DISMISSED FOR LACK OF JURISDICTION: October 8, 1993 GSBCA 12534-TD WOOD & COMPANY, Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. Milton A. Wood, President of Wood & Company, Brunswick, GA, appearing for Appellant. David H. Brunjes, Office of the Legal Counsel, Federal Law Enforcement Training Center, Glynco, GA, counsel for Respondent. Before Board Judges DANIELS (Chairman), VERGILIO, and DeGRAFF. DANIELS, Board Judge. The Department of the Treasury (Treasury), respondent, moves to dismiss for lack of jurisdiction an appeal filed by Wood & Company (Wood). We grant the motion. Findings of Fact 1. Treasury awarded to Wood a contract in the amount of $310,012 to renovate a building in Glynco, Georgia. Appeal File, Exhibit 1. 2. While Wood was performing the contract, Treasury and Wood agreed that the latter should install a new heating, ventilating, and air conditioning (HVAC) system in the building in return for additional compensation. The parties could not agree on a price for this work, however, and the contracting officer unilaterally modified the contract to increase payments by $8,186.71. Motion to Dismiss, Exhibits A, B. 3. Wood took exception to the amount set by the contracting officer and demanded payment of an additional $9,893. Appeal File, Exhibit 17. The contracting officer recognized this letter as a claim and asked for supporting documentation. Id., Exhibit 19. Wood then specified that in addition to previously identified costs, it believed that it was entitled to $4,264 in "extended job overhead" and $3,120 for "exerted office overhead," each representing the costs associated with twenty-six days of delay. Id., Exhibit 20. 4. On April 2, 1993, the contracting officer rendered a decision which addressed four separate claims filed by Wood with respect to this contract. Among these claims was the one for delay costs related to installation of the HVAC system. This claim was denied in its entirety; the contracting officer held that because the contract modification regarding this installation did not involve a suspension of work, overhead could only be recovered as a percentage of the direct cost of the installation. Appeal File, Exhibit 24. 5. On June 2, 1993, Wood appealed the contracting officer's April 2 decision to this Board. The appeal was clearly limited to one aspect of the decision -- the portion that denied a claim for additional payments for allegedly extra roofing work. Motion to Dismiss, Exhibits F-H. 6. On June 21, 1993, Treasury received an undated letter from Wood claiming that the contractor is entitled to payment in the amount of $31,040.03 for "extended field and office overhead" resulting from the agency's having delayed contract completion by forty-nine days by requiring that the additional HVAC work be performed. Complaint, Exhibit 1. 7. By letter dated July 22, 1993, the contracting officer responded, "Your letter sought to reopen our consideration of your HVAC claim . . . . My Final Decision letter to you on April 2, 1993 - specifically in the second through fourth paragraphs - defined our response on the HVAC claim." Appeal File, Exhibit 25. The fourth paragraph is the one that denies the delay claim referenced in paragraph 3, above. 8. On August 6, 1993, Wood filed at this Board a notice of appeal of what it denominated the contracting officer's "final decision . . . issued July 22, 1993." Wood additionally (and contradictorily) maintained that by the letter of July 22, the contracting officer had "denied Wood & Company the right to file a new and separate claim." Discussion The Contract Disputes Act of 1978 provides two means for a Government contractor to challenge a contracting officer's decision on a claim. The contractor may appeal the decision, within ninety days from its receipt, to the appropriate agency board of contract appeals. 41 U.S.C. 606 (1988). Alternatively, within twelve months from the date of receipt of the decision, the contractor may bring an action directly on the claim in the United States Court of Federal Claims. 41 U.S.C.A. 609(a) (West Supp. 1993). The deadline for filing an appeal with a board of contract appeals is unforgiving; it has been strictly construed by the Court of Appeals for the Federal Circuit, because the authorization to make the filing is a waiver of sovereign immunity. A late filing divests the board of jurisdiction to consider the case on its merits. Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Elden-Rider, Inc., GSBCA 8643, 90-2 BCA 22,878, at 114,901, aff'd, 935 F.2d 281 (table) (Fed. Cir. 1991); George's Lawn & Rental Service, Inc., GSBCA 10087, 89-3 BCA 22,081. Treasury contends that Wood has made one claim for costs associated with delays caused by the requirement to install a new HVAC system, and that that claim was resolved by the contracting officer's decision dated April 2. Wood did not appeal the denial of that claim to this Board within ninety days of receiving it, and consequently, Treasury says, the firm is barred from proceeding with it now at this Board.[foot #] 1 According to the agency, Wood's letter of July 22 merely restates the earlier claim, albeit in grander dress. Because the second letter did not constitute a separate claim, Treasury concludes, the contracting officer's response to it cannot trigger the running of a separate ninety-day period in which to file an appeal. Wood insists to the contrary that its demand of June 21 was "a separate new claim . . . which is completely and absolutely different from the [earlier] claim." The contractor says that its "claim on 6-21-93 has no similarity in any form at all" to the other one. Wood maintains that because the appeal was filed within ninety days of the contracting officer's response to the second claim, the Board has jurisdiction to hear the case. In deciding whether two allegedly separate claims "are merely various aspects of a single claim, involving a common set of operative facts, or are in fact separate claims," this Board ----------- FOOTNOTE BEGINS --------- [foot #] 1 Actually, Treasury counts days from the date of the decision, not the date of receipt -- something which is not envisioned by the statute. Wood has not alleged that it received the decision on any particular date, however. In such circumstances, we presume that receipt occurred five days after mailing. Global Radon Testing Services, Inc. v. General Services ----------- FOOTNOTE BEGINS --------- Administration, GSBCA 12517 (Aug. 27, 1993); Berkshire Computer ______________ __________________ Products, GSBCA 11539-P, 92-1 BCA 24,587, at 122,686, 1991 BPD ________ 302, at 4. Whether Wood received the decision on the date it was written or five days later is immaterial for the purpose of resolution of Treasury's motion; the date of filing of the instant appeal is more than ninety days later than either of these dates. ----------- FOOTNOTE ENDS ----------- follows a rule established by the Court of Federal Claims. The rule is that the "determining factor . . . is not the characterization placed on the claim by the contractor, but whether the demand for relief arose out of essentially interrelated conduct and services and the same, or closely connected, facts." Singleton Contracting Corp., GSBCA 9614, et al. (Oct. 4, 1988), at 3; see also D.L. Kaufman, Inc., GSBCA 11040, et al., 91-2 BCA 23,843; Richerson Construction, Inc., GSBCA 10653, 91-1 BCA 23,538 (1990); LDG Timber Enterprises, Inc. v. United States, 8 Cl. Ct. 445, 452 n.9 (1985); Walsky Construction Co. v. United States, 3 Cl. Ct. 615, 618-19 (1983). Here, Wood's letter of June 21 was essentially nothing more than a reiteration of its initial claim. The two demands are both premised on the theory that by ordering supplemental work on the HVAC system, Treasury delayed completion of the entire project and thereby caused Wood to incur additional overhead costs with respect to both its office and the jobsite. The fact that the second letter asserts a longer period of delay and asks payment of a larger amount does not make this letter a separate claim. Cf. Tecom, Inc. v. United States, 732 F.2d 935, 938 (Fed. Cir. 1984) (increasing amount of claim to greater than $50,000, based on further information, does not implicate Contract Disputes Act's requirement for certification of claim). If Wood's theory were valid, the Act's limitation on access to a board of contract appeals could be evaded with impunity. A contractor who concluded, more than ninety days after having a claim rejected, that it wanted a board to hear an appeal of the contracting officer's decision, could always get that consideration. It would simply have to file a second claim which was immaterially different from the first, wait for the expected denial, and submit an appeal within ninety days of receipt of that rejection. This is clearly not the result Congress intended when it wrote the limitation into the statute. Decision This appeal was filed more than ninety days after Wood received the contracting officer's decision which it now challenges. The Board consequently does not have jurisdiction to hear the case. The appeal is DISMISSED FOR LACK OF JURISDICTION. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ JOSEPH A. VERGILIO MARTHA H. DeGRAFF Board Judge Board Judge