Hejran Hejrat Co. Ltd v. US Army Corps of Engineers
Opinion
*1356 Hejran Hejrat Co. Ltd. ("HHL") appeals from a decision by the Armed Services Board of Contract Appeals ("Board") dismissing HHL's case for lack of jurisdiction. Because we conclude that there was a request for a final decision by a contracting officer and a final decision entered by the contracting officer, we reverse and remand for further proceedings.
BACKGROUND
This appeal arises from HHL's 2011 contract with the United States Army Corps of Engineers ("USACE") to provide transportation services in Afghanistan. After the contract expired, HHL requested additional compensation from the USACE based on alleged violations of the contract: suspension of work, changes to the contract requirements, and termination of the original contract. After various preliminary submissions, on March 5, 2015, HHL submitted a document entitled "Request for Equitable Adjustment (REA)" with a sworn statement by HHL's Deputy Managing Director having "full management [authority] to ... close out ... the contract." J.A. 70. In that submission, HHL requested that the submission be "treated as a[n] REA," J.A. 74, and requested $4,137,964 in compensation. The contracting officer denied HHL's request on March 26, 2017, in what the contracting officer characterized as the "Government's final determination in this matter." J.A. 116. HHL appealed the decision, but the Board concluded that it did not have jurisdiction because "[a]t no point, in six years of communication with the [USACE], has HHL requested a contracting officer's final decision." J.A. 4.
HHL appealed to our court. We have jurisdiction pursuant to
DISCUSSION
In order for the Board to have jurisdiction, there must be a final decision by a contracting officer on a claim.
Parsons Glob. Servs. v. McHugh
,
The statute provides that "[e]ach claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision."
*1357
"[W]e evaluate whether a particular request for payment amounts to a claim based on the [Federal Acquisition Regulations (FARs),] ... the language of the contract in dispute, and the facts of each case."
Parsons
,
HHL contends that its March 5, 2015, submission constituted a claim within the meaning of the CDA. There is no dispute that HHL's March 5 submission was under the FAR a "written demand ... seeking, as a matter of right, the payment of money in sum certain."
On appeal the government makes three arguments as to why HHL's submission did not constitute a request for a final decision. First, the government's "[f]oremost" argument is that "HHL's March 5, 2015, submission is styled
as a[n] REA, not as a claim
. HHL also expressly requested that the document be 'treated as an REA.' " Gov't Br. at 12 (internal citations omitted) (emphasis added). The government's argument that an REA cannot constitute a claim is directly contrary to this court's en banc decision in
Reflectone, Inc. v. Dalton,
Second, the government argues that "the [March 5] document fails to include any language requesting a final decision." Gov't Br. at 12. Although the government agrees that magic words are not required under our cases, the government's position appears to be that a contractor must include particular words in its submission in order to constitute a request for a contracting officer's final decision. This argument is also squarely inconsistent with our caselaw, which recognizes that "a CDA claim need not be submitted in any particular form or use any particular wording,"
Maropakis
,
Under our caselaw, HHL's March 5 submission constitutes a request for a final decision on a claim. In the March 5 submission, HHL requested that the contracting officer provide specific amounts of compensation for each of the alleged grounds. HHL submitted a sworn statement
*1358
attesting to the truth of the submission, included detailed factual bases for its alleged losses, and claimed a sum certain based on the losses. This submission bears all of the hallmarks of a request for a final decision on a claim, and "[t]his court is loathe to believe that in this case a reasonable contractor would submit to the contracting 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."
Transamerica Ins. Corp. v. United States
,
Third, the government argues that the March 5 submission is not a request for a final decision because HHL expressly stated that its submissions did not constitute a request for a final decision by the contracting officer on a claim. The government is correct that before the March 5 submission, the contractor submitted a document similar to the March 5 submission (though unsworn) and indicated an intent to later file a certified formal claim.
See, e.g.
, J.A. 290 ("In the event that you decide to treat this [January 31, 2014 submission] as [an] REA and still reject our request for the adjustment of payments, we would then proceed with issuing a certified claim.");
The March 5 submission purportedly provided the certification that HHL had earlier recognized would be necessary to proceed with a claim. The March 5 submission was sworn unlike earlier submissions, and thus had a formality lacking in the earlier submissions. "[C]ertification plays a serious role in the statutory scheme because it triggers a contractor's potential liability for a fraudulent claim .... [and is] designed to discourage the submission of unwarranted contractor claims and to encourage settlement."
Skelly & Loy v. United States
,
HHL's March 5 submission constituted a request for a final decision by the contracting officer, and the contracting officer's *1359 denial of that submission was a final decision on a claim. The Board erred when it concluded that it did not have jurisdiction over HHL's appeal.
We note that the Board found that HHL's March 5 submission did not contain a proper certification as required for a claim of more than $100,000. FAR 52.233-1(c) ;
REVERSED AND REMANDED
See also, e.g.
,
Tip Top Constr., Inc. v. Donahoe
,
During a nearly year-long communication hiatus by the USACE, HHL did inquire as to the status of its submission and whether it should "submit our claim." J.A. 86. But, as is clear from the other communications sent during that time, HHL was seeking a final decision on its submission (whether it called it a claim, an REA, or something else). See, e.g. , J.A. 109 (asking that the contracting officer "[p]lease let [HHL] know if the review of the case/information is going to be completed soon and when to expect the final result " (emphasis added)). To whatever extent there was uncertainty based on those communications, the contracting officer could have asked for clarification rather than issuing a "final determination" in the matter.
Reference
- Full Case Name
- HEJRAN HEJRAT CO. LTD, Appellant v. UNITED STATES ARMY CORPS OF ENGINEERS, Appellee
- Cited By
- 18 cases
- Status
- Published