OR\G\NAL

In the United States Court of Federal Claims
N@. 13-978€ FlLED

(Filed: September 25, 2014)

SEP 2 5 2014
LACHANA WILLIAMS and
RUPERT WILLIAMS,
plaintiffs Contract Disputes Act; Claim;
’ Certification; C0ntracting
v Officer’s Final Decision; Subject
' Matter Jurisdiction; GSA Online
THE UNITED sTATEs, A“°”°“
Defendant.

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Rupert Wz`llz'ams, Richmond, CA, and Lachana Wz`lliams, PomonaPark,
FL, pro se.

Antonia Ramos Soares, Civil Division, Department of Justice,
Washington, DC, for defendant.

OPlNION

BRUGGINK, Judge.

This case involves a contract between the General Services
Administration ("GSA") and pro se plaintiffs, Lachana and Rupert Williams,
("the Williamses") for the sale of an airplane. After submitting the winning
bid for the airplane on GSA’S online auction platform, GSAAuctions.gov,
plaintiffs paid for and made arrangements to collect the airplane. When
Rupert Williams inspected and took custody of the airplane, he found that it

was missing essential parts and that it could not be flown. Plaintiffs
subsequently filed suit in the United States District Court for the Northern
District of California, the location of the governmental entities the United
States Department of Agriculture ("USDA") and the Fire Department of Kem
County, California which had possession of the airplane prior to the
Williamses. The District Court found that it had jurisdiction over the
Williamses claims against Kern County, but in the interest of justice and
pursuant to 28 U.S.C. § 1631 (2012), transferred their claims against the
USDA to this court. Willz`ams v. U.S. Dep’t ofAgrz'c., No. l3-cv-508, 

 (N.D. Cal. Oct. 7, 2013). Plaintiffs’ case was transferred to the
Court of Federal Claims in December of 2013 and we received plaintiffs’
amended complaint on April 29, 2014.

In their amended complaint, the Williamses allege that the government
intentionally misrepresented the value of the airplane during the auction by
failing to disclose its condition and its lack of flight certification Specifically,
plaintiffs argue that it was false to advertise that the aircraft had only 2,900
airframe hours. Also, plaintiffs assert that defendant intentionally mislead
them because upon "delivery of said aircraft to Plaintiff(s) the Defendant and
their co-owner intentionally gave the Plaintiff(s) a current registration for and
[sic] aircraft that was in good standing with the FAA [(Federal Aviation
Administration)]," which was not the correct registration. Pls.’ Am. Compl.
2. Plaintiffs also allege that defendant "knowingly and willfully removed
[m] aj or components from aircraft . . . with the intent to defraud and deprive the
Plaintiff(s) of the entire aircraft they purchased." Pls.’ Am. Compl. 2. As a
remedy, plaintiffs seek $99,230, which is the estimated cost of repairs needed
to make the plane airworthy. Additionally, plaintiffs request damages of
$65,000 for the cost of storing the aircraft, sales tax, freight charges, and the
costs of this lawsuit.

We are currently faced with defendant’s motion to dismiss, which
challenges our jurisdiction Specifically, defendant alleges that plaintiffs
failed to satisfy the requirements of the Contract Disputes Act] ("CDA"), 41
U.S.C. §§ 7101-7109 (2012), which they must do before this court may
exercise jurisdiction under 28 U.S.C. § l49l(a)(2) (2012). Defendant’s motion

1 "The [Contract Disputes Act] provides for the resolution of contract

disputes arising between the government and contractors." Englancz’ v.
Swcmson Grp., Inc., 

, 1379 (Fed. Cir. 2()04).

2

Plaintiffs characterize their contract as a "purchase contract" rather than
a procurement or a contract for services and, citing Terry v. Um'ted States, 

 (2011), conclude that the CDA does not apply to purchase
contracts. Plaintiffs, however, misread the court’s holding in Terry. After
discussing the four types of contracts covered by the CDA, the court in Terry
concludes that

A concession contract does not fall within these categories. See
3 l C.F.R. § 5 l .3 (2008) ("Concession contracts are not contracts
within the meaning of [the] Contract Disputes Act[] and are not
service or procurement contracts within the meaning of statutes,
regulations, or policies that apply only to federal service
contracts or other types of federal procurement actions.").

98 Fed. Cl. at 737. While plaintiffs would have us read "purchase contract"
where the Terry court refers to "concession contracts," this passage actually
articulates that while concession contracts are exempt from the CDA, contracts
for the disposal of personal property, or "purchase contracts," are squarely
subject to the CDA’s administrative requirements.

Defendant argues that each of the cases that plaintiffs cite9 represent a
carve out in the law that applies only to concession contracts. Simply put,
defendant asserts that while plaintiffs have identified an exemption from the
CDA for contracts to provide concession, plaintiffs’ contract does not fit
within this exemption. We agree. Plaintiffs’ contract is for the purchase of
personal property that the government had purposed for disposal. The CDA
expressly includes this type of contract within its reach. 41 U.S.C. §
7102(a)(4) ("[The CDA] applies to any express or implied contract . . . made
by an executive agency for- . . . (4) the disposal of personal property.").

9 Pacrim Pizza C0. v. Pirz`e, 304 F.3d l29l, 1293-94 (Fed. Cir. 2002)
(concluding that a contract to provide fast food services at a Marine Corps air
station was not covered by the CDA); Coj‘ee Connections, Inc. v. Unitea’
States, ll3 Fed. Cl. 741, 751 (2()l3) ("Though contract claims are generally
subject to the CDA, the CDA does not apply to concession contracts."); Terry,
98 Fed Cl. at 737 (holding that concession contracts are exempt from the
CDA). Plaintiffs also point to SUFI Nelwork Servz`ces, Inc. v. Um'ted States,

 (2012), which is not relevant to this case because the
applicability of the CDA was not at issue.

ll

CONCLUSION

The Williamses’ contract is governed by the CDA, which requires that
a contractor first submit a claim to the CO before filing suit in the Court of
Federal Claims. The claim must be for a sum certain, and if for an amount
over $100,000, must be certified. Without a final decision from the CO, this
court lacks jurisdiction to consider claims based on a contract for the
disposition of personal property. We therefore grant defendant’s motion and
dismiss plaintiffs’ complaint, without prejudice,‘° for lack of subject matter
jurisdiction. The Clerk is directed to enter judgment. No costs.

    

ERIC G. BRUGGINK
Judge

10 The CDA provides that "[e]ach claim by a contractor against the
Federal Government relating to a contract . . . shall be submitted within 6 years
after the accrual of a claim." 41 U.S.C. § 7lO3(a)(4)(A). If plaintiffs elect to
file a claim with the CO, receive a decision or a deemed denial, and then

decide to challenge the CO’s decision in the Court of Federal Claims, the filing
fee shall be waived.

12

is fully briefed and we heard oral argument on September 24, 20l4. For the

reasons explained below, we grant defendant’s motion and dismiss plaintiffs’
complaint for lack of jurisdiction.

BACKGROUNDZ

On November 14, 201 l, plaintiffs purchased for $16,300 an airplane
from the USDA through an online GSA auction. The advertisement on GSA’ s
auction website, GSAAuctions .gov, described the airplane that the Williamses
purchased as follows:

AIRCRAFT, FIXED WING: 1967 ROCKWELL
COMMANDER 680 FL(P), ENGINES ARE LYCOMING
MODEL l0720 BIB, RIGHT ENGINE HAS 30HRS SINCE
OVERHAUL, LEFT ENGINE HAS 1390 SINCE
OVERHAUL, AIRFRAl\/IE HAS 2900 HOURS,[]N9llKC
REPAIRS REQUIRED INCLUDING BUT NOT LIMITED
TO: PLANE HAS NOT BEEN FLOWN IN OVER FIVE
YEARS; RIGHT ENGINE HAS METAL IN OIL. BIDDERS
ARE STRONGLY ENCOURAGED TO INSPECT PRIOR TO
BIDDING. . . .

Pls.’ Resp. A034.3 Specific information regarding inspection was also given
in the advertisement, which provided that "INSPECTION WILL BE THE
WEEK OF 10/31/11 BY APPOINTMENT ONLY[.] RECORDS ARE

2 The facts are taken from plaintiffs’ complaint and are presumed
correct. Erickson v. Para’us, 

, 94 (2007). We also draw facts from
the documents that the parties attached to their filings ]na’ium Corp. of Am.
v. Semz`-Alloys, Inc., 78l F.2d 879, 884 (Fed. Cir. 1985) ("In deciding a Rule
l2(b)(1) motion, the court can consider . . . evidentiary matters outside the
pleadings."). All reasonable inferences are made in plaintiffs’ favor for the
purposes of defendant’s motion to dismiss. Henke v. Unz`ted States, 

, 797 (Fed. Cir. 1995).

3 The filing referred to in this citation is titled "Plaintiffs’ Answer to
Defendant’s Motion to Dismiss Pro Se Complaint." For the sake of brevity,
we will refer to this document as plaintiffs’ response. When the pinpoint
citation is preceded by an "A," these are the page numbers handwritten by
plaintiffs on the attachments to their response.

3

AVAILABLE FOR VIEWING DURING INSPECTION OF THE AIRCRAFT
ONLY." Pls.’ Resp. AO34. Despite the tone of the description, plaintiffs did
not inspect the airplane prior to bidding and winning the auction.

GSA’s auction website also has a link called "Terms & Conditions" in
which the following relevant terms are provided:

' Photographs may not depict an exact representation of
the bid item(s) and should not be relied upon in place of
written item descriptions or as a substitute for physical
inspection.

~ Bidders agree to physically inspect the property upon
which they bid or thereby waive the opportunity to
conduct a physical inspection. In waiving their
inspection rights, bidders bear the risk for any gross
omissions regarding the functionality of items, failure to
cite maj or missing parts and/or restrictions with regards
to usage that would have been revealed by physical
inspection. There are times when access to property may
be limited due to property being located in a restricted
area. GSA will do all that it can to ensure that photos
and detailed descriptions are provided in these instances.

~ Contracts resulting from the sale of any offer in the

GSAAuctions.gov website are subject to the Contract
Disputes Act of 1978 (41 USC 7101-7109), as amended.

~ Condition of property is not warranted. Deficiencies,
when known, have been indicated in the property
descriptions. However, absence of any indicated
deficiencies does not mean that none exists. Therefore,
the bidder should ascertain the condition of the item
through physical inspection.

' The Government warrants to the original purchaser that
the property listed in the GSAAuctions. gov website will
conform to its written description. Features,
characteristics, deficiencies, etc. not addressed in the
description are excluded from this warranty. GSA

further cautions bidders that GSA’s written description
represents GSA’s best effort to describe the item based
on the information provided to it by the owning agency.
Therefore, gross omissions regarding the functionality of
items, failures to cite maj or missing parts and/or
restrictions with regards to usage may occur.

Claims for Misdescription

If items have been awarded but not paid for and
the successful bidder feels that the property is mis-
described, he/she must follow these procedures: A
written claim needs to be submitted to the Sales
Contracting Officer within 15 calendar days from the
date of award requesting release of contractual
obligation for reasons satisfying that of a mis-
description. No verbal contact with the custodian or the
Sales Contracting Off`icer or any other federal official
will constitute a notice of misdescription.

When items are awarded and payment has been
received, regardless of the removal status (removal may
or may not have occurred), the successful bidder must
submit a written notice to the Sales Contracting Officer
within l5 calendar days from the date of payment email
notification (the Purchaser’s Receipt). If property has
been removed and the claim is accepted by the Sales
Contracting Off`icer, the purchaser must maintain the
property in its purchased condition and return it at their
expense to the location designated by the Sales
Contracting Off`icer or any other federal official

A request for refund must be substantiated in
writing to the Contracting Off`icer for issues regarding
mis-described property, missing property and voluntary
defaults within 15 calendar days from the date of award.

The refund is limited to the purchase price of the
misdescribed property.

The Government does not warrant the merchantability of
the property or its purpose. The purchaser is not entitled
to any payment for loss of profit or any other money
damages - special, direct, indirect, or consequential.

Def.’s Mot. to Dismiss A5-A8 (emphasis in original).

Mr. Williams traveled from his home in Florida at the end of January
20l2 to take custody of the airplane, which was located in California. After
accepting custody and upon inspection of the airplane, Mr. Williams
discovered that it was missing essential parts. On February l, 2012, the
Williamses sent an e-mail to Shirley Tarkington, the contracting officer
("CO"), requesting a price reduction because the condition of the aircraft had
been misrepresented." ln this e-mail, plaintiffs describe how they were
surprised by the "cannibalized state of the aircraft" and when they spoke with
the custodian responsible for delivering the aircraft to plaintiffs, who was also
the aircraft mechanic, the custodian informed plaintiffs that "he was never
asked about the overall condition of the aircraft and missing items, so he never
said anything about it until now." Pls.’ Resp. AO32; Def.’s Mot. to Dismiss
Al4. Two days later, the CO responded via e-mail with the terms governing
a claim of misdescription, a notation that plaintiffs’ written claim was received
after the 1 5-day period, and a statement that plaintiffs’ failure to assert a timely
misdescription claim meant an automatic denial. The CO, however, "agreed
to refund $I,OO0.00 dollars as a courtesy for any inconvenience." Pls.’ Resp.
AO33; Def.’s Mot. to Dismiss Al4. Ms. Williams replied with thanks,
agreement, and acknowledgment "that you didn’t have to give us anything
back." Def.’s Mot. to Dismiss Al3. Plaintiffs, in fact, received $l,O00 from
GSA in February of 20l2. Def.’s Mot. to Dismiss Al5-Al7.

When plaintiffs attempted to register the airplane, the FAA informed
them on August 14, 2012, that the previous owners (USDA & the Fire
Department of Kern County) had cancelled the registration on December 4,
2009, because the airplane was destroyed or scrapped. Plaintiffs claim that the
government gave them a seemingly valid FAA registration after the sale when
they took custody of the aircraf`t. See Pls.’ Resp. AOlO. The Williamses
subsequently sought out professionals to assess the airplane and approximate
how much it would cost to make the necessary repairs. Plaintiffs received an
estimate in 2012 for the replacement of missing parts, which totaled
$48,230.0(). Plaintiffs were also informed that the engine would need at least

4 The actual wording of the plaintiffs’ e-mail is "This email shall serve
as my formal request for a price reduction off the purchase price of said item,
on the grounds that it was misrepresented." Pls.’ Resp. A()32.

6

$30,000 of work before the aircraft would be flight-worthy. The Williamses
continue to store the airplane in the condition it was received.

DISCUSSION

The Court of Federal Claims is a court of limited jurisdiction and it
"possesses only that power authorized by Constitution and statute." Kokkonen
v. Guaro’z`an Lzfe Irzs. C0. oj Am., 

, 373 (l994). Plaintiffs must
establish that their claim falls within the subject matter jurisdiction of this
court before we may consider the merits of their claim. "While a pro se
plaintiff is held to a less stringent standard than that of a plaintiff represented
by an attorney, the pro se plaintiff, nevertheless, bears the burden of
establishing the Court’s jurisdiction by a preponderance of the evidence."
Rz'les v. United States, 93 Fed. Cl. l63, 165 (2010) (internal citation omitted);
see Haines v. Kerrzer, 

, 520 (1972) (stating that general
allegations made by a pro se plaintiff are held to a "less stringent standard[]
than formal pleadings drafted by lawyers"); see also Henke, 60 F.3d at 799
("The fact that [plaintiff] acted pro se in the drafting of his complaint may
explain its ambiguities, but it does not excuse its failures, if such there be.").

Under the Tucl557
F.3d 1332
, 1336 (Fed. Cir. 2009) (quotation and citation omitted). lf the claim
made by the contractor is for more than $100,000, the contractor must certify$
the claim. 41 U.S.C. § 7l()3(b)(l). Generally, the CO has sixty days from the
receipt of a claim to render a decision. 41 U.S.C. § 71()3(f). If the CO does
not issue a decision during that time then the lack of decision "is deemed to be
a decision by the contracting officer denying the claim." 4l U.S.C. §
7 l03(f)(5). lt is only upon receipt of the CO’s final decision or after sixty days
have passed and the CO’s inaction qualifies as a denial that the contractor may
seek review of the CO’s decision in this court. 41 U.S.C. §§ 7l03(f)(5),
7l04(b). Thus, pursuant to the CDA, our jurisdiction over a claim "is lacking
unless the contractor’s claim is first presented to the contracting officer and
that officer renders a final decision on the claim." England, 353 F.3d at 1379.

Defendant asserts that the Williamses failed to comply with the
requirements of the CDA and therefore the court does not have jurisdiction
over their claim.é In response, plaintiffs asks the court to construe their
interaction with the CO, Ms. Tarkington, as a claim and final decision.
Alternatively, plaintiffs argue that they were not subject to the requirements

5 To certify, one must confirm formally that

(A) the claim is made in good faith; (B) the supporting data are
accurate and complete to the best of the contractor’s knowledge
and belief; (C) the amount requested accurately reflects the
contract adjustment for which the contractor believed the
Federal Government is liable; and (D) the certifier is authorized
to certify the claim on behalf of the contractor.

41 U.s.c. § 7103(1»)(1).

6 Defendant initially argued that we also lack jurisdiction under the
Tucker Act to hear any of plaintiffs’ claims against the Kern County Fire
Department, which co-owned the aircraft with the USDA. Plaintiffs’ later
explained that they were not asserting any claims against Kern County in this
suit, but were simply including Kern County to give a complete recitation of
the facts. Defendant subsequently conceded this argument, noting that
plaintiffs agree that this court lacks jurisdiction over claims against Kern
County, California.

of the CDA because they have an express contract with the federal government
that is not for a procurement or service. We are thus presented with two
issues-the first is whether plaintiffs satisfied the requirements of the CDA by
presenting a claim to and receiving a final decision from the CO, and second,
whether plaintiffs’ contract is subject to the CDA-which we will address in
turn.

First, defendant argues that plaintiffs’ request for a price reduction does
not satisfy the CDA requirement that a claim include a sum certain.7 Plaintiffs
do not respond directly to the government’s argument that their request for a
price reduction does not satisfy the requirement that a CDA claim contain a

7 Defendant draws our attention to two additional ways that plaintiffs
failed to comply with the requirements of the CDA. The first is that plaintiffs
seek approximately $164,230 in damages through this suit but have not
certified their claim. Plaintiffs argue that a defect in the certification of their
claim is not fatal to the court’s jurisdiction. 4l U.S.C. § 7 1 03(b)(3) ("A defect
in the certification of a claim does not deprive a court . . . of jurisdiction over
the claim. Prior to the entry of a final judgment by a court . . . , the court . . .
shall require a defective certification be corrected."). Plaintiffs are correct in
their reading of 41 U.S.C. § 7lO3(b)(3) except for the fact that there is a
significant difference between a defective certification and a nonexistent one.
48 C.F.R. § 33.20l (2013) ("Defective certification means a certificate which
alters or otherwise deviates from the language in 33.207(0) or which is not
executed by a person authorized to bind the contractor with respect to the
claim. Failure to certify shall not be deemed to be a defective certification.").
Failure to include any certification of a claim for over $1()0,000 operates as a
bar to this court’s jurisdiction. Scan-Tech Sec. L.P. v. Um'ted Stcztes, 46 Fed.
Cl. 326, 339 (2000) ("[48 C.F.R. 33 .20 l] effectively prevents a contractor
from completely circumventing the certification requirement by asserting that
its failure to certify merely constituted a defect in certification that should not
deprive the court of its jurisdiction."). We need not decide whether plaintiffs’
claim required certification because we hold below that plaintiffs’ failed to
submit a CDA claim to the CO. Additionally, defendant argues that even if the
court construes the e-mail correspondence between plaintiffs and the CO as a
proper claim and denial, plaintiffs did not timely appeal from the CO’s
February 3, 2012 decision because plaintiffs filed their case in federal court on
February 5 , 20 l 3. lt is not necessary for us to reach this argument because we
find that plaintiffs never submitted a claim to the CO.

9

sum certain. Instead, plaintiffs broadly assert that they did, in fact, comply
with the CDA "when they filed their certified claim in good faith to the
contracting officer via email on February l, 2012." Pls.’ Resp. l.

The purpose of the CDA requirement that a claim contain a request for
a sum certain is to provide the CO with "adequate notice of the basis and
amount of [the] claim." Maropakis Carpentry, Inc. v. Um'ted States, 
609 F.3d
1323
, 1328 (Fed. Cir. 2010) (holding also that the claim must put the CO on
notice that the claimant seeks a final decision). Here, the CO was not provided
with adequate notice of the amount and basis of plaintiffs’ claim. In Ms.
Williams’ e-mail to the CO, she requested a reduction in the purchase price of
the aircraft without mentioning any dollar amounts.g See RCS Emer., ]nc. v.
Um'tea’ States, 
46 Fed. Cl. 509
, 514 (2000) ("The problem is that plaintiffs
claim letter failed to ask for any amount based on such a claim."). This request
was insufficient under the CDA, which requires that a claim assert a right to
a sum certain.

We also note that the basis and amount of plaintiffs’ claim changed
from their initial request to the CO to their prayer for relief in this court.
While the Williamses’ initially sought and received a reduction in the purchase
price of the airplane, they now ask us to order GSA to pay for repairs to the
airplane and their costs of transport, storage, and litigation in total amount of
$164,230. Although the latter is a sum certain, it was not presented to the CO
and cannot be construed to satisfy the sum certain element of a CDA claim.

Second, in their sur-response, plaintiffs raise the theory that their
contract with GSA is not subject to the CDA and therefore, they did not need
to obtain a CO’s final decision before filing suit. The CDA applies to "any
express or implied contract , . . made by an executive agency for- (l) the
procurement of property, other than real property in being; (2) the procurement
of services; (3) the procurement of construction, alteration, repair, or
maintenance of real property; or (4) the disposal of personal property." 41
U.S.C. § 7l02(a).

8 Plaintiffs argue that the CO did not inform them that their claim was
defective and that this somehow relieves them of the obligation to comply with
the CDA. The Williamses do not identify any authority to support their
assertion and we know of no legal support for their rationale.

10