D.L. Braughler Co., Inc. v. West

• Citation: 127 F.3d 1476
• Decision Date: 27 October 1997
• Docket Number: No. 96-1277,96-1277
• Parties: 42 Cont.Cas.Fed. (CCH) P 77,183 D.L. BRAUGHLER COMPANY, INC., Appellant, v. Togo D. WEST, Secretary of the Army, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1476

127 F.3d 1476

42 Cont.Cas.Fed. (CCH) P 77,183

D.L. BRAUGHLER COMPANY, INC., Appellant, v. Togo D. WEST, Secretary of the Army, Appellee.

No. 96-1277.

United States Court of Appeals Federal Circuit.

Oct. 27, 1997.

Adrian L. Bastianelli, III, Bastianelli, Brown, Touhey & Kelley, Chtd., Washington, DC, argued, for appellant. With him on brief was Lori Ann Lange.

Steven E. Gordon, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for appellee. With him on brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Sharon Y. Eubanks, Deputy Director.

Before NEWMAN, CLEVENGER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

D.L. Braughler Company, Inc. ("Braughler") appeals from the November 28, 1995 decision of the Corps of Engineers Board of Contract Appeals ("Board") dismissing as untimely Braughler's appeal of a contracting officer's final decision. D.L. Braughler Co., ENGBCA No. 6121, 96-1 BCA 28,110 (1995). We affirm.

BACKGROUND

On April 16, 1982, Braughler and the United States Army Corps of Engineers ("Corps") entered into a contract for remedial work at the R.D. Bailey Dam, Guyandot River, West Virginia. Braughler, 96-1 BCA at 140,310. In addition to its specific provisions, the contract contained various standard clauses from the Defense Acquisition Regulations ("DAR"). ¹

During contract performance, a dispute arose, in which Braughler asserted that the Corps had unreasonably delayed approving its cofferdam shop drawings. Id. In response to Braughler's request for an extension of the contract completion date, the Corps issued Modification P00013. Id. at 140,310-11. The modification extended the contract completion date by 180 days. Id. Braughler executed the modification but reserved the right to file a claim for compensable delay costs. Braughler, 96-1 BCA at 140,311.

On February 10, 1988, Braughler sent a letter to the Corps' resident engineer for the project. The letter bore the subject title "Claim for Delay Caused by Untimely Approval of the Existing Stilling Basin Cofferdam." Id. In the letter, Braughler stated that it was seeking $137,648.04 in compensable delay costs, as well as additional delay time. Id. Accompanying the letter were eighteen separate exhibits containing supporting data for the claim. In addition, Braughler informed the resident engineer that its books and records were available for review. In the final paragraph of the letter, Braughler stated that "Attached as Exhibit 19 is our Certification of our claim." The certification read:

I, David L. Braughler, certify that the claim submitted by our letter dated 10 February 1988 and its attachments for the Delay Caused by Untimely Approval of the Existing Stilling Basin Cofferdam in the amount of $137,648.04 is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief, and the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable.

The resident engineer was designated as the authorized representative of the contracting officer. In that capacity, he had authority to "take any or all actions in connection with contract administration which could be lawfully taken by [the contracting officer], except the execution of or agreement to any contract modification."

On February 16 and August 19, 1989, Braughler contacted the resident engineer in order to inquire about the status of the claim. Eventually, on February 22, 1990, representatives of Braughler met with the resident engineer to discuss the claim. Braughler, 96-1 BCA at 140,311. The parties were unable to reach agreement, however, and by letter dated March 14, 1990, the resident engineer wrote Braughler concerning the claim. Id. In his letter, the resident engineer stated: "I find that your claim is not justifiable. The provisions for obtaining a Contracting Officer's Decision are contained in General Provision 6, 'Disputes' of the contract." Id.

By letter dated April 3, 1990, Braughler contacted the contracting officer concerning its claim. Id. The letter read:

This letter is written with regard to our claim for Untimely Approval of the Existing Stilling Basin Cofferdam, which was submitted by our letter of 10 February 1988. By letter dated 14 March 1990, [the resident engineer] denied the claim. We believe his decision is incorrect and request that a final decision be issued on the claim. However, prior to issuance of a final decision, we would like to have the opportunity to meet with you and try to resolve the claim short of litigation. Please let us know if you are willing to meet with us and if so please set an acceptable date for the meeting.

Braughler did not provide a new claim certification with its April 3rd letter. Braughler, 96-1 BCA at 140,311. After further correspondence and a meeting between the parties, in a final decision dated November 16, 1990, the contracting officer denied Braughler's claim. Id. at 140,311-12. The final decision opened with the following paragraph:

By letter dated February 10, 1988, you submitted a certified claim to the Resident Engineer in the amount of $137,648.04 for additional costs allegedly resulting from a delay caused by untimely approval of your cofferdam proposal (shop drawings). By Id. at 140,312 (citations omitted).

letter dated March 14, 1990, the Resident Engineer responded by stating that the claim was not justified and referred you to the Contracting Officer for a Contracting Officer's final decision. By letter dated April 3, 1990, you requested a Contracting Officer decision on your claim and a meeting with me prior to issuance of the decision.

The contracting officer advised Braughler that it could appeal the final decision to the Board within ninety days or within twelve months could bring an action in the United States Claims Court, the predecessor of the Court of Federal Claims. Braughler did not pursue either of these avenues. Id.

On October 30, 1992, the Corps informed Braughler that it wanted to close out the contract because the time for appealing the final decision had expired. Braughler, 96-1 BCA at 140,312. By letter dated November 30, 1992, Braughler responded that its "submittal of February 10, 1988 did not constitute a 'claim' under the Contract Disputes Act, and therefore the Contracting Officer's final decision of November 28[sic], 1990 was not valid." Braughler requested that the contracting officer issue a final decision, and it submitted a new claim certification dated December 7, 1992 with the letter. Braughler, 96-1 BCA at 140,312. The certification recited as follows:

I, David L. Braughler, certify that the claim submitted by our letter dated 10 February 1988 and its attachments for the Delay Caused by Untimely Approval of the Existing Stilling Basin Cofferdam in the amount of $137,648.04 is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief, and the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable.

Id. No other materials were enclosed with the letter. Id.

The contracting officer did not issue a final decision. Id. Subsequently, on January 18, 1994, pursuant to section 605(c)(5) of the Contract Disputes Act ("CDA"), 41 U.S.C. § 605(c)(5) (1988), Braughler appealed the deemed-denial of its claim to the Board. Braughler, 96-1 BCA at 140,312. In due course, the Corps filed a motion to dismiss, arguing that the Board lacked jurisdiction because the appeal was untimely. Id. at 140,309. The Board granted the motion in its November 28, 1995 decision. Id. at 140,312. The Board determined that Braughler had failed to timely appeal the contracting officer's November 16, 1990 final decision, and that therefore jurisdiction was lacking. Id. at 140,313. Regarding Braughler's argument that it had not requested a final decision in its February 10, 1988 letter to the resident engineer, the Board stated that it could "only wonder why [Braughler] certified the claim if it did not intend to present a CDA claim at that time." Braughler, 96-1 BCA at 140,313. The Board further stated that "it offends logic if [Braughler's] specific request for a [contracting officer's decision] following its certified claim did not establish a CDA claim." Id. Braughler's appeal to this court followed.

DISCUSSION

I.

Pursuant to the CDA, 41 U.S.C. §§ 601-613 (1994), ² we review decisions of the Board under the following standard:

the decision of the agency board on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence.

41 U.S.C. § 609(b). We have stated that "[w]hether a motion to dismiss for lack of jurisdiction has been properly granted is a question of law subject to complete and independent review on appeal." Gould, Inc. v. United States, 67 F.3d 925, 928 (Fed.Cir.1995); see also Arnold M. Diamond, Inc. v. Dalton, 25 F.3d 1006, 1010 (Fed.Cir.1994) (noting that the issue of whether the Board has jurisdiction is a question of law, which we review de novo ).

II.

Under the CDA, "[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision." 41 U.S.C. § 605(a). "[A] final decision by a [contracting officer] on a 'claim' is a prerequisite for Board jurisdiction." Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed.Cir.1995) (in banc). Following receipt of a contracting officer's final decision, a contractor has ninety days to appeal the decision to the appropriate agency board of contract appeals. 41...