BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE In the matter of ) ) the Appeal of ) ) CACTUS PRESS/ ) Docket No. GPOBCA 20-99 POWER ENTERPRISES, INC. ) ) Program P2902-S ) Purchase Order N-1261 ) For the Appellant: John T. Jones, Jr., Esq., Bryan Cave LLP, Phoenix, Arizona. For the Respondent: Roy E. Potter, Esq., Associate General Counsel, U.S. Government Printing Office, Washington, DC. Before Kerry L. Miller, Administrative Judge. DECISION This appeal arises out of a contract between the U.S. Government Printing Office (GPO) and Appellant, Cactus Press/Power Enterprises, Inc. (Cactus Press) that was terminated for the convenience of the Government. Appellant failed to file its termination settlement proposal within the time limit set forth in the contract. The Contracting Officer denied the late claim and this appeal followed. For the reasons discussed below, the appeal is DISMISSED. BACKGROUND 1. On May 28, 1998, the GPO's Los Angeles Regional Printing Procurement Office (RPPO) awarded Program P2902-S (R-1) to Appellant, following standard sealed bid solicitation procedures. Rule 4 File, Tab G. Program P2902-S was a requirements contract for the acquisition of short-run, fast schedule, duplicating and copying for the Department of Interior's Bureau of Reclamation. Rule 4 File, Tab A. The term of Program P2902-S was "for the period beginning Date of Award and ending April 30, 1999." Rule 4 File, Tab A at 1. 2. Program P2909-S also contained the following clause: GPO CONTRACT TERMS: Any contract which results from this Invitation for Bid will be subject to the applicable provisions, clauses, and supplemental specifications of GPO Contract Terms (GPO Pub. 310.2, effective December 1, 1987 (Rev. 9-88)) and GPO Contract Terms, Quality Assurance Through Attributes Program (GPO Pub. 310.1, effective May 1979 (revised April 1996)). Rule 4 File, Tab A at 2. 3. GPO CONTRACT TERMS (GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88)) contained a provision governing terminations for the convenience of the Government that was similar to Federal Acquisition Regulation clause 48 C.F.R. § 52.249-2. The GPO clause read, in part: (c) After termination, the contractor shall submit a final termination settlement proposal on GPO Form 911 to the Contracting Officer. The contractor shall submit the proposal promptly, but no later than 3 months from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the contractor within this 3- month period. However, if the Contracting Officer determines that the facts justify it, a termination settlement proposal may be received and acted on after 3 months from the effective date of termination or any extension thereof. If the contractor fails to submit the proposal within the time allowed, the Contracting Officer may determine, on the basis of information available, the amount, if any, due the contractor because of the termination and shall pay the amount determined. * * * (h) The contractor shall have the right of appeal, under article 5 "Disputes" from any determination made by the Contracting Officer under paragraph (c), (e), or (j), except that if the contractor failed to submit the termination settlement proposal within the time provided in paragraph (c) or (j), and failed to request a time extension, there is no right of appeal. Article 19, GPO CONTRACT TERMS. 4. On November 5, 1998, approximately six months after contract award, Appellant contacted the Contracting Officer to complain that the volume of orders being placed under Program P2902-S was smaller than anticipated. Rule 4 File, Tabs I, J. The Contracting Officer contacted the ordering agency and requested that more work be placed on the contract. However, the agency only had a few orders available to place. On January 7, 1999, the Contracting Officer again contacted the ordering agency. He discovered that the agency had only placed a few orders on the contract and had no more orders to send out at that time. Rule 4 File, Tab J at 2. 5. Shortly thereafter, the Contracting Officer obtained the concurrence of the GPO Contract Review Board to terminate the contract for the convenience of the Government. Rule 4 File, Tab J. 6. On January 12, 1999, the Contracting Officer sent a letter to Appellant stating, inter alia: 1. Effective date of Termination. You are notified that your Purchase Order N1261, Program Number 2902-S, (referred to as "the contract" in this notice) is hereby terminated for the convenience of the Government, in accordance with Article 19 entitled "Termination for Convenience of the Government" in GPO Contract Terms (Pub. 310.2). This termination is effective January 12, 1999. * * * (f) Should a settlement proposal be necessary, you must submit it on the enclosed GPO Form 911 and take such other action as may be required by the Contracting Officer or under the termination clause contained in your contract. 3. Acknowledgement of Receipt of Notice. You are required to acknowledge receipt of this notice to the Contracting Officer who is responsible for settlement of claims in this termination. (Emphasis in original). Rule 4 File, Tab K. 7. Appellant responded by letter dated January 20, 1999: This is to acknowledge receipt of the Notice of Termination of Purchase Order N1261, Program Number 2902-S dated January 12, 1999. We will be submitting a settlement proposal in the near future in regards to the termination of this contract. Rule 4 File, Tab L. 8. By letter dated May 6, 1999, Appellant transmitted its termination settlement proposal to the Contracting Officer. Appellant sought $99,639.33 in termination costs and profit. Rule 4 File, Tab M. 9. The Contracting Officer's final decision, issued to Appellant's attorney on June 3, 1999, denied all requested costs because Appellant had failed to submit its settlement proposal within 3 months of the effective date of termination, as required by Article 19, GPO CONTRACT TERMS. Rule 4 File, Tab N. The Contracting Officer also concluded that he had found no "facts or basis for an extension" of the time limit. Id. 10. Thereafter Appellant filed a timely notice of appeal with the GPO Board of Contract Appeals (GPOBCA). Rule 4 File, Tab R. DISCUSSION I. Jurisdiction of the Board Respondent, in its Answer and Motion to Dismiss, argues that the GPOBCA "is without jurisdiction since no appeal may be taken of a termination for convenience claim where the Appellant fails to submit a termination settlement proposal no later than 3 months from the effective date of the termination." Respondent's conclusion is incorrect, as the Board's jurisdiction to hear appeals is derived from the Disputes Clause of the contract. See Article 5, GPO CONTRACT TERMS, GPO Publication 310.2 (Rev. 9-88). The Board reads the time bar contained in Article 19 as a potential defense to Appellant's claim for termination costs, not a blanket denial of jurisdiction. As the Court of Appeals for the Federal Circuit wrote in Do-Well Machine Shop Inc. v. United States, 870 F.2d 637 (Fed. Cir. 1989): The government correctly recognized that the time bar was fatal to Do-Well's claim. The reason that the time bar was fatal is that it constituted a valid affirmative defense. The presence of a valid defense, however, does not oust a tribunal of jurisdiction unless, of course, the defense is jurisdictional. If it did, the only cases decided on the merits would hold for victorious plaintiffs, and no successful defense would generate a res judicata bar. Where the defendant has a valid defense and there are no material disputed facts, as here, he may move for summary judgment or dismissal for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6) and 56(b). The distinction between lack of jurisdiction and failure to state a claim upon which relief can be granted, is an important one: [T]he court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy. Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Bell v. Hood, 327 U.DS. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). See generally, 1 Moore's Federal Practice ¶ 0.62[2.-2] at 664-65 (1988). To master this distinction is not merely an intellectual exercise without practical utility. A dismissal on the merits carries res judicata effect and dismissal for want of jurisdiction does not. Vink v. Hendrikus Johannes Schiff, Rolkan N.V., 839 F.2d 676, 677, 5 USPQ2d 1728, 1729 (Fed. Cir. 1988). If the government wishes to avoid revisiting this case in the Claims Court, it needs to show that this court and the board properly exercised jurisdiction over the appeal. 870 F.2d 637 at 639-640. The Board concludes that Article 19 of GPO CONTRACT TERMS does not operate to divest the Board of jurisdiction to hear this appeal, but provides Respondent with a valid affirmative defense. Accordingly, the Board will treat Respondent's motion as one to dismiss for failure to state a cause of action. Since the Board has jurisdiction over this appeal it must now decide whether the three-month time limit should be enforced to deprive Appellant of its opportunity to recover any termination costs. II. Three-Month Time Limit The termination for convenience clause in this contract requires contractors to submit convenience termination settlement proposals to the Contracting Officer "promptly, but no later than 3 months from the effective date of termination, unless extended in writing by the Contracting Officer." Article 19(c), GPO CONTRACT TERMS. It is undisputed that Appellant failed to submit its convenience termination settlement proposal to the Contracting Officer within the contractually mandated 3-month time period and failed to request an extension of the time period. Complaint ¶ 7; Rule 4 File Tabs K and M. Article 19 also states that a contractor has "no right of appeal" from a Contracting Officer's final decision in the event a contractor fails to submit a timely termination settlement proposal. Article 19(h), GPO CONTRACT TERMS. This GPO contract provision barring appeals from untimely termination settlement proposals is substantively the same as the Government-wide provision contained in the Federal Acquisition Regulation at 48 C.F.R. § 52.249-2(j). The FAR provision, and its predecessor clauses, have been enforced consistently by boards of contract appeal. This Board sees no compelling reason to deviate from established precedent. The Armed Services Board of Contract Appeals has long enforced this contractual time limit. In Prestex, Inc., ASBCA Nos. 8663, 9726, 1964 BCA ¶ 4348, the Government moved to dismiss an appeal because the termination claim was not submitted within the time period set forth in the Termination for Convenience clause and the Appellant failed to request an extension of that time limit. The ASBCA agreed with the Government's strict construction of the Termination for Convenience clause and dismissed the appeal. Id. at 21,027. The ASBCA has continued to rely on Prestex to deny late termination claims. In Rivera Technical Products, Inc., ASBCA Nos. 48171, 49564, 96-2 BCA ¶ 28,564, the ASBCA held that failure to comply with the time limit found in the Termination for Convenience clause bars the right to appeal. See also, Harris Corp., ASBCA No. 37940, 90-3 BCA ¶ 23,257; Mictronics, Inc., ASBCA No. 30262, 85-2 BCA ¶ 18,119; United Elecs. Co., ASBCA No. 21686, 78-1 BCA ¶ 13,091; R-D Mounts, Inc., ASBCA Nos. 17667, 19232, 74-2 BCA ¶ 10,740. The HUD BCA adopted this approach as well in M-PAX, Inc., HUD BCA Nos. 81-570-C10, 81-571-C11, 81-572-C12, 81-573-C13, 81-2 BCA ¶ 15,409. In that case, a contractor failed to request an extension of the time period in which to submit a termination for convenience claim. The HUD Board, describing the pertinent contract provision as "unequivocal," held that the contractor had no right to appeal under the disputes clause because of its prior failure to file a timely termination claim. See also, Walber Construction Co., HUD BCA Nos. 82-661-C4 et al., 82-1 BCA ¶ 15,525 and 82-664-C7 et al., 82-1 BCA ¶ 15,526; Homes By Bell-Hi, Inc., HUD BCA No. 79-332-C3, 81-2 BCA ¶ 15,413. Similar holdings have been issued by the DOTBCA (Automated Power Systems, Inc., DOT BCA Nos. 2933, 2936, 2937, 2938, 99-1 BCA ¶ 30,151), and the AGBCA (RBW & Associates, AGBCA No. 95-208-1, 96-2 BCA ¶ 28,416). The Federal Circuit upheld this approach in Do-Well Machine Shop Inc. v. United States, 870 F.2d 637, 641 (Fed. Cir. 1989) aff'g ASBCA No. 36090, 88-3 BCA ¶ 20,994. The Court affirmed a contracting officer's rejection of a claim for termination costs because it was not submitted in time. The Federal Circuit held that failure to meet the contractual time limit deprived the contractor of any contractual right of recovery. Id. at 640-1. Thus, under Do-Well, contract provisions that limit the time for submitting termination for convenience claims to a contracting officer are fully enforceable. To prevail in the instant appeal, Respondent need not demonstrate it was prejudiced by the late filing. The issue of prejudice is irrelevant here because the parties have provided in the contract for a time limit on the filing of termination claims. See Stone Forest Indus. Inc. v. United States, 26 Cl. Ct. 410 (1992) at 416. The Federal government possesses the same power to contract as a private party. If the parties by contract clause agree to limit the time to submit a termination claim, then the parties are bound by the provision. Do-Well, supra at 641. The Federal government can enforce the time limitation with the same force as a private party, notwithstanding its superior bargaining power. Id. Appellant concedes that it filed its termination settlement proposal after the 3-month time limit had expired, but argues that Respondent may not rely on the time limit as an affirmative defense since Respondent did not inform Appellant of the time limit. Appellant argues that the GPO's termination letter of January 12, 1999, should have advised Appellant that the contract contained a 3-month time limit, and should have advised Appellant of the potential consequences for failing to meet the time limit. Appellant contends this failure to advise Appellant of the consequences of tardiness "waived the time limit." Appellant's Opposition to Motion to Dismiss at 3. Appellant also argues that the GPO lowered the time limit from one year to 3 months without notice. Complaint ¶ 7. According to Appellant, GPO's actions "sandbagged" it. Appellant's Opposition to Motion to Dismiss at 4. First, the Board finds that the Contracting Officer's termination for convenience letter did place Appellant on adequate notice of the 3-month time limit by citing Appellant to the Termination for Convenience clause of the contract. See, Rule 4 File, Tab K. Subclause 19(c) of the cited Termination for Convenience clause contained the relevant time limit. Second, the Board's research reveals that the 3-month time limit has been a feature of GPO's standard Termination for Convenience clause since August 1979. See, Article 16, USGPO CONTRACT TERMS NO. 1 (Revised), GPO Publication 310.2, August 1, 1979. See also, Article 2-17, USGPO CONTRACT TERMS NO. 1, GPO Publication 310.2 (Rev. Oct. 1, 1980); Article 19(c), GPO CONTRACT TERMS, GPO Publication 310.2, Dec. 1, 1987. Prior to August 1979, the standard Termination for Convenience clause did not prescribe a time limit for the submission of termination settlement proposals. See, Article 16, USGPO CONTRACT TERMS NO. 1, GPO Form No. 198 (Rev. July 15, 1970). Thus, the agency did not "lower" the time limit without notice as alleged by Appellant. Appellant also claims that the Contracting Officer failed to comply with several GPO regulations, and that these alleged failures should estop the Contracting Officer from enforcing the 3-month time limit. Specifically, Appellant claims that the Contracting Officer failed to examine Appellant's settlement proposal and negotiate a settlement as required by GPO Printing Procurement Regulation (PPR) Ch. XIV § 2.3(d). Next, Appellant claims the Contracting Officer failed to make a settlement by determination as required by PPR Ch. XIV § 2.3(j)(7) in cases where the parties are unable to agree upon settlement. Finally, Appellant claims the Contracting Officer failed to provide it 15 days to submit additional evidence before issuing a determination of the amount due, as required by PPR Ch. XIV § 2.3(j)(7)(ii). Appellant's Opposition to Motion to Dismiss at 3. Appellant's arguments regarding the above-cited regulations are not persuasive, because they rest on the unsupported assumption that the Contracting Officer was required to act upon Appellant's untimely settlement proposal. The cited regulations do not address the Contracting Officer's obligations regarding an untimely proposal. The regulations do however, note that the "Termination for Convenience clause in GPO Contract Terms (Pub. 310.2) defines the rights of GPO and of the contractor in the event of termination and provides for the settlement of claims." PPR Ch. XIV § 2.2. The referenced Termination for Convenience clause requires the submission of a termination settlement proposal within 3 months by the use of the mandatory word "shall." Article 19(c). In contrast to the mandatory nature of the 3-month time limit, the clause uses the permissive term "may" to authorize the Contracting Officer to make a unilateral settlement determination in the event the contractor fails to submit a settlement proposal within 3 months. However, the clause does not require that the Contracting Officer make a unilateral determination on a late proposal. Further, the clause provides that "any determination" under paragraph (c) is appealable under the Disputes clause unless the proposal was untimely when "there is no right of appeal." Article 19(h). Thus, under Article 19, contracting officers have discretion to act on late termination claims. Should a contracting officer decide to consider a late claim, then the provisions cited by Appellant would be applicable. However, there is no provision in either the PPR or the contract that requires a contracting officer to ignore the contractual time limits and consider a late termination claim. Article 19 further provides that the Contracting Officer may act on a late claim if the facts justify such action. See R-D Mount, Inc., ASBCA No. 17667, 74-2 BCA ¶ 10740. In the instant appeal the Contracting Officer determined that there were no circumstances presented by the Appellant to justify waiving the time limit. Rule 4 File, Tab N. The only excuse provided by Appellant was that it did not know about the deadline. Rule 4 File, Tab N. Given that the time limit was stated in the contract and the relevant contract provision was referenced in the Contracting Officer's termination letter, the only way Appellant could have remained unaware of the deadline was if Appellant's employees and representatives had chosen not to read the cited provision. The Board cannot disagree with the Contracting Officer's conclusion that Appellant has not shown good cause to waive the time limit. Accordingly, the Board holds that Appellant is not entitled to compensation for its termination for convenience claim because it failed to submit the termination settlement proposal within the time limit prescribed in the contract. III. Negligent Estimates/Equitable Adjustment Claim Appellant argues that notwithstanding the untimeliness of its termination for convenience settlement proposal, the Board should exercise jurisdiction over this appeal because "the real heart of this dispute is the Government's negligent estimate of requirements" an issue the GPOBCA has dealt with in other appeals. Appellant's Response to Motion to Dismiss at 4. Appellant cites Rim Advertising, GPOBCA No. 38-94, 1997 GPOBCA LEXIS 15, 1997 WL 742429 (Sept. 24, 1997), and cases cited therein, as precedent for examining the negligent estimates issue. The cases cited by Appellant were ones where a contractor sought an equitable adjustment after the Government's estimates for a requirements contract proved to be significantly different from the actual amount of work placed by the Government on the contract. In those cases, the GPOBCA applied the well-settled principle relating to "requirements contracts" which holds that contractors who submit bids in reliance on negligently prepared and incorrect estimates of work in the solicitation are entitled to an equitable adjustment. See, Crown Laundry and Dry Cleaners, Inc. v. United States, 29 Fed. Cl. 506 (1993); GraphicData, Inc., GPOBCA No. 35-94, 1996 GPOBCA LEXIS 28, 1996 WL 812875 (June 14, 1996) slip op. at 28, 56. However, Appellant faces a formidable obstacle1 to the Board assuming jurisdiction of its equitable adjustment "claim." In the instant appeal, Appellant never presented a claim for an equitable adjustment based on faulty estimates to the Contracting Officer and thus never received a final decision on that issue. Appellant first raised this issue in its response to Respondent's Motion to Dismiss. The prerequisite to the Board's assertion of jurisdiction over an appeal is the issuance of a final decision by a GPO contracting officer. See, Board Rules, Preface to Rules, ¶ I, Jurisdiction, Rule 1; GPO Contract Terms, Contract Clauses, ¶ 5 (Disputes). See also, Epco Associates, GPOBCA No. 26-93, 1993 GPOBCA LEXIS 25, 1993 WL 526919 (November 18, 1993), slip op. at 3 (citing, Associated Contract Specialties Corporation, ASBCA No. 37437, 90-3 ¶ 23,258; Spruill Realty/Company, ASBCA No. 40477, 90-3 BCA ¶ 23,255). Appellant has failed to meet the Board's jurisdictional prerequisites by first obtaining a contracting officer's final decision. Consequently, since this issue has not been the subject of a contracting officer's final decision it is not properly before the Board. Appellant cannot expand the appeal it filed regarding the Contracting Officer's denial of its untimely termination for convenience settlement proposal to reach the negligent estimates/equitable adjustment issue. The jurisdictional rules of the GPOBCA parallel those followed in Executive branch contract appeals under the Contract Disputes Act (CDA). See, e.g., Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995); Santa Fe Engineers, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987), aff'g Santa Fe Engineers, Inc., ASBCA Nos. 28058 and 29362, 86-3 BCA ¶ 19,092; Kneeland Const. Corp., DOTCAB No. 4060, 99-2 BCA 30,574. In Santa Fe Engineers, Inc., a construction contractor's claim for "all problems, changes and directives that were issued on the project" was dismissed because the claims presented to the contracting officer pertained only to the amount of additional compensation, if any, to which the contractor was entitled for three specific changes. Santa Fe Engineers, Inc., supra, 86-3 BCA ¶ 19,092. The ASBCA's ruling in that case was based on the following reasoning: It is quite evident, as strenuously asserted by the Government, that the claim developed by appellant before the Board was essentially different from the claims presented by it to the contracting officer as to which the subject appeals were taken. The claims before the contracting officer pertained only to the amount of additional compensation, if any, to which appellant was entitled for changes "AD," "CD" and "HK." They did not include one for "all the problems, changes and directives that were issued on the project," . . . Appellant has elected to proceed under the Contract Disputes Act of 1978. Under said Act the "claim" is the centerpiece of the disputes resolution process. [Citation omitted.] It is necessary that a claim be presented in writing to the contracting officer for decision prior to its assertion to the Board. For claims of more than $50,000 there is the further requirement of certification. 41 U.S.C.A. § 605. The claim ultimately presented to the Board in the subject appeals was beyond the Board's jurisdiction, due to its not having first been submitted to the contracting officer and certified in accordance with the Act. [Citations omitted.] Santa Fe Engineers, Inc., supra, 86-3 BCA ¶ 19,092, at 96,508. [Emphasis added.] This is not to say that evidence developed during discovery cannot be the basis for amending an existing and valid claim. Rather, it is the duty of the trier of fact to ensure that such an amendment is not, in reality, a new claim. See, J.F. Shea Company, Inc. v. United States, 4 Cl. Ct. at 54; Santa Fe Engineers, Inc., supra, 86-3 BCA ¶ 19,092, at 96,508. Cf., The Wessel Company, Inc., supra, slip op. at 2, fn. 2. As explained by the Claims Court: This court and its predecessor have consistently held that it is a jurisdictional prerequisite to a direct access suit in this court that the claim at issue be first certified and submitted in writing to the contracting officer pursuant to 41 U.S.C. §§ 605(a), 605(c)(1). [Citations omitted.] However, as litigation in this court includes pretrial proceedings, including discovery, it must be recognized that additional facts may be developed which could increase or decrease the amount of a claim. It would be most disruptive of normal litigation procedure if any increase in the amount of a claim based upon matters developed in litigation before the court had to be submitted to the contracting officer before the court could continue to a final resolution on the claim. In this circumstance, it has been ruled that, after certification is complete, a contractor is not precluded from changing the amount of the claim or producing additional data in support of increased damages. [Citation omitted.] A plaintiff must be precluded, however, from raising any new claim before this court which was not previously presented and certified to the contracting officer for decision. [Citation omitted.]". See, J.F. Shea Company, Inc. v. United States, 4 Cl. Ct. at 54. Applying the "essential difference" test of Santa Fe Engineers to the facts of this case, the Board concludes that Appellant's equitable adjustment "claim" due to alleged inaccurate estimates, represents a new claim. The record shows that the Appellant's original termination for convenience settlement proposal, sent to the Contracting Officer on May 6, 1999, sought compensation for monthly rental and service costs for copy machines leased for the contract, plus profit on those costs. No amount was claimed as an equitable adjustment for defective estimates. See Rule 4 File, Tab M. The Contracting Officer's final decision letter of June 3, 1999, rejected Appellant's late termination settlement proposal. Rule 4 File, Tab N. The appeal filed with the Board on August 27, 1999, was from the Contracting Officer's final decision of June 3, 1999. Rule 4 File, Tab R. In addition, Appellant did not raise the issue of allegedly defective Government estimates in its Complaint. It is clear that the Appellant's negligent estimates claim arises from a different set of operative facts as the termination claim submitted to the Contracting Officer and relies on a totally different theory of recovery. See, Croman Corp. v. United States, 44 Fed. Cl. 796 (1999); Foley Co. v. United States, 26 Cl. Ct. 936, 940 (1992), aff'd 11 F.3d 1032 Fed. Cir. 1993). In the Board's view, Appellant is seeking to litigate a new claim unrelated to the one denied by the Contracting Officer. Appellant has not taken the mandatory steps needed to secure the Board's jurisdiction. The issue was not presented to the Contracting Officer as a claim and has not been the subject of a contracting officer's final decision. Therefore, the negligent estimates/equitable adjustment claim is dismissed. CONCLUSION Appellant's appeal of the Contracting Officer's denial of its untimely termination settlement proposal is dismissed for failure to state a cause of action. Appellant's claim for equitable adjustment is dismissed for lack of jurisdiction. It is so Ordered. January 31, 2001 KERRY L. MILLER Administrative Judge _______________ 1 In addition to Appellant's failure to obtain a contracting officer's final decision, a second issue arises. The general rule is that when a contract is terminated for convenience, all contract claims are merged into the subsequent termination for convenience claim. See Nolan Brothers, Inc. v. United States, 186 Ct. Cl. 602, 405 F.2d 1250 (1969); Worsham Constr. Co., ASBCA No. 25907, 85-2 BCA ¶ 18,016 at 90,369. There is also some authority that an equitable adjustment claim does not survive the expiration of a termination for convenience claim. See RBW & Associates, AGBCA No. 95-208-1, 96-2 BCA ¶ 28,416; Milwaukee Electronics Corp., ASBCA No. 44231, 93-3 BCA ¶ 25,908; Mictronics, Inc., ASBCA No. 30262, 85-2 BCA ¶ 18,119; but see, Advanced Materials, Inc. v. United States, 46 Fed. Cl. 697 (2000); Stradedile/Aegis Joint Venture, ASBCA No. 39318, 95-1 BCA ¶ 27,397 at 136,589; Lucas Aul, Inc., ASBCA No. 37803, 91-1 BCA ¶ 23,609. Although Nolan Brothers was rejected recently by the Court of Appeals for the Federal Circuit, that court's analysis turned not on the viability of the merger concept, but rather on the Congressional enactment of the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 601 et seq. See James M. Ellett Const. Co., Inc. v. United States, 93 F.3d 1537 (Fed. Cir. 1996). However, the Nolan Brothers analysis appears to remain viable for termination claims brought before GPO contracting officers because the GPO, as an agency in the legislative branch of the Federal government is not subject to the CDA. See, Tatelbaum v. United States, 749 F.2d 729, 730 (Fed. Cir. 1984). However, the Board need not decide at this time the extent to which Appellant's equitable adjustment claim merged into its termination for convenience claim and whether the equitable adjustment claim survived the expiration of the termination claim, as the Board believes Appellant's failure to obtain a contracting officer's final decision is dispositive of the equitable adjustment issue.