BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
In the matter of )
)
the Appeal of )
)
CACTUS PRESS/ ) Docket No. GPOBCA 20-99
POWER ENTERPRISES, INC. )
)
Program P2902-S )
Purchase Order N-1261 )
For the Appellant: John T. Jones, Jr., Esq., Bryan Cave LLP,
Phoenix, Arizona.
For the Respondent: Roy E. Potter, Esq., Associate General
Counsel, U.S. Government Printing Office, Washington, DC.
Before Kerry L. Miller, Administrative Judge.
DECISION
This appeal arises out of a contract between the U.S.
Government Printing Office (GPO) and Appellant, Cactus
Press/Power Enterprises, Inc. (Cactus Press) that was
terminated for the convenience of the Government. Appellant
failed to file its termination settlement proposal within the
time limit set forth in the contract. The Contracting Officer
denied the late claim and this appeal followed. For the
reasons discussed below, the appeal is DISMISSED.
BACKGROUND
1. On May 28, 1998, the GPO's Los Angeles Regional Printing
Procurement Office (RPPO) awarded Program P2902-S (R-1) to
Appellant, following standard sealed bid solicitation procedures.
Rule 4 File, Tab G. Program P2902-S was a requirements contract
for the acquisition of short-run, fast schedule, duplicating and
copying for the Department of Interior's Bureau of Reclamation.
Rule 4 File, Tab A. The term of Program P2902-S was "for the
period beginning Date of Award and ending April 30, 1999." Rule
4 File, Tab A at 1.
2. Program P2909-S also contained the following clause:
GPO CONTRACT TERMS: Any contract which results from this
Invitation for Bid will be subject to the applicable provisions,
clauses, and supplemental specifications of GPO Contract Terms
(GPO Pub. 310.2, effective December 1, 1987 (Rev. 9-88)) and GPO
Contract Terms, Quality Assurance Through Attributes Program (GPO
Pub. 310.1, effective May 1979 (revised April 1996)).
Rule 4 File, Tab A at 2.
3. GPO CONTRACT TERMS (GPO Publication 310.2, effective
December 1, 1987 (Rev. 9-88)) contained a provision governing
terminations for the convenience of the Government that was
similar to Federal Acquisition Regulation clause 48 C.F.R. �
52.249-2. The GPO clause read, in part:
(c) After termination, the contractor shall submit a final
termination settlement proposal on GPO Form 911 to the
Contracting Officer. The contractor shall submit the proposal
promptly, but no later than 3 months from the effective date
of termination, unless extended in writing by the Contracting
Officer upon written request of the contractor within this 3-
month period. However, if the Contracting Officer determines
that the facts justify it, a termination settlement proposal
may be received and acted on after 3 months from the effective
date of termination or any extension thereof. If the
contractor fails to submit the proposal within the time
allowed, the Contracting Officer may determine, on the basis
of information available, the amount, if any, due the
contractor because of the termination and shall pay the amount
determined.
* * *
(h) The contractor shall have the right of appeal, under
article 5 "Disputes" from any determination made by the
Contracting Officer under paragraph (c), (e), or (j), except
that if the contractor failed to submit the termination
settlement proposal within the time provided in paragraph (c)
or (j), and failed to request a time extension, there is no
right of appeal.
Article 19, GPO CONTRACT TERMS.
4. On November 5, 1998, approximately six months after contract
award, Appellant contacted the Contracting Officer to complain
that the volume of orders being placed under Program P2902-S was
smaller than anticipated. Rule 4 File, Tabs I, J. The
Contracting Officer contacted the ordering agency and requested
that more work be placed on the contract. However, the agency
only had a few orders available to place. On January 7, 1999,
the Contracting Officer again contacted the ordering agency. He
discovered that the agency had only placed a few orders on the
contract and had no more orders to send out at that time. Rule 4
File, Tab J at 2.
5. Shortly thereafter, the Contracting Officer obtained the
concurrence of the GPO Contract Review Board to terminate the
contract for the convenience of the Government. Rule 4 File, Tab
J.
6. On January 12, 1999, the Contracting Officer sent a letter
to Appellant stating, inter alia:
1. Effective date of Termination. You are notified that your
Purchase Order N1261, Program Number 2902-S, (referred to as "the
contract" in this notice) is hereby terminated for the
convenience of the Government, in accordance with Article 19
entitled "Termination for Convenience of the Government" in GPO
Contract Terms (Pub. 310.2). This termination is effective
January 12, 1999.
* * *
(f) Should a settlement proposal be necessary, you must submit
it on the enclosed GPO Form 911 and take such other action as may
be required by the Contracting Officer or under the termination
clause contained in your contract.
3. Acknowledgement of Receipt of Notice. You are required to
acknowledge receipt of this notice to the Contracting Officer who
is responsible for settlement of claims in this termination.
(Emphasis in original). Rule 4 File, Tab K.
7. Appellant responded by letter dated January 20, 1999:
This is to acknowledge receipt of the Notice of Termination of
Purchase Order N1261, Program Number 2902-S dated January 12,
1999.
We will be submitting a settlement proposal in the near future in
regards to the termination of this contract.
Rule 4 File, Tab L.
8. By letter dated May 6, 1999, Appellant transmitted its
termination settlement proposal to the Contracting Officer.
Appellant sought $99,639.33 in termination costs and profit.
Rule 4 File, Tab M.
9. The Contracting Officer's final decision, issued to
Appellant's attorney on June 3, 1999, denied all requested costs
because Appellant had failed to submit its settlement proposal
within 3 months of the effective date of termination, as required
by Article 19, GPO CONTRACT TERMS. Rule 4 File, Tab N. The
Contracting Officer also concluded that he had found no "facts or
basis for an extension" of the time limit. Id.
10. Thereafter Appellant filed a timely notice of appeal with
the GPO Board of Contract Appeals (GPOBCA). Rule 4 File, Tab R.
DISCUSSION
I. Jurisdiction of the Board
Respondent, in its Answer and Motion to Dismiss, argues that the
GPOBCA "is without jurisdiction since no appeal may be taken of a
termination for convenience claim where the Appellant fails to
submit a termination settlement proposal no later than 3 months
from the effective date of the termination." Respondent's
conclusion is incorrect, as the Board's jurisdiction to hear
appeals is derived from the Disputes Clause of the contract. See
Article 5, GPO CONTRACT TERMS, GPO Publication 310.2 (Rev. 9-88).
The Board reads the time bar contained in Article 19 as a
potential defense to Appellant's claim for termination costs, not
a blanket denial of jurisdiction. As the Court of Appeals for
the Federal Circuit wrote in Do-Well Machine Shop Inc. v. United
States, 870 F.2d 637 (Fed. Cir. 1989):
The government correctly recognized that the time bar was fatal
to Do-Well's claim. The reason that the time bar was fatal is
that it constituted a valid affirmative defense. The presence of
a valid defense, however, does not oust a tribunal of
jurisdiction unless, of course, the defense is jurisdictional.
If it did, the only cases decided on the merits would hold for
victorious plaintiffs, and no successful defense would generate a
res judicata bar. Where the defendant has a valid defense and
there are no material disputed facts, as here, he may move for
summary judgment or dismissal for failure to state a claim upon
which relief can be granted. See Fed.R.Civ.P. 12(b)(6) and
56(b).
The distinction between lack of jurisdiction and failure to state
a claim upon which relief can be granted, is an important one:
[T]he court must assume jurisdiction to decide whether the
allegations state a cause of action on which the court can grant
relief as well as to determine issues of fact arising in the
controversy.
Jurisdiction, therefore, is not defeated as respondents seem to
contend, by the possibility that the averments might fail to
state a cause of action on which petitioners could actually
recover. For it is well settled that the failure to state a
proper cause of action calls for a judgment on the merits and not
for a dismissal for want of jurisdiction. Whether the complaint
states a cause of action on which relief could be granted is a
question of law and just as issues of fact it must be decided
after and not before the court has assumed jurisdiction over the
controversy. If the court does later exercise its jurisdiction
to determine that the allegations in the complaint do not state a
ground for relief, then dismissal of the case would be on the
merits, not for want of jurisdiction.
Bell v. Hood, 327 U.DS. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939
(1946). See generally, 1 Moore's Federal Practice � 0.62[2.-2]
at 664-65 (1988).
To master this distinction is not merely an intellectual exercise
without practical utility. A dismissal on the merits carries res
judicata effect and dismissal for want of jurisdiction does not.
Vink v. Hendrikus Johannes Schiff, Rolkan N.V., 839 F.2d 676,
677, 5 USPQ2d 1728, 1729 (Fed. Cir. 1988). If the government
wishes to avoid revisiting this case in the Claims Court, it
needs to show that this court and the board properly exercised
jurisdiction over the appeal.
870 F.2d 637 at 639-640.
The Board concludes that Article 19 of GPO CONTRACT TERMS does
not operate to divest the Board of jurisdiction to hear this
appeal, but provides Respondent with a valid affirmative defense.
Accordingly, the Board will treat Respondent's motion as one to
dismiss for failure to state a cause of action. Since the Board
has jurisdiction over this appeal it must now decide whether the
three-month time limit should be enforced to deprive Appellant of
its opportunity to recover any termination costs.
II. Three-Month Time Limit
The termination for convenience clause in this contract
requires contractors to submit convenience termination
settlement proposals to the Contracting Officer "promptly, but
no later than 3 months from the effective date of termination,
unless extended in writing by the Contracting Officer."
Article 19(c), GPO CONTRACT TERMS. It is undisputed that
Appellant failed to submit its convenience termination
settlement proposal to the Contracting Officer within the
contractually mandated 3-month time period and failed to
request an extension of the time period. Complaint � 7; Rule
4 File Tabs K and M.
Article 19 also states that a contractor has "no right of appeal"
from a Contracting Officer's final decision in the event a
contractor fails to submit a timely termination settlement
proposal. Article 19(h), GPO CONTRACT TERMS. This GPO contract
provision barring appeals from untimely termination settlement
proposals is substantively the same as the Government-wide
provision contained in the Federal Acquisition Regulation at 48
C.F.R. � 52.249-2(j). The FAR provision, and its predecessor
clauses, have been enforced consistently by boards of contract
appeal. This Board sees no compelling reason to deviate from
established precedent.
The Armed Services Board of Contract Appeals has long enforced
this contractual time limit. In Prestex, Inc., ASBCA Nos.
8663, 9726, 1964 BCA � 4348, the Government moved to dismiss
an appeal because the termination claim was not submitted
within the time period set forth in the Termination for
Convenience clause and the Appellant failed to request an
extension of that time limit. The ASBCA agreed with the
Government's strict construction of the Termination for
Convenience clause and dismissed the appeal. Id. at 21,027.
The ASBCA has continued to rely on Prestex to deny late
termination claims. In Rivera Technical Products, Inc., ASBCA
Nos. 48171, 49564, 96-2 BCA � 28,564, the ASBCA held that
failure to comply with the time limit found in the Termination
for Convenience clause bars the right to appeal. See also,
Harris Corp., ASBCA No. 37940, 90-3 BCA � 23,257; Mictronics,
Inc., ASBCA No. 30262, 85-2 BCA � 18,119; United Elecs. Co.,
ASBCA No. 21686, 78-1 BCA � 13,091; R-D Mounts, Inc., ASBCA
Nos. 17667, 19232, 74-2 BCA � 10,740.
The HUD BCA adopted this approach as well in M-PAX, Inc., HUD
BCA Nos. 81-570-C10, 81-571-C11, 81-572-C12, 81-573-C13, 81-2
BCA � 15,409. In that case, a contractor failed to request an
extension of the time period in which to submit a termination
for convenience claim. The HUD Board, describing the
pertinent contract provision as "unequivocal," held that the
contractor had no right to appeal under the disputes clause
because of its prior failure to file a timely termination
claim. See also, Walber Construction Co., HUD BCA Nos.
82-661-C4 et al., 82-1 BCA � 15,525 and 82-664-C7 et al., 82-1
BCA � 15,526; Homes By Bell-Hi, Inc., HUD BCA No. 79-332-C3,
81-2 BCA � 15,413. Similar holdings have been issued by the
DOTBCA (Automated Power Systems, Inc., DOT BCA Nos. 2933,
2936, 2937, 2938, 99-1 BCA � 30,151), and the AGBCA (RBW &
Associates, AGBCA No. 95-208-1, 96-2 BCA � 28,416).
The Federal Circuit upheld this approach in Do-Well Machine
Shop Inc. v. United States, 870 F.2d 637, 641 (Fed. Cir. 1989)
aff'g ASBCA No. 36090, 88-3 BCA � 20,994. The Court affirmed
a contracting officer's rejection of a claim for termination
costs because it was not submitted in time. The Federal
Circuit held that failure to meet the contractual time limit
deprived the contractor of any contractual right of recovery.
Id. at 640-1. Thus, under Do-Well, contract provisions that
limit the time for submitting termination for convenience
claims to a contracting officer are fully enforceable.
To prevail in the instant appeal, Respondent need not
demonstrate it was prejudiced by the late filing. The issue
of prejudice is irrelevant here because the parties have
provided in the contract for a time limit on the filing of
termination claims. See Stone Forest Indus. Inc. v. United
States, 26 Cl. Ct. 410 (1992) at 416. The Federal government
possesses the same power to contract as a private party. If
the parties by contract clause agree to limit the time to
submit a termination claim, then the parties are bound by the
provision. Do-Well, supra at 641. The Federal government can
enforce the time limitation with the same force as a private
party, notwithstanding its superior bargaining power. Id.
Appellant concedes that it filed its termination settlement
proposal after the 3-month time limit had expired, but argues
that Respondent may not rely on the time limit as an
affirmative defense since Respondent did not inform Appellant
of the time limit. Appellant argues that the GPO's
termination letter of January 12, 1999, should have advised
Appellant that the contract contained a 3-month time limit,
and should have advised Appellant of the potential
consequences for failing to meet the time limit. Appellant
contends this failure to advise Appellant of the consequences
of tardiness "waived the time limit." Appellant's Opposition
to Motion to Dismiss at 3. Appellant also argues that the GPO
lowered the time limit from one year to 3 months without
notice. Complaint � 7. According to Appellant, GPO's actions
"sandbagged" it. Appellant's Opposition to Motion to Dismiss
at 4.
First, the Board finds that the Contracting Officer's
termination for convenience letter did place Appellant on
adequate notice of the 3-month time limit by citing Appellant
to the Termination for Convenience clause of the contract.
See, Rule 4 File, Tab K. Subclause 19(c) of the cited
Termination for Convenience clause contained the relevant time
limit. Second, the Board's research reveals that the 3-month
time limit has been a feature of GPO's standard Termination
for Convenience clause since August 1979. See, Article 16,
USGPO CONTRACT TERMS NO. 1 (Revised), GPO Publication 310.2,
August 1, 1979. See also, Article 2-17, USGPO CONTRACT TERMS
NO. 1, GPO Publication 310.2 (Rev. Oct. 1, 1980); Article
19(c), GPO CONTRACT TERMS, GPO Publication 310.2, Dec. 1,
1987. Prior to August 1979, the standard Termination for
Convenience clause did not prescribe a time limit for the
submission of termination settlement proposals. See, Article
16, USGPO CONTRACT TERMS NO. 1, GPO Form No. 198 (Rev. July
15, 1970). Thus, the agency did not "lower" the time limit
without notice as alleged by Appellant.
Appellant also claims that the Contracting Officer failed to
comply with several GPO regulations, and that these alleged
failures should estop the Contracting Officer from enforcing
the 3-month time limit. Specifically, Appellant claims that
the Contracting Officer failed to examine Appellant's
settlement proposal and negotiate a settlement as required by
GPO Printing Procurement Regulation (PPR) Ch. XIV � 2.3(d).
Next, Appellant claims the Contracting Officer failed to make
a settlement by determination as required by PPR Ch. XIV �
2.3(j)(7) in cases where the parties are unable to agree upon
settlement. Finally, Appellant claims the Contracting Officer
failed to provide it 15 days to submit additional evidence
before issuing a determination of the amount due, as required
by PPR Ch. XIV � 2.3(j)(7)(ii). Appellant's Opposition to
Motion to Dismiss at 3.
Appellant's arguments regarding the above-cited regulations
are not persuasive, because they rest on the unsupported
assumption that the Contracting Officer was required to act
upon Appellant's untimely settlement proposal. The cited
regulations do not address the Contracting Officer's
obligations regarding an untimely proposal. The regulations
do however, note that the "Termination for Convenience clause
in GPO Contract Terms (Pub. 310.2) defines the rights of GPO
and of the contractor in the event of termination and provides
for the settlement of claims." PPR Ch. XIV � 2.2. The
referenced Termination for Convenience clause requires the
submission of a termination settlement proposal within 3
months by the use of the mandatory word "shall." Article
19(c). In contrast to the mandatory nature of the 3-month
time limit, the clause uses the permissive term "may" to
authorize the Contracting Officer to make a unilateral
settlement determination in the event the contractor fails to
submit a settlement proposal within 3 months. However, the
clause does not require that the Contracting Officer make a
unilateral determination on a late proposal. Further, the
clause provides that "any determination" under paragraph (c)
is appealable under the Disputes clause unless the proposal
was untimely when "there is no right of appeal." Article
19(h).
Thus, under Article 19, contracting officers have discretion
to act on late termination claims. Should a contracting
officer decide to consider a late claim, then the provisions
cited by Appellant would be applicable. However, there is no
provision in either the PPR or the contract that requires a
contracting officer to ignore the contractual time limits and
consider a late termination claim.
Article 19 further provides that the Contracting Officer may
act on a late claim if the facts justify such action. See R-D
Mount, Inc., ASBCA No. 17667, 74-2 BCA � 10740. In the
instant appeal the Contracting Officer determined that there
were no circumstances presented by the Appellant to justify
waiving the time limit. Rule 4 File, Tab N. The only excuse
provided by Appellant was that it did not know about the
deadline. Rule 4 File, Tab N. Given that the time limit was
stated in the contract and the relevant contract provision was
referenced in the Contracting Officer's termination letter,
the only way Appellant could have remained unaware of the
deadline was if Appellant's employees and representatives had
chosen not to read the cited provision. The Board cannot
disagree with the Contracting Officer's conclusion that
Appellant has not shown good cause to waive the time limit.
Accordingly, the Board holds that Appellant is not entitled to
compensation for its termination for convenience claim because
it failed to submit the termination settlement proposal within
the time limit prescribed in the contract.
III. Negligent Estimates/Equitable Adjustment Claim
Appellant argues that notwithstanding the untimeliness of its
termination for convenience settlement proposal, the Board should
exercise jurisdiction over this appeal because "the real heart of
this dispute is the Government's negligent estimate of
requirements" an issue the GPOBCA has dealt with in other
appeals. Appellant's Response to Motion to Dismiss at 4.
Appellant cites Rim Advertising, GPOBCA No. 38-94, 1997 GPOBCA
LEXIS 15, 1997 WL 742429 (Sept. 24, 1997), and cases cited
therein, as precedent for examining the negligent estimates
issue. The cases cited by Appellant were ones where a contractor
sought an equitable adjustment after the Government's estimates
for a requirements contract proved to be significantly different
from the actual amount of work placed by the Government on the
contract. In those cases, the GPOBCA applied the well-settled
principle relating to "requirements contracts" which holds that
contractors who submit bids in reliance on negligently prepared
and incorrect estimates of work in the solicitation are entitled
to an equitable adjustment. See, Crown Laundry and Dry Cleaners,
Inc. v. United States, 29 Fed. Cl. 506 (1993); GraphicData, Inc.,
GPOBCA No. 35-94, 1996 GPOBCA LEXIS 28, 1996 WL 812875 (June 14,
1996) slip op. at 28, 56.
However, Appellant faces a formidable obstacle1 to the Board
assuming jurisdiction of its equitable adjustment "claim." In
the instant appeal, Appellant never presented a claim for an
equitable adjustment based on faulty estimates to the Contracting
Officer and thus never received a final decision on that issue.
Appellant first raised this issue in its response to Respondent's
Motion to Dismiss. The prerequisite to the Board's assertion of
jurisdiction over an appeal is the issuance of a final decision
by a GPO contracting officer. See, Board Rules, Preface to
Rules, � I, Jurisdiction, Rule 1; GPO Contract Terms, Contract
Clauses, � 5 (Disputes). See also, Epco Associates, GPOBCA No.
26-93, 1993 GPOBCA LEXIS 25, 1993 WL 526919 (November 18, 1993),
slip op. at 3 (citing, Associated Contract Specialties
Corporation, ASBCA No. 37437, 90-3 � 23,258; Spruill
Realty/Company, ASBCA No. 40477, 90-3 BCA � 23,255). Appellant
has failed to meet the Board's jurisdictional prerequisites by
first obtaining a contracting officer's final decision.
Consequently, since this issue has not been the subject of a
contracting officer's final decision it is not properly before
the Board.
Appellant cannot expand the appeal it filed regarding the
Contracting Officer's denial of its untimely termination for
convenience settlement proposal to reach the negligent
estimates/equitable adjustment issue. The jurisdictional rules
of the GPOBCA parallel those followed in Executive branch
contract appeals under the Contract Disputes Act (CDA). See,
e.g., Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995);
Santa Fe Engineers, Inc. v. United States, 818 F.2d 856, 858
(Fed. Cir. 1987), aff'g Santa Fe Engineers, Inc., ASBCA Nos.
28058 and 29362, 86-3 BCA � 19,092; Kneeland Const. Corp., DOTCAB
No. 4060, 99-2 BCA 30,574. In Santa Fe Engineers, Inc., a
construction contractor's claim for "all problems, changes and
directives that were issued on the project" was dismissed because
the claims presented to the contracting officer pertained only to
the amount of additional compensation, if any, to which the
contractor was entitled for three specific changes. Santa Fe
Engineers, Inc., supra, 86-3 BCA � 19,092. The ASBCA's ruling in
that case was based on the following reasoning:
It is quite evident, as strenuously asserted by the Government,
that the claim developed by appellant before the Board was
essentially different from the claims presented by it to the
contracting officer as to which the subject appeals were taken.
The claims before the contracting officer pertained only to the
amount of additional compensation, if any, to which appellant was
entitled for changes "AD," "CD" and "HK." They did not include
one for "all the problems, changes and directives that were
issued on the project," . . .
Appellant has elected to proceed under the Contract Disputes Act
of 1978. Under said Act the "claim" is the centerpiece of the
disputes resolution process. [Citation omitted.] It is
necessary that a claim be presented in writing to the contracting
officer for decision prior to its assertion to the Board. For
claims of more than $50,000 there is the further requirement of
certification. 41 U.S.C.A. � 605. The claim ultimately
presented to the Board in the subject appeals was beyond the
Board's jurisdiction, due to its not having first been submitted
to the contracting officer and certified in accordance with the
Act. [Citations omitted.]
Santa Fe Engineers, Inc., supra, 86-3 BCA � 19,092, at 96,508.
[Emphasis added.] This is not to say that evidence developed
during discovery cannot be the basis for amending an existing and
valid claim. Rather, it is the duty of the trier of fact to
ensure that such an amendment is not, in reality, a new claim.
See, J.F. Shea Company, Inc. v. United States, 4 Cl. Ct. at 54;
Santa Fe Engineers, Inc., supra, 86-3 BCA � 19,092, at 96,508.
Cf., The Wessel Company, Inc., supra, slip op. at 2, fn. 2. As
explained by the Claims Court:
This court and its predecessor have consistently held that it is
a jurisdictional prerequisite to a direct access suit in this
court that the claim at issue be first certified and submitted in
writing to the contracting officer pursuant to 41 U.S.C. ��
605(a), 605(c)(1). [Citations omitted.] However, as litigation
in this court includes pretrial proceedings, including discovery,
it must be recognized that additional facts may be developed
which could increase or decrease the amount of a claim. It would
be most disruptive of normal litigation procedure if any increase
in the amount of a claim based upon matters developed in
litigation before the court had to be submitted to the
contracting officer before the court could continue to a final
resolution on the claim. In this circumstance, it has been ruled
that, after certification is complete, a contractor is not
precluded from changing the amount of the claim or producing
additional data in support of increased damages. [Citation
omitted.] A plaintiff must be precluded, however, from raising
any new claim before this court which was not previously
presented and certified to the contracting officer for decision.
[Citation omitted.]".
See, J.F. Shea Company, Inc. v. United States, 4 Cl. Ct. at 54.
Applying the "essential difference" test of Santa Fe Engineers to
the facts of this case, the Board concludes that Appellant's
equitable adjustment "claim" due to alleged inaccurate estimates,
represents a new claim. The record shows that the Appellant's
original termination for convenience settlement proposal, sent to
the Contracting Officer on May 6, 1999, sought compensation for
monthly rental and service costs for copy machines leased for the
contract, plus profit on those costs. No amount was claimed as
an equitable adjustment for defective estimates. See Rule 4
File, Tab M. The Contracting Officer's final decision letter of
June 3, 1999, rejected Appellant's late termination settlement
proposal. Rule 4 File, Tab N. The appeal filed with the Board
on August 27, 1999, was from the Contracting Officer's final
decision of June 3, 1999. Rule 4 File, Tab R. In addition,
Appellant did not raise the issue of allegedly defective
Government estimates in its Complaint. It is clear that the
Appellant's negligent estimates claim arises from a different set
of operative facts as the termination claim submitted to the
Contracting Officer and relies on a totally different theory of
recovery. See, Croman Corp. v. United States, 44 Fed. Cl. 796
(1999); Foley Co. v. United States, 26 Cl. Ct. 936, 940 (1992),
aff'd 11 F.3d 1032 Fed. Cir. 1993).
In the Board's view, Appellant is seeking to litigate a new
claim unrelated to the one denied by the Contracting Officer.
Appellant has not taken the mandatory steps needed to secure
the Board's jurisdiction. The issue was not presented to the
Contracting Officer as a claim and has not been the subject of
a contracting officer's final decision. Therefore, the
negligent estimates/equitable adjustment claim is dismissed.
CONCLUSION
Appellant's appeal of the Contracting Officer's denial of its
untimely termination settlement proposal is dismissed for
failure to state a cause of action. Appellant's claim for
equitable adjustment is dismissed for lack of jurisdiction.
It is so Ordered.
January 31, 2001 KERRY L. MILLER
Administrative Judge
_______________
1 In addition to Appellant's failure to obtain a contracting
officer's final decision, a second issue arises. The general
rule is that when a contract is terminated for convenience, all
contract claims are merged into the subsequent termination for
convenience claim. See Nolan Brothers, Inc. v. United States,
186 Ct. Cl. 602, 405 F.2d 1250 (1969); Worsham Constr. Co., ASBCA
No. 25907, 85-2 BCA � 18,016 at 90,369. There is also some
authority that an equitable adjustment claim does not survive the
expiration of a termination for convenience claim. See RBW &
Associates, AGBCA No. 95-208-1, 96-2 BCA � 28,416; Milwaukee
Electronics Corp., ASBCA No. 44231, 93-3 BCA � 25,908;
Mictronics, Inc., ASBCA No. 30262, 85-2 BCA � 18,119; but see,
Advanced Materials, Inc. v. United States, 46 Fed. Cl. 697
(2000); Stradedile/Aegis Joint Venture, ASBCA No. 39318, 95-1 BCA
� 27,397 at 136,589; Lucas Aul, Inc., ASBCA No. 37803, 91-1 BCA �
23,609. Although Nolan Brothers was rejected recently by the
Court of Appeals for the Federal Circuit, that court's analysis
turned not on the viability of the merger concept, but rather on
the Congressional enactment of the Contract Disputes Act of 1978
(CDA), 41 U.S.C. � 601 et seq. See James M. Ellett Const. Co.,
Inc. v. United States, 93 F.3d 1537 (Fed. Cir. 1996). However,
the Nolan Brothers analysis appears to remain viable for
termination claims brought before GPO contracting officers
because the GPO, as an agency in the legislative branch of the
Federal government is not subject to the CDA. See, Tatelbaum v.
United States, 749 F.2d 729, 730 (Fed. Cir. 1984). However, the
Board need not decide at this time the extent to which
Appellant's equitable adjustment claim merged into its
termination for convenience claim and whether the equitable
adjustment claim survived the expiration of the termination
claim, as the Board believes Appellant's failure to obtain a
contracting officer's final decision is dispositive of the
equitable adjustment issue.