MOTION FOR PARTIAL DISMISSAL GRANTED:
December 9, 2016
CBCA 5510
PRIMESTAR CONSTRUCTION,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Lori C. Gray of Law Office of Lori Chambers-Gray, P.C., Houston, TX, counsel for
Appellant.
Rina Martinez and Janice Yun, Office of Chief Counsel, Department of Homeland
Security, Washington, DC, counsel for Respondent.
Before Board Judges SOMERS, LESTER, and O’ROURKE.
LESTER, Board Judge.
Respondent, the Department of Homeland Security (DHS), asks the Board to dismiss
for lack of jurisdiction that portion of this appeal through which appellant, Primestar
Construction (Primestar), seeks an affirmative monetary recovery. DHS asserts that
Primestar has never submitted a claim under the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101-7109 (2012), seeking payment of the requested monies and that Primestar cannot
use DHS’s default termination decision as a jurisdictional basis for seeking monetary relief.
For the reasons set forth below, we grant DHS’s motion.

CBCA 5510 2
Background
On September 30, 2014, DHS, acting through the Federal Emergency Management
Agency (FEMA), awarded a contract, contract no. HSFE06-14-C-0060, to Primestar for the
replacement of an elevator at the FEMA Region IV Federal Regional Center. Appeal File,
Exhibit 3 at 2, 5.
On July 14, 2016, the FEMA contracting officer issued a decision terminating the
contract for default, pursuant to the Default clause at Federal Acquisition Regulation (FAR)
52.249-10 (48 CFR 52.249-10 (2014)). Exhibit 49 at 1. In the termination decision, the
contracting officer asserted that Primestar had failed to complete thirty percent of the work
required under the contract, she listed the specific alleged failures in Primestar’s work, and
she found that the failure to perform was inexcusable. She asserted that, following an earlier
cure notice, Primestar had not corrected deficiencies under the schedule that Primestar had
proposed and that, in response to a show cause notice, Primestar had not provided adequate
justification to establish that its failure to perform was due to causes beyond its control. In
addition to terminating Primestar’s right to proceed further with work under the contract, she
informed Primestar that “the required items/services will be purchased against your account,
and you will be held liable for any excess costs,” but no excess costs were assessed in the
termination decision. Id. at 4.
On October 12, 2016, Primestar filed a notice of appeal with the Board. In that notice,
Primestar disputed that it had failed to complete the required work, and it asserted that, to the
extent that any work was not performed, it “was because the work was not within the scope
of the original contract; and/or could not be done due to unforeseen and existing site
conditions.” As its requested relief, Primestar asked that the contracting officer’s wrongful
termination decision be rescinded. It also represented that “[t]he final payment due to the
contractor is $73,000 and has not been paid by the contracting officer to the contractor. The
contractor seeks release of this final payment plus all incidental expenses incurred; the total
amount is not yet fully determined.”
On November 1, 2016, FEMA filed a motion to dismiss for lack of jurisdiction that
part of the appeal requesting money. FEMA argued that the contracting officer’s decision
terminating Primestar’s contract did not cover money damages and that Primestar had not
submitted a claim conforming to the requirements of the CDA seeking payment of the
requested money.
In a complaint that Primestar subsequently filed on November 14, 2016, Primestar
reaffirmed that it was seeking money damages through this appeal, although it slightly altered
the amount being sought. Primestar alleged in its complaint that it had completed substantial

CBCA 5510 3
performance of the contract before FEMA terminated the contract for default. It asserted that
it was entitled to a final payment of $64,000, attaching to its complaint a copy of an unsigned
Standard Form (SF) 1034, Public Voucher for Purchases and Services Other Than Personal,
dated November 9, 2015, seeking payment of that amount from FEMA. Primestar also
alleged that it had subcontracted with another entity, ThyssenKrupp Elevator Corporation
(ThyssenKrupp), to perform warranty work under the contract, but that FEMA had brought
in a third-party contractor to perform that work, which Primestar alleged breached the
warranty agreement and effectively voided the warranty, entitling ThyssenKrupp to damages
of $11,000 for work performed under the voided warranty. In its request for relief in the
complaint, Primestar sought payment of $64,000 for itself and $11,000 for ThyssenKrupp
in addition to seeking rescission of the contracting officer’s termination decision:
The final [one-third] payment due to contractor Primestar Construction is
$64,000.00 . . . and to date has not been paid by the contracting officer to the
contractor. On July 16, 2016, when the Contracting Officer issued the notice
of termination, the [project] was complete and the amount was due.
Primestar Construction seeks the release of this final payment of $64,000 plus
all incidental expenses incurred; including additionally the $11,000 sought by
Thyssen Krupp[] for breach of the warranty agreement. Primestar also seeks
the rescission of the contracting officer’s wrongful termination decision.
Complaint ¶ 10.
Subsequently, on November 29, 2016, Primestar responded to FEMA’s motion for
partial dismissal. It argued that the default termination “was in response to [Primestar’s]
demand(s) for final 1/3 payment in the amount of $64,000, directed to the Contracting
Officer pre-appeal on November 9, 2015; requested on Public Voucher for Purchases and
Services Other than Personal form.” Appellant’s Response at 2. Its monetary claim, it
argued, “arises from the final decision by the contracting officer to withhold 30% of the
contract due to default,” and the termination decision “resulted in the denial of the final 1/3
payment due to Appellant.”Id. In addition, Primestar indicated that, on November 3, 2016,
it had provided the contracting officer with a claim in the amount of “$64,000 plus any
retainage and/or interest due in accordance with the contract,”id., and it provided the Board
with a copy of that claim.Id. Exhibit D. Accordingly, Primestar argued, the Board possesses
jurisdiction over its monetary request.

CBCA 5510 4
Discussion
I. Standard of Review
When considering a motion to dismiss an appeal, or a portion thereof, for lack of
subject matter jurisdiction, the Board “accepts as true the undisputed allegations in the
complaint and draws all reasonable inferences in favor of the [appellant].” McAllen
Hospitals LP v. Department of Veterans Affairs , CBCA 2774, 14-1 BCA ¶ 35,758, at
174,969. “[W]hen a question of the tribunal’s jurisdiction is raised, ‘either by a party or by
the [Board] on its own motion, the [Board] may inquire, by affidavits or otherwise, into the
facts as they exist.’”Id. (quoting Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)). The party
invoking the Board’s jurisdiction – here, Primestar – bears the burden of establishing
jurisdiction by a preponderance of the evidence. See id.
II. Jurisdiction To Entertain Primestar’s Monetary Requests
It is well-established that the Board possesses jurisdiction to entertain a timely
challenge to a contracting officer’s decision terminating a contract for default.See, e.g.,
Malone v. United States, 849 F.2d 1441, 1444-45 (Fed. Cir. 1988); Brent Packer v. Social
Security Administration, CBCA 5038, 16-1 BCA ¶ 36,260, at 176,898. There is no question
here that Primestar timely filed its appeal with the Board within ninety days of its receipt of
the FEMA contracting officer’s termination decision.See 41 U.S.C. § 7104(a) (defining time
limit for appeal). That we can consider Primestar’s timely-filed challenge to the default
termination, however, does not somehow permit us to entertain associated monetary claims
that the contractor never submitted to the contracting officer for decision.
The Board has previously identified the requirements that a contractor must satisfy if
it wishes to pursue a request for affirmative monetary relief from the Government:
Before the Board can exercise jurisdiction over a contractor’s request for
monetary damages, the contractor must have submitted a written claim to the
contracting officer for a decision. Shaw Environmental, Inc. v. Department of
Homeland Security, CBCA 2177, et al., 13 BCA ¶ 35,188, at 172,667 (2012)
(citing 41 U.S.C. §§ 7103(a), 7105(e)(1)(A)). There are three basic
requirements for a valid CDA monetary claim: “(1) the contractor must submit
the demand in writing to the contracting officer, (2) the contractor must submit
the demand as a matter of right, and (3) the demand must include a sum
certain.”H.L. Smith, Inc. v. Dalton , 49 F.3d 1563, 1565 (Fed. Cir. 1995).
“The CDA also requires that a claim indicate to the contracting officer that the
contractor is requesting a final decision,” although this request need not be

CBCA 5510 5
explicit. M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327
(Fed. Cir. 2010).
1-A Construction & Fire, LLP v. Department of Agriculture , CBCA 2693, 15-1 BCA
¶ 35,913, at 175,563, appeal dismissed, No. 15-1623 (Fed. Cir. Jan. 28, 2016).
Unless it has previously submitted a claim to the contracting officer seeking monetary
relief, a contractor cannot piggyback a request for monetary damages onto a contracting
officer’s termination decision. A default termination is a Government claim, for which the
Government bears the burden of proof. Bass Transportation Services, LLC v. Department
of Veterans Affairs , CBCA 4995, 16-1 BCA ¶ 36,464, at 177,687; Aurora, LLC v.
Department of State, CBCA 2872, 16-1 BCA ¶ 36,198, at 176,648 (2015) (citing Malone,
849 F.2d at 1443, & Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 764-65 (Fed.
Cir. 1987)). “[T]he only relief available under an appeal of a default termination is the
conversion of the default termination to one for the convenience of the Government.”
Aurora, 16-1 BCA at 176,648. There is no legal basis for allowing a contractor to take that
government claim and somehow morph it into a contractor claim, even though no contractor
claim was never previously presented to the contracting officer.Id.; see Armour of America
v. United States, 69 Fed. Cl. 587, 592 (2006) (jurisdiction to entertain challenge to default
termination did not extend to contractor’s monetary requests, where contractor had not
submitted money claims to the contracting officer for decision); Claude E. Atkins
Enterprises, Inc. v. United States, 15 Cl. Ct. 644, 646-47 (1988) (same); 1-A Construction,
15-1 BCA at 175,563-64 (same).
When the FHA filed its motion for partial dismissal on November 1, 2016, Primestar
had not submitted a claim to the contracting officer seeking a monetary payment. Contrary
to Primestar’s suggestion, its submission in November 2015 of a request for final payment
on a SF 1034 voucher did not meet the requirements of a claim. See Reflectone, Inc. v.
United States, 60 F.3d 1572, 1577 (Fed. Cir. 1995) (routine request for payment, such as an
invoice for regular payment under a contract, is not a claim); EBS/PPG Contracting v.
Department of Justice , CBCA 1295, 09-2 BCA ¶ 34,208, at 169,111-12 (claim must
expressly or implicitly request contracting officer’s decision). Further, Primestar’s assertion
that the contracting officer terminated its contract in response to its request for that final
payment does not somehow incorporate its monetary claim into the Government’s
termination claim or change the necessity that Primestar submit its own claim for the
requested monetary payment.

CBCA 5510 6
III. Primestar’s Newly Submitted Claim
In its response to FEMA’s motion for partial dismissal, Primestar indicated that it
recently submitted a claim to the contracting officer on its $64,000 final payment request.
Accompanying its response was a copy of that claim letter, dated November 3, 2016.
Primestar suggests that, because it has now submitted a monetary claim, the Board now
possesses jurisdiction to entertain its monetary requests.
As an initial matter, Primestar’s November 3, 2016, claim document only addresses
Primestar’s request for the $64,000 final payment. In its complaint, Primestar also sought
to recover an additional $11,000 upon behalf of its subcontractor, ThyssenKrupp, arising out
of an alleged breach of a warranty agreement. Because the $11,000 warranty breach claim
is not encompassed within the November 3, 2016, monetary claim, we could not consider the
request for payment of $11,000 in any appeal of a decision on the November 3, 2016, claim.
To the extent that Primestar wishes to pursue an $11,000 claim on ThyssenKrupp’s behalf,
it would have to submit that claim to the contracting officer for a decision.
In any event, any appeal relating to the November 3, 2016, claim is premature. As
discussed above, submission of a proper claim is a jurisdictional prerequisite to maintaining
a CDA appeal before the Board. 1-A Construction, 15-1 BCA at 175,563. Once a claim is
submitted, however, the contracting officer must have an opportunity to respond to it before
judicial review can commence. Under the CDA, “[a] contracting officer shall issue a
decision on any submitted claim of $100,000 or less within 60 days from the contracting
officer’s receipt of a written request from the contractor that a decision be rendered within
that period.” 41 U.S.C. § 7103(f)(1).“Until there is a decision on [the contractor’s] claim,
or the date for issuance passes, [the contractor] cannot maintain an appeal with the Board
or a suit at the Court of Federal Claims on its claim.”Hawk Contracting Group, LLC v.
Department of Veterans Affairs, CBCA 5527, slip op. at 3 (Dec. 2, 2016);see Sipco Services
& Marine Inc. v. United States , 30 Fed. Cl. 478, 484 (1994) (before contractor can
commence action on its claim, “there must be either a decision by the contracting officer or
a failure to decide within the applicable time period”). An appeal filed before there is a
contracting officer’s decision (either written or through a deemed denial after the statutory
deadline has passed) is premature, Fire Security Systems, Inc. v. General Services
Administration, GSBCA 12350, 93-3 BCA ¶ 26,047, at 129,487, and we lack jurisdiction to
entertain it. 1-A Construction, 15-1 BCA at 175,564. When an appeal is prematurely filed,
the Board should dismiss it, allowing the contractor to refile after there is a written
contracting officer’s decision or a deemed denial.Fire Security, 93-3 BCA at 129,487;The
L. Roseman Corp., GSBCA 4265, 75-1 BCA ¶ 11,107, at 52,861.

CBCA 5510 7
It is true that, assuming the contractor has actually submitted a claim to the contracting
officer, a premature appeal to the Board can ripen into maturity if the premature appeal is still
pending when the contracting officer actually issues a decision or when the contracting
officer’s deadline for issuing the decision expires.TRW, Inc., ASBCA 51172, et al., 99-2
BCA ¶ 30,407, at 150,332. In such a circumstance, “no useful purpose would be served by
dismissing the appeal as premature and requiring appellant to refile.”R.W. Electronics
Corp., ASBCA 46592, et al., 95-1 BCA ¶ 27,327, at 136,212 (1994). 1 Here, though, the
sixty-day deadline for the contracting officer’s decision hasnot passed, meaning that the
appeal here remains premature, and we currently lack jurisdiction to entertain it. “[W]here
the [tribunal] has no jurisdiction, it has no power to do anything but strike the case from its
docket, the matter beingcoram non judice.”Johns-Manville Corp. v. United States, 893 F.2d
324, 327 (Fed. Cir. 1989). Further, the notice of appeal that Primestar filed encompassed the
only claim that existed at that time: the contracting officer’s termination decision.
Jurisdiction is typically established at the time that a notice of appeal is filed, 1-A
Construction, 15-1 BCA at 175,563, so this appeal could not encompass a claim that had not
yet been submitted to the contracting officer when the appeal was filed. If and when
Primestar decides to file an appeal of the contracting officer’s decision on (or deemed denial
of) its new November 3, 2016, claim, it can file a new notice of appeal that makes clear that
it has elected to proceed before the Board in adjudicating that claim, and, if warranted, the
Board can consolidate that appeal with this appeal pursuant to Board Rule 2(d) (48 CFR
6101.2(d)).
Decision
For the foregoing reasons, the Government’s motion to dismiss the portion of
Primestar’s appeal seeking affirmative monetary relief is granted. The only matter that is
properly before us in this appeal is Primestar’s challenge to the Government’s default
1 The situation is different at the Court of Federal Claims. The Attorney General
assumes authority over a claim at the moment that it becomes the subject to a suit filed in
federal court, and the contracting officer is divested of authority to entertain it pursuant to
28 U.S.C. §§ 516-520. Accordingly, for jurisdictional purposes, a prematurely filed suit
under the CDA cannot ripen into a mature claim while it remains pending at the court.
Sharman Co. v. United States, 2 F.3d 1564, 1571-72 (Fed. Cir. 1993), overruled on other
grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995);Sipco Services, 30 Fed.
Cl. at 485. In appeals before the Board, the named agency, rather than the Department of
Justice, retains responsibility for the claim, so that the contracting officer is not similarly
divested of his or her authority to resolve it.

CBCA 5510 8
termination. Primestar’s request for affirmative monetary recovery isDISMISSED FOR
LACK OF JURISDICTION.
_______________________________
HAROLD D. LESTER, JR.
Board Judge
We concur:
____________________________ _______________________________
JERI KAYLENE SOMERS KATHLEEN J. O’ROURKE
Board Judge Board Judge