United States Court of Federal Clai

United States Court of Federal Claims.
CLAUDE E. ATKINS ENTERPRISES, INC., Plaintiff,
v.
UNITED STATES of America, Defendant.

No. 92–377 C.
Nov. 23, 1992.

Contractor for construction of enlisted personnel housing at Air Force base brought action pursuant to Contract Disputes Act of 1978. Government moved to dismiss three of four counts in complaint for lack of jurisdiction. The Court of Federal Claims, Turner, J., held that: (1) notice given by contracting officer did not comply with Act as time within which contracting officer would issue a final decision was left open-ended and, alternatively, because contracting officer had not committed to issue a decision by the specified dates, and (2) it had jurisdiction over claims as there had been a deemed final decision.

Motion denied.

West Headnotes

[1] Public Contracts 316H 362

316H Public Contracts
316HIX Performance or Breach
316Hk357 Decisions of Contracting Officers on Contract Disputes
316Hk362 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

United States 393 73.6

393 United States
393III Contracts
393k73.1 Decisions of Contracting Officers on Contract Disputes
393k73.6 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

In order to satisfy notice requirements of Contract Disputes Act, contracting officer is required to pinpoint particular date by which he will issue a final decision; contracting officer does not do so by indicating that contractor should not expect a decision “until” a particular time, as this language only carves out a time period within which a decision will not be issued and date of intended issuance of decision remains open-ended. Contract Disputes Act of 1978, § 6(c)(2), 41 U.S.C.A. § 605(c)(2).

[2] Public Contracts 316H 362

316H Public Contracts
316HIX Performance or Breach
316Hk357 Decisions of Contracting Officers on Contract Disputes
316Hk362 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

United States 393 73.6

393 United States
393III Contracts
393k73.1 Decisions of Contracting Officers on Contract Disputes
393k73.6 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

Although contracting officer may choose not to treat further extension of due date of final decision as a deemed decision, contractor may treat passage of due date specified in the initial 60 days as a deemed decision even if the contracting officer attempts to further extend the due date. Contract Disputes Act of 1978, § 6(c)(2, 5), 41 U.S.C.A. § 605(c)(2, 5).

[3] Public Contracts 316H 362

316H Public Contracts
316HIX Performance or Breach
316Hk357 Decisions of Contracting Officers on Contract Disputes
316Hk362 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

United States 393 73.6

393 United States
393III Contracts
393k73.1 Decisions of Contracting Officers on Contract Disputes
393k73.6 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

Court of Federal Claims had jurisdiction over contractor's action under Contract Disputes Act, as there was deemed final decision by contracting officer relating to subject claims; contracting officer's notices did not comply with Act as time within which contracting officer would issue final decision was left open-ended and, alternatively, because contracting officer had not committed to issue a decision by the specified dates. Contract Disputes Act of 1978, § 6(c)(2, 5), 41 U.S.C.A. § 605(c)(2, 5).

[4] Public Contracts 316H 362

316H Public Contracts
316HIX Performance or Breach
316Hk357 Decisions of Contracting Officers on Contract Disputes
316Hk362 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

United States 393 73.6

393 United States
393III Contracts
393k73.1 Decisions of Contracting Officers on Contract Disputes
393k73.6 k. Failure to make decision. Most Cited Cases
(Formerly 393k73(9))

Although contracting officer is not required to parrot language of notice provision of Contract Disputes Act, he must notify the contractor, with language that is synonymous to language in Act, of time within which he will issue a final decision. Contract Disputes Act of 1978, § 6(c)(2), 41 U.S.C.A. § 605(c)(2).

*143 Richard D. Corona, San Diego, Cal., for plaintiff.

Arnold M. Auerhan, with whom were Asst. Atty. Gen. Stuart M. Gerson, David M. Cohen and Thomas W. Petersen, Washington, D.C., for defendant.

OPINION AND ORDER
TURNER, Judge.
Plaintiff brought this action pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 601–613 (1988) (“CDA”). Defendant filed a motion to dismiss three of the four counts (Counts I, II and IV) in plaintiff's complaint for lack of jurisdiction because there was neither an actual nor a deemed final decision by the contracting officer when the complaint was filed. For the reasons that follow, defendant's motion to dismiss counts I, II and IV should be denied.

I
On March 31, 1989, plaintiff entered a contract with defendant to build enlisted personnel housing at Travis Air Force Base in California. Plaintiff completed the work in February 1991.

Between December 16, 1991 and January 17, 1992, plaintiff submitted four claims to the contracting officer. On December 16, 1991, plaintiff submitted its first claim, seeking $18,518.06; this claim is now the subject of count III of the complaint. On December 17, 1991, plaintiff submitted its second claim, seeking $254,566.18; this claim is now the subject of count II of the complaint. On December 20, 1991, plaintiff submitted its third claim, seeking $80,725.78; this claim is now the subject of count I of the complaint. On January 17, 1992, plaintiff submitted its fourth claim, seeking $1,550,378; this claim is now the subject of count IV of the complaint.

Using three similar letters dated February 18, 1992, the contracting officer responded to plaintiff's second, third and fourth claims. The letter related to the second claim says, in part:

To accommodate the review process and in light of the complexity of the claims already under review, you should not expect a Final Decision until November 30, 1992. If for some reason this date cannot be met, you will be advised.

Although we acknowledge receipt and have offered a prediction date on your claim, this office in no way warrants that you have properly submitted and certified a claim meeting the requirements of the Contract Disputes Act.

The letter related to the third claim contained this identical language. The letter related to the fourth claim contained this language except that the specified date was February 28, 1993. By letter dated February 28, 1992, the contracting officer denied plaintiff's first claim. Plaintiff filed this action on May 27, 1992.

II
Defendant contends that this court lacks jurisdiction over counts I, II and IV of the complaint because there was neither an actual nor a deemed final decision by the contracting officer relating to these claims.

A contracting officer's actual or deemed final decision is indeed a predicate for our jurisdiction under the CDA. Because it is undisputed that there has not been an actual final decision on each of these three claims, the question is whether there has been a deemed final decision. 41 U.S.C. § 605(c)(5) (stating that “any failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the *144 contracting officer denying the claim and will authorize the commencement of the appeal or suit on the claim”).

The CDA specifies the time within which a contracting officer is to issue a decision on a submitted claim—that is, the “period required” for purposes of § 605(c)(5). A contracting officer must issue a decision on any submitted claim of $50,000 or less within sixty days from his receipt of that claim. 41 U.S.C. § 605(c)(1). If the submitted claim exceeds $50,000, a contracting officer must, within sixty days of his receipt of the claim, either “issue a decision” or “notify the contractor of the time within which a decision will be issued.” 41 U.S.C. § 605(c)(2).FN1

FN1. In addition, a contracting officer must issue a final decision upon submitted claims within a “reasonable time.” 41 U.S.C. § 605(c)(3). If a contractor believes that a contracting officer is unduly delaying the issuance of a final decision upon a claim, the contractor may petition the various contract appeals boards to direct the contracting officer to issue a decision within a specified time. 41 U.S.C. § 605(c)(4).

Plaintiff contends that the court has jurisdiction because the contracting officer failed to comply with the requirements of 41 U.S.C. § 605(c)(2). FN2

FN2. Alternatively, plaintiff contends (1) that the contracting officer relied upon an improper factor in deciding to extend the time for issuing a decision, (2) that plaintiff had the option to deem claims denied if the contracting officer did not issue a decision within sixty days regardless of whether the notice was sufficient, and (3) that the court has the discretion to stay the claims until the contracting officer issues a final decision. Because the contracting officer's notices did not comply with 41 U.S.C. § 605(c)(2), the court has no occasion to address plaintiff's alternative assertions.

It is undisputed that the February 18, 1992 letters were sent within sixty days of receipt of each of the claims subject to the motion to dismiss; that each of the claims at issue were for amounts exceeding $50,000; and that none of the specified periods had expired when plaintiff filed its complaint. Hence, the issue is whether the letters notified the plaint