_________________________________________________ MOTION TO DISMISS DENIED: September 25, 1992 _________________________________________________ GSBCA 11655 ATLAS ELEVATOR CO., INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Reinhardt Becker, Atlas Elevator Co., Inc., Woburn, MA, appearing for Appellant. M. Leah Wright, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, Acting Chief Judge, NEILL, and HYATT. HYATT, Board Judge. On December 18, 1991, Atlas Elevator Co., Inc. filed this appeal of a contracting officer's decision that certain repairs performed by Atlas were within the scope of its contract to inspect and maintain elevators in a federal building and not separately compensable. In a motion filed on February 7, 1992, respondent, the General Services Administration (GSA), sought the dismissal of this appeal on the ground that the Board lacks jurisdiction to entertain it because appellant never filed a proper "claim." For the reasons stated herein, we deny respondent's motion. Background On July 27, 1990, appellant was awarded Contract No. GS-01P- 90-BWC-0070 to inspect and maintain the elevators at the J.F. Williams Coast Guard Building in Boston, Massachusetts. Appeal File, Exhibit 2. The contract required appellant to provide preventive elevator maintenance, service calls, repairs, and related services for a fixed monthly price. Id. Thereafter, Atlas presented for payment an invoice, dated May 15, 1991, in the amount of $1,401, representing the cost of repairs to the selector cable in one of the building's elevators. Appeal File, Exhibit 20. GSA responded by letter dated May 20, 1991, declining to pay the amount of the invoice. Id., Exhibit 21. This letter pointed out that, under the contract, repairs considered by the contractor to be outside the scope of the contract must be pre-approved by the contracting officer and further pointed out that these repairs had not been so approved. The letter also stated that, in any event, GSA did not consider the repairs to be outside the scope of the contract. Id. Atlas responded in another letter, dated August 20, 1991, which Atlas asserts constitutes the "claim" in this appeal. Appeal File, Exhibit 22. This letter set forth appellant's explanation of why the repair was necessitated and why the repair was outside the scope of the contract. Id. The letter also stated: "I trust you will reconsider this request for payment and should you have any further questions of this office regarding same, please feel free to contact this office at your earliest convenience." Id. By letter dated September 24, 1991, the contracting officer responded to appellant's letter, stating the view that the repairs associated with the invoice were within the scope of the contract. The letter also pointed out that when appellant considers repairs to be outside the scope of the contract, it is obligated to so notify the Government in advance. Appeal File, Exhibit 23. The contracting officer also informed appellant that this was a "final decision" and provided the appropriate information concerning the contractor's right of appeal. Id. Discussion Respondent has moved to dismiss this appeal for lack of jurisdiction on the ground that Atlas never properly filed a "claim" with the contracting officer. As a result, the contracting officer lacked the authority to issue a final decision and, absent the requisite appealable decision, the Board has no jurisdiction to entertain this matter. See Dawco Construction, Inc. v. United States, 930 F.2d 872, 877 (Fed. Cir. 1991); W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1338- 39 (Fed. Cir. 1983). The Board has jurisdiction over an appeal only after a "claim" is submitted to a contracting officer and the contracting officer either renders a final decision on the claim or the failure to issue a decision is deemed to be a denial of the claim. See 41 U.S.C. 605(a), (c)(1), (c)(5), 607(d) (1988). If no claim was made, there exists no basis for jurisdiction at the Board, even if the contracting officer mistakenly issued a "final decision." See Paragon Energy Corp. v. United States, 227 Ct. Cl. 176, 184, 645 F.2d 966, 971 (1981); J.S. Alberici Construction Co., GSBCA 10482, 91-3 BCA 24,203, at 121,062. Here, then, the focus of the Board's inquiry is whether the contracting officer's final decision responded to a proper "claim" submitted by appellant. The Contract Disputes Act (CDA) simply states that "[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 decision." 41 U.S.C. 605(a) (1988). Since the Act does not specify explicit requirements for the submission of a "claim," the sufficiency of a given submission "may properly be evaluated against regulations implementing the CDA, the language of the contract in dispute, and the facts of the case." Dawco Construction, 930 F.2d at 877 (citing Gardner Machinery Corp. v. United States, 14 Cl. Ct. 286, 290 (1988)); see Paragon Energy Corp., 227 Ct. Cl. at 192, 645 F.2d at 976. The Federal Acquisition Regulation (FAR) defines the term "claim" in the Disputes clause required to be incorporated in Government contracts, including the contract in issue here: "Claim" as used in this clause, 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 this contract. . . . A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted into a claim under the Act, by complying with the submission and certification requirement of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time. 48 CFR 52.223-1(c) (1991). There are no magic words required for a submission to constitute a claim under the standard articulated in the CDA and the FAR. The principal requirement is for "a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim." Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987); accord Transamerica Insurance Corp. v. United States, No. 92-5044, slip op. at 13 (Fed. Cir. Sept. 4, 1992). Beyond this, as the Court emphasized in Transamerica, a common sense analysis should be applied to ascertain whether a particular submission meets the statutory criteria. Slip op. at 15. Respondent agrees that appellant's letter dated August 20, 1991 provided sufficient notice of the basis for appellant's claim and requested a sum certain. The letter's shortcoming, according to respondent, is that it failed to demand payment as a matter of right and did not, explicitly or implicitly, communicate a desire for a contracting officer's final decision.[foot #] 1 Appellant counters that, although it did not actually use the words "demand payment," in context, the letter as a whole clearly asserted a right to payment of the amount requested. Thus, appellant contends, the incomplete terminology used in its letter should not preclude it from bringing this appeal. Viewed in context, we conclude that appellant's correspondence satisfied the statutory prerequisites. Respondent had previously rejected appellant's initial tender of the invoice for payment, denying liability for payment. This put the matter squarely in dispute. The letter made clear that appellant still considered itself entitled to collect the full amount. In essence, the only reasonable interpretation is that appellant was resubmitting its invoice for payment with an explanation responding to GSA's rejection of the invoice. On its face, the letter evinces a desire to resolve the matter expeditiously. The Government certainly took it to be a claim -- responding with a letter rejecting the demand and informing appellant of its rights under the Disputes Act. Confronted with similar circumstances in Transamerica, the Court observed: The . . . letter was in writing, was submitted to the contracting officer for a decision, requested payment of a sum certain, and gave the contracting officer adequate notice of the basis and amount of the claim. This court is loathe to believe that . . . a reasonable contractor would submit to the contracting ----------- FOOTNOTE BEGINS --------- [foot #] 1 In support of this contention, the Government relies on Hoffman Construction Co. v. United States, 7 Cl. Ct. ----------- FOOTNOTE BEGINS --------- 518 (1985). There, the Claims Court, citing Paragon Energy _______________ Corp., determining for several reasons that a proper CDA claim _____ had not been submitted by the contractor, noted that the contractor had not requested a final decision from the contracting officer but had merely sought an opportunity to resolve certain cost disputes. Id. at 525-26; see also Mingus __ _________ ______ Constructors, Inc. v. United States, 812 F.2d 1387, 1394-95 (Fed. ___________________________________ Cir. 1987) (to be a "claim," submission must request a decision from contracting officer); Sun Eagle Corp. v. United States, 23 _________________________________ Cl. Ct. 465, 471 (1991) (establishing four part test, including request for final decision). The Court of Appeals for the Federal Circuit, in Transamerica (which was issued after the ____________ filing of respondent's motion), makes clear that the rulings in cases such as Mingus and Hoffman are to be restricted to their ______ _______ factual predicates and may not be construed to formalize a requirement that contractors must routinely articulate a desire for a final decision in order to satisfy the jurisdictional requirement for submission of a "claim" to the contracting officer. ----------- FOOTNOTE ENDS ----------- officer a letter containing a payment request after a dispute had arisen solely for the contracting officer's information and without at the very least an implied request that the contracting officer make a decision as to entitlement. Any other finding offends logic. Slip op. at 13; see also Kleen-Rite Corp., GSBCA 5893, 83-2 BCA 16,582, at 82,470-71 ("[T]he demand for decision is implicit in the submission of what is otherwise clearly a claim. No more is required."). Here, too, it defies logic to conclude that appellant's letter does not at a minimum contain an implied request for a decision. Decision The motion to dismiss for lack of jurisdiction is DENIED. ________________________________ CATHERINE B. HYATT Board Judge We concur: _____________________________ _________________________________ VINCENT A. LaBELLA EDWIN B. NEILL Acting Chief Board Judge Board Judge