G.E. Boggs & Associates, Inc. v. Roskens, 91-1214
| Decision Date | 02 July 1992 |
| Docket Number | No. 91-1214,91-1214 |
| Citation | 969 F.2d 1023 |
| Parties | 38 Cont.Cas.Fed. (CCH) P 76,356 G.E. BOGGS & ASSOCIATES, INC., Appellant, v. Ronald W. ROSKENS, Administrator of the Agency for International Development, Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Joseph J. Petrillo, Petrillo & Hordell, Washington, D.C., argued for appellant. With him on the brief was Eric L. Lipman.
Robert E. Kirschman, Jr., Attorney, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Martha H. DeGraff, Asst. Director.
Before NEWMAN, MAYER and CLEVENGER, Circuit Judges.
G.E. Boggs & Associates, Inc. (Boggs) appeals from the October 31, 1990 decision of the Armed Services Board of Contract Appeals (Board) finding the Contract Disputes Act and the Prompt Payment Act inapplicable to Boggs's contract claims and denying Boggs's claim for legal fees and management costs. G.E. Boggs & Associates, ASBCA Nos. 34841, 34842, 36792, 91-1 B.C.A. (CCH) p 23,515, 1990 WL 186287 (Oct. 31, 1990). We agree that the Contract Disputes Act does not apply to the Boggs contracts adopted by the administrator of the Agency for International Development (AID). For this reason, we lack jurisdiction to hear this appeal and transfer this case to the United States Claims Court.
In 1982, Boggs entered into two related contracts with the government of the Syrian Arab Republic (Syria) to improve the water supply in Damascus, Syria. These contracts were "host country contracts" funded through a loan agreement between AID and Syria. No entity of the U.S. government was a signatory to the contracts, but AID funding approvals were a condition precedent to the effective date of the contracts and the commencement of work. In 1983, there were two memorable terrorist attacks on American servicemen and embassy personnel in Beirut, Lebanon in which Syria may have played a role. Consequently, on November 13, 1983, Congress passed a joint resolution, part of a continuing resolution making appropriations for fiscal year 1984, directing the administrator of AID to terminate the U.S. economic assistance program to Syria.
None of the funds heretofore appropriated or otherwise made available for Syria for the purposes of carrying out the provisions of chapter 4 of part II of the Foreign Assistance Act of 1961 ... shall be expended after the date of enactment of this joint resolution [Nov. 14, 1983]. The Administrator of the Agency for International Development is directed to terminate the economic assistance program to Syria.... The Administrator of the Agency for International Development is authorized to adopt as a contract of the United States Government, and assume any liabilities arising thereunder (in whole or in part), any contract with a United States contractor which had been funded by the Agency for International Development prior to the date of enactment of this joint resolution.
H.J. Res. 413, Pub.L. No. 98-151, § 101(b)(1), 97 Stat. 964, 967 (Nov. 13, 1983) (codified at 22 U.S.C. § 2346a note (1988)). Eight days later, on November 22, 1983, Congress enacted the Department of State Authorization Act which, inter alia, restated Congress' termination of assistance programs to Syria.
SEC. 1004. (a) After the enactment of this section, funds available to the Agency for International Development may not be used for any payment or reimbursement of any kind to the Government of Syria or for the delivery of any goods or services of any kind to the Government of Syria.
(b) The Administrator of the Agency for International Development shall deobligate all funds which have been obligated for Syria under the Foreign Assistance Act of 1961 prior to the enactment of this section, except that--
* * * * * *
(2) the Administrator may adopt as a contract of the United States Government any contract with a United States or third-country contractor which would otherwise be terminated pursuant to this subsection, and may assume in whole or in part any liabilities arising under such contract....
Department of State Authorization Act, Fiscal Years 1984 and 1985, Pub.L. No. 98-164, § 1004, 97 Stat. 1017, 1057 (1983) (codified at 22 U.S.C. § 2346a note (1988)).
On January 10, 1984 Boggs requested in writing that the AID administrator adopt the contract, in Boggs's words, "to hold it harmless under the circumstances caused by the enactment of the Joint Resolution." In that letter, Boggs specified the relief it sought from AID's adoption of the contracts: (1) payment of uncontested invoices for work already performed and (2) direct and contingent costs of terminating the contracts. On March 9, 1984 the AID administrator stated his intent to adopt the contracts for the purpose of terminating them, under Federal Procurement Regulation (FPR) section 1-8.702 (termination for convenience) and FPR section 1-7.102.12 (dispute settlement). Boggs agreed to the adoption and termination procedures by executing each letter of adoption. The AID administrator terminated the contracts for convenience that same day. From January 1985 through February 1987 Boggs and AID negotiated a contract termination settlement. Eventually, AID offered to pay $4,590,728 as the total termination payment to cover the two contracts. That amount included payment for Boggs's termination inventory of computer, communications and office equipment to which AID received title. Boggs found this amount unacceptable, and on March 2, 1987 filed a certified claim under the Contract Disputes Act with the contracting officer. Boggs reserved the right to file future claims for management and legal costs. The Board assumed jurisdiction over Boggs's appeal of this claim when the government failed to issue a contracting officer decision. On August 11, 1987 Boggs filed a second certified claim on the issues previously reserved. The AID contracting officer denied that claim on January 26, 1988, and Boggs appealed that denial to the Board.
Boggs asserted claims for lost collateral, general and administrative expenses, legal fees, management costs, additional profit, Contract Disputes Act interest and Prompt Payment Act interest before the Board. The Board found that it did not have jurisdiction over the appeals under the Contract Disputes Act because the contracts were not agreements between Boggs and an executive agency for the procurement of property as required by 41 U.S.C. § 602(a)(1) (1988). "The contractual relationship between appellant and AID was not entered into for the purpose of procurement, but for the purpose of mitigating the effects of certain legislation...." Boggs, 91-1 B.C.A. (CCH) at 117,906. The Board proceeded to exercise its jurisdiction over the appeal under the disputes provisions of the parties' adoption agreements granting Boggs's claims for certain expenses and profit in the amount of $298,428, in addition to the $4,590,728 previously offered by AID, and denying Boggs's claims for attorneys fees, management costs, increased profit and interest. Id. at 117,906-10. Boggs appeals that decision to this Court asserting that the Board erroneously concluded that the Contract Disputes Act did not apply to Boggs's contracts. Boggs further asserts that the Board erred in finding that Boggs had not presented sufficient evidence to recover its legal costs and expenses and management costs, and in denying Boggs's claim for Prompt Payment Act interest.
A court must, in the first instance, determine whether it has jurisdiction to hear an appeal. Mansfield, Coldwater & Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884). It is a "well-established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress." Aldinger v. Howard, 427 U.S. 1, 15, 96 S.Ct. 2413, 2420, 49 L.Ed.2d 276 (1976). Pursuant to 28 U.S.C. § 1295(a)(10) (1988), this Court only has jurisdiction over an appeal directly from a final decision of an agency board of contract appeals if that decision has been made pursuant to § 8(g)(1) of the Contract Disputes Act of 1978, 41 U.S.C. § 607(g)(1) (1988). If the Contract Disputes Act does not apply to the Boggs contracts adopted by the AID administrator, this Court lacks jurisdiction over this appeal to decide whether the Board erred in denying Boggs's claims. Zinger Constr. Co. v. United States, 753 F.2d 1053, 1054 (Fed.Cir.1985); Tatelbaum v. United States, 749 F.2d 729, 730 (Fed.Cir.1984); North Am. Corp. v. United States, 706 F.2d 1212, 1213 (Fed.Cir.1983).
The Contract Disputes Act applies to contracts entered into 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. § 602(a) (1988). In order for us to decide the jurisdictional question, we must determine whether the Boggs contracts adopted by the AID administrator are contracts for the procurement of goods or services by an executive agency, a question of law on which this Court must exercise independent judgment. Pasteur v. United States, 814 F.2d 624, 626 (Fed.Cir.1987).
Boggs contends that the language of House Joint Resolution 413 and the Department of State Authorization Act as well as the sparse legislative history which accompanies them articulate Congress's intent to accord domestic contractors all the benefits and protections of federal procurement law, including the application of the Contract Disputes Act, when Congress authorized the AID administrator to adopt contracts terminated as a result of the deobligation of funds to Syria.
We agree that Congress intended the AID administrator to adopt the contracts as government contracts....
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