Jemison & Partners, Inc. v. Secretary of the Army

Case: 23-1773 Document: 37 Page: 1 Filed: 04/16/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JEMISON & PARTNERS, INC., Appellant

v.

SECRETARY OF THE ARMY, Appellee ______________________

2023-1773 ______________________

Appeal from the Armed Services Board of Contract Ap- peals in No. 62928, Administrative Judge Michael N. O’Connell, Administrative Judge Owen C. Wilson, Admin- istrative Judge Richard Shackleford. ______________________

Decided: April 16, 2024 ______________________

WILLIAM LEE KOHLER, Kohler Construction Law, New Orleans, LA, for appellant.

ANNE DELMARE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for appellee. Also represented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M. MCCARTHY. ______________________

Case: 23-1773 Document: 37 Page: 2 Filed: 04/16/2024 2 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY

Before PROST, CHEN, and HUGHES, Circuit Judges. PER CURIAM. Appellant Jemison & Partners, Inc. (Jemison) and the Army Corps of Engineers (Corps) entered into a contract for greenspace restoration in 2019. That restoration in- cluded placing topsoil along a portion of Jefferson Avenue’s median in Orleans Parish, Louisiana. For the topsoil placement, the parties dispute whether their contract re- quires a unit-price or lump-sum payment. That is, does the contract require the Corps to pay Jemison for the actual quantity of topsoil placed or a lump sum based on the quan- tity of topsoil the parties estimated would be placed? Jemison appealed to the Armed Services Board of Con- tract Appeals (Board), insisting that it had been underpaid by $53,104.80 because the contract required a lump-sum payment for topsoil placement. The Board disagreed and found that the contract required per-unit payment for the topsoil placement. See In re Jemison & Partners, Inc., ASBCA No. 62928, 23-1 B.C.A. ¶ 38,249, 2022 WL 17970459 (Dec. 5, 2022) (Decision). 1 Jemison appeals the Board’s determination. Appellee Secretary of the Army (Secretary) counters that we lack jurisdiction to hear this appeal and, in the alternative, argues that the Board cor- rectly interpreted the contract. For the following reasons, we conclude that we have jurisdiction, and we affirm the Board’s decision.

Case: 23-1773 Document: 37 Page: 3 Filed: 04/16/2024 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 3

BACKGROUND A. On November 16, 2018, the Corps issued Solicitation W912P8-19-R-0005 for the planting of trees along a stretch of Jefferson Avenue’s median in Orleans Parish, Louisiana. J.A. 32–143. The project included, among other things, controlling traffic, excavating and filling, planting trees and other plants, and placing topsoil, mulch, and sod. J.A. 261–96. For the topsoil portion, the solicitation listed an “Estimated Quantity” of 2,355 cubic yards. J.A. 39. Following the issuance of the solicitation, Jemison and the Corps began negotiating a contract. Jemison submit- ted multiple bids, met with the Corps, and asked questions, which the Corps answered. They ultimately agreed to a contract. See J.A. 199–313 (the contract). That contract listed nine item numbers, and each item number included a description of the supplies and/or ser- vices, a quantity, a unit, a unit price, an amount, and a net amount. The first two item numbers are reproduced below:

Case: 23-1773 Document: 37 Page: 4 Filed: 04/16/2024 4 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY

J.A. 201. Notably, the unit for “Mobilization and Demobi- lization” is “Job” whereas the unit for “Topsoil” is “Cubic Yard.” Units for other item numbers include “Square Foot” for Sod and “Each” for Magnolia grandiflora, a type of flower. J.A. 201–02. The value in the Amount column is determined by mul- tiplying the quantity by the unit price. The sum of the Amount column for all nine entries is $747,298.57, which is the “Total Award Amount” listed on the front page of the contract. J.A. 199, 239. The contract also includes a “Measurement and Pay- ment” section that describes how the topsoil is to be meas- ured and what is included in the payment price: Measurement for work required under this section shall be an in place topsoil cubic yard measure- ment. The topsoil quantities are provided as an aid to bidders only. The contractor shall take measure- ments subtracting rootball volume at each area re- quiring excavation and soil replacement. Payment for all work specified in this section including ma- terial, equipment, labor and any other incidental work necessary for providing, installing and main- taining the topsoil will be considered completely covered under the contract price for topsoil as indi- cated in Section 00 41 00 Bid Schedule. J.A. 274.

Case: 23-1773 Document: 37 Page: 5 Filed: 04/16/2024 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 5

The referenced Bid Schedule provides a summary of the estimated contract price for each item number:

J.A. 239. The parties also incorporated Federal Acquisition Reg- ulation (FAR) 52.212-4 into the contract. J.A. 199. That regulation discusses, among other things, how the contrac- tor will submit invoices and how the Government will make payments. For invoices, “[t]he Contractor shall submit an original invoice,” which “must include . . . [d]escription, quantity, unit of measure, unit price and extended price of the items delivered.” 48 C.F.R. § 52.212-4(g)(1)(iv). For payment, the regulation provides that “[p]ayment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this con- tract.” 48 C.F.R. § 52.212-4(i)(1). Finally, the contract includes some of the questions and answers that were exchanged during negotiations. As an example, Jemison asked the following question, and the Corps provided the following answer:

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Q. “[C]an we retain the same estimated quantities for top soil and add a qualification in the revised proposal that the actual quantities utilized will be verified by the [Corps] in the field? It is our under- standing the [Corps] carefully confirms material quantities (such as top soil) in the field as work pro- gresses. We understand that the [Corps] will only pay for verified materials used in the project.” A. “Measurement for this work shall be an in place top soil cubic yard measurement verified by the government. The topsoil quantities are provided as an aid to the bidder. The actual topsoil quantities used cannot exceed the government’s estimated quantities without a contract modification.” J.A. 213. B. Once the contract was executed, Jemison began work- ing on the project. Decision at 4 ¶ 11. Jemison submitted two requests for payment for its work through April 30 and August 12, 2019, respectively. Id. at 4 ¶¶ 11–12. The first invoice requested payment for placing 452.78 cubic yards of topsoil at the $84 per cubic yard rate, and the second requested payment for placing an additional 1,206.61 cubic yards at the same rate. Id. The Corps approved these pay- ments. Id. The present dispute arose with the third payment re- quest, which Jemison submitted on October 19, 2019. Id. at 5 ¶ 15. Jemison requested $58,432—the full $197,820 initially quoted for topsoil placement less the amount al- ready paid. Id. The contracting officer’s representative in- formed Jemison that it was entitled to payment for only the actual quantity of topsoil placed. Id. Jemison then sub- mitted a revised pay request seeking payment for placing 63.41 cubic yards, amounting to $5,326.44. Id. The Corps approved that payment. Id.

Case: 23-1773 Document: 37 Page: 7 Filed: 04/16/2024 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 7

All in all, Jemison placed and was paid for 1,722.8 cubic yards of topsoil rather than the estimated 2,355 cubic yards identified in the contract. Id. at 5 ¶ 14. C. On January 4, 2021, Jemison submitted to the con- tracting officer a claim in the amount of $53,104.80 for the unpaid quantities of topsoil. J.A. 423–24. The contracting officer denied this claim, finding the contract entitled Jemison to payment for only the topsoil it placed. See J.A. 553–54. Jemison appealed the contracting officer’s final deci- sion to the Board. The Board denied Jemison’s appeal on December 5, 2022, finding that “[r]eading the contract as a whole, the Board agrees with the Corps that Jemison was entitled to payment only for actual quantities placed.” De- cision at 6, 8. On December 7, 2022, the Board’s Recorder’s Office emailed Jemison’s counsel a copy of the Board’s decision. ECF No. 1-2 at 4; J.A. 9. Jemison’s appeal to this court was received on April 14, 2023. ECF No. 1. DISCUSSION On appeal, Jemison argues that the Board erred in in- terpreting the contract. According to Jemison, the contract is properly understood as requiring lump-sum payment, ra- ther than per-unit payment, for topsoil placement. The Secretary counters that we lack jurisdiction over this case because Jemison’s appeal is untimely. On the merits, the Secretary contends that the Board properly con- strued the contract as requiring per-unit payment for top- soil placement. We first address whether we have jurisdiction and then address the contract-interpretation issue.

Case: 23-1773 Document: 37 Page: 8 Filed: 04/16/2024 8 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY

I. We have exclusive jurisdiction to hear “an appeal from a final decision of an agency board of contract appeals pur- suant to section 7107(a)(1) of title 41.” 28 U.S.C. § 1295(a)(10). Under that statute, a contractor may appeal the Board’s decision “within 120 days from the date the contractor receives a copy of the decision.” 41 U.S.C. § 7107(a)(1)(A). That deadline “defines the jurisdiction of this court” and cannot be waived. Placeway Const. Corp. v. United States, 713 F.2d 726, 728 (Fed. Cir. 1983). The Secretary argues that Jemison failed to establish that we have jurisdiction. Specifically, the Secretary con- tends that the appeal is untimely because Jemison failed to file its appeal within 120 days of the Board’s December 7, 2022 email. We conclude that we have jurisdiction. On the facts of this case, Jemison has shown that it did not receive the Board’s decision until April 7, 2023. Jemison’s appeal was filed within 120 days of April 7, 2023. ECF No. 1 (received April 14, 2023). Jemison’s appeal is therefore timely. The Secretary’s narrow focus on the date that the Board emailed a copy of its decision misunderstands the statutory scheme. The relevant date is 120 days after “the contractor receives a copy of the decision.” 41 U.S.C. § 7107(a)(1)(A); see Parsons Evergreene, LLC v. Sec’y of the Air Force, 968 F.3d 1359, 1367 (Fed. Cir. 2020) (dismissing appeal “filed 255 days after [party] received a copy of the final decision”); Placeway Const. Corp., 713 F.2d at 727 (“[A]ppellant received notice on August 19, 1982, of the ad- verse board decision rendered on August 13, 1982.”). The date the contractor received a copy of the decision is not necessarily the same date that the Board emailed the deci- sion to the contractor, and the record shows that to be the case here.

Case: 23-1773 Document: 37 Page: 9 Filed: 04/16/2024 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 9

Here, Jemison’s counsel submitted a sworn declaration stating that he first received notice of the Board’s decision on April 7, 2023. ECF No. 1-2 at 2–3. This declaration ex- plains that his firm could not receive any emails sent from December 2 through 12, 2022, because of a ransomware at- tack on its email service provider. Id. Jemison’s counsel became aware of the decision on April 7, 2023, when he checked the Board’s reported decisions. Id. at 3. That same day, he called the Board’s Recorder’s Office and ex- plained that he had not received notice of the decision when it originally issued. Id. The Recorder’s Office then emailed him a copy of the decision on April 7, 2023. Id. The Secretary does not challenge these factual asser- tions, and the Board’s interactions with Jemison’s counsel are consistent with the declaration’s recounting of email service problems. The Board’s December 7, 2022 email re- quested that Jemison’s counsel “acknowledge receipt of the attached Decision by return email.” ECF No. 1-2 at 4. Yet there is no evidence before us that Jemison’s counsel re- sponded to that email. Jemison’s counsel also attached to the declaration an email showing that the Recorder’s Office “resent” the decision via email “at the request of [Jemison’s] counsel per [its] phone call . . . on April 7, 2023.” Id. Based on these facts, we find that Jemison provided sufficient evidence for us to determine that it timely filed its appeal. II. “The interpretation of a contract or solicitation is a question of law . . . .” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). We “review a contract board’s decision on a question of law de novo.” DAI Glob. v. Adm’r of the United States Agency for Int’l Dev., 945 F.3d 1196, 1198 (Fed. Cir. 2019).

Case: 23-1773 Document: 37 Page: 10 Filed: 04/16/2024 10 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY

According to Jemison, the contract should be viewed as requiring a lump-sum payment rather than per-unit pay- ment for topsoil placement. We agree with the Board, how- ever, that the contract is best understood as requiring per- unit payment. The contract differentiated between the item numbers that were paid for as a lump sum and those that were paid for per-unit. For example, the contract priced mobilization and demobilization as a lump sum be- cause it specified the unit was “Job.” J.A. 201. In contrast, topsoil’s unit—“Cubic Yard”—indicates that topsoil would be paid for per-unit. Id. This difference shows that the parties knew how to specify a lump-sum payment for com- pleting a “job” but did not do so for the topsoil item number. The contract negotiations, which are included in the contract, also demonstrate that the contract required per- unit payment for the topsoil item number. Jemison under- stood that the Corps “carefully confirms material quanti- ties (such as top soil) in the field as work progresses” and that the Corps “will only pay for verified materials used in the project.” J.A. 213. Jemison therefore acknowledged it was to be paid for only the topsoil that was actually placed. Jemison’s argument to the contrary is that the contract provides a “Total Award Amount” of $747,298.57, and the contract never expressly states that payment will be on a per-unit basis. In raising this argument, Jemison relies on Blough v. United States, 17 Cl. Ct. 186, 186 (1989), in which the Claims Court found that a contract for modifying postal boxes was a lump-sum contract. This argument is unavail- ing. In Blough, the solicitation estimated that 1,400 postal boxes would be modified, but ultimately the contractor was required to modify only 839 boxes. Id. at 186–87. The so- licitation attached a document that included the following formula—“Job Cost per Box: $____ x 1400 ea. = $____ To- tal.” Id. at 187. But the offer section required the bidders to enter only one total bid, and the award section provided

Case: 23-1773 Document: 37 Page: 11 Filed: 04/16/2024 JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 11

without reservation that “[t]he above offer is accepted in the amount of $____.” Id. The Claims Court therefore found that the contract required a lump-sum payment, in part, because the “contracting officer unequivocally stated on two occasions that this contract was for a lump sum.” Id. at 188. Blough is distinguishable because the present contract does not include a lone contract price. Jemison was re- quired, in the contract, to submit separate prices for nine item numbers, eight of which were based on estimated quantities and corresponding unit prices. J.A. 201–03, 239. The “Total Award Amount” that Jemison points to is simply equal to the sum of the entries in the Amount col- umn for each of the nine item numbers. J.A. 199, 239. It follows that if the amount of one of those item numbers is reduced—e.g., the entry for topsoil placement—then the Total Award Amount would likewise be reduced. Thus, un- like in Blough, the present contract does not state that the contract was for a lump sum. On the contrary, the contract provisions discussed above demonstrate that payment for topsoil is to be made on a per-unit basis. Accordingly, we conclude that the Board correctly in- terpreted the contract to provide for per-unit payment of topsoil. CONCLUSION We have considered Jemison’s remaining arguments and find them unpersuasive. We therefore affirm the Board’s decision. AFFIRMED

Footnotes

[1] Because the reported version of the Board’s deci- sion is not paginated, citations in this opinion are to the version of the Board’s decision included in the Joint Appen- dix (J.A. 1–9). For example, Decision at 1 is found on J.A. 1.