In the United States Court of Federal Claims

No. 16-215C

Filed: September 28, 2016

FEDERAL CONTRACTING, INC.,

d/b/a BRYAN CONSTRUCTION, INC.,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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Keywords: Contract Disputes Act; 

Breach of Contract; Performance 

Bond; Sum Certain; Performance 

Evaluation; Termination for Cause; 

Termination for Convenience.

 

 

J. Taylor Benson, Benson Law Office, Colorado Springs, CO, for Plaintiff.

Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division, with 

whom were Claudia Burke, Assistant Director, Robert E. Kirschman, Jr., Director, and 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, U.S. Department of 

Justice, Washington, DC, for Defendant. Pietro Mistretta, Attorney, Office of Counsel, 

U.S. Army Corps of Engineers, Winchester, VA, Of Counsel.

OPINION AND ORDER

KAPLAN, Judge.

Currently before the Court in this contract case are the government’s motion to 

partially dismiss the complaint of Plaintiff Federal Contracting, Inc. d/b/a Bryan 

Construction, Inc. (FCI) and FCI’s cross-motion for a default judgment as to Count III of 

its complaint. The government’s motion seeks dismissal of Counts I, II, and IV of the 

complaint pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC). 

FCI seeks a default judgment against the government as to Count III of its complaint.

As discussed below, the Court agrees with the government that it lacks 

jurisdiction over Counts I and II of FCI’s complaint seeking monetary damages for 

breach of contract, because FCI failed to submit valid claims alleging to the contracting 

officer (CO) under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–09. However, 

the Court rejects the government’s jurisdictional objections to Count IV of FCI’s 

complaint. In that Count, FCI challenges and seeks an order directing the government to 

withdraw an unsatisfactory evaluation of FCI’s performance on the contract. Contrary to 
2

the government’s argument, the Court concludes that FCI did submit that claim to the CO 

as required by the CDA and received a final decision from the CO as to that claim. 

Accordingly, the government’s motion to dismiss is GRANTED-IN-PART and 

DENIED-IN-PART. In addition, for the reasons discussed below, FCI’s cross-motion

for default judgment is DENIED. 

BACKGROUND1

I. The Contract 

On January 23, 2015, the United States Army Corps of Engineers (USACE) 

awarded FCI a contract for the construction of a medical warehouse on the premises of 

Al Udeid Air Base, Qatar (Al Udeid). Compl. ¶ 5, ECF No. 1. The contract was a firm 

fixed-price contract in the amount of $4,899,425. Id. FCI was to complete the building by 

January 28, 2016. See id. ¶ 6.

On March 19, 2015, USACE sent FCI a Letter of Concern regarding the 

timeliness of several mandatory pre-construction submissions.2 Compl. ¶ 13; Def.’s Mot. 

to Dismiss (Def.’s Mot) App. at A1, ECF No. 10-1. The agency expressed its concern 

that FCI’s “fail[ure] to provide [the] required submittals . . . put[] the project at risk.” Id.

On May 5, 2015, USACE sent FCI a Notice of Intent to Issue [an] Interim Unsatisfactory 

Performance Appraisal, stating that “the contract continues to fall behind schedule” and 

that there were “no indication[s] that [FCI] is making sufficient progress in recovering 

lost time.” Id. at A5; see also Compl. ¶ 16. 

On April 28, 2015, FCI invoiced USACE for a progress payment in the amount of 

$33,997.00. See Compl. ¶ 53. The progress payment was to reimburse FCI for the cost of 

performance and payment bonds it obtained in February 2015. Id. at 52–53. FCI then 

responded to USACE’s Letter of Concern on May 8, 2015, arguing that USACE had not 

“accurately represent[ed] [its] performance on the project” because it “identifie[d] old 

issues that have since been overcome.” Def.’s Mot. App. at A11. FCI also contended that 

the notice “appeare[d] to be written in a vindictive manner.” Id.

On May 14, 2015, USACE issued an Interim Unsatisfactory Performance 

Appraisal identifying six major unresolved performance issues. Id. at A12–13; see also

Compl. ¶¶ 16–17. Two weeks later, on May 28, 2015, the agency followed up with a

Cure Notice, which stated that USACE considered FCI’s “failure to progress 

 

1 The facts in this section are based on the documents attached to the parties’ briefs as 

well as the allegations in Plaintiff’s complaint, which the Court assumes to be true for 

purposes of deciding the motion to dismiss.

2 USACE considered Al Udeid a “special work environment” presenting certain logistical 

difficulties, including issues related to obtaining base access badges for the contractor’s 

personnel and construction permits from the Qatari government. See Def.’s Mot. App. at 

A9. 
3

satisfactorily as a refusal to prosecute the work with the diligence that will ensure its 

completion within the time specified in the contract.” Def.’s Mot. App. at A16; see also

Compl. ¶ 20. The agency noted that FCI had not “sufficiently demonstrated its plan to 

perform 20% of the construction, as required by the contract” or “completed any 

mobilization or any physical work at the site.” Def.’s Mot. App. at A17. As a result, 

USACE warned FCI that it “m[ight] terminate this contract for default” if FCI failed to

cure the deficiencies within ten days. Id. at A16.

FCI responded to the Interim Unsatisfactory Performance Appraisal and the Cure 

Notice on June 8, 2015. Id. at A19–38; see also Compl. ¶ 23. It claimed that “the basis for 

the Cure Notice [was] factually incorrect,” and argued that it was attempting in good faith 

to perform and that the performance delays were justified by circumstances beyond its 

control. See Def.’s Mot. App. at A20–22. It also contended that it still had adequate time 

to meet the contract’s completion date. Id. at A30, A33, A38. FCI also noted that it 

“strongly disagree[d]” with the interim performance evaluation and “formally 

request[ed]” its withdrawal. Id. at A35, A38. On June 29, 2015, FCI again requested that 

the interim unsatisfactory evaluation be withdrawn, arguing that it contained inaccuracies 

and inconsistencies and that USACE did not adhere to the proper evaluation methodology 

or best practices guidelines. Id. at A49–50.

On July 6, 2015, USACE issued a Show Cause Notice stating that it was 

considering terminating FCI’s contract for default. Id. at A51; see also Compl. ¶ 29. The 

agency gave FCI ten days to present mitigating circumstances demonstrating that its 

failure to perform arose out of causes beyond its control and without FCI’s fault or 

negligence. Def’s Mot. App. at A51.

The show cause notice also stated that FCI’s request for withdrawal of the interim 

unsatisfactory CPARS evaluation was denied. Id. at 55. On July 13, 2015, the agency 

finalized FCI’s unsatisfactory performance evaluation. See Pl.’s Opp’n to Def.’s Mot. to 

Partially Dismiss Compl. (Pl.’s Opp’n) App. at A248–52, ECF No. 11-2. The final 

performance evaluation included comments from FCI, in which it expressed its 

disagreement with the evaluation and “request[ed] that it be reevaluated.” Id. at A250–52.

FCI responded to the Show Cause Notice on July 23, stating its belief that 

USACE “ha[d] no intention of cooperating with [FCI],” and that USACE had breached

the contract by failing in its “duty not to hinder, delay, or increase the cost of 

performance via its unreasonable exercise of discretion.” Def.’s Mot. App. at A58–59. 

FCI also requested that the contract be terminated for convenience. Id. at A59.

On July 30, 2015, USACE notified FCI that it had not processed FCI’s invoices 

requesting reimbursement for its payment of bond premiums because of certain 

irregularities in FCI’s submission. Compl. ¶ 54. According to FCI, by letter of July 31, 

2015, it advised USACE that it had remedied the irregularities; nonetheless, USACE did 

not pay the invoices. Id. at ¶ 56.
4

II. USACE’s Termination of the Contract and FCI’s Communication with the 

CO Following the Termination

On August 3, 2015, USACE issued a Notice of Termination for Default, stating 

that FCI’s “response to [the] Show Cause Notice did not provide any information which 

demonstrated that [it] could meet the required completion date of the contract,” and that it 

“did not show that the default otherwise was beyond [FCI’s] control and without [its] 

fault or negligence.” Def.’s Mot. App. at A76; see also Compl. ¶ 32. The Notice of 

Termination also outlined twenty-six acts or omissions constituting the default, and stated 

that the notice “constitute[d] [USACE’s] final decision that [FCI] is in default.” Def.’s 

Mot. App. at A92.

On August 12, 2015, FCI responded to the Notice of Termination. Id. at A94. It 

contended that the Notice of Termination was “void and defective” because (among other 

things) USACE had “committed a material Anticipatory Breach by neglecting to 

reimburse [FCI] for its Bond Premiums for Bonds furnished on the Contract.” Id. Further, 

it argued that USACE was “wrongfully holding Bonds for which the required 

consideration has not been paid” and requested “that the Government return the bonds.”

Id. at A96.

On September 28, 2015, FCI sent the CO another letter, in which it purportedly

“identif[ied] the grounds for [the] improper Default Termination” and “formally 

request[ed] concurrent Inspector General (IG) and Criminal Investigation Division (CID) 

investigations into USACE’s contract management of [the] contract.” Id. at A98. FCI

claimed that USACE had breached its duty of good faith and fair dealing by intentionally 

withholding an approved dig permit for the project. Id. at A98–100. FCI also stated that 

default termination is a “drastic sanction” which should only be imposed for “good 

grounds and on solid evidence,” and alleged that USACE failed to cooperate with FCI

and did not attempt to engage in routine contract administration activities to resolve 

factual disputes. Id. at A102.

USACE responded to this letter on October 2, 2015, stating that the government 

would “look into the allegations [raised] regarding the dig permit” but that it 

“unequivocally disagree[d] with [the] allegation that it acted in bad faith.” Pl.’s Opp’n 

App. at A221. The agency reiterated that its decision to terminate the contract for default 

remained in effect. Id. On October 15, 2015, USACE sent a follow-up letter stating that it 

had investigated the dig permit allegation and determined that FCI’s allegations were 

“unsubstantiated.” Id. at A222.

FCI replied by letter on December 7, 2015, stating that it was dissatisfied with 

USACE’s “lack of transparency . . . and cooperation” with regards to the internal 

investigation into the dig permit. Def.’s Mot. App. at A104. FCI also claimed that the 

agency’s failure to provide it with the dig permit before August 20, 2015 led to a 

“Government-caused delay,” and that the Termination for Default was improper in light 

of that delay. Id. at A104–05. FCI then “formally request[ed] that USACE immediately 

convert this Termination for Default into a Termination for the Convenience of the 

Government” and indicated that it was ready “to pursue a full and appropriate resolution 
5

of this matter via any administrative and/or legal recourse that may be necessary.” Id. at 

A109.

III. This Action

FCI filed a four-count complaint in this Court on February 12, 2016. In it, FCI

alleged: (1) that USACE breached the contract by violating the duty of good faith and fair 

dealing; (2) that USACE breached the contract by failing to reimburse FCI for the bond

premium payments; (3) that USACE wrongfully terminated FCI for default; and (4) that 

the interim unsatisfactory performance evaluation was “unfair, inaccurate, erroneous, 

biased, and an abuse of discretion.” Compl. ¶¶ 57–60. As relief, FCI requested that the 

Court: (1) enter judgment in its favor as to its breach of contract claims; (2) grant 

damages in the amount of $4,899,425; (3) declare the unsatisfactory performance 

evaluation null and void; (4) direct USACE to “take proper and just actions to remedy the 

unlawful Unsatisfactory Performance Evaluation”; (5) declare that the Government’s 

termination of the Contract for default was wrongful and convert it to a termination for 

convenience; and (6) award reasonable attorney’s fees, costs, and expenses. Id. at 8.

On May 27, 2016, the government moved to dismiss the first, second, and fourth 

counts of FCI’s complaint, arguing that those counts are subject to the CDA and that FCI

failed to submit any valid claims or obtain final decisions from the CO before filing its 

complaint. Def.’s Mot. at 13–14. The government also asked the Court to stay the third 

cause of action (regarding the allegedly wrongful termination for default) until FCI files 

an amended complaint following a CO’s determination as to the breach of contract and 

improper evaluation claims. Id. at 14.

FCI responded on June 13, 2016. ECF No. 11. Along with its response, FCI

moved for a default judgment as to the third count of its complaint. Id. at 25–27. The 

government filed its reply on June 30, 2016, ECF No. 12, and oral argument was held on 

September 27, 2016. The motions are now ripe for decision. 

DISCUSSION

I. Standards for Motions to Dismiss Under RCFC 12(b)(1)

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 
6

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. 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 either upon the 

Constitution, or any Act of Congress or any regulation of an executive department, or 

upon any express or implied contract with the United States, or for liquidated or 

unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a) (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 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). In particular, 

it 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, the Federal Circuit has held that for the Court of Federal Claims to possess 

jurisdiction, the contractor must have first submitted a valid claim to the contracting 

officer and received the contracting officer’s final decision on that claim. M. Maropakis 

Carpentry, 609 F.3d at 1327–28; see also 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.”).

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

implements the CDA. See M. Maropakis Carpentry, 609 F.3d at 1327–28. FAR 2.101 

provides, in pertinent part, that “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 
7

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 held that a valid claim for 

payment consists of three components: “(1) a written demand, (2) seeking, as a matter of 

right, (3) the payment of money in a sum certain.” Northrop Grumman Computing Sys., 

Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (citing Reflectone, Inc. v. 

Dalton, 60 F.3d 1572, 1575–76 (Fed. Cir. 1995)). The Federal Circuit has further 

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.” Id.

(quoting Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 

1987)). Instead, “[a]ll that is required is 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.” Id. (quoting Contract Cleaning 

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

For claims seeking more than $100,000, FAR 2.101 additionally incorporates 

within the definition of “claim” the CDA’s certification requirement. 41 U.S.C. 

§ 7103(b)(1). That requirement provides as follows:

For claims of more than $100,000 made by a contractor, the contractor shall 

certify that--

(A) the claim is made in good faith;

(B) the supporting data are accurate and complete to the best of the 

contractor’s knowledge and belief;

(C) the amount requested accurately reflects the contract adjustment for 

which the contractor believes the Federal Government is liable; and

(D) the certifier is authorized to certify the claim on behalf of the 

contractor.

Id.; see also FAR 33.207(c) (providing specific certification language, which includes the 

language of § 7103(b)(1) nearly verbatim).

In addition, “[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 1327–38. 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., Inc. 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.
8

II. Whether the Court has Jurisdiction Over Counts I, II, and IV of FCI’s 

Complaint

A. Counts I and II

In Count I of its complaint, FCI alleges that USACE breached the contract by 

violating the duty of good faith and fair dealing. Compl. ¶ 57. According to the 

allegations in Count I, “no meeting of the minds occurred as USACE held no 

preconstruction meeting, [s]ubmittals were not approved, and no cooperation took place.” 

Id. In Count II, FCI claims that USACE breached the contract by “fail[ing] to reimburse 

[it] for surety bond payments in the amount of $33,997.00, as required by FAR 

52.232-5.” Compl. ¶ 58. FCI further alleges in Count II that the government’s failure to 

provide reimbursement and its termination of the contract for default “while continuing to 

assert payment and/or performance on the contract from the bonding company. . . has 

unfairly impacted [FCI’s] bonding capacity.” Id. As a remedy for each of these two 

breaches, FCI requested “costs to be determined at a later date, pursuant to the contract 

amount of $4,899,425.00.” Id. at ¶¶ 57, 58.

FCI does not contest that the CDA applies to these claims. See Pl.’s Opp’n at 9. 

And it also does not allege in its complaint that it submitted certified claims to the CO 

concerning the allegations of breach of contract set forth in Counts I and II. Nonetheless, 

it argues in its response to the government’s motion to dismiss that it effectively 

submitted its breach of contract claims to the CO in its responses to USACE’s May 28, 

2015 Cure Notice and its July 6, 2015 Show Cause Notice. See id. at 10. FCI further 

argues that USACE’s Notice of Termination for Default constituted the CO’s final 

decision as to those claims. See id.

FCI’s arguments lack merit. FCI’s responses to the Cure Notice and Show Cause 

Notice did not constitute valid claims for payment under the CDA for alleged breaches of 

contract because, among other reasons, FCI never requested payment for such claims in a 

sum certain, which is a requirement for a valid claim seeking monetary damages. See

Northrop Grumman Computing Sys., 709 F.3d at 1112; Alliant Techsystems, Inc. v. 

United States, 178 F.3d 1260, 1266–67 (Fed. Cir. 1999). Indeed, FCI concedes that it did 

not request payment in a sum certain with respect to either Count I or Count II of its 

complaint, opining that it would be “premature to certify a sum certain at this point in 

time” because the Termination for Default might be converted to a Termination for 

Convenience. See Pl.’s Opp’n at 18. And because FCI never requested a sum certain, it 

also necessarily failed to comply with the CDA’s certification requirement for claims 

over $100,000, which requires contractors to certify that “the amount requested 

accurately reflects the contract adjustment for which the contractor believes the Federal 

Government is liable.” See 41 U.S.C. § 7103(b)(1). 

Nor did FCI present a valid claim to the contracting officer in its August 12, 2015 

letter responding to the Notice of Termination. In that letter it stated, among other things, 

that USACE had committed a “material Anticipatory Breach by neglecting to reimburse 

FCI for its Bond Premiums for Bonds furnished on the Contract.” Def.’s Mot. App. at 

A94. It also observed that “USACE is wrongfully holding Bonds for which consideration 
9

has not been paid” and requested “that the Government return the Bonds.” Id. at A96. 

The letter, however, does not request payment of a sum certain as damages for any 

alleged breach of contract. Indeed, the letter had another independent purpose: to seek 

relief from the default termination order. See id. (stating that the purpose of FCI’s August 

12, 2015 letter was to “notify[] the Government that its Anticipatory Breach and failure 

to notify the Surety Bonding Companies are asserted as strong defenses to the 

Termination for Default action”). This correspondence, accordingly, does not constitute a 

valid claim for damages under the CDA. See Armour of Am. v. United States, 69 Fed. Cl. 

587, 592 (2006) (no valid claim for convenience damages under CDA where “letter from 

Plaintiff to the [CO] merely requests reconsideration of the default termination,” where 

“[t]here is no evidence of record before the Court to show that Plaintiff requested 

monetary damages of a sum certain,” and where “there was no final decision by the [CO] 

on a claim for convenience termination monetary damages”).

Similarly, as described above, FCI’s letters of September 28, 2015, and December

7, 2015, did not constitute valid claims under the CDA. In the former letter, FCI again 

complained about the termination for default and also requested inspector general and 

criminal investigations of USACE’s management of the contract. See Def.’s Mot. App. at 

A98. The subsequent December letter repeated FCI’s request for investigation and 

provided a series of questions for the CO to answer. See id. at A104–09. Nowhere in 

either letter does FCI assert a claim for damages for breach of contract in a sum certain.

In short, FCI has not complied with the CDA’s exhaustion requirements as to 

Counts I and II of its complaint. Therefore, the government’s motion for partial dismissal 

of the complaint as to those Counts must be granted.

B. Count IV

The government has also moved to dismiss Count IV of the Complaint, in which

FCI asks the Court to set aside its interim unsatisfactory performance evaluation because 

it was “unfair, inaccurate, erroneous, biased, and an abuse of discretion.” Compl. ¶ 60; 

see also id. at 8. It contends that FCI failed to meet the CDA’s exhaustion requirements 

as to this claim as well. See Def.’s Mot. at 12–13. The Court disagrees.

Courts have regularly held that a contractor’s challenge to an agency’s 

performance evaluation may constitute a claim under the CDA. See Todd Constr. L.P. v. 

United States, 85 Fed. Cl. 34, 45–46 (2008); BLR Grp. of Am., Inc. v. United States, 84 

Fed. Cl. 634, 647–48 (2008). Because FCI seeks non-monetary relief for this claim, the 

CDA requires only that it have submitted a written demand for a final decision seeking 

relief from the unsatisfactory performance evaluation as a matter of right and received a 

final decision on that claim. See M. Maropakis Carpentry, 609 F.3d at 1327–28; Alliant 

Techsystems, Inc., 178 F.3d at 1266–68. 

The correspondence between FCI and the government reveals that FCI met this 

requirement. In a June 8, 2015 letter, FCI informed the CO that it “strongly disagree[d]” 

with the unsatisfactory performance evaluation and “formally request[ed]” its

withdrawal. Def.’s Mot. App. at A35, 38. In a second letter on June 29, 2015, FCI again 
10

“request[ed] that the CPAR evaluation be withdrawn.” Id. at A49. The CO responded on 

July 6, 2015, stating that “[y]our request . . . for withdrawal of the Interim Unsatisfactory 

CPARS evaluation is denied.” Id. at A55. And on July 13, 2015, the unsatisfactory 

evaluation was finalized. Pl.’s Opp’n App. at A244–52. This correspondence is sufficient 

to meet the CDA’s requirements that FCI submit a written demand for a final decision 

seeking relief from the unsatisfactory performance evaluation as a matter of right and that 

it receive a final decision on that claim from the CO. See BLR Grp. of Am., 84 Fed. Cl. 

at 636–37, 647–48 (written comments to initial performance evaluation which claimed 

entitlement to the relief of a corrected CPAR satisfied plaintiff’s obligation to file claim 

with the CO for purposes of the CDA).

The Court finds unpersuasive the government’s argument that FCI’s letters do not 

constitute a written demand seeking relief as a matter of right under the CDA because 

FCI “has not demanded anything, but has only requested that the evaluation ‘be 

withdrawn.’” Def.’s Mot. at 12–13. This argument elevates form over substance. In 

common usage, a demand is an authoritative or formal type of request. See Webster’s 3d 

New Int’l Dictionary 598 (1961). Here, as noted, FCI “formally request[ed]” withdrawal 

of the evaluation, which the CO denied. In short, the government’s argument—that FCI

failed to meet the CDA’s requirements because it couched its action as a “formal request” 

rather than a “demand”—lacks merit.3

Accordingly, the Court concludes that FCI submitted a claim to the CO within the 

meaning of the CDA, and received the CO’s final decision on that claim. Thus, the Court 

has jurisdiction over Count IV of FCI’s complaint.

III. FCI’s Cross-Motion for a Default Judgment as to Count III and Further 

Proceedings in this Case

The government concedes that the Court has jurisdiction over Count III of FCI’s 

complaint (claiming that the Termination for Default was unlawful and should be 

converted to a Termination for Convenience), at least to the extent that FCI seeks 

declaratory relief. See Def.’s Mot. at 8 n.2. In its motion to dismiss, it asks the Court to 

stay the case pending the receipt of a CO’s decision on FCI’s other claims.

 

3

In its motion to dismiss, the government argues that even if the June 29, 2015 letter 

made a valid claim with respect to the unsatisfactory evaluation, the CDA’s requirements 

have not been met because, it argues, the letter requests different relief than FCI

requested in Count IV. It notes that “[t]he letter simply requests that the evaluation be 

withdrawn, but in its complaint, FCI demands that the evaluation ‘(1) be declared 

unlawful and should be set aside, and (2) should be removed from’ various reporting

systems.” Def.’s Mot. at 13 (quoting Compl. ¶ 60). The Court does not perceive a request 

that the Court “set aside” the evaluation and direct the government to remove it from 

official reporting systems to differ in any material respect from a formal request that the 

evaluation be withdrawn.
11

Citing Gerlach v. Mich. Bell Tel. Co., 448 F. Supp. 1168, 1174 (E.D. Mich. 

1978), FCI has moved for a default judgment based on the government’s failure to timely 

respond to Count III. See Pl.’s Opp’n at 25–28. In that case, the district court concluded 

that the filing of a motion under Fed. R. Civ. P. 12(b) does not alter the time within which 

the moving party must respond to claims in the complaint that are not addressed in the 

motion. Gerlach, 448 F. Supp. at 1174–75.

To the Court’s knowledge, however, “[n]o other court has adopted the Gerlach

court’s reasoning or ruling; indeed, every court to consider the decision in Gerlach on this 

point has disagreed with and declined to follow it.” Talbot v. Sentinel Ins. Co., No. 11-

cv-1766, 2012 WL 1068763, at *4 (D. Nev. 2012) (quoting Ideal Instruments, Inc. v. 

Rivard Instruments, Inc., 434 F. Supp. 2d 598, 638 (N.D. Iowa 2006)). Instead, courts

have held that under the language of Fed. R. Civ. P. 12(a) (which is identical to RCFC 

12(a)), a partial 12(b) motion enlarges the time to file an answer. E.g., Circuit City 

Stores, Inc. v. Citgo Petroleum Corp., No. 92-cv-7394, 1994 WL 483463, at *4 (E.D. Pa. 

Sept. 7, 1994) (citing Brocksopp Eng’g, Inc. v. Bach–Simpson, Ltd., 136 F.R.D. 485, 486

(E.D. Wis. 1991)). 

This Court agrees with the reasoning expressed in those cases that “the filing of a 

motion that only addresses part of a complaint suspends the time to respond to the entire 

complaint, not just to the claims that are the subject of the motion.” Charles A. Wright & 

Arthur R. Miller, 5B Fed. Prac. & Proc. Civ. § 1346 (3d ed.); see also id. n.18 (citing 

cases). Further, even the court in Gerlach declined to impose the “harsh remedy” of a 

default judgment on the defendant based on its failure to respond to those counts in the 

complaint that were not the subject of its motion to dismiss. See 448 F. Supp. at 1174. In 

this case, as in Gerlach, FCI has not been prejudiced by the fact that the government did 

not file a response to Count III when it filed its motion to dismiss Counts I, II, and IV.

For these reasons, FCI’s motion for a default judgment is DENIED. 

CONCLUSION

For the reasons discussed above, the government’s motion to dismiss is 

GRANTED-IN-PART and DENIED-IN-PART. Counts I and II of the Complaint are 

DISMISSED without prejudice. FCI’s cross-motion for a default judgment is DENIED. 

The case is STAYED pending the CO’s final decision on the claims set forth in 

Counts I and II of FCI’s complaint. The parties shall file a joint status report with the 

Court no later than November 28, 2016 advising the Court of the status of the claims

before the CO, and proposing a schedule to govern future proceedings in this case. 
12

IT IS SO ORDERED.

s/ Elaine D. Kaplan 

ELAINE D. KAPLAN

Judge