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

N OTE: This disposition is nonprecedential.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 L EE K OHLER, Kohler Construction Law, New
Orleans, LA, for appellant.
ANNE D ELMARE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for appellee. Also represented by BRIAN M.
BOYNTON, WILLIAM J AMES G RIMALDI, P ATRICIA M.
MCCARTHY .
______________________
Case: 23-1773 Document: 37 Page: 1 Filed: 04/16/2024

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JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 2
Before P ROST , CHEN, and HUGHES , Circuit Judges.
P ER 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.
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.
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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:
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JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 4
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.
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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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JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 6
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.
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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.
D ISCUSSION
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.
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JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 8
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.
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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).
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JEMISON & PARTNERS, INC. v. SECRETARY OF THE ARMY 10
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
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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
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