Sipco Services & Marine Inc. v. United States

39 Cont. Cas. Fed. 76,633, 30 Fed. Cl. 478, 1994 U.S. Claims LEXIS 40, 1994 WL 61722
CourtUnited States Court of Federal Claims
DecidedFebruary 28, 1994
DocketNo. 92-604C
StatusPublished
Cited by9 cases

This text of 39 Cont. Cas. Fed. 76,633 (Sipco Services & Marine Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sipco Services & Marine Inc. v. United States, 39 Cont. Cas. Fed. 76,633, 30 Fed. Cl. 478, 1994 U.S. Claims LEXIS 40, 1994 WL 61722 (uscfc 1994).

Opinion

OPINION

ROBINSON, Judge:

This matter is before the court on defendant’s January 15, 1993, Motion for Partial Dismissal pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). Plaintiff, Sipco Services & Marine, Inc. (Sipco), seeks money damages allegedly arising from a contract with the National Aeronautics and Space Administration (NASA). In its complaint Sipco asserts three counts. In its motion defendant asks the court to dismiss Count II because the claim was not properly certified, and Count III because the contracting officer never issued a final decision on that claim. Oral argument was held on November 18, 1993, and supplemental briefing was ordered. After hearing oral argument, and after carefully considering the parties’ briefs, the court grants defendant’s motion as to Count II and denies defendant’s motion as to Count III.

[481]*481 Factual Background

As part of its business, plaintiff performs coating removal and replacement for the commercial and industrial construction industry. On May 3, 1990, Sipco and NASA entered into Contract No. NAS2 13209 for the removal and replacement of coatings containing lead on portions of the exterior of a wind tunnel at the Ames Research Center at Mof-fett Field, California. The wind tunnel was divided into thirteen “areas” for the purpose of designating which parts of the structure were to be coated under the contract; Sipco was to recoat areas 1, 2, 3, 10 and 13. The contract was for $2,370,152.00, with the work to be completed within 240 days of the issuance of a Notice to Proceed. Prior to the expiration of the 240 days, the completion date was extended to August 16, 1991. On August 7, 1991, NASA issued an order for Sipco to show cause why it should not be terminated for its apparent failure to complete the work by August 16, 1991. Despite Sipco’s response offering its explanation and requesting an extension of time, NASA issued a termination for default on September 4, 1991.

On or about April 27, 1992, Sipco submitted a letter (April claim) to the contracting officer seeking conversion of the termination for default to one for convenience, payment of its termination for convenience costs, an extension of time for contract performance, recovery of costs for alleged additional work, and payment of unpaid fringe benefits which the Department of Labor claims Sipco owes. Mr. Roy Brock, president of Sipco, attempted to certify the April claim by including the following language in the claim letter:

I hereby certify that I have reviewed the claims contained herein and that they are true and correct to the best of my knowledge, information and belief. I further certify that I am an officer of Sipco Services & Marine and am authorized to execute this claim on behalf of the Company.

No decision of the April claim was issued by the contracting officer.

On May 22, 1992, NASA and Sipco’s surety, Insurance Company of North America (ICNA), memorialized an agreement (Settlement Agreement) concerning the method by which the work remaining in Sipco’s contract would be performed. In the Settlement Agreement, ICNA agreed to, inter alia, compensate NASA for alleged damages arising out of the additional time required to complete the work and pay the contract price of a succeeding contractor to complete the work. After ICNA made payments to NASA, it sought and obtained reimbursement from Sipco for all monies paid to NASA, and for those spent in investigating and addressing the demand by NASA on Sipco’s performance bond.

Sipco then submitted a revision of its April claim by letter dated July 29, 1992 (July claim). In addition to reiterating those matters raised in the April claim, the July claim included amounts sought as a result of Sip-co’s surety having taken responsibility to complete performance of the contract. The July claim was properly certified by Mr. Brock using the precise language set forth by the Contracts Disputes Act of 1978 (CDA), 41 U.S.C. § 605(c)(1) (1988).

On September 3, 1992, Sipco filed its original complaint containing two counts in this court. In Count I, Sipco requested $610,477, the remainder of the contract balance allegedly due. In Count II, Sipco sought conversion of the termination for default to one for convenience, and the additional damages set out in the April claim to the contracting officer totalling $2,585,419.85. Sipco filed an amended complaint on October 19, 1992, seeking the same recovery in Counts I and II, and adding Count III requesting $3,588,-922.41, for those damages sought in the July claim to the extent that such sums are not awarded pursuant to Counts I or II. Defendant only challenges Counts II and III in its motion for partial dismissal.

Contentions of the Parties

Defendant contends that this court lacks jurisdiction to hear either Counts II or III of Sipco’s original and amended complaints. Defendant asserts that plaintiffs April claim lacked the proper certification required by statute. Without the submission of a properly certified claim to the contracting officer, defendant argues, this court lacks jurisdic[482]*482tion to entertain Count II of Sipco’s complaint. Defendant also maintains that Count III, first presented to the contracting officer in the July claim, must be dismissed on jurisdictional grounds because no final decision on that claim has been issued by the contracting officer. According to defendant, because Sipco’s original complaint was filed while the July claim was still pending before the contracting officer, his authority to consider the claim and issue a final decision was withdrawn.

Sipco counters that any deficiency that may have existed in the April claim was fully cured by the properly certified July claim. Further, Sipco argues that since the contracting officer did not issue a decision on the July claim and sixty (60) days has passed since it was presented to the contracting officer, it is deemed denied. Sipco concludes that because certification on the July claim is sufficient and is relied upon by Sipco as the jurisdictional basis for Counts II and III, defendant’s motion must be denied.

DISCUSSION

Under the rules of this court, evaluations of a motion to dismiss for lack of jurisdiction are usually limited to the pleadings, and the unchallenged facts alleged in the complaint are deemed to be true and are construed in a light most favorable to plaintiff. RCFC 12(b)(1); Cupey Bajo Nursing Home, Inc. v. United States, 23 Cl.Ct. 406, 411 (1991). However, when jurisdiction is questioned, it is plaintiffs burden to establish the court’s jurisdiction over the subject matter. See Metzger, Shadyac & Schwartz v. United States, 10 Cl.Ct. 107, 109 (1986).

1. Count II.

Submission of a properly certified claim to the contracting officer is a jurisdictional prerequisite to filing suit in the United States Court of Federal Claims. Thoen v. United States, 765 F.2d 1110, 1116 (Fed.Cir. 1985). For claims in excess of $50,000, the CDA mandates that the contractor shall certify that:

1. The claim is made in good faith.
2.

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Bluebook (online)
39 Cont. Cas. Fed. 76,633, 30 Fed. Cl. 478, 1994 U.S. Claims LEXIS 40, 1994 WL 61722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sipco-services-marine-inc-v-united-states-uscfc-1994.