MEMORANDUM OPINION AND ORDER.
I. RELEVANT FACTS.
A. The August 15, 2006 Contract With Kenney Orthopedic, LLC.
Kenney Orthopedic, LLC (“Plaintiff’) provides prosthetic and orthotic devices and services to the United States Government for use by veterans. See Compl. ¶ 2. On August 15, 2006, Plaintiff entered into Contract No. V249-P-0011 (“the Contract”) to provide prosthetic and orthotic services for the United States Department of Veterans Affairs (“VA”) at the Lexington, Kentucky Medical Center. See Pl.Ex. A (Contract No. V249-P-0011). The Contract had a base year from August 20, 2006 to August 19, 2007 with two renewable option years. Id.
The Contract required Plaintiff to deliver prostheses to the VA, no later than thirty calendar days after receipt of a delivery order, and to fabricate them in strict conformity with the prescriptions provided by the VA Amputee Clinic Team. Id. Under the Contract, Plaintiff could not change a prescription in any way, “without prior approval and written authority from the VA Amputee Clinic Team Prosthetic Representative or desig-nee.” Id. The Contract also stated that the VA would measure and fit first-time prosthetic users, and Plaintiff was responsible for measuring and fitting prostheses on experienced prosthetic wearers. Id.
B. The Contracting Officer’s December 19, 2006 Letter To Kenney Orthopedic, LLC And Subsequent Dispute.
In a December 19, 2006 letter, the Contracting Officer (“CO”) for the VA Tennessee Valley Healthcare System accused Plaintiff of not performing under the Contract, be
On December 21, 2006, the VA sent Plaintiff a proposed modification to the contract. See Pl.Ex. C. The modification provided that Plaintiff issue satisfaction surveys to all VA patients and submit a quarterly report back to the CO as of March 31, 2007. Id. On December 22, 2006, Plaintiff responded that it could not find any instances of non-compliance аnd requested additional information and documentation to address the VA’s concerns. See Pl.Ex. D. Plaintiff, however, did not respond to the proposed contract modification. Id.
On January 8, 2007, the CO replied that Plaintiff delivered a prosthesis to Patient “Williams 5967” on November 3, 2006, before the VA reviewed or approved the prosthesis price. Pl.Ex. E. The letter claimed that “[d]uring a conversation with Mr. Kenney
On January 22, 2007, Plaintiff mailed the CO a “formal written response,” explaining that it evaluated Patient Williams on September 8, 2006. Pl.Ex. F. Plaintiff also claimed it received a prescription from the VA on November 1, 2006 and provided Patient Williams with the device on November 3, 2006. Id. Plaintiff stipulated that “[t]he only ‘admission’ made ... was that [it] provided diagnostic sockets only prior to the prescription date.” Id. Plaintiff also conceded that it provided twelve socks instead of the prescribed six, which was “the usual and customary number ... provided by Medicare,” but did not request reimbursement from the VA for the extra socks. Id.
On February 27, 2007, the CO sent a letter to Plaintiff in response to Plaintiff’s invoice for approximately $3,952.40 for a prosthesis delivered to “[Patient] Williams”
I have been made aware of several instances where veteran’s [sic] prescriptions have been altered without having prior approval and written authority from the VA Amputee Clinic Team Prosthetic Representative or designee.... [T]his process will not be tolerated anymore. There will be no reimbursement for non-prescripted items not authorized and prescriptions written prior to VA approval of quote.... If you continue to perform outside the scope of the contract I will be forced to start termination procedures.
Pl.Ex. G (bold in original).
C. The February 28, 2007 Proposed Contract Modification.
On February 28, 2007, the VA sent Plaintiff a second proposed modification to the August 15, 2006 Contract’s Prescription Policy for Prosthesis (“PPP”), that set forth the process for providing and purchasing prescription prostheses. See Pl.Ex. H.
D. A Dispute Also Developed Between Kenney Orthopedic, LLC And The Veterans Administration’s Network Contracting Manager.
On March 9, 2007, counsel for Plaintiff called the VA’s Network Contracting Manag
On March 14, 2007, Plaintiff sent another letter to the CO stating that Plaintiff received three additional requests for socket replacements or prostheses caused by anatomical changes. See Pl.Ex. J. This letter advised that, “given the difficulties associated with the other socket replacements,” Plaintiff was “extremely concerned” that the VA would not reimburse Plaintiff for these items. Id. Plaintiff requested the VA provide “assurances” that it would not “continue to intentionally intеrfere with the necessary ongoing medical treatment of [Plaintiffs] patients, and that Plaintiff can expect appropriate payment for services rendered in accordance with the anatomical changes associated with these additional patients.” Id.
On March 30, 2007, the VA responded that Plaintiffs ninety-day warranty covered Patient Williams’ December 20, 2006 prescription for a replacement prosthesis and denied the $3,952.40 claim for Mr. Williams’ prosthesis. See Pl.Ex. K. In addition, the VA records indicated that Mr. Williams received an original prosthesis on November 3, 2006, pri- or to Plaintiff receiving the November 30, 2006 purchase order from the VA and in contravention of the terms of the August 15, 2006 Contract. Id.; see also Pl.Ex. A (“The VA shall require the contractor to deliver items ordered under this contract no later than 30 calendar days after receipt of the delivery order.”) (emphasis added). The VA also emphasized that the patients were under the care of the VA, not Plaintiff. See Pl.Ex. K. Moreover, “any refusal tо treat patients referred under this contract shall be construed as a failure to perform under the terms and conditions of this contract.” Id. The letter also proposed a “face to face” meeting to discuss the delivery order and payment process. Id.
On April 19, 2007, the VA’s Prosthetic Manager requested that Plaintiff provide a consolidated report of the results of all patient satisfaction surveys, which the CO stated was required by the December 21, 2006 modification to the Contract. See Pl.Ex. L; see also Pl.Ex. C (Dec. 21, 2006 Contract Modification “A,” unsigned by Plaintiff). On that same date, Plaintiffs Business Office Manager responded that “if the VA desires to change the terms of the [Contract, both parties must agree to the change.” Pl.Ex. M; see also Pl.Ex. A (Contract Terms And Conditions) (“52.212-4(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.”). On April 23, 2007, Plaintiff sent a letter to the VA Prosthetic Manager reiterating Plaintiffs position that the December 21, 2006 modification was unilateral and not рart of the August 15, 2006 Contract.
In a separate April 23, 2007 letter to the VA Network Contracting Manager, Plaintiff expressed disappointment about the VA’s continued denial of Plaintiffs $3,952.40 claim. See Pl.Ex. O. Plaintiff reasserted that “[Patient Williams’] order was for a replacement socket, not a replacement prosthesis.” Id. (emphasis in original). Moreover, “contrary to [the VA’s] assertions, the prescription for [the prosthesis] ... was given to [Plaintiff] on November 1, 2006, and no prosthetic device was provided until November 3, 2006[.]” Id. In addition, Plaintiff accused the VA of intentionally interfering “with [Plaintiff’s ability to provide ongoing services to [Plaintiffs] patients” and making “bold assertions
E. On July 2, 2007, The Veterans Administration Sent Kenney Orthopedic, LLC A Preliminary Notice To Extend The August 15, 2006 Contract Option.
Despite these issues, on July 2, 2007, the CO sent Plaintiff a preliminary notice of the VA’s intent to extend the August 15, 2006 Contract. See Pl.Ex. P. Subsequently, the CO sent Plaintiff a signed Modificаtion of Contract form exercising the first option year. Id.
F. The Contracting Officer’s Demand For Cure And Kenney Orthopedic, LLC’s Demand For An Independent Review.
On July 18, 2007, Plaintiff sent another letter to inform the VA that Plaintiff obtained “the patient’s [presumably Patient Williams’]” medical records and a sworn statement “unequivocally disproving your inappropriate and unsupported allegations of negligence and misconduct[.]” Pl.Ex. Q. Plaintiff demanded a retraction of allegations of negligence, an apology, and immediate payment of the compensation owed. Id.
In response, the CO sent [Plaintiff] a August 29, 2007 “Cure Notice” stating that:
the Government considers [Plaintiffs] failure to comply with the ordering requirements required in [Plaintiffs] contract a condition that is endangering performance of the contract. Therefore, unless this condition is cured [by Plaintiff preparing a signed statement attesting Plaintiffs commitment to comply with the terms and conditions of the Contract] ... within 10 days after receipt of this notice the Government may terminate for default under the terms and conditions of the [FAR] 52.212-4(m) Termination for Cause clause of this contract.
Pl.Ex. R.
The CO further complained that Plaintiff continued to “prescribe or alter VA prescriptions [in] violation of [the Contract].” Id. In addition, the CO warned Plaintiff that any failure to perform services pursuant to the Contract during the ten-day period would be regarded “as grounds for termination for cause[.]” Id.
On September 14, 2007, Plaintiff again demanded an acknowledgment of the VA’s “repeated actions designed to defame and besmirch [Plaintiff].” Pl.Ex. S. The letter also requested the immediate removal of the CO and the appointment of an independent party to review Plaintiffs actions, with knowledge of prosthetic procedures. Id. Moreover, the letter stated the CO’s assertion that Plaintiff failed to provide a prescribed product was “directly refuted by the actual Request for Quote that was received by [Plaintiff] as well as the prescriptiоn agreed upon by the VA Physician.” Id. The September 14, 2007 letter again demanded a response to the “serious claims” in the CO’s August 29, 2007 letter by an independent party “within ten ... days of receipt.” Id.
On September 18, 2007, the CO responded that Plaintiff had failed to comply with the CO’s August 29, 2007 “cure notice,” requesting “a signed statement attesting [Plaintiffs] commitment to comply with the terms and condition of the contract.” Pl.Ex. T. The CO farther warned Plaintiff that:
if [the VA does] not receive [Plaintiff s] response to [the VA’s] previous letter dated August 29, 2007 before the close of business on October 2, 2007 [,] the Government may conclude that [Plaintiff] choose[s] not to cure [Plaintiffs] deficiency and may exercise its right to terminate for default under the terms and conditions of the [FAR] 52.212-4(m) Termination for Cause clause of [the Contract].
Id. (emphasis in original).
On September 24, 2007, Plaintiff replied that it responded to the August 29, 2007 letter, but reasserted that the VA was in violation of the August 15, 2006 Contract. See Pl.Ex. U. For the third time, Plaintiff requested that an independent party investigate the allegations in the VA’s September 18, 2007 letter. Id.
G. The Veterans Administration’s October 23, 2007 Termination Of The August 15,2006 Contract.
On October 23, 2007, the CO sent a letter to Plaintiff terminating the August 15, 2006 Contract “for cause in its entirety ... in accordance with [FAR] 52.212-4(m)[.]”
On November 3, 2007, Plaintiff responded that, because the Termination Letter “states that the sole basis for termination is [Plaintiff]’s purported failure to respond to [the CO’s] previous correspondence,” its “inane” position “underscores the difficulties that have been routinely experienced by [Plaintiff] as well as patients.” Pl.Ex. X. Plaintiff claimed that on three sеparate occasions it responded to the CO’s inquiries and requested responses to additional concerns. Id. Plaintiff requested that the CO’s “unilateral termination ... be immediately rectified so as to allow the Veterans to obtain the proper care that has been continuously provided by [Plaintiff].” Id.
II. PROCEDURAL HISTORY.
A. Prior Complaint Before The United States Court Of Federal Claims.
On January 2, 2008, Plaintiff filed a Complaint in the United States Court of Federal Claims, alleging a claim for breach of contract and three tort claims. See Kenney Orthopedic I,
On August 7, 2008, the court granted the Government’s Partial Motion To Dismiss the three tort claims on jurisdictional grounds. Id. at 45-46. In addition, the court sua sponte dismissed the breach of contract claim, without prejudice, and granted leave for Plaintiff to file a new Complaint after submitting a certified claim for damages to the CO, as required by the Contract Disputes Act of 1978, 41 U.S.C. § 601 et seq. (“CDA”). Id. at 43.
B. Agency Action After The August 7, 2008 Dismissal.
On August 21, 2008, Plaintiff filed a certified claim to the CO requesting “an indepen
On October 30,2008, the CO issued a letter stating that since the August 21, 2008 certified claim presented the same facts and claims that were already resolved by the October 23, 2007 Termination Letter, “[t]hat decision disposes of all claims for relief you make here.” Pl.Ex. 2.
C. The January 16, 2009 Complaint.
On January 16, 2009, Plaintiff filed a new Complaint in the United States Court of Federal Claims. Count I alleges that the VA breached the August 15, 2006 Contract by rejecting certain of Plaintiffs bills and imper-missibly requiring Plaintiff to adhere to a modification of the August 15, 2006 Contract that was unilaterally imposed without Plaintiffs consent. See Compl. ¶¶ 35-42. Count II alleges that the VA breached the implied covenant of good faith and fair dealing through false allegations, intentional interference with Plaintiff’s ability tо perform the August 15, 2006 Contract, and refusal to consider Plaintiff’s performance, resulting in damage to Plaintiffs business efforts and financial harm. Id. ¶¶ 43-54. The January 16, 2009 Complaint seeks actual damages with interest, general and compensatory damages, fees and costs, and any further relief that the court believes is just and proper. Id. (Prayer For Relief).
On March 16, 2009, the Government filed a Motion To Dismiss (“Gov’t Mot. Dismiss”) the January 16, 2009 Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. On May 22, 2009, Plaintiff filed a Response along with Exhibits A-B. On June 15, 2009, the Government filed a Reply in support of the March 16, 2009 Motion To Dismiss (“Gov’t Reply”).
III. DISCUSSION.
A. Jurisdiction.
The jurisdiction of the United States Court of Federal Claims is established by the Tucker Act. 28 U.S.C. § 1491. This Act authorizes the court “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidatеd or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.... [T]he Act merely confers jurisdiction upon it whenever the substantive right exists.” See United States v. Testan,
Under the Tucker Act, the United States Court of Federal Claims has “jurisdictiоn to render judgment upon any claim by or against, or dispute with, a contractor arising under ... the Contract Disputes Act of 1978, including a dispute concerning termination of a contract.” 28 U.S.C. § 1491(a)(2); see also 41 U.S.C. § 609(a) (“Except as provided in paragraph (2), and in lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.”).
A challenge to the United States Court of Federal Claims’ “general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion[.]” Palmer v. United States,
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiffs favor.” Henke v. United States,
C. Standard For Decision On A Motion To Dismiss, Pursuant To RCFC 12(b)(6).
Although a complaint “attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
In Ashcroft v. Iqbal, — U.S. -,
In addition, under RCFC 12(d), the court may rely on undisputed documents attached as exhibits to the complaint without converting the motion to dismiss to a motion for summary judgment. Akins v. United States,
D.The January 16, 2009 Complaint Is Not Barred By The Statute Of Limitations.
1. The Government’s Argument.
The Government moves to dismiss Plaintiff's January 16, 2009 Complaint for lack of
The Government argues that on October 23, 2007, the CO issued a “final decision” terminating the Contract. Id. at 7. On January 2, 2008, Plaintiff filed a Complaint in the United States Court of Federal Claims. Id. On August 7, 2008, the court dismissed the Complaint, because Plaintiff failed to “submit ] a certified claim to the CO for breach of contract damages.” Id. at 7 n. 2 (quoting Kenney Orthopedic I,
In addition, Plaintiff missed numerous opportunities to file a claim within the twelvemonth statute of limitations. Id. at 8. First, Plaintiff failed to request a stay of the court’s August 7, 2008 Order. Id. Second, Plaintiff failed to file a motion, pursuant to RCFC 59(e), requesting that the court reconsider the August 7, 2008 Order. Id. Finally, Plaintiff failed to seek a suspension and reconsideration of the CO’s October 23, 2007 “final decision.” Id. at 9. The Government contends that the twelve-month statute of limitations expired “on or about October 22, 2008.” Id. Therefore, since the January 16, 2009 Complaint was filed three months after the CDA’s statute of limitations expired, it must be dismissed. Id.
2. Plaintiffs Response.
Plaintiff responds that the United States Court of Federal Claims has jurisdiction, because the CO did not render a “final decision” until October 30, 2008, and Plaintiff filed the Complaint within the CDA’s twelvemonth statute of limitations on January 16, 2009. See Pl.Resp. at 5-6. In Kenney Orthopedic I, the court dismissed Plaintiffs January 2, 2008 Complaint without prejudice, “with leave for the Plaintiff to refile after a final determination on a ‘claim’ had been made by the Veteran’s Administration.” Id. at 2. On August 18, 2008, Plaintiff filed a formal claim with the VA Id. On October 7, 2008 in a letter with the subject line “Final Decision Notification,” the Government wrote that it needed more time to “adequately review” Plaintiffs claim for $329,457.75 and “render a final decision.” Pl.Resp.Ex. B. On October 30, 2008, in a letter with the subject line “Final Decision,” the Government issued a “final decision” on Plaintiffs claim and instructed Plaintiff that it “may bring an action directly in the United States Court of Federal Claims within twelve months of the date you receive this decision.” Pl.Ex. 2. Therefore, the Government has ignored both the court’s Kenney Orthopedic I decision and its own October 7, 2008 and October 30, 2008 letters in claiming the VA made a “final decision” on October 23, 2007. See Pl.Resp. at 5. Plaintiff followed the directive of the Government’s October 30, 2008 letter and filed a claim with the United States Court of Federal Claims on January 16, 2009, within the twelve months outlined in the October 30, 2008 letter. Id. Therefore, the Government’s Motion To Dismiss is “grossly improper” and should be denied. Id. at 6.
In addition, Plaintiff argues that the January 16, 2009 Complaint is a “continuation” of Kenney Orthopedic I and the “law of the ease” doctrine bars the Government’s Motion. Id. at 7 (citing Wolfchild v. United States,
Plaintiff also argues that collateral estop-pel bars the Government’s Motion To Dismiss. Id. at 7-9; see also id. at 9 (“[A] judgment on the merits in a first suit precludes relitigation in a second suit of issues actually litigated and determined in the first suit.”) (quoting In re Freeman,
(1) an issue is identical to one decided in the first action; (2) the issue was actually litigated in the first action; (3) the resolution of the issue was essential to a final judgment in the first action; and (4) the party defending against issue preclusion had a full and fair opportunity to litigate the issue in the first action.
See Pl.Resp. at 9.
In this case, the first two elements of collateral estoppel are met, because “the issues raised by [the Government] in its Motion to Dismiss were previously raised and litigated.” Id. at 10. As for the third element, since Kenney Orthopedic I “relied exclusively” on Plaintiff submitting a certified claim and the Government’s reconsideration of that claim, the issue was “necessary to the resulting judgment.” Id. at 10-11. The fourth element is met because in Kenney OHhopedic I, the Government was fully represented, had monetary incentive, and “effective litigation ... was not limited in any way.” Id. at 11.
In the alternative, if the court determines that the CDA’s statute of limitations began to run on October 27, 2007, the Government should be estopped from asserting the statute of limitations as a defense, because of an improper delay in issuing a determination on Plaintiffs August 18, 2008 claim. Id. at 13. The equitable tolling doctrine allows for the statute of limitations to be tolled if the opposing party delays or misleads the party asserting the exception to file its claim after the statute of limitations expires. Id. (citing Irwin v. Dept. of Veterans Affairs,
3. The Government’s Reply.
The Government replies that Plaintiffs failure to appeal the VA’s October 23, 2007 final decision terminating the August 15, 2006 Contract to United States Court of Federal Claims within the CDA’s twelve-month statute of limitations rendered the termination “conclusive and not subject to review by any forum.” Gov’t Reply at 4 (quoting Hawkins v. United States,
In fact, Plaintiff missed several opportunities to appeal the VA’s final decision terminating the August 15,2006 Contract after the court issued Kenney Orthopedic I. Id. at 8. First, Plaintiff could have either filed a Rule 59 motion for reconsideration or appealed the court’s decision to the United States Court of Appeals for the Federal Circuit. Id. at 8-9. Second, Plaintiff could have sought a stay of the court’s August 7, 2008 decision while Plaintiff filed a certified claim to the CO. Id. at 9. Finally, since the court dismissed Ken-ney Orthopedic I without prejudice, Plaintiff could have refiled a complaint challenging the final decision before the statute of limitations expired. Id. Neither the January 2, 2008 Complaint nor the court’s Kenney Orthopedic I decision tolled the CDA statute of limitations on the October 23, 2007 final decision, because a court’s dismissal without prejudice does not toll the statute of limitations. Id. at 10 (citing Spannaus v. U.S.
In addition, Plaintiffs reliance on the administrative remedies exhaustion doctrine is misplaced, because that doctrine applies only to “disputes ‘arising under’ contracts with a ‘mandatory dispute resolution provisions (sic),’ ” which is not present in this case Id. (quoting Brighton Village Assoc. v. United States,
The Government also argues that issue preclusion does not apply. Id. at 11-12. Kenney Orthopedic I held “that submission of a certified claim for any liquidated sum [Plaintiff] seeks in connection with its termination for default is a jurisdictional prerequisite for filing suit in this court.” Id. The Government did not challenge that decision, but nevertheless Plaintiff missed the October 22, 2008 deadline to challenge the termination final decision or seek a monetary claim based on a wrongful termination. Id. at 12.
The Government rebuts Plaintiffs invocation of the equitable tolling doctrine. Id. at 13. Since Plaintiff never challenged the VA’s final decision terminating the August 15, 2006 Contract, the Government could not have caused Plaintiff to miss October 22, 2008 deadline. Id. Likewise, Plaintiff misinterpreted Kenney Orthopedic I in believing that the current case is a continuation that tolls the statute of limitations. Id. at 14. The Government is not responsible, because Plaintiff “assumed the risk of its belief’ and missing the deadline. Id.
The Government also denies Plaintiffs assertion that the October 23, 2007 termination did not include the appeal rights language as mandated under Federal Acquisition Regulation 33.211(a)(4). Id. at 15.
4. The Court’s Resolution.
Under the Tucker Act, the United States Court of Federal Claims has “jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under ... the [CDA], including a dispute concerning termination of a contract.” 28 U.S.C. § 1491(a)(2). An aggrieved contractor, however, must exhaust its administrative remedies by filing a claim with, and receiving a final decision from, the CO before it has standing to assert a claim in the United States Court of Federal Claims. See Alliant Techsystems, Inc. v. United States,
Under the CDA, a contractor’s monetary claim of more than $100,000 against the government must be in writing, certified, and submitted to the CO for a final decision. See 41 U.S.C. § 605(a) (“All claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.”); 41 U.S.C. § 605(c) (“For claims of more than $100,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable, and that the certifier is duly authorized to certify the claim on behalf of the contractor.”). Certification may not be waived, as it was “enacted to hold contractors liable for fraudulent, unwarranted and inflated claims and to encourage settlements.”
In this case, the October 23, 2007 termination by the CO constitutes a final decision on a government claim against a contractor for purposes of the CDA. See Malone v. United States,
On August 21, 2008, Plaintiff submitted a certified claim to the CO for breach of contract and breach of the implied duty of good faith and fair dealing.
The Government argues that the October 30, 2008 letter did not constitute a final decision on Plaintiffs certified claim. See Gov’t Reply at 6-7. Instead, because Plaintiffs claims already were addressed with the October 23, 2007 termination, the Government argues that the termination was a final decision on Plaintiffs claims. Id. Relying on K & S Construction v. United States,
In K & S Construction, the plaintiff contractor received notice of termination on May 3, 1993. See K & S Constr.,
The Government’s argument is unavailing for a number of reasons. . First, the Government ignores the court’s holding in Kenney Orthopedic I. See Kenney Orthopedic I,
Secondly, K & S Construction is distinguishable from the facts of this ease. The United States Court of Federal Claims “does not have jurisdiction over a new claim or a claim of different scope that was not previously presented and certified to the contracting officer for decision.” Armour of Am. v. United States,
Assuming arguendo that the October 30, 2008 letter did not constitute a final decision on Plaintiffs claim for breach, inaction by a CO on a certified claim is a deemed denial of the claim and constitutes a final decision. See 41 U.S.C. § 605(c)(5) (“Any failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer dеnying the claim and will authorize the commencement of [a] ... suit on the claim”). Therefore, the CO’s final decision did not occur as a matter of law until October 30, 2008.
For these reasons, the January 16, 2009 Complaint is not barred by the twelve-month statute of limitations. See 41 U.S.C. § 609(a)(1), (3).
E. The Court Has Jurisdiction Over Count II Of The January 16, 2009 Complaint For Breach Of Implied Duty Of Good Faith And Fair Dealing.
1. The Government’s Argument.
The Government also moves to dismiss Count II of the January 16, 2009 Complaint, pursuant to RCFC 12(b)(1), because it alleges a tort and is outside the scope of the court’s jurisdiction. See Gov’t Mot. Dismiss at 9. The limited jurisdictional grant of the Tucker Act “expressly excludes cases sounding in tort.” Id. (citing 28 U.S.C. § 1491(a)(1)). The January 2, 2008 Complaint alleged claims of: tortious interference with a prospective advantage; tortious interference with a contractual advantage; and intentional infliction of emotional distress, which the court dismissed on jurisdictional grounds. See Kenney Orthopedic I,
2. Plaintiff's Response.
Plaintiff responds that the United States Court of Federal Claims has jurisdiction over Count II of the January 16, 2009 Complaint, because it is a tort claim that arises from a breach of contract. See Pl.Resp. at 15. “[Wjhere a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly within the exclusive jurisdiction of the [United States] Court of Federal Claims.” Id. (quoting Hall v. United States,
3. The Court’s Resolution.
The United States Court of Appeals for the Federal Circuit has held that between each contracting party there is an implied covenant of good faith and fair dealing. See Centex Corp. v. United States,
A claim that the Government breached the implied covenant of good faith does not require a showing of bad faith. See Rivera Agredano v. United States,
Count II of the January 16, 2009 Complaint alleges that the VA breached the implied covenant of good faith and fair dealing “by intentionally interfering with [Plaintiff’s] ability to perform the Contract; by failing and refusing to reconsider [Plaintiffs] ability to perform under the terms and conditions of the Contract; [and] by intentionally interfering with the contractual relationships that were made possible as a result of that Contract.” Compl. ¶ 45. The Government argues that such claims “sound in tort” and are therefore outside the jurisdiction conferred by the Tucker Act. See Gov’t Mot. Dismiss at 9. Although the United States Court of Federal Claims does not have jurisdiction over tort claims, “where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract,
Accordingly, the court has jurisdiction over Plaintiffs claim of the VA’s alleged breach of the imрlied covenant of good faith and fair dealing, since the conduct at issued arose from the August 15, 2006 Contract, to which the VA was a party.
F. Count II Of The January 16, 2009 Complaint Adequately States A Claim Upon Which Relief Can Be Granted.
1. The Government’s Argument.
The Government moves to dismiss Count II of Plaintiffs January 16, 2009 Complaint for failure to state a claim upon which relief can be granted, because it seeks damages not compensable as a matter of law. See Gov’t Mot. Dismiss at 11; see also RCFC 12(b)(6). Damages must directly result from the breach, and those too remote or speculative may not be awarded. See Gov’t Mot. Dismiss at 11-12 (citing Myerle v. United States,
2. The Court’s Resolution.
In order to survive a motion to dismiss for failure to state a claim, a plaintiff must make legal allegations that are more than “mеre conclusory statements” and also state a “plausible claim for relief.” See Iqbal,
The August 15, 2006 Contract required Plaintiff “to furnish artificial limbs and related services to those veterans that require them and are eligible for assistance.” PLEx. A. The August 15, 2006 Contract also addressed the importance of vendor reputation and good will to eligible veterans. Id. (“To assist in the selection of their Prosthe-tist, all eligible veteran beneficiaries shall be given a current list of contract providers located within the VISN Medical Center jurisdiction.... It will continue to be VA’s policy to permit all ... amputees who have continuing eligibility and who have established ties with an existing Prosthetist to continue to use that Prosthetist[.]”). The VA repeatedly refused payment on an invoice for services rendered for “Patient Williams,” even after Plaintiff filed a detailed explanation of the procedures ad care rendered. Despite this explanation and with no other apparent justification, the VA later claimed that Plaintiff “ha[d] placed our veterans (sic) care at high risk.” See Pl.Ex. F, G, K, R.
By setting out the preceding facts, the January 16, 2009 Complaint satisfies both of the requirements laid out by the United States Supreme Court in Iqbal. First, the Complaint makes more than “mere concluso-ry statements” of law. See Compl. ¶¶ 49-50. The Complaint alleges Plaintiff’s reluctance to treat patients for fear of non-payment by the VA and Plaintiffs frustration at having its reputation tarnished by the VA. In addition, these allegations satisfy the second requirement of Iqbal by stating a “plausible claim for relief’, because the Complaint provides adequate factual allegations that “the VA’s interference” caused “Plaintiff’s inability to secure contracts and conduct regular business with VA patients[,] ... additional patients and potential patients” and “substantial damages, lost business, damage to
Accordingly, the January 16, 2009 Complaint states a claim upon which relief can be granted. See Iqbal,
IV. CONCLUSION.
For the reasons stated herein, the Government’s March 16, 2009 Motion To Dismiss, pursuant to RCFC 12(b)(1) and RCFC 12(b)(6), is denied.
The court will hold a telephone status conference with the parties at 2:00 p.m. Eastern Time on Tuesday, August 25, 2009.
IT IS SO ORDERED.
Notes
. The facts cited herein were derived from Kenney Orthopedic, LLC v. United States,
. Mr. John M. Kenney is the President of Plaintiff, Kenney Orthopaedic, LLC. See Pl.Ex. 1.
. "[Patient] Williams” appears to be the same patient as "Williams 5967.” See, e.g., Pl.Ex. G (reporting that a "prosthesis for Mr. Williams ... was delivered to him on November 3, 2006”).
. The April 23, 2007 letter also proposed to negotiate а bilateral agreement for a quarterly satisfaction report, in exchange for "payments to [Plaintiff] for its expenditures related thereto[.]” Pl.Ex. 1-N.
. FAR 52.212-4(m) provides, in relevant part, that:
The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.
48 C.F.R. 52.212-4(m).
. The court will address whether it has jurisdiction over Plaintiff's claimed breach of the implied covenant of good faith and fair dealing infra.