MOTION TO DISMISS DENIED: May 22, 2014
CBCA 3566
PARTNERSHIP FOR RESPONSE AND RECOVERY, LLP,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Terry L. Elling and Timothy J. Taylor of Holland & Knight LLP, McLean, VA,
counsel for Appellant.
Jeffrey D. Webb, Office of Chief Counsel, Federal Emergency Management Agency,
Department of Homeland Security, Washington, DC, counsel for Respondent.
Before Board Judges VERGILIO, McCANN, and DRUMMOND.
VERGILIO, Board Judge.
On October 9, 2013, the Board received from Partnership for Response and Recovery,
LLP (contractor) a notice of appeal.  The contractor had provided services under a task order
issued under its contract with the Department of Homeland Security, Federal Emergency
Management Agency (FEMA) (agency).  In a decision notifying the contractor of its appeal
rights, the contracting officer authorized partial payment of two invoices, because the
contractor had not provided the total number of workers said to be required by the task order. 
For the two invoices, the agency authorized payment of approximately $2.8 million of the
total of over $7.2 million invoiced.  The contractor views the task order to be for a firm,
fixed-price amount.  The contracting officer authorized payment for hours expended at firm,
fixed rates, not a fixed amount.  The contractor contends that the agency’s refusal to pay the
full amounts due under the contract constitutes a material breach of the contract, is arbitrary
and capricious, and is a breach of its duty of good faith and fair dealing.  Not relevant to this


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dispute, separately the contractor has submitted a certified claim to receive unpaid amounts,
and filed an appeal after the contracting officer denied the contractor’s certified claim.
The agency filed a motion to dismiss for lack of jurisdiction.  It maintains that in this
appeal there is no certified claim by the contractor, while the amount in dispute exceeds
$100,000.  It views the contracting officer’s decision as a nullity, because of the lack of a
certified contractor claim under the contract.  The contractor opposes the motion.  It asserts
that the dispute involves a Government claim in that the agency withheld money from a fully
performed firm, fixed price task order.  The Board finds facts for the resolution of the motion
based upon undisputed material in the existing record.
In the underlying decision, the contracting officer sets forth a specific contract
interpretation and provides the contractor with a notification of appeal rights.  The Board
rejects the contractor’s contention that this dispute involves a Government claim for money;
the agency has not sought money from the contractor.  However, a dispute and claim can
involve contract interpretation.  The contracting officer decision made the issue of contract
interpretation ripe for resolution should the contractor dispute the interpretation.  The lack
of a certified contractor claim does not inhibit the contractor’s ability to have the contract
interpretation question resolved at this Board.  Accordingly, the Board denies the agency’s
motion to dismiss.
Background
The agency engaged the contractor to perform under a task order and a later
modification, issued pursuant to a contract.  Exhibits 4, 5, 11 (all exhibits are in the appeal
file).  The contractor submitted two invoices (one after completing one month of
performance, the other after completing three months of performance), treating the
underlying task order as establishing a firm, fixed total price.  The agency sought
documentation reflecting the hours worked by individuals.  Exhibits 6 at 1, 7 at 2, 16-18. 
The contractor resubmitted the invoices, with documentation.
By letter dated July 12, 2013, the contracting officer addressed the two invoices,
summarizing the contractor’s contention
that the task order payment should be for a firm fixed price that would be paid
to them in total, regardless of the number of agents or leads that worked on the
project, once task order objectives were accomplished.  Therefore, on invoice
#14657, [the contractor] billed for one third (1/3) of the total Task Order value
and on invoice #14671, [the contractor] billed for the remaining two thirds
(2/3) of the total Task Order value.  The blanket invoices were submitted

CBCA 3566 3
without documentation as to the number of agents or leads that worked on the
task order or for how long.
Exhibit 10 at 1.  In rejecting the contractor’s interpretation of the task order, the letter set
forth the interpretation by the contracting officer and statement that this represented a “final
decision”:
In accordance with FAR [Federal Acquisition Regulation] Clause 52.232-1
Payments, the Government can only pay for services rendered by the
contractor and accepted by the Government.  [The contractor] has failed to
provide adequate documentation to validate work commensurate with the
invoices submitted.  As a result, we can only authorize payment in the amount
of $848,289.76 for invoice #14657 and $1,964,480.32 for invoice #14671
totaling $2,812,770.08 which has been verified and accepted by the
Contracting Officer Representative (COR).
This is the final decision of the Contracting Officer.  You may appeal this
decision to the Civilian Board of Contract Appeals (CBCA) . . . [or] you may
bring an action directly in the United States Court of Federal Claims[.]
Exhibit 10 at 2.
The contractor filed an appeal with this Board within ninety days of receipt of the
decision.
Discussion
Regulation defines a “claim” to be 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, the
adjustment or interpretation of contract terms, or other relief arising under or relating to the
contract.  A voucher, invoice, or other routine request for payment that is not in dispute when
submitted is not a claim.  The submission may be converted to a claim by written notice to
the contracting officer if it is disputed either as to liability or amount or is not acted upon in
a reasonable time.  48 CFR 2.101 (2013).  Under this regulation and precedent, Reflectone,
Inc. v. Dalton, 60 F.3d 1572, 1576 (Fed. Cir. 1995) (en banc), the initially submitted
invoices, by which the contractor sought to be paid for what it deemed the firm, fixed-price
due under the contract, were not claims.  Regarding this appeal, the contractor did not
convert the submission of those invoices to claims.

CBCA 3566 4
However, by issuing the decision which recognized a dispute with the contractor’s
interpretation of the contract, the contracting officer perfected the agency’s interpretation of
the contract.  This written assertion of the agency’s interpretation constitutes a Government
claim under the contract.  The contractor need not submit a monetary claim to have the
dispute over interpretation resolved; the resolution affects the billing by the contractor and
the amount of payment it ultimately may receive under the contract.  The contractor pursues
a claim as defined by regulation and the contract.  At issue is the determination of the type
of contract and the obligations of the parties.
Decision
The Board DENIES the agency’s motion to dismiss the case for lack of jurisdiction.
______________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
______________________________ ______________________________
R. ANTHONY McCANN JEROME M. DRUMMOND
Board Judge Board Judge