Motion to dismiss claims for lack of jurisdiction is granted in part, where the appellant did not certify its $400,000 claim alleging an impossibility to satisfy the agency’s design specifications, and denied in part, where the board concluded that other claims submitted with the $400,000 claim were severable, as they were based on different events and operative facts, and that it possessed jurisdiction to hear them, as they each fell below the $100,000 threshold requiring certification.
Mayberry Enterprises LLC appealed the Western Area Power Administration’s denial of its claim seeking costs and an excusable delay related to government delays, late payments, contract modifications, and retained funds.
In a claim letter to WAPA, Mayberry sought $85,004.05 for the “Suspension of Work” issues, $2986.19 for the “Late Payment” issues, and no money but thirty-five non-compensable (and excusable) days for the “Modification (0003)” issue. With the letter, Mayberry submitted a invoice seeking the total amount. Mayberry’s claim also requested $41,000 in retained funds.
At the same time, Mayberry submitted an additional invoice requesting payment of $400,905.35 under the contract for mobilization and preparatory work; miscellaneous site work; gravel surfacing; the design and pouring of a concrete floor and foundation; the pouring of a concrete apron for a storage building; providing concrete slabs, maintenance, and a pole yard; designing and providing a metal building; miscellaneous electrical work; asphalt paving and surfacing; and peninsula and grade riser removal. This invoice was not referenced in the claim letter.
Subsequently, the CO terminated the contract for default. To date, Mayberry had not submitted any kind of termination settlement proposal or claim to the WAPA contracting officer seeking monies associated with the termination.
In its appeal, Mayberry appealed the contract termination and the CO’s deemed denial of its claim letter seeking approximately $529,895.59. In challenging the termination, Mayberry alleged that the impossibility of satisfying the original building design specifications affected its ability to perform. In addition to overturning the termination, Mayberry asked CBCA to award a total of $494,215.75 for work performed trying to meet those specifications and as damages associated with the improper contract termination resulting from the impossibility.
WAPA moved to dismiss, arguing that Mayberry’s aggregated claims exceeded the $100,000 threshold requiring certification. In response, Mayberry argued that while it attached two invoices to the claim letter, the claim itself amounted to $87,990.
CBCA found that Mayberry ignored its request for $41,000 in retainages. Taken together, those two claims, which were submitted simultaneously, exceeded the $100,000 threshold. However, CBCA found that the three sets of claims could not have been submitted in separate claim letters, explaining that Mayberry’s requests for payment of $400,905.35, $87,990.24, and $41,000 all involve different events that allegedly occurred during contract performance and are based upon different sets of operative facts. Accordingly, CBCA found the claims were severable, and that it could determine whether each should be dismissed separately.
First, CBCA found that Mayberry’s $400,905.35 claim associated with the impossibility of design specifications that resulted in the default termination clearly exceeded the $100,000 certification threshold. CBCA dismissed the claim for lack of jurisdiction.
Next, CBCA concluded it possessed jurisdiction to entertain Mayberry’s claim letter requesting $87,990.24 for various delays caused by WAPA’s suspension of work and the other matters. CBCA noted that figure falls below the $100,000 certification threshold, and the changes and delays alleged are separate and distinct from the impossibility issues raised in its $400,905.35 claim. However, based on some ambiguity in Mayberry’s statements, the board directed the appellant to define the exact amount it seeks through the changes and delay claims.
Finally, the board held it possessed jurisdiction to hear Mayberry’s appeal of the $41,000 retainage release request. However, the board again identified some confusion in Mayberry’s submissions regarding its intent to seek relief on this matter, and directed the appellant to notify the board if it wants to pursue or abandon this claim.
Mayberry Enterprises LLC is represented by A.J. Green and Michael R. Johnson of Ray Quinney & Nebeker P.C. The government is represented by J. Ben Summerhays and Thomas M. Cordova, Office of General Counsel, Western Area Power Administration, Department of Energy.