DISMISSED FOR LACK OF JURISDICTION:  March 13, 2017
CBCA 5632
 
FOXY CONSTRUCTION, LLC, 
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Donna L. Gunther of Foxy Construction, LLC, Las Vegas, NV, appearing for
Appellant.
Heather R. Hinton-Taylor, Office of the General Counsel, Department of Agriculture,
Golden, CO, counsel for Respondent.
Before Board Judges HYATT, ZISCHKAU, and LESTER.
LESTER, Board Judge. 
On February 7, 2017, the Board received and docketed an appeal filed by appellant,
Foxy Construction, LLC (FCL), from a contracting officer’s decision dated December 8,
2016.  In reviewing the materials attached to the notice of appeal, the Board became
concerned about its jurisdiction to entertain this appeal and issued a show cause notice to
which both FCL and the United States Forest Service (USFS) (an entity within the
Department of Agriculture, the respondent in this appeal) have responded.  Based upon our

CBCA 5632 2 
review of those responses and the materials attached to them, we must dismiss this appeal
for lack of jurisdiction.
Background
On July 8, 2015, the USFS awarded contract no. AG-0261-C-15-0008 to FCL for the
relocation of a USFS bunkhouse and visitor center near Las Vegas, Nevada, with a total fixed
contract price of $358,591.50.  The period of performance was originally set as ninety
calendar days after issuance of the notice to proceed, but with a completion date no later than
September 30, 2015 (a period less than ninety days from the contract award date). 
Subsequently, the contract was modified to incorporate additional foundational and other
work, increasing the contract price to $392,438.90.  The USFS also extended the contract
performance period several times, and the USFS has represented that the work required by
the contract was completed on April 22, 2016.
FCL’s First Monetary Request.  On January 7, 2016, FCL’s owner sent an email
message to the USFS contracting officer and the contracting officer’s representative (COR),
asking them to “see the attached documentation regarding the issues leading to a possible
back charge” and indicating that “[i]f you have any questions please give me a call.” 
Attached to the email message was a letter on FCL letterhead, addressed to the “United
States Dept of Agriculture – Forest Service,” in which FCL stated that it was “asking to be
compensated for delays and for having to work in unusual conditions” and asserting that, by
the time the contract was awarded, it was already short of the ninety days that were
anticipated for contract performance.  It represented that it had attempted to expedite
performance to complete the project before the winter months, but then appears to suggest
that design submittals were improperly rejected, which apparently delayed the project into
the winter months when weather issues made work on the project more difficult.  It then
stated that it was attaching what it called a “claim” and asked that the contracting officer and
the COR “review and comment” on it, as follows:
Attached is a copy of the claim.  Note the claim is because [the original
Government inspector] was injured and another inspector took over the project
who didn’t trust [the first inspector’s] decisions.  Please review and comment.
In the letter, FCL then stated that, “with a 70%-30% shared responsibility (70% Forest
Service & 30% Foxy), the backcharge should only be $51,051.47.”  The attachments to the
letter included a “shut down” cost calculation and a “loss of efficiency and productivity” cost
calculation, which, added together, totaled $170,171.57.  Thirty percent of $170,171.57 is
$51,051.47, which matches the amount of the backcharge request in the letter.  Nevertheless,
also included in the attachments to the January 7 letter was an unsigned “Application And

CBCA 5632 3 
Certificate For Payment” apparently seeking payment (in the “Current Payment Due”
column) of $95,207.71.  There was no claim certification accompanying the letter.
The USFS contracting officer sent an email message to FCL’s owner on January 19,
2016, informing her that, “the way [the claim] is written, my only option is to deny it in its
entirety” based upon “lack of detail and the fact that it is very hard to understand.”  She also
indicated that “[i]t is not clear how much you are asking for” or “how you came to these
figures,” but she interpreted the letter as seeking payment of more than $100,000, stated that
“[c]urrently as written it is not a valid claim” because it was uncertified, and quoted from
Federal Acquisition Regulation (FAR) 33.207 (48 CFR 33.207 (2016)) discussing claim
certification requirements.  She also requested that FCL provide additional information so
that she could consider the monetary request.
On April 14, 2016, the USFS contracting officer and COR met with FCL’s owner, at
which time FCL apparently attempted to resubmit the January 7 letter directly to the
contracting officer.  The contracting officer, however, reiterated her concern that the claim
was an uncertified request for payment of more than $100,000, which (as she wrote in
another email message on April 18, 2016, summarizing the April 14 meeting) she “would
have to reject again based on the same reasoning [she] sent in the email dated 19 Jan 2016.” 
There is nothing in the record here indicating that, during or after the April 14 meeting, FCL
challenged the contracting officer’s belief that the claim value exceeded $100,000.  In the
April 18 email message, the contracting officer explained the claim submission and review
process and indicated that a valid claim needed to contain a sum certain and, if the claim
exceeded $100,000, the certification required by the FAR.
FCL’s Second Monetary Request.  On April 26, 2016, FCL sent another email
message to the contracting officer, with the subject line “claim letter for Foxy Const.,” to
which was attached a letter with the subject line “Re:  Relocation of Bunkhouse and Visitor
Center.”  In that letter, FCL indicated that, “due to the extra days spent on job because of
weather, the Forest Service owes Foxy an equitable adjustment to the contract” based upon
the following:  (1) “[t]he equipment that set [sic] for 39 days as listed for hours and amount”;
(2) “[a] 45% increase for equipment used to complete job”; (3) “[a] 45% increase for all
labor paid out”; and (4) “[a] Burden of 32% for overhead and profit.”  In the attachment to
the cover page, FCL, after removing some costs for which it appears FCL assumed
responsibility, indicated a “Grand Total” for payment by the USFS of $329,800.  There was
no claim certification accompanying the letter.
On June 21, 2016, the USFS contracting officer issued a decision on the April 26
“claim,” denying it in its entirety.  In the decision, the contracting officer indicated that FCL
had not submitted a claim certification, as required by FAR 33.207 for claims in excess of

CBCA 5632 4 
$100,000.  The contracting officer then informed FCL that it could challenge the decision
through an appeal to the Board or an action before the United States Court of Federal Claims.
FCL’s Third Monetary Request.  On September 8, 2016, the contracting officer, at
FCL’s request, agreed to participate in a conference call to provide additional comments
upon the contractor’s April 26 claim.  According to the contracting officer, she agreed during
that call to allow FCL to provide additional facts to support its claim and that she would
consider a new submission.
On October 18, 2016, FCL submitted another letter by United States mail addressed
to the USFS (which apparently did not receive it until November 1, 2016), directed to the
attention of the USFS contracting officer.  In the letter, FCL complained of a differing site
condition at the administrative site, improper rejection of design submittals, and delays for
which FCL was not responsible.  In this letter, FCL represented that its “cost overrun on this
project is approximately $225,000,” which “is directly related to the change in onsite
personnel and delays of the foundation plan approval.”  It indicated that it “look[ed] forward
to a settlement that is palatable to your organization and mine.”  The letter did not contain
a claim certification, and FCL did not attach any supporting materials to it.
The USFS contracting officer issued another decision on December 8, 2016.  She
indicated that FCL had not, as it had promised, provided any additional supporting rationale
for its monetary request and again did not certify its claim.  Accordingly, she indicated that
her prior decision stood.  Nevertheless, she again notified FCL of its right to appeal to the
Board or to sue in the Court of Federal Claims.
The Current Monetary Request.  On February 7, 2017, the Board received FCL’s
notice of appeal of the contracting officer’s decision dated December 8, 2016.  FCL attached
to its notice of appeal both its letter to the contracting officer dated October 18, 2016, and
the contracting officer’s decision dated December 8, 2016 (which referenced both the April
26 and October 18 “claims” and the contracting officer’s earlier June 21 decision).
On February 9, 2017, the Board issued a show cause order, asking the parties to
address whether, to the extent that FCL’s claim exceeded $100,000, it had been certified and
whether, in the letter of October 18, 2016, FCL had requested monetary relief in a sum
certain.  FCL filed its response to the show cause order on February 28, 2017, indicating that
it now seeks “exactly $153,430.12 as a Claim from [the USFS] in this matter.”  The USFS
responded to the show cause order on March 2, 2017, requesting that the Board dismiss the
appeal for lack of jurisdiction.

CBCA 5632 5 
Discussion
I. Requirements for a Claim
The Board’s jurisdiction to entertain contract disputes derives from the Contract
Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012).  As a prerequisite to review by the
Board of a contractor’s demand for money from the Federal Government, the contractor must
have submitted a “claim” to an agency contracting officer.  Id. §§ 7103, 7104(a).  The CDA
does not define the term “claim.”  Todd Construction, L.P. v. United States, 656 F.3d 1306,
1311 (Fed. Cir. 2011).  In the absence of a such a definition in the CDA itself, we rely upon
the FAR’s definition of the term “claim” in applying the CDA’s requirements.  Id.  The FAR
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.”  48 CFR 2.101. 
 There is no requirement in the CDA or the FAR “that a ‘claim’ . . . be submitted in
any particular form or use any particular wording.”  Contract Cleaning Maintenance, Inc. v.
United States, 811 F.2d 586, 592 (Fed. Cir. 1987).  Nevertheless, “[f]or the Board to possess
jurisdiction to entertain an appeal for monetary relief, the contractor must first have
submitted a claim to the contracting officer identifying the basis of the request, seeking
payment of a sum certain, and requesting, either expressly or implicitly, a decision of the
contracting officer.”  Bon Secour Management, LLC v. Department of Veterans Affairs,
CBCA 4703, slip op. at 2 (May 13, 2015).  In addition, if the amount of a claim exceeds
$100,000, the contractor must have certified the claim in the form required by 41 U.S.C.
§ 7103(b)(1), and any uncertified request for payment in excess of $100,000 “is not a claim
under [the CDA] until certified as required by the statute.”  FAR 2.101 (48 CFR 2.101). 
Once a proper claim is submitted, the contractor cannot appeal until either the contracting
officer has issued a decision on the claim or the statutory time for the contracting officer to
issue such a decision, as set forth in 41 U.S.C. § 7103(f), has expired.  Primestar
Construction v. Department of Homeland Security, CBCA 5510, 17-1 BCA ¶ 36,612, at
178,330.  These requirements are jurisdictional prerequisites to any appeal under the CDA. 
M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1329 (Fed. Cir. 2010).
FCL submitted three different letters to the USFS contracting officer requesting
additional money under its contract.  The USFS argues in its response to the show cause
order that none of those letters constitutes a “claim” that would allow us to entertain FCL’s
appeal.  As an initial matter, the only contracting officer’s decision that FCL attached to its
notice of appeal was the one dated December 8, 2016, which purported to decide the FCL
“claim” dated October 18, 2016 (which also was attached to the appeal notice).  Under our
rules of procedure, it is the claim and/or decision referenced in and/or attached to the notice
of appeal that identifies what is being appealed.  48 CFR 6101.2(a)(1).  Typically, we would

CBCA 5632 6 
look to FCL’s October 18, 2016, submission, rather than its earlier letters, to evaluate
whether we possess jurisdiction to entertain this appeal.  Nevertheless, in the interest of
completeness, and because FCL’s various submissions were apparently viewed as related
(such that the contracting officer’s December 2016 decision refers back to the earlier July
2016 decision and the April 2016 “claim”), we will evaluate all three submissions to
determine whether any one of them could provide a jurisdictional basis for appeal.
II. The January 7, 2016, Letter
FCL first requested money under the contract in its letter dated January 7, 2016.  The
USFS argues that this letter was not a “claim” because FCL did not certify it in accordance
with section 7103(b) of the CDA, 41 U.S.C. § 7103(b).  Such a certification is required for
any claim of more than $100,000 and is “a jurisdictional prerequisite for review of a
contracting officer’s decision before this Board.”  B&M Cillessen Construction Co. v.
Department of Health & Human Services, CBCA 931, 08-1 BCA ¶ 33,753, at 167,084
(2007).  “The submission of an uncertified claim [in excess of $100,000], for purposes of the
CDA, is, in effect, a legal nullity.”  Fidelity Construction Co. v. United States, 700 F.2d
1379, 1384 (Fed. Cir. 1983).  “Although a defective certification may be corrected, a failure
to certify may not.”  B&M Cillessen, 08-1 BCA at 167,084 (quoting K Satellite v.
Department of Agriculture, CBCA 14, 07-1 BCA ¶ 33,547, at 166,154).
There is no question that FCL did not attempt to certify its January 7 letter in
accordance with the CDA.  It is unclear, though, whether any certification was required.  In
its letter, the dollar figure that FCL identifies as the amount of the requested backcharge is
$51,051.47, a figure below the statutory threshold for requiring certification.1  Yet the
attachments to the January 7 letter, which FCL represented constituted its “claim,” include
an unsigned “Application And Certificate For Payment” apparently seeking an additional
payment of $95,207.71, which, coupled with the $51,051.47 backcharge request, exceeds the
$100,000 certification threshold.  The contracting officer expressed confusion over the
amount of FCL’s “claim,” and it does not appear from the record that, in response to the
contracting officer’s statements in a January 19 email message and at a meeting on April 14
that the total claimed amount exceeded $100,000, FCL made any attempt to clarify whether
it was only seeking to recover the $51,051.47 figure through the January 7 submission.
1 The USFS asserts that there are multiple dollar figures, some of which are more
than $100,000, in the three pages of FCL’s cost calculations that render it unclear exactly
how much FCL was requesting.  Our review of those pages indicates that all of the numbers
were identified as part of the calculation for reaching the $51,051.47 backcharge figure that
FCL said was the USFS’s responsibility.

CBCA 5632 7 
We need not resolve how much FCL was requesting in its January 7 letter because
there is another reason – one that FCL candidly acknowledges – that precludes the January
7 submission from constituting a CDA “claim.”  Nowhere in the January 7 letter does FCL
request a contracting officer’s final decision, as required under the definition of a “claim”
in FAR 2.101.  Without such a request in the claim letter, we lack jurisdiction over an appeal
based upon that “claim.”  Bon Secour Management, slip op. at 2.  It is true that “[t]he law
does not require an explicit demand or request for a contracting officer’s decision; ‘as long
as what the contractor desires by its submissions is a final decision, that prong of the CDA
claim test is met.’”  James M. Ellett Construction Co. v. United States, 93 F.3d 1537, 1546
(Fed. Cir. 1996) (quoting Transamerica Insurance Corp. v. United States, 973 F.2d 1572,
1576 (Fed. Cir. 1992), overruled in part on other grounds by Reflectone, Inc. v. Dalton, 60
F.3d 1572, 1579 & n.10 (Fed. Cir. 1995) (en banc)).  Further, “[t]hat the contractor intended
to make such a request [can] be ‘implied from the context of the submission.’”  Rex Systems,
Inc. v. Cohen, 224 F.3d 1367, 1372 (Fed. Cir. 2000) (quoting Heyl & Patterson, Inc. v.
O’Keefe, 986 F.2d 480, 483 (Fed. Cir. 1993), overruled in part on other grounds by
Reflectone, 60 F.3d at 1579 & n.10); see Red Gold, Inc. v. Department of Agriculture, CBCA
2259, 12-1 BCA ¶ 34,921, at 171,721 (2011) (“The request may be either explicit or
implicit,” but it must be clear from the submission that “what the contractor desires . . . is a
final decision.”).  “To make this determination, the Board looks at the totality of the
correspondence, including the submissions and the circumstances surrounding them,” using
“a common sense analysis . . . to determine whether the contractor communicated his desire
for a contracting officer’s decision.”  Red Gold, 12-1 BCA at 171,721.
There is no express request for a decision in the January 7 letter.  Further, looking at
the totality of FCL’s communications, we cannot imply a request for a final decision into the
language of that letter.  Although FCL uses the word “claim” in its January 7 letter, FCL asks
the contracting officer to “review and comment” on, rather than decide, its request.  Further,
in its email message accompanying the January 7 letter, FCL indicated that the January 7
letter and its accompanying materials related to “the issues leading to a possible back charge”
and that, if the contracting officer had any questions, she should call FCL’s owner.  Exhibit
C to Respondent’s Show Cause Response (emphasis added).  We recognize that a “cordial
closing” to a letter or other written communication that invites further discussions does not,
in and of itself, “compromise the letter’s status as a claim.”  James M. Ellett, 93 F.3d at 1546;
see Contract Cleaning Maintenance, 811 F.2d at 592 (“The fact that in those letters the
appellant frequently expressed the hope that the dispute could be settled and suggested
meeting to accomplish that result does not mean that those letters did not constitute
‘claims.’”).  Nevertheless, a “letter [that] expresses a willingness to reach an agreement as
opposed to a demand that the contracting officer reach a final decision” is not a claim. 
Hoffman Construction Co. v. United States, 7 Cl. Ct. 518, 525 (1985).  Here, considering as

CBCA 5632 8 
a whole the letter, its attachments, and the email message through which the letter and
attachments were delivered, there was no implied request for a final decision.
In its response to the Board’s show cause order, FCL represented that its intent in
submitting the January 7 letter (as well as its subsequent April 26, 2016, letter) was to begin
a negotiating process with the USFS.  The United States Court of Appeals for the Federal
Circuit has distinguished between, on the one hand, a request for equitable adjustment that
seeks materially to further the negotiation process through exchanges of information aimed
at achieving a mutually agreeable settlement and, on the other, a formal claim intended to
commence the litigation or prosecution process.  Bill Strong Enterprises, Inc. v. Shannon, 49
F.3d 1541, 1550 (Fed. Cir. 1995), overruled in part on other grounds by Reflectone, 60 F.3d
at 1579 & n.10.  Although a contractor (except in circumstances involving routine requests
for payment and termination settlement proposals) may choose to initiate the claim
prosecution process while or even before attempting to negotiate an amicable resolution,
Systems Development Corp. v. McHugh, 658 F.3d 1341, 1347 (Fed. Cir. 2011) (impasse in
negotiations is not necessary before claim can be submitted), the contractor is entitled to
pursue negotiation before submitting a formal claim and to treat the costs that it incurs in that
negotiation process as contract administration costs.  Tip Top Construction, Inc. v. Donahoe,
695 F.3d 1276, 1284 (Fed. Cir. 2012).  That is what FCL says it did through its January 7
submission, and the absence of a request for a contracting officer’s final decision in the letter
is consistent with FCL’s representation that it did not intend for that submission to be a CDA
claim.  Until the contractor submits a formal claim meeting the requirements of the FAR,
though, it cannot commence the appeal process.  Todd Construction, 656 F.3d at 1311.
The January 7, 2016, letter does not constitute a “claim” that could provide us a basis
for exercising jurisdiction.
III. The April 26, 2016, Letter
In its letter dated April 26, 2016, FCL requested an equitable adjustment of $329,800.2 
A claim in that amount requires certification.  41 U.S.C. § 7103(b).  Because FCL did not
certify its submission, it was not a claim, and we lack jurisdiction to entertain an appeal
arising from it.  B&M Cillessen, 08-1 BCA at 167,084.  The fact that the contracting officer
actually issued a decision in response to the April 26 submission, notifying the contractor of
2 As with its January 7 submission, FCL has stated that it did not intend its April 26
letter to constitute a claim, but instead viewed it as a submission during a negotiation
process:  “[FCL] believed it was still trying to negotiate an equitable adjustment for [USFS]
delays, not submitting a claim.”  FCL’s Show Cause Response at 1.

CBCA 5632 9 
its right either to appeal to the Board or to file an action in the Court of Federal Claims (using
the language set forth in FAR 33.211(a)(4)(v) (48 CFR 33.211(a)(4)(v)), does not somehow
eliminate the jurisdictional defect because “[a] contracting officer’s decision rendered on an
uncertified [claim] is a ‘nullity.’”  Regency Construction, Inc. v. Department of Agriculture,
CBCA 3246, et al., 16-1 BCA ¶ 36,468, at 177,705 (quoting EHR Doctors, Inc. v. Social
Security Administration, CBCA 3426, 13 BCA ¶ 35,371, at 173,572).
IV. The October 18, 2016, Letter
The letter that FCL attached to its notice of appeal, dated October 18, 2016, requested
payment of “approximately $225,000.”  That letter cannot constitute a claim for two reasons.
First, like the April 26 letter, the October 18 letter seeks payment of more than
$100,000, but without any CDA certification.  The Board lacks jurisdiction to entertain an
appeal arising from it.  B&M Cillessen, 08-1 BCA at 167,084.
Second, the use of the word “approximately” in the October 18 letter is inconsistent
with the FAR requirement that a claim be stated in a “sum certain.”  48 CFR 2.101,
52.233-1(c).  In J.P. Donovan Construction, Inc. v. Mabus, 469 F. App’x 903 (Fed. Cir.
2012), the Federal Circuit held that the use of the word “approximately” in describing the
claimed amount meant that the claimed amount was not a “sum certain” unless the
contracting officer, from other information or material in or accompanying the claim, could
determine the exact amount that the contractor was claiming:
Donovan’s claim used qualifying language, “approximately $65,000,” and did
not include supporting documents that would allow the contracting officer to
substantiate the claim.  Donovan submitted the March Letter without
supporting documents.  In that form, the claimed amount was unascertainable. 
. . . [T]his court affirms the Board’s dismissal of Donovan’s appeal for lack of
jurisdiction.
Id. at 908; see JEM Transport, Inc. v. United States, 120 Fed. Cl. 189, 198 (2015) (discussing
the J.P. Donovan decision); G&R Service Co. v. General Services Administration, CBCA
1876, 10-2 BCA ¶ 34,506, at 170,166 (citing Van Elk, Ltd., ASBCA 45311, 93-3 BCA
¶ 25,995, for proposition that approximate amount does not constitute a sum certain).  Here,
as in J.P. Donovan, no clarifying supporting material accompanied FCL’s October 18 letter. 
Further, the dollar figure approximation in that letter differed from the dollar figures in
earlier submissions.  In such circumstances, the identification of “approximately $225,000”
in cost overruns does not state a sum certain, as required for a claim under the FAR.

CBCA 5632 10 
In response to the Board’s show cause notice, FCL states that it is now seeking
“exactly $153,430.12 as a Claim” from the USFS, a figure that differs from any of its prior
submissions to the USFS.  It is not too late for FCL to pursue this claim, see 48 CFR
33.206(a) (requiring contractor to submit claims to contracting officer within six years of
accrual), but, before it files an appeal with the Board, FCL must first submit that claim to the
contracting officer with the required information, identify the amount of its monetary request
in a sum certain, certify the claim using the language required by the CDA (set forth at FAR
33.207(c) (48 CFR 33.207(c))), and allow the contracting officer to decide it.  “If the
contracting officer,” after receipt of a proper claim, “does not render a timely decision, or
[the contractor] is unwilling to accept the decision, [the contractor] is free to exercise its right
of appeal to this Board.”  Red Gold, 12-1 BCA at 171,722.
Decision
For the foregoing reasons, this appeal is DISMISSED FOR LACK OF
JURISDICTION.
_________________________________
HAROLD D. LESTER, JR. 
Board Judge
We concur:
_________________________________ _________________________________
CATHERINE B. HYATT JONATHAN D. ZISCHKAU
Board Judge Board Judge