## United **States Court**  **of Federal**  **Claims**

No. 14

- 1121 C (Filed June 9 , 2015)

STATE CORPS, Plaintiff,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) )

OPINION

On November 18, 2014, plaintiff filed a complaint in this court seeking: (1) a declaration that the United States Army Corps of Engineers improperly terminated a contract for construction of logistics facilities in Qatar for default; (2) conversion

of the default termination to a termination for convenience; and (3) compensation for the damages that plaintiff incurred as a result of the improper termination

decision. See Doc. 1 at 1.

The government moved to stay the proceedings and for dismissal of pla intiff’s damages claim for lack of jurisdiction. See Doc. 8. On April 30, 2015, the court requested additional briefing in support of the government’s motion to stay, see Doc.

13 , and in response, the government moved to withdraw the motion, see Doc. 14

. Because the plaintiff did not file a response by the June 5, 2015 deadline , the court assumes it has no objection, and the motion to withdraw is hereby GRANTED

.

The government’s partial motion to dismiss, then, is before the court. The

government co ncedes that the court has jurisdiction over plaintiff’s claim that the

termination for default should be converted to a termination for convenience. See Docs. 8 at 16; 12 at 2

. I t argues , however, that the court lacks jurisdiction over plaintiff’s claim for monetary relief on the basis that plaintiff failed to submit a valid claim to the contracting officer prior to filing the instant lawsuit. See Doc. 8 at 13.

ANALYSIS

Plaintiff bears the burden to demonstrate, by a preponderance of the evidence, that the court has jurisdiction to hear its case

. M

. Maropakis Carpentry, Inc. v.United States , 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988))

. “In determining jurisdiction, a court must accept as true all undisputed facts asserted in the plaintiff’ s complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integr ation, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). But if the court lacks subject matter jurisdiction,

it must dismiss the case. See Rebish v. United States

, 120 Fed. Cl. 184, 187 (2015) (citing Arbaugh v. Y & H Corp. , 546 U.S. 500, 514 (2006); Steel Co. v. Citizens for

a Better Env’t , 523 U.S. 83, 94

- 95 (1998)).

Pursuant to 28 U.S.C. § 1491(a) (1) , the Court of F ederal Claims has jurisdiction “to render judgment upon a ny claim against the United States founded

. . . upon any express or implied contract with the United States . . . .” The court specifically has jurisdiction “ to render judgment upon any claim by or against, or dispute with, a contractor arising unde r se ction 7104(b)(1) of title 41 . . . .” 28 U.S.C. § 1491(a)(2).

Section 7104(b)(1) provides for de novo proceedings by this court following a contracting officer’s final decision to deny relief based on a written claim against the government made under section 7103

. See 41 U.S.C. § 7104(b)(1). Section 7103, in turn, requires that claims by contractors against the government be made to the contracting officer, in writing, within six years of the claim’s accrual. See 41 U.S.C. § 7103(a). The Federal Ci rcuit has held that jurisdiction “requires both a valid claim and a contracting officer’s final decision on that claim.” Maropakis, 609

F.3d at 1327 (citing James M. Ellett Constr. Co. v. United States, 93 F.3d 1537,

1541

– 42 (Fed.Cir.1996) )

.

Plaintiff argues that the allegations in this case fall within these jurisdictional limits because it submitted a claim under section 7103, in the form of its letter dated July 6, 2014, see Doc. 8

- 1

, to which the government responded on October 31, 2014,

s ee Doc. 1, Ex. C

. The government counters that plaintiff has failed to satisfy the requirements of sections 7103 and 7104 because its July 6 letter did not technically

constitute a clai m. See Doc. 8 at 13

- 15

.

The term “claim,” as used in sections 7103 and 7104, is not defined in title 41, but courts look to the Federal Acquisition Regulation (“FAR”) for its meaning.
See Todd Constr., L.P. v. United States , 656 F.3d 1306, 1311 (Fed. Cir. 2011) (citing

H.L. Smith , Inc. v. Dalton , 49 F.3d 1563, 1564

- 65 (Fed. Cir. 1995)). The FAR

defines “claim” as:

2a 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 interpr etation of contract terms, or other relief arising under or relating to the contract.

FAR § 2.101. Here, the parties agree that a valid claim must:

(1) be a written demand or assertion; (2) be non

- routine, or in dispute; (3) seek payment as a matte r of right; (4) seek payment as a sum certain; (5) “indicate to the contracting officer that the contractor is requesting a final decision;” and (6) be certified if seeking more than $100,000.

Doc. 8 at 12

- 13 (government’s motion to dismiss, compiling requirements from statutory, regulatory and Federal Circuit authority, including, 41 U.S.C. § 7103(b)(1); FAR § 2.101; Reflectone, Inc. v. Dalton , 60 F.3d 1572, 1576

- 83 (Fed. Cir. 1995); M. Maropak is Carpentry, Inc. v. United States , 609 F.3d 1323, 1327 (Fed. Cir. 2010); James M. Ellett Constr. Co. v. United States , 93 F.3d 1 537, 1543 n.4 (Fed. Cir. 1996); and Fischback & Moore Int’l Corp. v. Christopher

, 987 F.2d 759, 762 (Fed. Cir. 1993)). See al so Doc. 11 at 7 (plaintiff’s response to the government’s motion to dismiss, agreeing with the government’s listed requirements for a valid claim).

Plaintiff argue s that its July 6 letter complies with each of these requirements.

See Doc. 11 at 7

. The government argues that the letter is not a valid claim because

it fails to seek a sum certain. See Doc. 8 at 13

- 15.

As the plaintiff points out, the July 6 letter does include specific dollar figures. On the first page , the letter states that plaint iff seeks “no less than $1,497,466.80.”

See Doc. 8

- 1 at 2. On the last page

, the letter states that plaintiff seeks “ [ a ] t a minimum . . . the total value of its invoices, $1,295,106.” See id. at 13. The problem for plaintiff is that, in addition the fact t hat these bottom

- line figures change significantly over the course of twelve pages, the letter also includes a raft of qualifying language that makes its demand far less than a sum certain. Se e Donovan Const., Inc. v. Mabus , 469 Fed. Appx. 903, 908 (Fed. Cir. Mar. 27, 2012) ( holding that qualifying language in a claim as to the sum sought, without adequate supporting documentation, defeats this court’s jurisdiction ).

3T he letter explicitly st ates, for example, that “the amounts provided are not final, as they remain uncertain,” that plaintiff “is not currently able to fully quantify the amounts it seeks,” and notes that the costs it wants to recover “include, but are not limited to” a long lis t of additional items. See id. at 2. While it is true that the sum certain requirement will not be strictly construed if the amount of the claim can be determined “by a simple mathematical calculation,” Modeer v. United States , 68 Fed. Cl. 131, 137 (2005 ), here, plaintiff does not even commit to the categories of damages it seeks.

Plaintiff’s July 6 letter cannot be fairly read to give “the contracting officer adequate notice of the basis and amount of the claim.” Contract Cleaning Maint.,

Inc. v. U nited States, 811 F.2d 586, 592 (Fed. Cir. 19 8 7). As such, plaintiff has failed to make a valid claim to the contracting officer, and this court lacks jurisdiction to review its claim for monetary relief.

Plaintiff asks that

, if the court rules in favor of the government

, it dismiss the claim for monetary relief without prejudice so that it may pursue another claim with the contracting officer. See Doc. 11 at 11. Because the court lacks jurisdiction to consider the claim, it s dismissal is not on the merits

, and therefore

, by legal operation, is without prejudic e. See Scott Aviation v. United States , 953 F.2d 1377, 1378 (1992) (noting that when the court lacks jurisdiction, it lacks the authority to dismiss a complaint with p rejudice).

CONCLUSION

The government’s motion to dismiss plaintiff’s claim for monetary damages is hereby GRANTED . The case remains pending, however, so that the court may consider plaintiff’s claim for conversion from a termination for default to

termination for convenience.

The government shall answer the remaining allegations on or before June 26,

2015.

SO ORDERED.

s/ James F. Merow

James F. Merow Senior Judge

45