A Contracting Officer’s death did not waive the requirement that a contractor file a claim with the agency before bringing its claim to federal court.

In a recent decision, the Court of Federal Claims held that a contractor was not entitled to forego the claim requirement because of the Contracting Officer’s death–even though the agency did not appoint a replacement.

The Court’s decision in Delaware Cornerstone Builders, Inc. v. United States, No. 10-588C (Fed. Cl. 2014) involved a contract between Delaware Cornerstone Builders, Inc. and the VA.  Under the contract, DCB was to replace a VA health care facility in Maryland.

The project reached substantial completion in June 2004.  In 2004, DCB and the Contracting Officer began discussions about additional payments DBC believed to be due and owing.  The parties never reached a resolution, and communications apparently ceased for a period of years.  In September 2006, the Contracting Officer died.

In 2008, DCB renewed communications with the agency, repeatedly asking whether the VA had appointed a replacement Contracting Officer.  Although the VA stated that it would have another Contracting Officer “look over” the matter, the VA did not appoint a replacement for the original Contracting Officer.  In 2010, without filing a formal claim with the VA, DCB filed an action in the Court, seeking approximately $200,000.

The Government moved to dismiss DCB’s action.  The Government argued that the Court lacked jurisdiction because DCB had never filed a claim with the Contracting Officer under the Contract Disputes Act.   DCB agreed that it had not filed a claim, but argued that filing a claim with the orginal Contracting Officer was impossible and that the VA had refused to appoint a replacement to receive the claim.

The Court wrote that the Contract Disputes Act permits a contractor to file an appeal of a Contracting Officer’s final decision on a claim, and also allows an appeal if the Contracting Officer fails to respond to a claim within 60 days.  The Court stated that “[t]he purpose of the claim requirement is to enable the Contracting Officer to give meaningful consideration to the claim and facilitate resolution or identify issues for litigation.”

In this case, “[e]ven in no contracting officer was appointed to handle DCB’s contract after the death of [the Contracting Officer], Plaintiff coulud have submitted a claim to the agency.”  Citing previous cases, the Court wrote that in an appropriate case, “[a] claim need not be submitted directly to the contracting officer.”  The Court noted that after the Contracting Officer’s death, DCB had communicated with another Contracting Officer and a staff attorney, as well as a Chief of Contracting.  However, “Plaintiff never sent any of them a claim, even though these VA officials repeatedly advised DCB’s counsel that Plaintiff needed to submit a formal written claim.”

The Court granted the Government’s motion to dismiss, and dismissed DCB’s action.

At first blush, the Delaware Cornerstone Builders case may seem like one of those unusual situations of limited value to other contractors.  But even though contractors are not often faced with the death of the responsible Contracting Officer, other circumstanes–like retirement and job changes–can sometimes prevent contractors from filing claims with the original Contracting Officer.  In those cases, as the Court ruled, a contractor cannot simply ignore the claim requirement and proceed directly to court.  Instead, the contractor must still file a claim with the agency before the Court will have jurisdiction to consider the matter.