Appealed from: Armed Services Board of Contract Appeals.
Rich, Bennett, and Smith, Circuit Judges.
The government appeals from an order of the Armed Services Board of Contract Appeals (board), No. 27370-18 (Jan. 13, 1983), directing the contracting officer to issue a decision on W.H. Moseley Company's (Moseley) certified claim, pursuant to the authority granted to the board under section 6(c)(4) of the Contract Disputes Act of 1978 (CDA) (codified at 41 U.S.C. § 605(c)(4) (Supp. V 1981)). The government asserts that the board erred in treating Moseley's claim as one arising under the CDA, as an earlier decision by the United States Court of Claims in this case, W.H. Moseley Co. v. United States, 230 Ct. Cl. 405, 677 F.2d 850, cert. denied, 459 U.S. 836, 103 S. Ct. 81, 74 L. Ed. 2d 77 (1982), allegedly held that Moseley could not proceed under the CDA after the case was dismissed for lack of proper certification. Moseley asserts that this court does not have jurisdiction over this appeal because it is interlocutory, and, alternatively, the board correctly determined that Moseley could pursue its claim under the CDA and that the government has confused retroactive certification with resubmission of the claim for a new decision. We hold that we do not have jurisdiction over this appeal, and dismiss on that basis.
Moseley, a commodity supplier in Boise, Idaho, suggested certain changes in a procurement contract of January 31, 1978, with the Defense Logistics Agency (agency), to supply it with French fried potatoes. The agency adopted these changes, and Moseley asserted that it was entitled to an award based upon the savings the agency realized from implementation of these changes. Moseley's claim for over $1,000,000 was submitted to the contracting officer, who issued her final decision denying the claim on February 15, 1980. In her final decision, the contracting officer advised Moseley that it could appeal the denial of the claim either under the disputes clause of the contract or under the CDA.
Moseley chose to appeal the decision under the CDA, and brought a "direct action" suit in the Court of Claims on October 9, 1980. See 41 U.S.C. § 609(a)(1) (Supp. V 1981). The government moved to dismiss on the ground that Moseley had failed to certify its claim as required by the CDA, 41 U.S.C. § 605(c)(1). Moseley attempted to cure the jurisdictional defect by retroactively certifying its claim to the contracting officer, but it did not resubmit the certified claim for a new decision.
The Court of Claims dismissed the appeal on the grounds that the certification requirement was a jurisdictional prerequisite and Moseley's attempt to satisfy this requirement retroactively was unavailing. The court stated:
Finally, plaintiff argues that now that it has gone back to the contracting officer and certified the pertinent claim, it should be able to gain direct access to the court. However, Lehman [230 Ct. Cl. 405, 673 F.2d 352 (1982)] implicitly rejects that argument. The court in Lehman directed the plaintiff to a relevant board of contract appeals, with the right to subsequent judicial review in this court. And, as Lehman concluded, plaintiff cannot be heard to complain about this result since "although the plaintiff's trial de novo will be before the Board rather than before this court, that is the consequence of the plaintiff's own default in failing to certify its claim, as the Act requires."
677 F.2d at 852 (footnote omitted).
Following the dismissal of its claim by the Court of Claims, Moseley resubmitted its now certified claim to the contracting officer for the issuance of a new final decision. The contracting officer refused to accept the resubmitted claim, contending that her prior decision was a valid final decision under the disputes clause of the contract. On July 15, 1982, Moseley appealed this refusal to the board, requesting it to direct the contracting officer to issue a decision within a specified time period as authorized by the CDA, 41 U.S.C. § 605(c)(4).
In an order dated January 13, 1983, the board directed the contracting officer to issue a decision on Moseley's certified claim within 30 days. The board noted that none of the Court of Claims cases cited by the parties regarding certification, viz, Paul E. Lehman, Inc. v. United States, 230 Ct. Cl. 11, 673 F.2d 352 (1982), Moseley, and Skelly & Loy v. United States, 231 Ct. Cl. 370, 685 F.2d 414 (1982)*fn1, dealt with the issue before it -- namely, whether the board had the authority to direct the contracting officer to issue a new decision on the resubmitted claim. The board largely focused on the prejudicial effect of the contracting officer's advice to Moseley that it could appeal the adverse decision either under the disputes clause or under the CDA. As a result of this erroneous advice the board refused to recognize the contracting officer's earlier decision as a procedurally valid final decision for purposes of appeal. The board therefore granted Moseley's request that it direct the contracting officer to issue a new decision under the CDA. As previously noted, it is this order which forms the basis of the government's present appeal.
Subsequent to the board's order, the contracting officer still refused to issue a new decision, and in an order dated April 14, 1983, the board treated the contracting officer's failure to issue a new decision as a denial of the claim appealable to the board. See 41 U.S.C. § 605(c)(5). ...