Case: 21-1547 Document: 65 Page: 1 Filed: 07/18/2022
United States Court of Appeals
for the Federal Circuit
______________________
ZAFER CONSTRUCTION COMPANY, AKA ZAFER
TAAHHUT INSAAT VE TICARET A.S.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1547
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00673-EGB, Senior Judge Eric G. Bruggink.
______________________
Decided: July 18, 2022
______________________
ABRAHAM GDANSKI, Gdanski Law PC, Teaneck, NJ, ar-
gued for plaintiff-appellant. Also represented by SAM
GDANSKI.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also rep-
resented by BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM,
MARTIN F. HOCKEY, JR.
______________________
Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
Case: 21-1547 Document: 65 Page: 2 Filed: 07/18/2022
2 ZAFER CONSTRUCTION COMPANY v. US
HUGHES, Circuit Judge.
Zafer Construction Company appeals a decision of the
United States Court of Federal Claims dismissing Zafer’s
complaint for failing to state a cause of action under Court
of Federal Claims Rule 12(b)(6). The Court of Federal
Claims determined that Zafer’s request for equitable ad-
justment is not a claim under the Contract Disputes Act
and that Zafer’s subsequent claim is time barred. Because
Zafer’s request for equitable adjustment is a claim, we re-
verse and remand.
I
In June 2008, the United States and Zafer agreed to a
$40 million contract to design and build water systems on
the Bagram Air Base in Afghanistan. Zafer completed the
project and submitted a request for equitable adjustment
on September 10, 2013, which it timely amended on De-
cember 17, 2014. In its 167-page request, Zafer alleged that
the government increased the cost of the project by causing
delays and modifying the contract. Zafer’s detailed request
sought $6.7 million and provided a breakdown of the rea-
sons for the claimed amounts. Zafer submitted its request
“so that the parties c[ould] engage in immediate discus-
sions and negotiations to mutually amicably resolve [its]
request.” Appx46 (request for equitable adjustment). And
Zafer certified its request in accordance with the claim-cer-
tification requirement of
41 U.S.C. § 7103(b)(1), going be-
yond what is required by
48 C.F.R. § 252.243-7002(b) to
certify mere requests for equitable adjustment.
The parties negotiated for four-and-a-half years but did
not fully resolve Zafer’s request. On February 7, 2018,
Zafer asked to convert its request for equitable adjustment
into a claim. The contracting officer reviewed Zafer’s claim
and determined that most of it is time barred under
41 U.S.C. § 7103(a)(4)(A) because much of the govern-
ment’s alleged conduct had transpired more than six years
before Zafer had converted its request into a claim.
Case: 21-1547 Document: 65 Page: 3 Filed: 07/18/2022
ZAFER CONSTRUCTION COMPANY v. US 3
Zafer sued in the Court of Federal Claims. The Court
of Federal Claims found that Zafer’s claim had “accrued no
later than August 1, 2011,” meaning Zafer had to have sub-
mitted a claim by August 1, 2017 for the claim to be timely.
Appx10. Although Zafer had submitted a request for equi-
table adjustment in December 2014, the court determined
that because this document “lacks a request for a final de-
cision” and “asks for negotiations,” it is not a claim but a
request for negotiations. Appx9–10. And because Zafer con-
verted its request for equitable adjustment into a “proper”
claim after the 2017 deadline, the court dismissed Zafer’s
complaint for failure to state a cause of action upon which
relief can be granted under the court’s Rule 12(b)(6).
Appx10–11.
Zafer appeals. We have jurisdiction under
28 U.S.C.
§ 1295(a)(3).
II
We review decisions to dismiss complaints under Rule
12(b)(6) de novo. Dehne v. United States,
970 F.2d 890, 892
(Fed. Cir. 1992).
A
The Federal Acquisition Regulation defines “claim” as
a written demand or written assertion by one of the
contracting parties seeking, as a matter of right,
the payment of money in a sum certain, the adjust-
ment or interpretation of contract terms, or other
relief arising under or relating to this contract.
48 C.F.R. § 52.233-1(c); see Todd Constr., L.P. v. United
States,
656 F.3d 1306, 1311 (Fed. Cir. 2011) (“[T]he defini-
tion of the term ‘claim’ in the FAR governs” the use of that
term in the Contract Disputes Act.). The regulation further
distinguishes claims from “routine request[s] for payment,”
like vouchers or invoices.
48 C.F.R. § 52.233-1(c).
Case: 21-1547 Document: 65 Page: 4 Filed: 07/18/2022
4 ZAFER CONSTRUCTION COMPANY v. US
Under the Contract Disputes Act, if a contractor’s
claim is for more than $100,000, the contractor must certify
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
believes 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(b)(1); see
48 C.F.R. § 52.233-1(d)(2)(iii).
Requests for equitable adjustment, on the other hand, re-
quire certification of only (A) and (B).
48 C.F.R. § 252.243-
7002(b).
In addition to these requirements, a contractor must
show that “what the contractor desires by its submissions
is a final decision” from the contracting officer determining
whether the contractor is entitled to the claimed amount.
M. Maropakis Carpentry, Inc. v. United States,
609 F.3d
1323, 1327–28 (Fed. Cir. 2010). We have derived this “re-
quest” requirement from
41 U.S.C. § 7103(a)(1) and
48
C.F.R. § 33.206(a), which instruct contractors to submit
claims “to the contracting officer for a decision.” See James
M. Ellett Constr. Co. v. United States,
93 F.3d 1537, 1543
& n.4 (Fed. Cir. 1996) (emphasis added); Transamerica Ins.
Corp. v. United States,
973 F.2d 1572, 1576 (Fed. Cir.
1992).
To fulfill the request requirement, the contractor’s re-
quest for a final decision can be either explicit or implicit.
Transamerica,
973 F.2d at 1576. The claim does not need
to “be submitted in any particular form or use any particu-
lar wording.” Cont. Cleaning Maint., Inc. v. United States,
Case: 21-1547 Document: 65 Page: 5 Filed: 07/18/2022
ZAFER CONSTRUCTION COMPANY v. US 5
811 F.2d 586, 592 (Fed. Cir. 1987). For example, a request
for equitable adjustment can constitute a claim. Hejran
Hejrat Co. v. U.S. Army Corps of Eng’rs,
930 F.3d 1354,
1357 (Fed. Cir. 2019). And “[t]here is no necessary incon-
sistency between” a claim and “an expressed desire to con-
tinue to mutually work toward a claim’s resolution.”
Reflectone, Inc. v. Dalton,
60 F.3d 1572, 1583 (Fed. Cir.
1995).
B
The parties appear to agree that Zafer’s December
2014 request for equitable adjustment satisfies the defini-
tion of a “claim” in
48 C.F.R. § 52.233-1(c) and the claim-
certification requirement. See Appellee’s Br. 8–10 (identi-
fying but not disputing these requirements). At issue is
whether Zafer satisfied the request requirement.
Zafer argues that its December 2014 request for equi-
table adjustment fulfills the request requirement because
the document at length discusses Zafer’s request for money
owed, showing that Zafer intended for the contracting of-
ficer to make a decision regarding entitlement. Zafer con-
tends that the Court of Federal Claims’ contrary conclusion
relies on a “hyper-technical analysis” that Zafer asserts we
have previously rejected. Appellant’s Br. 8.
The government responds that Zafer “sent clear sig-
nals” that it intended only to negotiate a contract proposal,
not to request a final decision. Appellee’s Br. 10. In the gov-
ernment’s view, Zafer knew the difference between a re-
quest for equitable adjustment and a claim because Zafer
submitted a proper, but untimely, claim in December 2018.
C
The parties suggest that the request requirement fo-
cuses on a contractor’s subjective intent. See Appellant’s
Br. 11 (arguing that the length of the request for equitable
adjustment evinces Zafer’s “intent for the contracting of-
ficer [to] make a decision for entitlement”); Appellee’s Br.
Case: 21-1547 Document: 65 Page: 6 Filed: 07/18/2022
6 ZAFER CONSTRUCTION COMPANY v. US
10 (“Zafer sent clear signals that, before 2018, it sought
only to negotiate a contract proposal and not to seek a
COFD.”). That is incorrect. The determination focuses on
whether, objectively, the document’s content and the con-
text surrounding the document’s submission put the con-
tracting officer on notice that the document is a claim
requesting a final decision. See Heyl & Patterson, Inc. v.
O’Keefe,
986 F.2d 480, 483 (“[A] request for a final decision
can be implied from the context of the submission.”), over-
ruled in part on other grounds by Reflectone,
60 F.3d at
1579 n.10.; see also Transamerica,
973 F.2d at 1576 (“[A]s
long as what the contractor desires by its submissions is a
final decision, that prong of the CDA claim test is met.”
(emphasis added)); Maropakis,
609 F.3d at 1328 (“A claim
cannot be based merely on intent to assert a claim without
any communication by the contractor of a desire for a con-
tracting officer decision.”).
The request requirement is not a hyper-technical re-
quirement, and we have repeatedly rebuffed attempts to
make it one, relying instead on a “common sense analysis.”
Transamerica,
973 F.2d at 1579.
In Contract Cleaning Maintenance, Inc. v. United
States,
811 F.2d 586 (Fed. Cir. 1987), the appellant submit-
ted letters “specif[ying] various items that . . . had [been]
disallowed but to which the appellant claimed entitlement”
and “express[ing] the hope that the dispute could be set-
tled.”
Id. at 592. The government argued that the letters
were not claims because they did not “contain the requisite
demand for payment as a matter of right.”
Id. We rejected
this argument, stating that “[w]e know of no requirement
in the Disputes Act that a ‘claim’ must be submitted in any
particular form or use any particular wording.”
Id. “All that
is required is that the contractor submit in writing to the
contracting officer a clear and unequivocal statement that
gives the contracting officer adequate notice of the basis
and amount of the claim.”
Id. We clarified that “[t]he fact
that in those letters the appellant frequently expressed the
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ZAFER CONSTRUCTION COMPANY v. US 7
hope that the dispute could be settled and suggested meet-
ing to accomplish that result does not mean that those let-
ters did not constitute ‘claims.’”
Id.
In Transamerica Insurance Corp., Inc. v. United States,
973 F.2d 1572 (Fed. Cir. 1992), the appellant had submit-
ted a letter with a certification to the contracting officer,
requesting equitable adjustment.
Id. at 1574–75. The gov-
ernment argued that this letter was not a claim because it
did not include a request for a final decision, either explic-
itly or implicitly.
Id. at 1576. We recognized that the letter
“did not use the explicit words ‘we request a final decision
from the contracting officer,’” but we concluded that “it
[wa]s clear from the language of the letter itself that” the
appellant wanted a final decision.
Id. at 1578.
In particular, the letter “requested payment of a sum
certain[] and gave the contracting officer adequate notice
of the basis and the amount of the claim.”
Id. We were
“loathe to believe that . . . a reasonable contractor would
submit to the contracting officer a letter containing a pay-
ment request after a dispute had arisen solely for the con-
tracting officer’s information and without at the very least
an implied request that the contracting officer make a de-
cision as to entitlement.”
Id. So we reaffirmed our holdings
in Contract Cleaning and reiterated that “[t]here is no nec-
essary inconsistency between the existence of a valid CDA
claim and an expressed desire to continue to mutually work
toward a claim’s resolution.”
Id. at 1579.
And in Hejran Hejrat Co. v. United States Army Corps
of Engineers,
930 F.3d 1354 (Fed. Cir. 2019), the appellant
had submitted a request for equitable adjustment that spe-
cifically requested that the submission be “treated as a [re-
quest for equitable adjustment].”
Id. at 1356. The
government argued that a request for equitable adjust-
ment cannot constitute a claim and, alternatively, that the
appellant’s document could not be a claim because it did
not include language requesting a final decision.
Id. at
Case: 21-1547 Document: 65 Page: 8 Filed: 07/18/2022
8 ZAFER CONSTRUCTION COMPANY v. US
1357. We held that a request for equitable adjustment can
be a claim.
Id. And we reiterated that “magic words are not
required under our cases”: “a CDA claim need not be sub-
mitted in any particular form or use any particular word-
ing” as long as it includes “a clear and unequivocal
statement that gives the contracting officer adequate no-
tice of the basis and amount of the claim.”
Id. (quoting
Maropakis,
609 F.3d at 1327). We found persuasive that
the appellant “submitted a sworn statement attesting to
the truth of the submission, included detailed factual bases
for its alleged losses, and claimed a sum certain based on
the losses.”
Id. at 1357–58.
While Zafer’s request for equitable adjustment does not
explicitly request a final decision, its content and the con-
text surrounding its submission put the contracting officer
on notice that the document is a claim requesting a final
decision. In the 167 pages of its request, Zafer meticulously
alleges changes and delays caused by the government, ex-
plains the reasoning behind its allegations, and requests a
sum certain. E.g., Appx184–85, 202. And Zafer’s certifica-
tion satisfies all of the certification requirements for a
claim, which go beyond what is required for a mere request
for equitable adjustment. Appx204; see
48 C.F.R.
§ 243.204-71(c) (“The certification required by 10 U.S.C.
2410(a), as implemented in the clause at 252.243-7002, is
different from the certification required by 41 U.S.C.
7103.”); compare
41 U.S.C. § 7103(b)(1) (claim certification
requirement), with
48 C.F.R. § 252.243-7002(b) (request for
equitable adjustment certification requirement). Like the
appellant in Hejran, Zafer clearly stated the basis of its
claim, claimed a sum certain, and submitted a sworn state-
ment attesting to the truth of its submission.
In its request for equitable adjustment, Zafer even ex-
plicitly characterizes the request as “encompass[ing] all
claims incurred by ZAFER as a result of changes, construc-
tive changes, [and] delay” caused by the government.
Appx53 (emphasis added). And it notes in the conclusion of
Case: 21-1547 Document: 65 Page: 9 Filed: 07/18/2022
ZAFER CONSTRUCTION COMPANY v. US 9
its request that “contracting officers are required to deal
with claims fairly.” Appx204 (emphasis added). Zafer’s re-
quest for equitable adjustment constitutes “a clear and un-
equivocal statement that gives the contracting officer
adequate notice of the basis and amount of the claim,” so it
is a claim. Cont. Cleaning,
811 F.2d at 592.
This appeal is distinct from James M. Ellett Construc-
tion Co. v. United States,
93 F.3d 1537 (Fed. Cir. 1996).
There, the government had terminated for convenience the
remainder of a contract and, in return, the appellant had
submitted a settlement proposal requesting payment.
Id.
at 1540. We determined that the appellant’s settlement
proposal was a proposal, not a claim.
Id. at 1543–44. We
reasoned that “[t]he parties [had] agreed that they would
try to reach a mutually agreeable settlement” and, “[i]f
they were unable to do so . . . the contracting officer would
issue a final decision.”
Id. at 1544. In other words, the ap-
pellant was contractually required to propose and attempt
to negotiate a settlement before submitting a claim. “In-
deed, it [wa]s a proposal that [the appellant] contractually
agreed to submit in the event of a convenience termina-
tion.”
Id. We therefore concluded that the proposal “at the
time of submission was not a claim because it was not sub-
mitted to the contracting officer for a decision” but rather
for contractually required negotiations.
Id. Unlike the ap-
pellant in Ellett, Zafer was not contractually required to
propose and attempt to negotiate a settlement with the
government before submitting a claim, so the reasoning of
Ellett does not apply here.
As we have repeatedly held, “[t]here is no necessary in-
consistency between” a claim and “an expressed desire to
continue to mutually work toward a claim’s resolution.” Re-
flectone, Inc. v. Dalton,
60 F.3d 1572, 1583 (Fed. Cir. 1995)
(alteration in original) (quoting Transamerica,
973 F.2d
1572). In fact, one of the stated purposes of the Contract
Disputes Act is to “induce resolution of more contract dis-
putes by negotiation prior to litigation.” S. Rep. No. 95-
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10 ZAFER CONSTRUCTION COMPANY v. US
1118, at 1 (1978), as reprinted in 1978 U.S.C.C.A.N. 5235,
5235; see also H.R. Rep. No. 95-1556, at 5 (1978) (“The pur-
pose of the proposed legislation as amended is to provide
for . . . administrative and judicial procedures for the set-
tlement of claims and disputes relating to Government con-
tracts.”). We have warned against requirements that
“would allow [the government] to continually . . . seek in-
formation and prolong negotiations without issuing an ap-
pealable decision” because such requirements can “delay[]
rather than accelerat[e] any possible settlement.” Reflec-
tone,
60 F.3d at 1582. Requirements “that allow[] the gov-
ernment to unilaterally designate when a submission
becomes a ‘claim’ disrupt[] the balance of power between
the government and contractors that the CDA sought to es-
tablish.”
Id. A stringent request requirement would do ex-
actly that.
We recognize that contracting officers will sometimes
face the difficult challenge of determining whether a re-
quest for equitable adjustment is also a claim. Contractors
must choose between submitting a claim—which starts the
interest clock but requires the contracting officer to issue a
final decision within 60 days—and submitting a mere re-
quest for equitable adjustment—which does not start the
interest clock but gives the contractor more time to negoti-
ate a settlement and possibly avoid hefty legal fees. See
Government Contract Compliance Handbook §§ 16:7,
16:11 (5th ed. Cumulative Supplement 2021–2022). The
overlap between these two types of documents might create
room for gamesmanship. For example, a contractor could
submit a document that is a claim—starting the interest
clock—but appears to be a mere request for equitable ad-
justment—causing the contracting officer to not issue a fi-
nal decision within the 60-day deadline and allowing
interest to accrue for months or years. But the government
has tools to address this challenge: The contracting officer
can communicate to the contractor that she is going to treat
the document as a claim and issue a final decision within
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ZAFER CONSTRUCTION COMPANY v. US 11
60 days. Or the government can explicitly require the con-
tractor to propose settlement terms and attempt to settle
disputes before submitting a claim to the contracting of-
ficer for a final decision, as in Ellett.
III
Because Zafer’s December 2014 request for equitable
adjustment implicitly requests a final decision and there-
fore is a claim, we reverse the Court of Federal Claims’ con-
trary determination and remand for further proceedings.
REVERSED AND REMANDED
COSTS
Costs to Zafer.
