throbber

`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`HEJRAN HEJRAT CO. LTD,
`Appellant
`
`v.
`
`UNITED STATES ARMY CORPS OF ENGINEERS,
`Appellee
`______________________
`
`2018-2206
`______________________
`
`Appeal from the Armed Services Board of Contract Ap-
`peals in No. 61234, Administrative Judge Donald Evan
`Kinner, Administrative Judge J. Reid Prouty, Administra-
`tive Judge Richard Shackleford.
`______________________
`
`Decided: July 17, 2019
`______________________
`
`JOSEPH ALOYSIUS HENNESSEY, The Law Office of Jo-
`seph Hennessey, LLC, Chevy Chase, MD, argued for appel-
`lant.
`
` JESSICA R. TOPLIN, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for appellee. Also represented by
`JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR.,
`PATRICIA M. MCCARTHY.
` ______________________
`
`
`

`

`2
`
`HEJRAN HEJRAT CO. LTD v. US ARMY CORPS OF ENGINEERS
`
`Before NEWMAN, DYK, and WALLACH, Circuit Judges.
`DYK, Circuit Judge.
`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 con-
`tracting officer, we reverse and remand for further proceed-
`ings.
`
`BACKGROUND
`This appeal arises from HHL’s 2011 contract with the
`United States Army Corps of Engineers (“USACE”) to pro-
`vide transportation services in Afghanistan. After the con-
`tract expired, HHL requested additional compensation
`from the USACE based on alleged violations of the con-
`tract: suspension of work, changes to the contract require-
`ments, and termination of the original contract. After
`various preliminary submissions, on March 5, 2015, HHL
`submitted a document entitled “Request for Equitable Ad-
`justment (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 submis-
`sion, HHL requested that the submission be “treated as
`a[n] REA,” J.A. 74, and requested $4,137,964 in compensa-
`tion. The contracting officer denied HHL’s request on
`March 26, 2017, in what the contracting officer character-
`ized as the “Government’s final determination in this mat-
`ter.” 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 pur-
`suant to 28 U.S.C. § 1295(a)(10). We review the Board’s
`
`

`

`HEJRAN HEJRAT CO. LTD v. US ARMY CORPS OF ENGINEERS
`
`3
`
`determination of its jurisdiction de novo. Reflectone, Inc. v.
`Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc).
`DISCUSSION
`In order for the Board to have jurisdiction, there must
`be a final decision by a contracting officer on a claim. Par-
`sons Glob. Servs. v. McHugh, 677 F.3d 1166, 1170 (Fed. Cir.
`2012) (citing 41 U.S.C. § 7103). The issue on appeal is
`whether HHL requested a contracting officer’s final deci-
`sion on a claim, such that the officer’s denial constituted a
`final decision that supported the Board’s jurisdiction.
`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.”
`41 U.S.C. § 7103(a)(1). Thus, in order to constitute a claim
`a contractor must request a final decision by a contracting
`officer. M. Maropakis Carpentry, Inc. v. United States, 609
`F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M. Ellet
`Const. Co., v. United States, 93 F.3d 1537, 1543 (Fed. Cir.
`1996)) (“The CDA . . . requires that a claim indicate to the
`contracting officer that the contractor is requesting a final
`decision.”).
`“[W]e evaluate whether a particular request for pay-
`ment 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, 677 F.3d at
`1170. Under the relevant FAR, a claim is defined as “a writ-
`ten demand or written assertion by one of the contracting
`parties seeking, as a matter of right, the payment of money
`in sum certain.” FAR 52.233-1(c) (2002).
`HHL contends that its March 5, 2015, submission con-
`stituted 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.” Id. Indeed, the
`Board found that in its submissions “HHL adequately
`
`

`

`4
`
`HEJRAN HEJRAT CO. LTD v. US ARMY CORPS OF ENGINEERS
`
`described five grounds why it is owed more money, and the
`sum certain being requested for each.” J.A. 4.
`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” argu-
`ment 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 govern-
`ment’s argument that an REA cannot constitute a claim is
`directly contrary to this court’s en banc decision in Reflec-
`tone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995) (en banc),
`and subsequent cases. Just as in the current appeal, in Re-
`flectone “[the contractor’s] REA satisfie[d] all the require-
`ments listed for a [Contract Disputes Act (CDA)] ‘claim’
`according to the first sentence of FAR [52.233-1(c)],” and
`thus we “conclude[d] that the Board ha[d] jurisdiction to
`review the [contracting officer]’s denial of [the contractor’s]
`REA.” Id. at 1578.1
`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 gov-
`ernment’s position appears to be that a contractor must
`
`1 See also, e.g., Tip Top Constr., Inc. v. Donahoe, 695
`F.3d 1276, 1279 (Fed. Cir. 2012) (treating the contractor’s
`REA as a claim); Daewoo Eng’g & Constr. Co. v. United
`States, 557 F.3d 1332, 1334 (Fed. Cir. 2009) (treating the
`contractor’s REA as a claim); Propellex Corp. v. Brownlee,
`342 F.3d 1335, 1337–38 (Fed. Cir. 2003) (noting the con-
`tracting officer’s denial of an REA was the relevant final
`decision that was appealed to the Board); Oman-Fischbach
`Int’l (JV) v. Pirie, 276 F.3d 1380, 1383 (Fed. Cir. 2002) (not-
`ing that the contracting officer denied the contractor’s
`REA, which was treated as a denied claim).
`
`

`

`HEJRAN HEJRAT CO. LTD v. US ARMY CORPS OF ENGINEERS
`
`5
`
`include particular words in its submission in order to con-
`stitute 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, 609 F.3d at 1327, so long as it has “a
`clear and unequivocal statement that gives the contracting
`officer adequate notice of the basis and amount of the
`claim,” id. (quoting Contract Cleaning Maint., Inc. v.
`United States, 811 F.2d 586, 592 (Fed. Cir. 1987)); see, e.g.,
`K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005
`(Fed. Cir. 2015); Parsons, 677 F.3d at 1170; Ellett, 93 F.3d
`at 1542.
`Under our caselaw, HHL’s March 5 submission consti-
`tutes 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 at-
`testing to the truth of the submission, included detailed
`factual bases for its alleged losses, and claimed a sum cer-
`tain 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 reasona-
`ble contractor would submit to the contracting officer a let-
`ter 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 con-
`tracting officer make a decision as to entitlement. Any
`other finding offends logic.” Transamerica Ins. Corp. v.
`United States, 973 F.2d 1572, 1578 (Fed. Cir. 1992), over-
`ruled in part by Reflectone, 60 F.3d at 1579 & n.10.
`Third, the government argues that the March 5 sub-
`mission 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
`
`

`

`6
`
`HEJRAN HEJRAT CO. LTD v. US ARMY CORPS OF ENGINEERS
`
`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 [Janu-
`ary 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.”); id. (“[W]e are
`hopeful that you treat this [January 31 submission] as [an]
`REA and conclude in our favor, which will in turn eliminate
`the possibility of proceeding with a certified claim.”). But
`most of those communications occurred more than a year
`before HHL’s March 5, 2015, submission and no similar
`communications followed the March 5 submission.2
`The March 5 submission purportedly provided the cer-
`tification that HHL had earlier recognized would be neces-
`sary 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 unwar-
`ranted contractor claims and to encourage settlement.”
`Skelly & Loy v. United States, 685 F.2d 414, 418 n.11 (Ct.
`
`
`2 During a nearly year-long communication hiatus
`by the USACE, HHL did inquire as to the status of its sub-
`mission 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 submis-
`sion (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/infor-
`mation 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.
`
`

`

`HEJRAN HEJRAT CO. LTD v. US ARMY CORPS OF ENGINEERS
`
`7
`
`Cl. 1982) (citation omitted). It is also important that the
`contracting officer treated the denial of HHL’s REA as a
`“final determination” in the matter. See Transamerica, 973
`F.2d at 1578 n.2 (“The fact that the Government referred
`to the operative submission(s) as ‘claims’ was found per-
`suasive . . . .” (citing Contract Cleaning, 811 F.2d at 592)).
`The contracting officer suggested in an email the need to
`file a formal claim, but this occurred after the contractor’s
`submission was complete and the contracting officer had
`issued a “final determination” in the matter. The contract-
`ing officer could not retroactively turn a qualifying claim
`document into something else.
`HHL’s March 5 submission constituted a request for a
`final decision by the contracting officer, and the contracting
`officer’s 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 sub-
`mission did not contain a proper certification as required
`for a claim of more than $100,000. FAR 52.233-1(c); 41
`U.S.C. § 7103(b)(1). “A contracting officer is not obligated
`to render a final decision on a claim of more than $100,000
`that is not certified . . . .” 41 U.S.C. § 7103(b)(3). It is un-
`clear how the certification was inadequate, but, as the
`Board and the government recognize, “[a] defect in the cer-
`tification of a claim does not deprive a court or an agency
`board of jurisdiction over the claim.” Id. “Prior to the entry
`of a final judgment by a court or a decision by an agency
`board, the court or agency board shall require a defective
`certification to be corrected.” Id. Here, the government con-
`cedes that HHL could cure any issues with its certification
`on remand. Therefore, on remand the Board may require
`HHL to correct any defects in the certification for the
`March 5 submission.
`REVERSED AND REMANDED
`
`

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