COUNTERCLAIM DISMISSED FOR LACK OF JURISDICTION:  January 29, 2008
 
CBCA 65 
USPROTECT CORPORATION,
 
Appellant, 
v. 
DEPARTMENT OF HOMELAND SECURITY, 
Respondent. 
Shlomo D. Katz and Daniel B. Abrahams of Epstein, Becker & Green, P.C., 
Washington, DC, counsel for Appellant. 
Jennifer L. Longmeyer-Wood, Office of the Principal Legal Advisor, Immigration 
and Customs Enforcement, Department of Homeland Security, Washington, DC, counsel 
for Respondent. 
Before Board Judges STERN , FENNESSY, and SOMERS. 
FENNESSY, Board Judge. 
This appeal arose from a certified claim in the sum of $439,387 dated October 28, 
2004, submitted to a contracting officer of the Department of Homeland Security (DHS) by 
USProtect Corporation (USProtect) for a price adjustment pursuant to the Service Contract 
Act  (SCA).  DHS did not issue a decision within sixty days of receipt of the claim, nor did 
it inform USProtect when a decision would be issued, as required by the Contract Disputes 
Act (CDA).  41 U.S.C. § 605(c)(2) (2000).  When DHS did not issue a decision by 

                                                                                                                            
   
 
  
      
 
 
 
 
 
 
    
 
    
2 CBCA 65 
February 8, 2005, USProtect appealed to the Department of Transportation Board of 
Contract Appeals pursuant to 41 U.S.C. § 605(c)(5). 1 
The board received the appeal on February 9, 2005, and, on that date, issued a notice 
of docketing in which the board suspended proceedings and directed the contracting officer 
to issue a decision by March 11, 2005, in accordance with section 605(c)(5) of the CDA. 
By  letter dated February 22, 2005, the contracting officer explained to the board that 
a decision on the claim was delayed because DHS required a determination from the 
Department of Labor (DOL) concerning whether prescribed minimum wage rates or a 
collective bargaining agreement applied to the contract in issue.  DHS requested an 
extension of time within which to issue a decision until April 30, 2005.       
Thereafter, during a telephone conference among the board and the parties, the parties 
agreed to stay proceedings pending settlement discussions.   After an extended  period of 
time, the parties notified the Board that they had been able to settle three related cases, 
CBCA 66, 67, and 671; however, they were unable to settle the instant appeal.      
On April 5, 2007, the contracting officer issued a decision denying appellant’s claim 
and asserting a government claim in the amount $4,148,464 for overpayments by DHS to 
USProtect.  The overpayments allegedly resulted from DHS’s mistaken inclusion of SCA 
rate increases twice for the second option year.  The second increase was added to the 
already increased rate for the second option year and was then carried forward and increased 
over each successive contract period.  
USProtect did not appeal the contracting officer’s decision of April 5, 2007, to the 
Board, and the time for doing so has expired. Moreover, USProtect stated in its complaint 
that it intends to commence an action in the United States Court of Federal Claims on the 
Government’s claim if the parties are unable to settle it.  
In its answer to the complaint, DHS asserted its counterclaim.  Thereafter, appellant 
submitted a motion to dismiss the counterclaim for lack of subject matter jurisdiction upon 
1On January 6, 2007, pursuant to section 847 of the National Defense Authorization 
Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3391, the Department of 
Transportation Board of Contract Appeals was terminated and its cases, personnel, and other 
resources were transferred to a newly-established Civilian Board of Contract Appeals 
(CBCA). The case remains as it was; the docket number has been changed to reflect the 
transfer to the new Board. 

                                                                                                                            
 
     
 
 
  
  
  
   
   
 
   
 
 
 
  
    
      
  
3 CBCA 65 
the grounds that USProtect’s appeal to the Board from the deemed denial of its claim did not 
encompass an appeal of the Government’s claim.  
In response, DHS has moved to withdraw its counterclaim upon the grounds that the 
Board lacks jurisdiction to hear the counterclaim at this time.  However, the Government 
reserves the right to reassert its counterclaim “at such time that it believes that jurisdiction 
does exist.”    
Discussion 
To invoke the Board’s jurisdiction pursuant to the Contract Disputes Act, a contractor 
must appeal a decision of an agency contracting officer denying a contractor’s claim or 
asserting a government claim within ninety days of receipt of the decision. 41 U.S.C. §§ 
605(a), 605(b), 606.  Further, the CDA provides a contractor with an alternative forum in 
which to challenge a contracting officer’s decision. Pursuant to section 609 of title 41, a 
contractor may commence an action in the Court of Federal Claims within twelve months 
of receipt of a contracting officer’s decision.    
In the event of delay by a contracting officer in rendering a decision on a contractor’s 
claim, the CDA offers contractors two options for advancing the process.  First, a contractor 
may petition a board of contract appeals to direct the contracting officer to render a decision 
within a specified time. 41 U.S.C. § 605(c)(4).  In such an appeal, the relief requested is 
fully granted upon the Board’s issuance of the order.  A contractor may appeal a decision 
issued pursuant to such an order to a board or commence an action in court.  Federal Data 
Corp., DOTBCA 2389,  91-1 BCA ¶  23,459.  
Alternatively, the CDA allows a contractor to appeal to a board of contract appeals 
or commence an action in court based upon the failure of a contracting officer to timely 
render a decision on a claim.  Such a failure is considered a “deemed denial.”  41 U.S.C. 
§ 605(c)(5).  When an appeal or action is taken under section 605(c)(5), the underlying 
dispute is before the elected tribunal.  Federal Data Corp . However, the tribunal may 
suspend proceedings and direct a contracting officer to render a decision on the claim.  Such 
an order does not affect the tribunal’s jurisdiction since, by virtue of section 605(c)(5), the 
underlying dispute is already before the tribunal. 
A contractor’s decision to pursue its remedy in one forum over the other constitutes 
a binding election.  41 U.S.C. § 609(a)(1).  This provides an “either-or-alternative,” not 
“dual avenues of appeal.” Santa Fe Engineers, Inc. v. United States, 677 F.2d 876, 878 (Ct. 
Cl. 1982). A contractor is deemed to have made a binding election when: 1) it has sought 
to avail itself of one forum over another; and 2) that forum has the ability to exercise 

                                                                                                                            
 
 
 
   
   
          
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4 CBCA 65 
jurisdiction at the time the election is attempted.  Jo-Mar Corp. v. United States, 15 Cl.Ct. 
602, 605 (1988).  
Here, USProtect commenced an appeal from the contracting officer’s deemed denial 
of its claim pursuant to 41 U.S.C. § 605(c)(5).  In accordance with the provisions of that 
section, the dispute over the USProtect’s claim is within the Board’s jurisdiction.  
The same does not follow as to the contracting officer’s assertion of the 
Government’s claim.  To challenge that decision, USProtect could have commenced a timely 
appeal to the Board.  However, having not elected that option, USProtect may commence 
a timely action in court pursuant to its CDA right to elect the forum within which to litigate 
a dispute. 
In sum, the Board continues to possess jurisdiction of the original appeal from DHS’s 
deemed denial of appellant’s claim but does not possess jurisdiction to hear and decide the 
Government’s claim.
2 
Decision 
USProtect’s motions is GRANTED. The Government’s counterclaim is 
DISMISSED FOR LACK OF JURISDICTION. . 
EILEEN P. FENNESSY 
Board Judge 
We concur: 
JAMES L. STERN JERI  KAYLENE SOMERS 
Board Judge Board Judge 
2 We note that, if USProtect commences an action in court to challenge the 
Government’s claim, section 609(d) of the CDA permits the court to consolidate this appeal 
with that action in court or transfer the action to the Board.