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No. 16-1ll5C

(Filed: December 8, 201 6)

(NOT TO BE PUBLISHED)

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CLIFTENA CARTER,

v.

UNITED STATES,

FILED

)

)

)

DEC - 8 2016

U.S. COURT OF

FEDERAL CLAIMS

Plaintiff, )

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Defendant. )

)

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Cliftena Carter, pro se, Fayetteville, Tennessee.

Renee A. Burbank, Trial Attomey, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With her on the briefs were

Benjamin C. Mizer, Principal Deputy Assistant Attomey General, Civil Division, Robert E.

Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation

Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

PlaintiffCliftena Carter brings suit on behalf of Carter Safety Consultants, Inc. (,,CSCI',),

the company for which she serves as president and CEO. CSCI had a contract with the United

States Army Corps of Engineers ("Corps ofEngineers" or "Corps") to perform project

scheduling support services. The total estimated cost of the contract was $619,144.40, and in

March 2013 the Corps paid CSCI $509,601.80, based on the value ofthe total work performed.

Ms. Carter alleges that CSCI is owed $109,542.60, the difference between the amount paid to

CSCI for services rendered and the service estimates provided in the contract.

Pending before the court is the govemment's motion to dismiss pursuant to Rules 41(b),

83.1(a(3), and 12(b)(6) ofthe Rules of the Court ofFederal Claims ("RCFC").

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BACKGROUND

Plaintiff is the president and CEO of CSCI, an "Economically Disadvantaged WomenOwned Small Business." Compl. at I . In 2007, the Corps of Engineers awarded a three-year

service contract to CSCI under Section 8(a) ofthe Small Business Act to provide "information

and project scheduling support." Compl. Tab 3 (Contracting Officer's Final Decision (Apr.21,

2016)) at 1; see also Compl. Tab 4(3) (Contract No. W912P8-07-D-0050).r

After the expiration ofthe original contract in September 2010, the Corps awarded CSCI

a follow-on contract for the continued provision ofthe same services. Compl. Tab 3, at 5; see

a/so Compl. Tab 4(2) (Contract No. W912P8- 10-P-0255). CSCI provided estimated costs for the

second contract, which were accepted by the Corps as estimates and incorporated into the

contract. Compl. Tab 3, at2-5; Compl. Tab 4(2), at3-4. The estimates were provided on an

hourly basis, in accord with the indefinite-delivery/indefinite-quantity nature ofthe original

contract. See, e.g., Compl. Tab 3, at 3. Inthe final conffact, the Corps of Engineers

"mistakenly" included the term "If]irm-fixed [p]rice" rather than "indefinite delivery/indefinite

quantity" or an equivalent term, and used the term "!]ump [s]um" rather than "[h]ours" for the

unit of payment for each contract line-item. Compl. Tab 3, at 5; Compl. Tab 4(2), at3.

Nonetheless, the contract incorporated by reference provisions ofthe Federal Acquisition

Regulations ('FAR') that apply to indefinite-delivery/indefinite-quantity contracts and made no

reference to regulations regarding firm-fixed-price contracts. See Compl. Tab 3, at 5-8; Compl.

Tab 4(2), at I 5- 1 6 (incorporating 48 C.F.R. g 52.216-22). CSCI was also required to submit

invoices and timesheets to the corps during the course of contract performance, a requirement

with which CSCI complied. Compl. Tab 3, at 11.

During contract performance, CSCI and the Corps issued four bilateral modifications of

the contract. compl. Tab 3, at 9-11. Each modification included updated estimated costs.

Compl. Tab 3, at 9-l l. Inthe final modification, which extended contract performance through

Mtrch27,2013, the estimated cost of contracr performance was $619,144.40. Compl. Tab 3, at

At the conclusion of contract performance, cscl submitted a final invoice to the corps

of Engineers, stating that "[c]umulative [b]illings" under the contract totaled $509,601 .90.

Compl. Tab 3, at 12, The Corps processed payment to CSCI in this amount on May 6,2013.

Compl. Tab 3, at 12; see also Compl. Tab 4(8) (Contractor's Release (May 3, 2013)). When the

Corps contacted CSCI in December 2013 to formally close out the contract, Ms. Carter (on

behalfofCSC! responded with a request for "final payment" measured by the difference

between the estimated costs in the contract and cSCI's cumulative billings, amounting to

$ 1 09,542.60. Compl. Tab 3, at 12-13. CSCI maintained this request in multiple

communications with the corps throughout 2014, but did not provide any documentation to

show that additional services had been rendered for the claimed amount. see, e.g, compl. Tab

3, at 13-16; Compl. Tab 9 (Request Againsr Contracr No. W9l2P8- l0-p-0255 For Equirable

Adjustment (Nov. 12, 2014)); Compl. Tab 10 (Request Against Contract No. W9l2pg-10-p0255 For Equ[it]able Adjustment (Aug. 11,2014)).

rAn extensive set ofexhibits filed with the complaint were designated by tabs.

a
On February 8, 2016, CSCI submitted to the Corps a request for a Contracting Officer's

Final Decision. See Compl. Tab 4 (Request for Final Payment, Contract No. W9l2P8-10-P0255 (Feb.8,2016)). In this request, CSCI asserted that it was owed the difference between the

estimated costs in the contract and the costs ultimately billed because the contract was a frrmfixed-priceilump-sum contract. Compl. Tab 3, at 16-17. The contracting officer issued her

decision on April 21,2016. Compl. Tab 3. She determined that the mere mention of "[flirm

[f]ixed [p]rice" on one page of the contract was insufficient to render it a firm-fixed-price/lumpsum contract. Compl. Tab 3, at 17. In her view, the full text ofthe contract, the course of

dealing between CSCI and the Corps, and the circumstances surrounding the contract showed

that it was an indefinite-delivery/indefinite-quantity contract. Compl. Tab 3,ar17-20. The

contracting officer concluded that the Corps was thus only obligated to pay CSCI for the services

it actually rendered and billed, regardless of the fact that the cost ofservices ultimately

performed was less than the estimated cost stated in the contract. Compl. Tab 3, at 21.

Therefore, the contracting officer denied CSCI's claim. Compl. Tab 3, at22.

Following the Contracting Officer's Final Decision, Ms. Carter filed suit in this court on

September 6, 2016.2 In her complaint, she reasserts CSCI's prior contention that the contract

with the Corps was a firm-fixed-price/lump-sum contract and thus that the company is owed the

difference between the cost of services rendered and the estimated cost stated in the contract.

See generally Compl.

ANALYSIS

RCFC 83.1(a)(3) states that "[a]n individual who is not an attorney may represent oneself

or a member of one's immediate family, but may not represent a corporation, an entity, or any

other person in any proceeding before this court." Thus, apro se plaintiff cannot represent a

corporation; a corporation must be represented by an attomey to proceed in this court. This,,has

been the law [of the federal courts] for the better part of two centuries ." Rowland v. California

Men's Colony, Unit II Men's Advisory Council,506 U.S. 194,201-02 (1993) (citing Osbornv.

Bank o/ United States,22U.S. (9 Wheat.) 738,829 (1824). And.,[t]he court is not free to

waive this rule, even in cases ofsevere financial hardship." Talasila, Inc. v. Ilnited states,240

F.3d 1064, 1066 (Fed. Cir. 2001) (intemal quotation marks and citations omitted); see also

schickler v. united states,54 Fed. cl. 264,267-68 (2002) ("There are no exceprions to rhis clear

and unqualified rule.") (quoting Talasila,240 F .3d at 1067), appeal dismissed, T0 Fed. Appx.

584 (Fed. Cir.2003). Ifa corporation does not obtain counsel, "the ordinary remedy is to

dismiss [the] complaint for lack of prose cution." Balbach v. united states, 1 19 Fed. cl. 681 , 683

2On April 20,2016, the day before the issuance of the Contracting Officer,s Final

Decision, Ms. carter submined a letter to Senator Bob corker requesting assistance with her

complaints against the corps. see compl. Tab 2 (Letter from cliftena carter to Sen. Bob corker

(Apr. 20, 2016)). This letter was forwarded to the corps of Engineers on Ms. carter's behalf. A

representative of the corps responded to senator corker's office on June 2,2016, explaining that

CSCI had been paid $509,601.80 for services rendered and that the company was not entitled to

additional payments based solely on the estimated costs in the contract. compl. Tab 1 (Letter

from Laura J. Eichhom, Principal Assistant Responsible for Contracting - Atlanta, U.S. Army

Corps of Engineers to Sen. Bob Corker (June 2, 2016)).
(2015) (citing Alli v. United States, 93 Fed. Cl. 172, 177 (2010), appeal dismissed, 447 Fed.

Appx. 223 (Fed. Cir. 201 1)).

Although Ms. Carter is listed as the plaintiff in this case, the real plaintiff-in-interest is

CSCI. This suit was filed to recover payments allegedly owed to CSCI based on a contract

between the Corps of Engineers and CSCI. Ms, Carter is not a party to this contract in hel

individual capacity, see Compl. Tab a(2), at 1, so she cannot sue the government on the contract

as an individual. See Erickson Air Crane Co. v. United States,73l F 2d 810,813 (Fed. Cir.

1984) ("The govemment consents to be sued only by those with whom it has privity of

contract.") (citing united States v. Johnson Controls, lnc.,713 F.2d 1541, i550-52 (Fed. Cir.

1983)). Ms. Carter also is not an attomey, and therefore cannot represent CSCI pursuant to

RCFC 83. 1(aX3), even though she is the president and CEO of the corporation. See Balbach,

119 Fed. Cl. at 683 (dismissing apro se suit brought by the owner-operator ofa corporation

regarding a contract between the corporation and the federal govemment); Affourtit v. United

States,79 Fed. Cl. 776, 779-80 (2008) (same). Consequently, without a notice of appearance

filed in this case by an attomey admitted to practice before this court, plaintiff s complaint must

be dismissed for lack of prosecution pursuant to RCFC 41(b). See Ogunniyi v. United States,

124 Fed. Cl. 525, 530 (2015) ("To the extent that [plaintiffs] complaint is a veiled attempt to

allow him to argue on behalfof [his company] and seek essentially a second appeal or review of

the contracting officer's decision against [the company] under RCFC 83.1(a)(3), absent a notice

of appearance filed by an attomey admitted to this court, -plaintiff s complaint must be

dismissed."), alf'd,655 Fed. Appx. 842 (Fed. Cir.2016).r

CONCLUSION

For the reasons stated, the govemment's motion to dismiss Ms. Carter's complaint rs

GRANTED. The clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

Charles F. Lettow

Judge

3Additionally, on November 21,2016, the court issued an order to show cause why the

case ought not to be dismissed because plaintiffhad neither paid the filing fee nor frled a motion

to proceed inJbrma pauperis. Plaintiffdid not respond to this order and has failed to pay the

filing fee. Thus, the complaint is also dismissed on this basis pursuant to RCFC 4l (b) and

77 .l(c\.