In the United States Court of Federal Claims

No. 17-335C (Filed: September 19, 2017)

VANQUISH WORLDWIDE, LLC,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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Keywords: Contract Disputes Act; 

Subject Matter Jurisdiction; 

Submission of a Claim.

Michael D. Maloney, Williams Mullen, Tysons, VA, with whom were William A 

Wozniak, Williams Mullen, and Todd W. Miller, Law Office of Todd W. Miller, Golden, 

CO, for Plaintiff.

James W. Poirier, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, with whom were Franklin E. White, Jr., Assistant Director, Robert 

E. Kirschman, Jr., Director, and Chad A. Readler, Acting Assistant Attorney General, for 

Defendant.

OPINION AND ORDER

KAPLAN, Judge.

Plaintiff Vanquish Worldwide, LLC (Vanquish) held a contract with the United 

States Transportation Command (TransCom) to provide shipping and logistics services 

for the U.S. Army in Afghanistan. It alleges that it received a performance evaluation in 

connection with its work under the contract that was arbitrary, capricious, and 

unsupported by the facts. It therefore seeks a declaratory judgment vacating the 

performance evaluation and remanding the matter back to the agency.

The government has moved to dismiss Vanquish’s complaint for lack of subject 

matter jurisdiction, claiming that Vanquish failed to submit a claim to the contracting 

officer for a final decision before filing suit in this court, as is required by the Contract 

Disputes Act (CDA), 41 U.S.C. §§ 7101–09. As discussed below, the Court agrees with 

the government that Vanquish’s continuing correspondence with the agency about the 

evaluation never ripened into a claim. Accordingly, the government’s motion is 

GRANTED, and Vanquish’s complaint is dismissed without prejudice.
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BACKGROUND

I. Vanquish’s Contract and the Performance Evaluation

As noted, between December 2014 and December 2015, Vanquish held a contract 

with TransCom to provide trucking services to the U.S. Army in Afghanistan. Compl. 

¶ 1, ECF No. 1. TransCom terminated the contract for cause on January 22, 2016, after 

Vanquish failed to deliver the last twelve shipments under the contract. See id. ¶ 6.

According to Vanquish, the shipments were not delivered because they were hijacked. 

See id. ¶ 4. The government eventually recovered the missing cargo in March 2016. See

id. ¶ 9.

On January 29, 2016, the contracting officer (CO) entered a performance 

evaluation into the government-wide Contractor Performance Assessment Reporting 

System (CPARS). Id. ¶ 58; see also id. Ex. B, ECF No. 1-1. Based on the loss of the 

twelve shipments, the CO assigned Vanquish a rating of “Marginal” for both the 

“Quality” and “Management” evaluation factors. Compl. ¶¶ 58–59. 

On February 26, 2016, Vanquish submitted detailed comments on the evaluation

via CPARS. Id. ¶ 67; see also id. Ex. B. at 61–65.

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It strongly disagreed with the CO’s 

evaluation and, in particular, with his characterization of the twelve shipments as “lost” 

rather than stolen. See Compl. ¶ 67. In its comments, Vanquish also stated its belief that 

the CPARS evaluation should be “removed” and “request[ed] [that] all [its] evaluation 

area assessment ratings be raised to a ‘Satisfactory’ with all incorrect and misleading 

comments removed prior to the approval by the Reviewing Official.” Id. Ex. B. at 65. 

Vanquish, however, inadvertently selected the “I concur with this evaluation” option at 

the conclusion of the comment submission process. See Compl. ¶ 68; id. Ex. B. at 65.

On March 3, 2016, Vanquish’s Executive Vice President, Greg Guiney, sent an 

email to the CO informing him that Vanquish had selected the “I concur with this 

evaluation” option by mistake when it submitted its evaluation comments. Pl.’s Opp’n to 

Def.’s Mot. to Dismiss the Compl. (Pl.’s Mot.) Ex. A at 2–3, ECF No. 18-1. Mr. Guiney 

stated that Vanquish “need[ed] the ability to correct” the mistake and asked if the CO was 

“able to assist or what your recommendation is to proceed.” Id.

A few weeks later, on March 16, 2016, Vanquish’s outside counsel, Charles Lucy, 

sent an email to TransCom’s counsel, John Harryman. Pl.’s Mot. Ex. C at 5, ECF No. 18-

3. Mr. Lucy also copied the CO on the email. Id. The bulk of the email concerned 

demands for reprocurement costs that the CO had submitted to Vanquish following the 

contract’s termination. See id. Mr. Lucy also noted, however, that Vanquish believed its 

CPARS rating was “unjustified” and that it “should be rescinded.” Id. He closed the 

 

1 References to pagination in Vanquish’s exhibits are to the ECF pagination located in the 

upper right-hand corner of the page.
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email by stating that Mr. Harryman’s “favorable consideration of the issues raised in this 

email is appreciated.” Id.

The next day, March 17, 2016, the CO replied to Mr. Guiney’s March 3, 2016 

email. Pl.’s Mot. Ex. A at 2. He informed Mr. Guiney that he was “unable to send the 

CPAR[] back to [Vanquish] for further comment,” but that he would “provide 

[Vanquish’s] concerns to the Reviewing Official.” Id.

Several days later, on March 21, 2016, the reviewing official, Lt. Col. Jarrett 

Moffitt, finalized the CPARS evaluation. Compl. Ex. B at 66–67. Lt. Col. Moffitt 

concurred with the “Marginal” ratings assigned by the CO and rejected Vanquish’s 

explanations for the disappearance of the twelve shipments. Id. at 66. In particular, he 

observed that Vanquish’s claim that the shipments were hijacked was “inaccurate” and 

that “[t]he Government, on its own accord, was able to recover the cargo after Vanquish 

declared it was a loss.” Id. Lt. Col. Moffitt also stated that an “investigation revealed 

[that] the incident was caused by a contractor-subcontractor payment dispute.” Id.

Lt. Col. Moffitt also noted that Vanquish had “request[ed] to change [its] 

concurrence from CONCUR to NON-CONCUR” and stated that “[a]lthough 

TRANSCOM was unable to re-open the CPAR for further editing,” Lt. Col. Moffitt had 

applied the “CPARS business rules for contractor NON-CONCURRENCE.” Id. at 65. 

The following day, March 22, 2016, Mr. Lucy sent another email to TransCom’s 

counsel. Pl.’s Mot. Ex. C at 3. He copied both the CO and Mr. Guiney on the email. Id.

Mr. Lucy asserted that Lt. Col. Moffitt had changed the “underlying rationale” behind 

Vanquish’s Marginal ratings and that this “should have triggered an additional 

opportunity for Vanquish to respond to the CPARS evaluation.” Id. Further, Mr. Lucy 

opined that Vanquish “should have been allowed to review” the government’s 

investigation of the incident and to “comment on its findings.” Id. Mr. Lucy thus 

requested that Vanquish be allowed to “review the documents and investigation 

surrounding the . . . recovery of the 12 shipments[] so that [Vanquish] can submit its 

response,” and stated that “the CPARS review and rating should be rescinded or 

suspended until Vanquish’[s] supplemental response can be considered.” Id.

TransCom’s counsel responded on March 24, 2016. Id. at 2. He informed Mr. 

Lucy that although the investigation had not been completely finalized, “the interviews

and fact gathering” were complete. Id. Further, and in any event, TransCom’s counsel 

lacked “the authority to release the investigation” to Vanquish. Id. He did not mention 

Mr. Lucy’s request to rescind or suspend the CPARS evaluation other than to say that his 

“assessment [wa]s that all of the comments in the CPAR were based largely on 

communications made by” Vanquish in performing the contract. Id.
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II. This Action

Vanquish filed its complaint on March 10, 2017.2 ECF No. 1. It alleges that the 

CPARS evaluation is “unreasonable, unfair, inaccurate, arbitrary, capricious, inconsistent 

with FAR 42.15, inconsistent with the terms of the Contract, and an abuse of the 

Contracting Officer’s discretion.” Id. ¶ 12. It seeks a declaratory judgment vacating the 

evaluation and remanding the matter to TransCom to perform a new evaluation. Id. at 29–

30.

On May 22, 2017, the government moved to dismiss the complaint for lack of 

subject matter jurisdiction, contending that Vanquish failed to submit a claim to the CO 

before filing suit in this Court as required by the CDA. ECF No. 17. Vanquish filed a 

response on June 22, 2017. ECF No. 18.

DISCUSSION

I. Standards for Motions to Dismiss Under Rule 12(b)(1) of the Rules of the 

Court of Federal Claims

Whether this Court has subject-matter jurisdiction is a threshold matter, and, if no 

jurisdiction exists, the Court must order dismissal without proceeding further. See PODS, 

Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007) (citing Steel Co. v. Citizens 

for a Better Env’t, 523 U.S. 83, 94–95 (1998)). In deciding a motion to dismiss for lack 

of subject matter jurisdiction, the court accepts as true all undisputed facts in the 

plaintiff’s complaint and draws all reasonable inferences in favor of the plaintiff. Trusted 

Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). If subject matter 

jurisdiction is challenged, however, the plaintiff cannot rely merely on allegations in the 

complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. 

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The 

party invoking a court’s jurisdiction bears the burden of establishing it, and must 

ultimately do so by a preponderance of the evidence. Id.; see also Rocovich v. United 

States, 933 F.2d 991, 993 (Fed. Cir. 1991). 

II. The Court’s Jurisdiction Over CDA Claims

A. The Tucker Act

Pursuant to the Tucker Act, the United States Court of Federal Claims may 

“render judgment upon any claim against the United States founded . . . upon any express 

or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (2012). Subsection 

(a)(2) of section 1491 further grants the Court of Federal Claims “jurisdiction to render 

judgment upon any claim by or against, or dispute with, a contractor arising under section 

 

2 Vanquish has also filed another action in this Court arising out of the same contract, in 

which it contests the government’s termination of the contract for cause. See Compl., 

Vanquish Worldwide, LLC v. United States, No. 17-96 (Fed. Cl. Jan. 23, 2017), ECF 

No. 1.
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7104(b)(1) of title 41”—that is, the CDA—“including a dispute concerning termination 

of a contract, rights in tangible or intangible property, compliance with cost accounting 

standards, and other nonmonetary disputes on which a decision of the contracting officer 

has been issued under section 6 of that Act.” Id. § 1491(a)(2).

B. The Contract Disputes Act

The CDA covers all claims based upon “any express or implied contract . . . made 

by an executive agency for—(1) the procurement of property, other than real property in 

being; (2) the procurement of services; (3) the procurement of construction, alteration, 

repair, or maintenance of real property; or (4) the disposal of personal property.” 41 

U.S.C. § 7102(a) (2012). Under the CDA, “procurement” means “the acquisition by 

purchase, lease or barter, of property or services for the direct benefit or use of the 

Federal Government.” New Era Constr. v. United States, 890 F.2d 1152, 1157 (Fed. Cir. 

1989) (quotation and emphasis omitted). 

The CDA sets forth its own jurisdictional requirements. See M. Maropakis 

Carpentry, Inc. v. United States, 609 F.3d 1323, 1327–28 (Fed. Cir. 2010); Dalton v. 

Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995) (“When the [CDA] 

applies, it provides the exclusive mechanism for dispute resolution; [it] was not designed 

to serve as an alternative administrative remedy, available at the contractor’s option.”). In 

particular, the CDA states that a contractor may bring an action de novo in federal court 

“within 12 months from the date of receipt of a contracting officer’s decision.” 41 U.S.C. 

§ 7104(b)(3)–(4). Thus, for the Court of Federal Claims to possess jurisdiction, the 

contractor must first submit a valid claim to the contracting officer and receive the 

contracting officer’s final decision on that claim.3 M. Maropakis Carpentry, 609 F.3d at 

1327–28.

The definition of “claim” for purposes of the CDA derives from the FAR, which 

implements the CDA. See id. at 1327. And FAR 2.101 provides, in pertinent part, that the 

term “claim” means “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.” Id.; see also FAR 52.233-1 (setting forth, in a standard contract clause, the 

same definition of “claim”). 

In interpreting the CDA, the Federal Circuit has explained that “a valid claim 

under the CDA must contain ‘a clear and unequivocal statement that gives the contracting 

officer adequate notice of the basis and amount of the claim,’” but that it “need not take 

any particular form or use any particular wording.” Northrop Grumman Computing Sys., 

Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (quoting Contract Cleaning 

Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)); see also Reflectone, 

Inc. v. Dalton, 60 F.3d 1572, 1575–76 (Fed. Cir. 1995). Instead, “[a]ll that is required is 

 

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If the CO does not respond to the claim, it is deemed denied sixty days after submission. 

See 41 U.S.C. § 7103(f)(1)–(2), (5).
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that the contractor submit in writing to the contracting officer a clear and unequivocal 

statement that gives the contracting officer adequate notice of the basis and amount of the 

claim.” Northrop Grumman Computing Sys., 709 F.3d at 1112 (quoting Contract 

Cleaning Maint., 811 F.2d at 592).

Further, “[b]esides meeting the FAR definition of a claim, the CDA also requires 

that all claims be submitted to the contracting officer for a decision.” James M. Ellett 

Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996); see also M. Maropakis 

Carpentry, 609 F.3d at 1327–28. The contractor is not required to make a single, “explicit 

request for a final decision.” James M. Ellett Constr., 93 F.3d at 1543. Rather, “as long as 

what the contractor desires by its submissions is a final decision, that prong of the CDA 

claim test is met.” Id. (quoting Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works 

v. United States, 973 F.2d 1572, 1576 (Fed. Cir. 1992), overruled on other grounds by

Reflectone, Inc., 60 F.3d at 1582–83).

III. Application to This Case

The Court concludes that Vanquish has not met the CDA’s jurisdictional 

requirements. It so concludes because the correspondence between Vanquish and the 

agency, read as a whole, reflects a continuing dialogue about Vanquish’s performance 

rating that never ripened into a request for a final decision.

Thus, Vanquish responded to the agency’s proposed (draft) evaluation by entering 

detailed comments into CPARS. A few weeks later, while the review process was 

ongoing, Mr. Lucy sent a March 16, 2016 email to agency counsel (with a copy to the 

CO) which included an extended discussion of the government’s demands for 

reprocurement costs, and also referred in passing to Vanquish’s belief that its CPARS 

rating was “unjustified” and that it “should be rescinded.” See Pl.’s Mot. Ex. C at 5. Next, 

on March 22, 2016, the day after the reviewing official finalized the ratings, Mr. Lucy

sent the agency’s counsel an email that was focused on what he called a “rush to 

judgment,” which he claimed had denied Vanquish a fair opportunity to provide input 

into its rating. See id. at 3. In that email, Mr. Lucy asserted that the reviewing official had 

based his decision on a rationale that was different from the one that had been the basis of

the proposed rating. Id. (observing that that “the underlying rationale for the poor CPARS 

rating, i.e., missing shipments, is no longer valid, forcing the reviewing official to come 

up with a whole new rationale, i.e, [sic] Vanquish did not try hard enough to recover the 

shipments”). He argued that “[t]his should have triggered an additional opportunity for 

Vanquish to respond to the CPARS evaluation, but none has been offered.” Id.

When raising these concerns about the fairness of the process in his March 22, 

2016 email, however, Mr. Lucy did not demand that the marginal rating be permanently 

withdrawn. Instead, he “reiterate[d] [Vanquish’s] request to review the documents and 

investigation surrounding the mysterious recovery of the 12 shipments, so that it can 

submit its response to the new information considered by the reviewing official, Lt Col 

Moffitt.” Id. He then requested only a temporary reprieve while an “additional review 

process is underway,” stating that “the CPARS review and rating should be rescinded or 

suspended until Vanquish’[s] supplemental response can be considered.” See id.
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In short, Mr. Lucy’s emails did not reflect that Vanquish was requesting a final 

decision from the CO or that it was demanding a permanent withdrawal of the 

performance rating. Instead, the emails appeared to be focused on flaws in the process, 

with the purpose of giving Vanquish another opportunity to review additional material 

and make additional comments that it hoped would change the rating decision. The 

agency therefore would not have had notice, based on Mr. Lucy’s emails, that Vanquish 

was asserting an entitlement to the permanent withdrawal of the rating as a matter of 

right.

Vanquish’s reliance on this Court’s decision in Federal Contracting, Inc. v. United 

States (FCI), 128 Fed. Cl. 788 (2016) for a contrary conclusion is misplaced. In that case, 

the contractor sent multiple letters to the CO after it received its interim rating, one of 

which “formally request[ed]” the withdrawal of the performance assessment. Id. at 791 

(alteration in original). Unlike Mr. Lucy’s email, which clearly contemplated further

dialogue between Vanquish and the agency, the letters in FCI were unequivocal and

presented a demand for relief as a matter of right. See id. at 797. Indeed, the agency so 

read them, and notified the contractor in a show cause order that its requests were denied, 

after which it formally entered a final rating into CPARS a week later. See id. at 791–92. 

On the particular facts of FCI, requiring the contractor to make another demand for relief 

after the agency formally designated the performance rating “final” would have been a 

redundancy.

CONCLUSION

For the reasons discussed above, the Court concludes that Vanquish did not 

submit a valid claim to the CO for a final decision as required by the CDA. The Court 

therefore lacks jurisdiction over Vanquish’s claim. Accordingly, the government’s 

motion to dismiss is GRANTED, and Vanquish’s complaint is DISMISSED without 

prejudice. The Clerk is directed to enter judgment accordingly. Each side shall bear its 

own costs.

IT IS SO ORDERED.

s/ Elaine D. Kaplan 

ELAINE D. KAPLAN

Judge