RESPONDENT'S MOTION TO DISMISS CLAIM FOR MONEY DAMAGES GRANTED AND TO DISMISS COUNTS I AND III-V GRANTED IN PART; COUNT II DISMISSED IN PART SUA SPONTE: April 20, 1995 GSBCA 13165, 13166 PRO/DES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Albert B. Cook, CEO of PRO/DES, Inc., Vernon, CT, appearing for Appellant. John E. Cornell and Michael D. Tully, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges HYATT, VERGILIO, and GOODMAN. GOODMAN, Board Judge. Appellant, PRO/DES, Inc., entered into contract number GS- 20-F-40235 (the contract) with respondent, the General Services Administration (GSA), to supply caulking guns. In these consolidated appeals, appellant challenges the GSA contracting officer's decisions to terminate for default various purchase orders and a national stock number (NSN) under the contract. Appellant has filed a complaint which demands damages in the amount of $150,000. Respondent has moved to dismiss counts I, III-V, and appellant's claim for damages for lack of jurisdiction. We grant the motion to dismiss, and also dismiss count II of the complaint to the extent that the count supports the claim for damages, as appellant has not submitted a claim for monetary relief to the contracting officer as required by the Contract Disputes Act of 1978 (CDA). Background On November 21, 1994, the GSA contracting officer issued a decision which terminated for default purchase order AWK62631 for NSN 5120-00-679-5655, a "type III" caulking gun. On December 19, 1994, the contracting officer issued a second decision which stated that appellant's "right to proceed further with performance of this NSN and the outstanding delivery orders is hereby terminated for default." Both decisions were appealed to this Board and consolidated. As required by Board Rule 7(b)(1),[foot #] 1 appellant filed a complaint. Paragraphs 1-19 of the complaint contained factual allegations. In paragraphs 20-29 of the complaint, appellant incorporated by reference the factual allegations in paragraphs 1-19 and set forth legal theories in five counts -- unfair and deceptive trade practice, breach of contract, negligence, slander, and conversion. Finally, paragraph 30 of the complaint sought damages in the amount of $150,000 for loss of reputation, loss of business opportunity, and loss of property. Respondent has moved to dismiss all counts, except for the count for breach of contract, for lack of jurisdiction, contending that the only issue before the Board is the "central subject matter of the those final decisions: the termination for default of divers purchase orders for the type III caulking gun and the termination for default of the type III caulking gun NSN from the contract." Respondent's Motion to Dismiss Counts I, III-V & Appellant's Claim for Money Damages at 1-2 (hereinafter Respondent's Motion to Dismiss). Respondent alleges that the counts for negligence, slander, and conversion sound in tort, which places them beyond the Board's jurisdiction, and that the count for unfair and deceptive trade practices may or may not sound in tort, but fails to state a claim for which relief can be granted by this Board. Respondent also alleges that appellant's demand for $150,000 has not been presented to the GSA contracting officer, has not been certified, and lacks any supporting documentation showing how the amount claimed is derived. Respondent argues that this demand for monetary relief does not meet the requirements of the CDA and, accordingly, the Board lacks jurisdiction to consider this demand for relief. Respondent states further that "[c]ount II of Appellant's complaint [for breach of contract] does not suffer from any of these deficiencies, and should remain after dismissal of the other counts and the demand for money damages." Respondent's Motion to Dismiss at 2. Appellant and respondent clarified this statement during a conference with the Board on March 31, 1995, in which respondent stated, and appellant ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.7(b)(1) (1994). ----------- FOOTNOTE ENDS ----------- confirmed, that a claim for breach of contract had not been submitted to the contracting officer. While appellant was afforded an opportunity to respond to the motion to dismiss, appellant has informed the Board that it will not file a response. Discussion Both of the contracting officer's decisions which are the subject of these appeals terminate for default various delivery orders and the NSN under the contract. It is the Government's burden to prove the propriety of the default. Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987). Once the Government has made a prima facie showing that the termination was proper, the burden shifts to appellant to introduce evidence rebutting the Government's case or demonstrating that the default was due to causes beyond appellant's control and without appellant's fault or negligence. Mutual Maintenance Co., GSBCA 7637, et al., 91-1 BCA 23,287. Appellant's factual allegations in paragraphs 1-19 of its complaint challenge the propriety of the default terminations, and appellant may offer evidence to support these allegations to meet its burden of rebutting the Government's case. Paragraphs 20-29 of the complaint incorporate the preceding factual allegations by reference and characterize these allegations as counts of negligence, slander, conversion, unfair and deceptive trade practices, and breach of contract. Appellant's characterizations are not dispositive of whether the underlying allegations arise from tort or contract. Additionally, whether the underlying allegations arise from tort or contract is not the dispositive issue in resolving respondent's motion to dismiss, as such allegations may be made, and evidence supporting the allegations may be offered, to rebut the Government's case as to the propriety of the default terminations. However, the factual statements in paragraphs 1-19 of the complaint, which serve to challenge the propriety of the default terminations, and the legal theories set forth in the five counts, also support the claim for monetary relief. Respondent seeks to limit the scope of these appeals to appellant's challenge of the propriety of the default terminations, therefore preventing appellant from pursuing in these appeals a claim for monetary relief since no such claim has been previously presented to the contracting officer for a decision, as required by the CDA. Respondent's concern is well taken. The CDA requires a contractor to present each claim "against the government relating to a contract" to the contracting officer for decision. 41 U.S.C. 605(a) (1988). For claims over $50,000, the contractor must certify that the claim is made in good faith, that the supporting data is accurate and complete to the best of its 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). With regard to its claim for monetary relief, appellant has not submitted a certified claim to the contracting officer. Appellant cannot bypass this statutory requirement by asserting a claim for monetary relief in its complaint, even if the claim is based upon the allegations appellant relies upon to challenge the propriety of the default terminations. Our appellate authority has interpreted strictly the Act's requirement that parties present claims to the contracting officer before filing an appeal at the boards or bringing an action directly on the claim at the Court of Federal Claims. Neither the Government nor a contractor can bypass this "presentation" requirement merely by filing a counterclaim, as a party might in other federal litigation. Joseph Morton Co. v. United States, 757 F.2d 1273, 1279 (Fed. Cir. 1985); Paragon Energy Corp. v. United States, 227 Ct. Cl. 176, 192-93, 645 F.2d 966, 976 (1981). Accordingly, as no claim has been presented to the contracting officer, we lack jurisdiction to consider the monetary claim, and to the extent that the counts of deceptive trade practice, breach of contract, negligence, slander, and conversion are meant to support the claim for monetary relief which has not been presented to the contracting officer, we lack jurisdiction over these counts as well. Van Ness Associates, Ltd. v. General Services Administration, GSBCA 11862, 93-1 BCA 25,410 (1992); Diamond Envelope Corp., GSBCA 10752, 91-3 BCA 24,138.[foot #] 2 Accordingly, we dismiss the claim for monetary relief for lack of jurisdiction, and also the five counts to the extent that they support the claim for monetary relief. To the extent that the five counts characterize the factual allegations in the remaining paragraphs of the complaint which are offered to challenge the propriety of the default terminations, appellant may offer evidence to support such allegations, and the Board will determine the relevance of such allegations and evidence in its decision on the merits of the appeal. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Should appellant submit a claim based upon these allegations to the contracting officer for a decision, and subsequently appeal a denial of the claim, the issue of jurisdiction as to the alleged tort claims would then be ripe for determination. See Tele-Sentry Security, Inc. v. General ___ _________________________________________ Services Administration, GSBCA 8950, et al., 92-3 BCA 25,088 _______________________ and General Security Services Corp., GSBCA 7684, 85-3 BCA _________________________________ 18,380, discussing this Board's jurisdiction with regard to tort claims. ----------- FOOTNOTE ENDS ----------- Decision Respondent's motion to dismiss for lack of jurisdiction is GRANTED as to the claim for monetary relief and GRANTED IN PART as to counts I and III-V of the complaint to the extent that such counts are offered to support the claim for monetary relief. The Board also DISMISSES IN PART sua sponte for lack of jurisdiction count II for breach of contract to the extent that said count is offered to support the claim for monetary relief. Appellant's underlying challenge to the propriety of the terminations for default remains before the Board. ________________________ ALLAN H. GOODMAN Board Judge We concur: __________________________ ________________________ CATHERINE B. HYATT JOSEPH A. VERGILIO Board Judge Board Judge