                ARMED SERVICES BOARD OF CONTRACT APPEALS


Appeal of --                                 )
                                             )
Laguna Construction Company, Inc.            )          ASBCA No. 58569
                                             )
Under Contract No. FA8903-04-D-8690          )

APPEARANCE FOR THE APPELLANT:                           Carolyn Callaway, Esq.
                                                         Carolyn Callaway, P.C.
                                                         Albuquerque, NM

APPEARANCES FOR THE GOVERNMENT:                         E. Michael Chiaparas, Esq.
                                                         DCMA Chief Trial Attorney
                                                        Gregory T. Allen, Esq.
                                                         Trial Attorney
                                                         Defense Contract Management Agency
                                                         Manassas, VA

              OPINION BY ADMINISTRATIVE JUDGE DELMAN ON
         APPELLANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

       Laguna Construction Company, Inc. (Laguna, appellant, LCC), moves to dismiss
this appeal for lack of jurisdiction, contending that the government's monetary claim was
filed more than six years from the date the claim accrued, and therefore is barred under
the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a)(4)(A). 1

           STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. On 21November2003, the Air Force Center for Environmental Excellence
(government) awarded to appellant Contract No. FA8903-04-D-8690 for Worldwide
Environmental Remediation and Construction (WERC) (R4, tab 1)2 • Laguna received 16
task orders (TOs) under this contract to perform various items of construction work in Iraq.


1
    In response to appellant's motion to dismiss, the government conceded: "The
          Government Acknowledges Its Cost Reasonableness Claim ... on TO [Task Order]
          0002 was Untimely" (gov't opp'n at 9). Accordingly, we address herein the
          balance of the government's claim, under TOs 0006 and 0015.
2
    We cite to the Rule 4 file submitted under ASBCA No. 57977, as supplemented
          thereafter, which appeal was later consolidated with ASBCA Nos. 58324 and
          58569 (SOF ~ 13).
         2. Under TO 0006, awarded to appellant on 25 June 2004, appellant was to
renovate facilities at the An Numaniyah Training Base (R4, tab 4). Under this TO
appellant awarded a subcontract to "Yacoub & Ramzi Snobar Company" (Snobar) for
11 Kv Distribution Loop and Transformers (app. reply, attach. 4 at 3). It also awarded a
subcontract to "Al Huda Company" (AHC) to perform work on a range complex
(id., attach. 5 at 5). According to the government's claim, the Snobar and AHC
subcontracts were not awarded based upon adequate competition, and appellant failed to
document that these award prices were reasonable (see SOF ~ 12).

        3. During contract performance in 2005 appellant submitted vouchers for progress
payments to the government on behalf of these subcontractors, which vouchers identified
the progress payment requested and the awarded subcontract price (app. reply, attach. 4 at
6, attach. 5 at 6).

        4. Under TO 0015, awarded to Laguna on 12 July 2005 (gov't opp'n, appx. 1),
appellant was to construct inter alia, barracks and classroom buildings for the Baghdad
Police College. "Sigma International Construction, LLC" (Sigma) was awarded a
subcontract to construct the barracks (app. reply, attach. 1 at 7). 'The New Millennium"
(TNM) was awarded a subcontract to construct the classroom buildings (id., at 10).
According to the government's claim, the awarded subcontract prices - which significantly
increased from those initially proposed by the subcontractors - were not based upon
adequate competition. As for TNM, it received award for the classroom buildings but was
not the lowest bidder for this work. According to the government's claim, appellant failed
to justify award to TNM as other than the lowest bidder, and failed to document that the
Sigma and TNM subcontract award prices were reasonable. (SOF iI 12)

       5. The government was aware of Sigma's and TNM's original subcontract price
proposals through appellant's original cost proposal (2nd supp. R4, tabs 45, 46), and was
also aware of the proposed increases to these prices prior to their award (mot., attach. 2).
The government was also aware of the subcontract prices ultimately awarded. As was
the case with TO 0006, during performance in 2005, LCC requested progress payments
from the government on behalf of the TO 0015 subcontractors for work performed, which
included the amount of the progress payment requested and the subcontract price
(app. reply, attach. 1 at 7, 10).

        6. On 6 December 2005, the Defense Contract Audit Agency (DCAA) Iraq
Branch Office issued Audit Report No. 213 l-2006Tl 7900001 to the DCAA Salt Lake
Valley Branch Office, entitled "Audit Report on Laguna Construction Company's
Subcontract Management System" under this contract. Insofar as pertinent, the report
stated as follows:




                                             2
              [W]e reviewed Laguna Construction Company (LCC)
             subcontract management system and examined a sample of
             32 LCC subcontracts totaling $147,701,411 under Prime
             Contract No. FA8903-04-D-8690 on Oct. 22, 2005. The
             purpose of the examination was to review the subcontract
             management system to verify policies and procedures are in
             place to assure compliance with FAR 52.216-7, Allowable
             Cost and Payment. We also reviewed LCC 's procurement
             files to determine whether LCC complied with FAR 15 .4, to
             justify sole source procurements, performance of an adequate
             cost or price analysis of the subcontractors to ensure
             negotiation of a fair and reasonable price, or award
             subcontracts competitively.

(R4, tab 8 at G-91) DCAA's report concluded, inter alia, as follows:

                    In our opinion the [Laguna] subcontract management
             system and related internal control policies and procedures
             are inadequate and cannot be relied upon to ensure
             subcontracts are awarded in accordance with FAR 15 .4,
             Contract Pricing, or subcontract payments by LCC are in
             accordance with FAR 52.216.7, Allowable Cost and Payment.

(R4, tab 8 at G-93) Among the objectionable conditions found by DCAA under the
contract were "Condition 1: No Price Analysis Determining Subcontract Costs were
'Fair and Reasonable,'" and "Condition 2: No Justification Provided for
Subcontractor Not the Lowest Bidder" (id. at G-95-97).

       7. By Audit Report No. 3231-2006117900001, dated 9 February 2006, the DCAA
Salt Lake Valley Branch Office forwarded the DCAA findings to the administrative
contracting officer (ACO) in an audit report entitled: "Flash Report on Subcontractor
Management System Deficiencies." DCAA found the following with respect to this contract:

                 •   On subcontracts awarded without adequate price
                     competition, LCC did not perform a price analysis to
                     determine whether the costs are fair and reasonable.

                 •   LCC did not document justification for awarding
                     subcontracts to other than the lowest bidder in
                     accordance with FAR 15.408.

(R4, tab 15 at G-145) The audit report also concluded as follows:



                                            3
                     Subcontract costs comprise a significant portion of
             costs on Contract No. FA8903-04-D-8690 .... Due to the
             deficiencies in the internal controls related to LCC's
             subcontract management system we believe a significant risk
             is present relative to allocability, allowability and
             reasonableness of subcontract costs billed to the U.S.
             Government. We believe this deficiency is serious enough to
             render the subcontract management system inadequate.
             Accordingly, we recommend the contracting officer require
             LCC to submit requests for Consent to Subcontracts in
             accordance with FAR Part 44.2.

(Id. at G-146) The DCAA report did not specifically cite to the subcontracts in issue here.

      8. Approximately three years later, on 12 March 2009, the ACO sent a copy of the
9 February 2006 DCAA audit report to Laguna (R4, tab 22).

        9. By letter to Laguna dated 1 May 2009, the ACO identified "on-going and
significant LCC subcontract management system deficiencies. These deficiencies were
first detailed in DCAA Audit Report [No.] 3231-2006JJ7900001 dated February 9, 2006
 (Encl) which at the time reviewed subcontract awards under FA8903-04-D-8690
 (WERC)." The ACO determined that it was appropriate to suspend or withhold
30% from LCC's interim billings under this contract, which represented the cost risk to
the government for the deficiencies reported. (R4, tab 24) (Emphasis added)

        10. DCAA submitted an audit report to the ACO by date of 27 October 2009,
entitled "Report on Audit of Subcontract Award Control Activities within Purchasing
System." Insofar as pertinent, DCAA found the following conditions:

             •       inadequate policies, procedures, and practices
                     covering subcontract cost or price analysis,
             •       inadequate documentation in subcontract procurement
                    files,



                     It should be noted the contractor has already been
             cited for these same deficiencies in Audit Report No.
             3231-2006JJ7900001, dated February 6 [sic], 2006.

(R4, tab 25 at G-214) (Emphasis added)



                                            4
        11. On 17 March 2011, more than five years after the 200 5-2006 audit reports,
DCAA issued to Laguna a "NOTICE OF CONTRACT COSTS SUSPENDED AND/OR
DISAPPROVED," Notice No. 2011-003, which disapproved $2,089,799 under this
contract, including amounts under the AHC and Snobar subcontracts under TO 0006, and
amounts under the Sigma and TNM subcontracts under TO 0015. According to this
DCAA Notice, these subcontract awards "had no evidence of competition and all failed
to meet the test of fair and reasonable pricing" based upon a lack of support "in [LCC's]
procurement files sufficient to demonstrate the Government paid a fair and reasonable
price for the services subcontracted." (R4, tab 27 at G-233-34) The disapproved amount
was increased to $2,383,370 by DCAA Notice No. 201 l-003a, dated 4 August 2011
(R4, tab 33).

        12. By letter to Laguna dated 17 December 2012, the ACO issued a final decision
providing disposition of the costs disapproved by the DCAA under Form 1 Notice
2011-003a. Insofar as pertinent, the ACO determined inter alia, that with respect to the
AHC and Snobar subcontracts under TO 0006, LCC's procurement files were insufficient
to determine the reasonableness of the subcontract prices. With respect to TO 0015, the
ACO determined inter alia, that appellant's procurement files failed to document the
reasonableness of Sigma's and TNM's subcontract prices and also failed to document
appellant's decision to award the construction of the classrooms to TNM, who was not
the lowest bidder. The total government claim, including associated G&A, was
$3,815,232.68. (2nd supp. R4, tab 49 at G-421-23)

      13. Appellant appealed this decision on 22 February 2013, and the Board
docketed the appeal as ASBCA No. 58569. The appeal was later consolidated with
ASBCA Nos. 57977 and 58324. These latter appeals are not subject to this motion.

                                       DECISION

       Under the CDA, 41 U.S.C. § 7103(a)(4)(A), a contract claim, whether that of the
contractor or the government, must be "submitted within 6 years after the accrual of the
claim." We do not have jurisdiction over a claim that fails to meet this requirement. The
government, as proponent of our jurisdiction here, bears the burden of proving the facts
sufficient to support our jurisdiction. Raytheon Missile Systems, ASBCA No. 58011,
13 BCA ~ 35,241.

        The CDA does not define claim accrual, but the FAR does so. Effective
21 November, 2003, the date of the contract award, FAR 33.201 provided the following
definition:




                                            5
                      "Accrual of a claim" means the date when all events,
              that fix the alleged liability of either the Government or the
              contractor and permit assertion of the claim, were known or
              should have been known. For liability to be fixed, some
              injury must have occurred. However, monetary damages
              need not have been incurred. [Emphasis added]

        In order to determine when the alleged liability was fixed for purposes of claim
accrual, it is necessary to examine the legal basis of the claim. Gray Personnel, Inc.,
ASBCA No. 54652, 06-2 BCA ii 33,378 at 165,475. The legal predicate of the
government's claim here is appellant's failure to document the reasonableness of
subcontract awards under this contract that were not based upon competition. The
DCAA was fully aware of appellant's failure to document the reasonableness of
subcontract awards under this contract that were not based upon competition by late
2005, and it documented its findings by audit reports dated 6 December 2005 and
9 February 2006, which latter report was issued to the ACO. That the DCAA did not
single out these subcontracts by name in the audit reports is irrelevant. DCAA reviewed
32 subcontracts under the contract totaling $147,701,411 which presumably was a
significantly large sample upon which to support its findings.

        The government was also aware of its "injury" here, i.e., the subcontract prices
awarded by appellant and paid by the government, as early as 2005. The ACO did not
file this claim until 17 December 2012.

        For purposes of claim accrual, we have stated that the "events fixing liability
should have been known when they occurred unless they can be reasonably found to have
been either concealed or 'inherently unknowable' at that time." Raytheon, 13 BCA
ii 35,241at173,016. There is nothing of record suggesting that the Sigma, TNM, Snobar
and AHC subcontract files under TOs 0006 and 0015 were concealed or inherently
unknowable during DCAA's 2005 audit review of appellant's subcontracting practices
under this contract. The "should have been known" test of claim accrual has a
reasonableness component- it turns, objectively, upon what facts were reasonably
knowable to the claimant. Raytheon, 13 BCA ii 35,241at173,016. Given the nature of
the government's claim here, i.e., the inadequacy of appellant's subcontract files to
support the reasonableness of these subcontract prices, we believe that all events fixing
the alleged liability of the claim were reasonably knowable and should have been known
by the government no later than 9 February 2006, when the DCAA report was submitted
totheACO.

      Accordingly, we conclude the government's claim accrued no later than
9 February 2006. The final decision asserting a government claim was dated




                                             6
17 December 2012. We conclude the government's claim was untimely and is barred
under the CDA. 3
                                CONCLUSION

       The government has conceded that its monetary claim under TO 0002 was barred
under the CDA as untimely (see note 1). For reasons stated herein, we conclude that the
government's monetary claim under TO 0006 and under TO 0015 are also barred under
the CDA as untimely. Accordingly, the CO's decision dated 17 December 2012 is
hereby deemed null and void.

        The appeal is dismissed for lack of jurisdiction.

        Dated: 29 May 2014


                                                  (\~---,
                                                  ~
                                                  Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals



I concur                                            I concur




                                                    RICHARD SHACKLEFORD
Administrative Judge                                Administrative Judge
Acting Chairman                                     Vice Chairman
Armed Services Board                                Armed Services Board
of Contract Appeals                                 of Contract Appeals




3
    Given that the government's claim of 17 December 2012 is barred based upon the date
        of claim accrual of 9 February 2006, we need not address whether the claim
        accrued even earlier, i.e., from 6 December 2005, the date of the first DCAA audit
        report.


                                              7
      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 58569, Appeal of Laguna
Construction Company, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                               JEFFREY D. GARDIN
                                               Recorder, Armed Services
                                               Board of Contract Appeals




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