________________________________________________ DISMISSED FOR LACK OF JURISDICTION: July 16, 1996 ________________________________________________ GSBCA 13570 M.A. MORTENSON COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jeanne M. Forneris, Vice President and General Counsel of M.A. Mortenson Company, Minneapolis, MN, counsel for Appellant. Marcy A. Sherrill, Office of Regional Counsel, General Services Administration, Chicago, IL, counsel for Respondent. Before Board Judges PARKER, DEVINE, and NEILL. PARKER, Board Judge. Appellant, M.A. Mortenson Company, moves to dismiss without prejudice two of the three claims which are the subject of this appeal. Mortenson maintains that the Board should dismiss the claims because they are for more than $50,000, and were not certified as required by the Contract Disputes Act. Appellant intends to certify the claims and re-submit them to the contracting officer. Respondent, the General Services Administration (GSA), asks the Board to deny appellant's motion and dismiss all three of appellant's claims with prejudice. GSA maintains that the claims did not require certification and that the appeal of the contracting officer's decision as to all three claims was untimely filed. The record shows that appellant never intended to file as claims any of the matters which are the subject of this appeal. The letter which purportedly initiated appellant's claims was merely an attempt to continue negotiations as to the three items at issue. Because appellant never filed claims on these issues, the Board lacks jurisdiction to consider appeals from the contracting officer's decisions. Background Mortenson contracted with GSA for additions and renovations to the Federal Center Building in Battle Creek, Michigan. Work began in 1994 and continues to date. The matters at issue in this appeal are "R.F.I. #58," in which Mortenson seeks $59,540 for additional wallpaper removal; "R.F.I. #25," for $59,948 for installing expansion loops in certain heating and air conditioning pipes; and "R.F.I. #59," for which appellant seeks $8,200 for additional painting. At weekly meetings between Mortenson and GSA's Construction Quality Manager, Abide International, the participants discussed numerous issues related to the project. Among the issues discussed during June and July of 1994 were the three matters involved in this appeal. Mortenson believed that these items were not covered by the contract and sought additional compensation for performing the work. Abide believed that the work was required by the contract. At the weekly meeting of July 26, Mortenson, GSA and Abide again discussed the issues. With respect to R.F.I. #25, no agreement was reached. GSA and Abide were informed that "[a] letter is forthcoming from Shambaugh [one of appellant's subcontractors] on this issue." Respondent's Exhibit 4. For R.F.I. #58 and R.F.I. #59, Mortenson was told that "if this is still their position, a claim would have to be filed." Id. On August 4, 1994, Mortenson sent the following letter to the contracting officer: Per our conversation August 3, 1994 I am attaching documentation of three (3) issues that we have been told to pursue as claims. Mortenson does not want claims and we look to yourself to avoid same. We would appreciate your quick response and resolution to these issues. . . . . Please call me at your earliest convenience to discuss. Respondent's Exhibit 5. The documentation attached to the letter included cost quotes from one of appellant's subcontractors for R.F.I. #58 ($59,540) and R.F.I. #59 ($8,200). No dollar amounts were provided for R.F.I. #25. Appellant's Supplemental Submission of June 25, 1996. No certification was included. By letter of September 6, also to the contracting officer, appellant made clear that it still wished to discuss the three items by requesting that they be placed on the agenda for the September 14-15 meeting. Respondent's Exhibit 6. Dollar amounts were provided for all three items. Abide's notes on the meeting indicate that the three items were discussed and that: A letter from Mortenson (dated August 4) was forwarded to [the contracting officer] for a ruling on these RFIs/Issues. . . . Mortenson requested that Shambaugh prepare an estimate for RFI 25. Awaiting GSA response. Respondent's Exhibit 7. On November 8, the contracting officer issued a decision which purported to deny three "claims" and informed Mortenson that it would have to perform the disputed work at no additional cost. Respondent's Exhibit 8. Mortenson appealed that decision. Discussion Mortenson argues that two of the items discussed in its letter of August 4 to the contracting officer, R.F.I. #58 for $59,540, and R.F.I. #25 for $59,948, were legally defective as claims because they were not certified as required by the Contract Disputes Act. GSA maintains that the claims were non- monetary requests for interpretations of the contract's terms. As such, GSA argues, the claims did not have to be certified. We do not think that Mortenson filed any claims. Section 6(a) of the Contract Disputes Act (CDA) provides 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 a decision." 41 U.S.C. 605 (1994). Because the Contract Disputes Act does not define the term "claim," we must also look to the Federal Acquisition Regulation (FAR), which implements the CDA. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995). Section 33.201 of the FAR defines a claim as: 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 the contract. . . . 48 CFR 33.201 (1994). There is "no requirement in the Disputes Act that a 'claim' must be submitted in any particular form or use any particular wording. All that is required is that the contractor submit in writing to 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). To determine whether a proper claim has been filed, we are directed to perform a "common sense analysis to determine whether (1) the contractor asserted in writing 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 Corporation, Inc. v. United States, 973 F.2d 1572, 1579 (Fed. Cir. 1992). Several factors convince us that Mortenson never intended its August 4 letter to the contracting officer to initiate the claims process by requesting a final decision. First, the letter said so: Mortenson does not want claims and we look to yourself to avoid same. Mortenson had been discussing the issues with Abide International, GSA's Construction Quality Contractor, for two months. By all accounts, Mortenson wished to continue these discussions. The letter did ask the contracting officer for a "quick response and resolution to these issues." However, rather than asking for a final decision, the letter asked the contracting officer to "[p]lease call me at your earliest convenience to discuss." Another factor which bears on Mortenson's intent in sending the August 4 letter is Mortenson's failure to certify at least R.F.I #58 which, according to the documentation submitted with the August 4 letter, was worth more than $50,000. Mortenson, an experienced Government contractor, must have known that such a certification was required by the Contract Disputes Act.[foot #] 1 If Mortenson intended to initiate the claims process by sending the August 4 letter, why would it attach documentation showing the financial effect of the disputed work but omit the required certification for the issue which was valued at more than $50,000? GSA explains appellant's actions by maintaining that Mortenson intended to file claims for contract interpretations, rather than monetary claims. We think Mortenson's actions indicate otherwise. By attaching cost documentation to its August 4 letter, Mortenson informed GSA that it was in the process of putting a monetary value on the disputed work. If Mortenson were, as GSA argues, merely asking for a contract ----------- FOOTNOTE BEGINS --------- [foot #] 1 At the time the alleged claim letter was sent, the Contract Disputes Act provided that "[f]or claims of more than $50,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable." 41 U.S.C. 605(c)(1) (1988). ----------- FOOTNOTE ENDS ----------- interpretation, it would have asked for one in the letter, and it would not have attached cost documentation. By sending the August 4 letter to the contracting officer, Mortenson was expressing the desire to continue discussions on a matter which, if unresolved, would ripen into a monetary claim. The letter did not initiate a claim because the monetary impact had not yet been reduced to a "sum certain."[foot #] 2 As the Court of Appeals for the Federal Circuit has explained, the issue is not whether certain "magic words" were used but whether appellant intended to file a claim at all. "[T]he intent of the 'claim' governs." Transamerica Insurance at 1578. The circumstances surrounding the alleged claim letter have convinced us that Mortenson did not intend at this time to file a claim but instead wanted an additional opportunity to convince the contracting officer informally that Mortenson's requests were valid. We say this while being fully aware that "there 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." Id. at 1579. Although we recognize that reasonable people could interpret the circumstances differently, we find that the totality of the circumstances indicates that Mortenson did not intend to file claims with the contracting officer on August 4. Decision The appeal is DISMISSED FOR LACK OF JURISDICTION. ________________________ ROBERT W. PARKER Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 The August 4 letter attached subcontractor quotes for two of the disputed items and a letter from another subcontractor offering to provide a price quotation for the third item. Thus, although the letter gave GSA a strong indication that any claims would be monetary in nature, Mortenson did not add any of its prime contractor costs or ask for a specific amount. ----------- FOOTNOTE ENDS ----------- I concur: _______________________ EDWIN B. NEILL Board Judge DEVINE, Board Judge, concurring. I concur separately because, although I agree with the holding of the majority, I do not agree with its reasoning. These were most certainly claims. Appellant believed it had done work beyond the terms of its contract in three different areas and wanted extra money for it. Two of its three requests were in amounts requiring certification under the Contract Disputes Act. Its letter to the contracting officer, together with earlier correspondence, set out what work was done and how much appellant sought for it. When appellant used the phrase it didn t want claims what it meant was that it wanted the claim converted to a deposit into its bank account without further argument. There is no other reason for such a letter. The majority bolsters its contrary opinion by opining that, as an experienced Government contractor, if appellant had intended the letter as a claim, appellant would have properly certified it. Of course, the same reasoning would apply to the contracting officer who, as an experienced Government contracting official, could not have intended his reply to be a final decision because he didn t send the letter back for certification, as the Contract Disputes Act required, before he denied appellant s request. The majority s statement that appellant s letter did not initiate a claim because it did not state a sum certain poses two difficulties. The first is that it is contrary to the evidence which shows that two of the three items mentioned in the letter in question were specifically priced, and the contracting officer had been given a specific price on the third in earlier correspondence. The second is that I have great difficulty with the concept of sum certain in this context. It is, under the common law, one of the requirements to make a promissory note negotiable. It has little meaning here. There are several possible contracting officer decisions which are appealable but do not involve numbers. I would dismiss the two larger claims as uncertified, and the smaller claim as late, if, in fact, it was filed out of time. _______________________ DONALD W. DEVINE Board Judge