consider new
arguments, or to reconsider old ones, after issuing a decision can toll or restart the appeal
period.  In Guardian Angels Medical Service Dogs, Inc. v. United States, 809 F.3d 1244
(Fed. Cir. 2016), for example, more than six months after terminating the contract for default,
the contracting officer asked the contractor for documentation to support its recent claim that
the termination should be converted to a termination for convenience, and promised to
“proceed with a review of the material and provide a response” upon receiving the
documentation.  Id. at 1246.  The Court held that this invitation “‘served to keep the matter
open,’ . . . and vitiated the finality of [the] original default termination notice.”  Id. at 1250
(quoting Roscoe-Ajax Construction Co. v. United States, 458 F.2d 55, 63 (Ct. Cl. 1972)
(finding contracting officer’s denial of contractor’s claim not final where contracting officer
offered to “discuss and consider the problem further”)); see also Devi Plaza, LLC
v. Department of Agriculture, CBCA 1239, 09-1 BCA ¶ 34,033, at 168,338 (2008) (finding
contracting officer’s decision on contractor’s claim not final because contracting officer
“indicated that he was willing to continue a meaningful and productive dialogue” about the
claim).  But the VA contracting officer did not suggest in 2015 that the termination for cause
was not final.  He addressed Bass’s breach claim on its merits and concluded that Bass, not
VA, breached the contract.  His June 2015 decision stated several times that the prior
contracting officer had properly terminated the contract for cause.  Those statements formed
part of the rationale for denying Bass’s claim and did not suggest that the second contracting
officer had issued a new termination decision.  While the contracting officer who decided
Bass’s claim could have written less about the termination for cause, we do not wish to
discourage contracting officers from fully explaining their decisions to contractors, and we
see nothing in the June 2015 decision to indicate that he reopened the termination decision. 
See Educators Associates, Inc. v. United States, 41 Fed. Cl. 811, 813-15 (1998). 
Second, unlike MAP, this appeal was filed less than twelve months after the contractor
received the termination notice, when Bass could still have filed suit in the Court of Federal
Claims.  This fact is immaterial to the Board’s jurisdiction because we could no longer
review the termination decision at that time. 
Third, during this appeal, the contracting officer issued a new decision converting the
termination to one for convenience.  But that decision (made in connection with an offer of
termination costs exceeding $100,000) was not a decision on either a government claim or
a certified termination cost proposal, see 41 U.S.C. § 7103(b), and, more importantly, it did
not change the fact that we lacked jurisdiction when the appeal was filed.  If Bass intends to
pursue termination costs or damages under the contract in litigation, it must, among other 

CBCA 4995                                                                                                                          7
things, submit a new claim.  See id. § 7103(a); Frank Bonner v. Department of Homeland
Security, CBCA 605, et al., 07-2 BCA ¶ 33,592, at 166,387.
Finally, we note that VA did not question our CDA jurisdiction.  After initially asking
us to deny the appeal, VA argued that the appeal became moot when the contracting officer
converted the termination to one for convenience.  Respondent’s Response at 2-4.6  One
could argue, as VA at least implicitly did at first, that the problem when the appeal was filed
was not our jurisdiction but something more like claim preclusion—that is, that we could
have reached the merits but would have been constrained by the unappealed termination
decision to rule that the termination for cause was not a breach.  Cf. Navigant SatoTravel
v. General Services Administration, CBCA 449, 10-1 BCA ¶ 34,462 (denying appellant’s
motion for summary relief on the ground that appellant raised a previously decided
entitlement issue in the quantum phase).  We think it is clear, however, that the CDA does
not authorize review of claims of this nature at all.  41 U.S.C. § 7103(g); cf. Wood & Co.
v. Department of the Treasury, GSBCA 12534-TD, 94-1 BCA ¶ 26,445, at 131,573-74
(1993) (holding that allowing contractor to submit essentially the same claim twice and
appeal the second denial was “clearly not the result Congress intended when it wrote the
[ninety-day] limitation into the [CDA]”).  The only claim we had before us when this appeal
was filed was a challenge to the unappealed termination for cause, styled as a breach claim.
Decision
The appeal is DISMISSED FOR LACK OF JURISDICTION. 
________________________________
KYLE CHADWICK
Board Judge
We concur:
____________________________ ______________________________
CATHERINE B. HYATT JONATHAN D. ZISCHKAU
Board Judge Board Judge
6 We do not find that the conversion necessarily mooted Bass’s breach claim.