DISMISSED IN PART FOR LACK OF JURISDICTION: March 1, 1994 GSBCA 12661 P. A. CAVANAGH CO. INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Walter F. Cavanagh, President of P. A. Cavanagh Co. Inc., Clarks Green, PA, appearing for Appellant. Sharon A. Roach, Real Property Litigation, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and DEVINE. DANIELS, Board Judge. P. A. Cavanagh Co. Inc. (Cavanagh) held a contract with the General Services Administration (GSA) to operate, maintain, and perform incidental repairs to the Robert C. Nix Federal Building in Philadelphia, Pennsylvania. Through a notice of appeal, Cavanagh asks us to direct GSA to make payment to it for deductions wrongly withheld and additional work never compensated. We divide Cavanagh's requests for payment into six different categories. GSA moves us to dismiss the appeal in part for lack of jurisdiction. According to the Government, some of the categories were not the subject of a contractor's claim or a contracting officer's decision, and the decision as to another category was appealed beyond the period of time permitted by statute. We grant this motion in part. Findings of Fact Cavanagh's appeal involves requests for payment of amounts which fall into the following categories: 1. Reimbursement for deductions for unsatisfactory performance taken by GSA for the months July 1991 through January 1992 ($7,320.62). 2. Reimbursement for deductions for unsatisfactory performance taken by GSA for the month of February 1992 ($515.73). 3. Reimbursement for deductions for unsatisfactory performance taken by GSA for the month of March 1992 ($46.31). 4. Additional payment for replacement of a compressor ($2,486.33). 5. Additional payment for work on an 85-ton water chiller ($4,847.85). 6. Additional payment for installation of lights ("relamping") ($7,087.42). Category 1: By letters dated August 18 and September 15, 1992, Cavanagh asked the contracting officer for "final decisions" on the deductions for the months July 1991 through January 1992. Appeal File, Exhibits 8, 10. The contracting officer issued a decision on July 22, 1993, taking $7,320.62 in deductions. Id., Exhibit 11. Category 2: By letter dated May 18, 1992, Cavanagh asked the contracting officer "for a final decision on deductions taken for February, 1992." Appeal File, Exhibit 6 at 1st-2d unnumbered pages. The contracting officer issued a decision on June 3, 1992, taking $515.73 in deductions. The letter informed Cavanagh that it was "a final decision of the Contracting Officer" and advised the contractor of its right to appeal to this Board within ninety days of receipt of the decision. Id., Exhibit 7 at 1st-2d unnumbered pages. Cavanagh received this decision on June 5, 1992. Id. at 3d unnumbered page. Category 3: In a letter dated July 23, 1993, the contracting officer listed "a summary of the final decisions concerning the deductions." This summary shows a "final decision" that for March 1992, deductions in the amount of $47.99 were taken. Appeal File, Exhibit 17. Category 4: In the course of its work at the Nix Building, Cavanagh replaced and/or repaired a compressor. The manager of the agency's East Philadelphia field office refused to pay for the work, which he maintained was improperly performed. Appeal File, Exhibits 18, 20. Cavanagh asked that GSA return the compressor to the contractor, and the field office manager agreed to do so. Id., Exhibits 19, 20. The record does not contain any other correspondence regarding the compressor. Category 5: On January 31, 1992, Cavanagh asked the contracting officer to issue a final decision as to payment for repairs made to an 85-ton water chiller. The contractor stated that the field office manager had refused to make payment in response to two invoices, number 11-55 ($1,324.83) and number 11-57 ($3,889.30), and that the matter was consequently in dispute. Cavanagh also stated that a third invoice, for a separate type of necessary work, would be forthcoming. Appeal File, Exhibit 21. By letter dated February 10, 1992, the contracting officer responded, "[Y]our request to be reimbursed for invoice number 11-55 is denied." This letter was not styled a "final decision," and it did not advise the contractor of its right to appeal to this Board within ninety days of receipt. Id., Exhibit 22.[foot #] 1 On April 27, 1992, Cavanagh renewed its request that the contracting officer direct payment of the amount stated in invoice 11-55. The contractor also asked for payment of $3,523.02 for work performed on the chiller by a subcontractor. Appeal File, Exhibit 26. By letter dated May 4, 1992, the contracting officer reiterated his previous determination: "[Y]our request for reimbursement of invoice number 11-55 is hereby denied." Again, he did not call his determination a "final decision" or advise Cavanagh of its appeal rights. He forwarded the second invoice to the field office "since they are most familiar with the situation." Id., Exhibit 27. The field office manager denied payment on June 30, 1992. He advised the contractor, "If you wish to appeal this decision, please contact the Contracting Officer in writing." Id., Exhibit 28. The record contains no evidence that Cavanagh ever raised this matter with the contracting officer. Category 6: Beginning in July 1990, shortly after award of the contract in question, Cavanagh called to the contracting officer's attention the need to make arrangements for additional payments for relamping work. Negotiations between Cavanagh and the contracting officer continued into 1991. Appellant's Response to Motion for Partial Dismissal, Exhibits A-E. In 1992, the manager of GSA's East Philadelphia field office took up the negotiations on behalf of the contracting officer. Appellant's Response to Motion for Partial Dismissal, Exhibit F. On February 27, he told Cavanagh that the contracts division ----------- FOOTNOTE BEGINS --------- [foot #] 1 The contracting officer also said that the field office would "take the appropriate steps to effect payment" on invoice number 11-57. Appeal File, Exhibit 22. Cavanagh presented the invoice to the field office. Id., Exhibit 24. It ___ must not have been paid, however; on March 18, 1992, the contracting officer denied the request for reimbursement of the invoice. Id., Exhibit 25. Cavanagh has not appealed the ___ contracting officer's decision regarding invoice number 11-57. Complaint at 5. ----------- FOOTNOTE ENDS ----------- "will be issuing a modification to the above referenced contract in the amount of $5,206.97 for the replacement of lights not on the equipment inventory." He said that payment would actually be made, however, only if the agency could "verify that the lights were installed at the Nix Building." He therefore asked Cavanagh to submit documentation in support of its contention that it actually installed the lights. Id., Exhibit G. Cavanagh provided copies of invoices on March 5. Id., Exhibit H. Then on April 3, it sent a "pricing sheet [which] shows the lamps used, [their] cost[,] and labor of 15 minutes per lamp for installation." The contractor concluded, "If the facts are acceptable as presented please have a Modification issued in the [additional] amount of $1,880.46." Id., Exhibit I. Later in April 1992, Cavanagh's president spoke about the relamping matter with a GSA contract specialist. According to the contract specialist's notes, she offered to pay $5,206.97 even without documented proof of the work. "He agreed to consider the compromise, and he will call me back with his decision." Appeal File, Exhibit 13. On May 12, the contracting officer, in writing, told Cavanagh that notwithstanding the absence of documentation, "in order to facilitate a mutually acceptable agreement, we are willing to compromise. A fair and reasonable solution would be a lump sum payment of $5,206.97 which will cover the entire contract period. If this is not acceptable to you, we will process the modification unilaterally in the amount in which we can verify was performed by our records." Id., Exhibit 14; see also id., Exhibit 15. The contract specialist's notes for May 28, 1992, state that Cavanagh's president "will not sign the modification until all of the issues pertaining to this contract are resolved. . . . [I]f the outstanding issues are resolved to his satisfaction, he will consider accepting this compromise." Appeal File, Exhibit 16. The record contains no further correspondence about the relamping matter until July 23, 1993. On that date, the contracting officer noted that final decisions had been issued on all monthly deductions, asserted that relamping "is the only issue remaining under this contract," and agreed to pay $5,206.97 for it. He stated, "This is the maximum amount that the Government can authorize based upon the documentation available." Id., Exhibit 17. Notice of appeal: Cavanagh filed its notice of appeal on October 25, 1993. Discussion GSA contends that the Board has jurisdiction over only one of Cavanagh's six categories of requests for payment -- category 1, reimbursement for deductions for unsatisfactory performance taken by the agency for the months July 1991 through January 1992. The motion to dismiss is susceptible to clear-cut resolution with regard to all of the other five categories except the last. The Board has no jurisdiction over category 2, reimbursement for deductions for unsatisfactory performance taken by GSA for the month of February 1992. The Contract Disputes Act of 1978 provides that a Government contractor may challenge a contracting officer's decision on a claim by filing an appeal with the appropriate agency board of contract appeals. Such an appeal may be filed only within ninety days from the contractor's receipt of the contracting officer's decision, however. 41 U.S.C. 606 (1988). This deadline 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); Wood & Co. v. Department of the Treasury, GSBCA 12534-TD (Oct. 8, 1993); Elden-Rider, Inc., GSBCA 8643, 90-2 BCA 22,878, at 114,901, aff'd, 935 F.2d 281 (Fed. Cir. 1991) (table). The deductions in question were the subject of a contracting officer's decision which was received by Cavanagh in June 1992; the appeal was not filed until October 1993, more than one year later. Plainly, this filing was too late for the merits of the matter to be considered by us. The Board does have jurisdiction over category 3, reimbursement for deductions for unsatisfactory performance taken by GSA for the month of March 1992. Deductions to fixed price contracts, when made by a contracting officer, constitute Government claims. A contracting officer's decision which asserts such a claim may be appealed to a board of contract appeals, regardless of whether the decision notifies the contractor of its appeal rights or whether the decision was triggered by a contractor request for it. Cleveland Telecommunications Corp. v. General Services Administration, GSBCA 12540, slip op. at 6-7 (Nov. 15, 1993) (citing Placeway Construction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990), and Kleen Master, Inc., GSBCA 7657, 89-2 BCA 21,880). In his letter of July 23, the contracting officer labeled a "final decision" the determination that GSA was entitled to $47.99 for March 1992 deductions. Consequently, the Board has jurisdiction to consider Cavanagh's appeal of a portion of that decision, provided that the appeal was timely filed. GSA has not contended that the appeal was late. We do not have jurisdiction over category 4, additional payment for replacement of a compressor. A contracting officer's decision is a jurisdictional prerequisite to the consideration of a matter by a board of contract appeals. Sharman Co. v. United States, 2 F.3d 1564, 1568-69 (Fed. Cir. 1993). Such decisions are rendered on claims. 41 U.S.C. 605(a) (1988). "[W]ith respect to a claim for money, three requirements . . . must be met for a submission to constitute a 'claim': (1) the demand or assertion must be in writing, (2) the money must be sought as a matter of right, and (3) the writing must set forth a sum certain." Essex Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1580 (Fed. Cir. 1992) (citing 48 CFR 33.201 (1991)). We have no evidence that Cavanagh's brief correspondence with GSA meets any of these tests. Further, we have no evidence that Cavanagh ever intended that its desires be acted on by the contracting officer. Dawco Construction, Inc. v. United States, 930 F.2d 872, 880 (Fed. Cir. 1991). Thus, the prerequisite for our examining the merits of the compressor matter is absent. We have jurisdiction over part of category 5, additional payment for work on an 85-ton water chiller. Cavanagh expressly asked the contracting officer in writing, on two occasions, to determine whether GSA would make payment on invoice 11-55, in the amount of $1,324.83, to which Cavanagh believed it was entitled. The contracting officer just as clearly responded that the request was "hereby denied." Although more than a year passed between the dates of his decisions and the date of filing of the appeal, that is not fatal to our jurisdiction. "A contracting officer's final decision that does not give the contractor adequate notice of its appeal rights is defective and therefore does not trigger the running of the limitations period." Pathman Construction Co. v. United States, 817 F.2d 1573, 1578 (Fed. Cir. 1987); see also Trans-Atlantic Industries, Inc., GSBCA 10803, 91-1 BCA 23,412, at 117,458. The contracting officer's violation of the statutory command that his decision "shall inform the contractor of his rights," 41 U.S.C. 605(a) (1988), in effect excuses the contractor from complying with the statutory restriction that an appeal be filed "[w]ithin ninety days from the date of receipt of [the] decision," id. 606. We may review the merits of Cavanagh's claim to the amount specified in invoice 11-55. The second part of Cavanagh's search for payment for repairs to the chiller -- the request for an additional $3,523.02 for separate work performed by a subcontractor -- was not in dispute when it reached the contracting officer. This fact alone deprives the request of the status of claim. Dawco, 930 F.2d at 878; Mayfair Construction Co. v. United States, 841 F.2d 1576, 1577 (Fed. Cir.), cert. denied, 488 U.S. 980 (1988). The contracting officer passed the request on to a field office manager, who expressly told the contractor that his determination could be appealed to the contracting officer. The record does not indicate that Cavanagh ever accepted this invitation. Thus, in addition to the absence of a claim, there is also, with regard to the request for payment for the subcontractor's work, no indication that the contractor asked for a contracting officer's decision. We consequently lack jurisdiction to hear this part of category 5. The close question in this case is whether, with regard to category 6, payment for relamping, a claim was ever made. The Court of Appeals for the Federal Circuit has counseled that "the [Contract Disputes Act's] statutory requirements as interpreted by this Court suggest a common sense analysis to determine whether (1) the contractor asserted in writing and with sufficient specificity a right to additional compensation, (2) the government disputed that right, and (3) the contractor communicated his desire for a contracting officer decision." Transamerica Insurance Corp. v. United States, 973 F.2d 1572, 1579 (Fed. Cir. 1992); see also P. J. Dick Inc. v. General Services Administration, GSBCA 12052, 94-1 BCA 26,276, at 130,735. In recent years, the Court of Appeals has had occasion to consider in numerous cases what constitutes a claim. In making its rulings, the Court has provided significant advice in how to make the "common sense analysis" it has directed. The Court has placed emphasis on whether "the contractor desires by its submissions . . . a final decision." Transamerica, 973 F.2d at 1576. The contractor's intent in corresponding with the Government is thus critical. Id. at 1578 (citing Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)). The contractor need not use any "magic words," such as "we request a final decision from the contracting officer." Id. The import of the communication may be implied from the context. Heyl & Patterson, Inc. v. O'Keefe, 986 F.2d 480, 483 (Fed. Cir. 1993). As to the requirement that a matter be in dispute, whether the parties have actually reached an impasse at the time a letter is written may be determined by reference to events which follow that communication. Santa Fe Engineers, Inc. v. Garrett, 991 F.2d 1579, 1582 (Fed. Cir. 1993). Simply continuing a dialogue, without any implication that the contractor desired a final decision, does not demonstrate the existence of a claim. Heyl & Patterson, 986 F.2d at 485-86. On the other hand, "[t]here is no necessary inconsistency between the existence of a valid CDA claim and an expressed desire to continue to mutually work toward a claim's resolution." Transamerica, 973 F.2d at 1579; see also Contract Cleaning, 811 F.2d at 592. Additionally, the claim need not go directly to the contracting officer; it need only make apparent that the contractor is yielding to that individual's authority to resolve the matter. Dawco, 930 F.2d at 880. Sending a request for a decision to the contractor's primary contact with the Government, with the expectation that the contracting officer will render a decision, meets the statutory requirement. Neal & Co. v. United States, 945 F.2d 385, 388-89 (Fed. Cir. 1991). This Board has held further that where the request is made to an agent of the contracting officer, and is plainly for a contracting officer decision on a matter in dispute, it is a claim even if the intermediary fails to pass it along to the appropriate authority. Board of Public Utilities of the City of Kansas City, Kansas, GSBCA 10820, 91-2 BCA 24,025, at 120,293. The critical piece of correspondence, with regard to the relamping issue, is Cavanagh's letter of April 3, 1992, which asks that GSA "have a Modification issued in the [additional] amount of $1,880.46." This letter was written after nearly two years of negotiations. It is in writing, seeks money as a matter of right, and sets forth a sum certain. It disputes GSA's position that the value of the contractor's relamping work was no more than $5,206.97. Although it was directed to a field office manager, from context, we find that the manager was acting as the conduit for communications between Cavanagh and the contracting officer; the letter was sent on to the contracting officer, who responded to it. The parties appeared to be at an impasse when the letter was written, and subsequent events have shown that although both sides have considered a settlement, the contractor has never budged from the position it expressed on April 3. We conclude from the evidence before us that this letter was intended to be a claim. On July 23, 1993, the contracting officer determined that the Government would not pay more than $5,206.97 for the relamping work. He thereby effectively denied Cavanagh's claim for an additional $1,880.46. The contracting officer's letter was not a mere invitation to negotiate further. Sharman, 2 F.3d at 1571 n.9. Instead, it responded directly to Cavanagh's contentions and rejected them decisively. It therefore conveyed the necessary finality to constitute an appealable decision. Trans-Atlantic, 91-1 BCA at 117,458. Cavanagh's appeal is from this decision. We conclude that we have jurisdiction to hear it. Decision GSA's motion to dismiss this appeal in part for lack of jurisdiction is GRANTED IN PART. The appeal is DISMISSED FOR LACK OF JURISDICTION insofar as it involves categories 2, 4, and part of 5 of Cavanagh's six requests for payment. As to the remainder of the case, the motion is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER DONALD W. DEVINE Board Judge Board Judge