               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Europe Asia Construction Logistic             )      ASBCA No. 61553
                                              )
Under Contract No. W9184L-10-C-Ol 15          )

APPEARANCE FOR THE APPELLANT:                        Mr. Shakir Sardari
                                                      Vice President

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     L TC Kelli A. Hooke, JA
                                                      Trial Attorney

           OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT
       ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

       Europe Asia Construction Logistic (EACL or appellant) seeks $336,816.00 for
payments made for supplies under Contract No. W91B4L-I0-C-Ol l5 (the contract).
EACL submitted a claim in September 201 7 after the contract was terminated in
May 2010. The United States Army (Army or government) responded in its answer
that EACL' s claim was time-barred because EACL failed to submit a claim within six
years and requested the Board dismiss the appeal. The Board treated that portion of
the answer as a motion for summary judgment for failure to file a claim within six
years of accrual of the claim. Summary judgment is granted and EACL's appeal is
denied.

       STA TEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

        1. On April 22, 2010, the government awarded the contract for $569,600.00,
which included $569,300.00 to construct communication infrastructure at Kandahar Air
Field in Afghanistan and $300.00 for Defense Base Act (DBA) Insurance (R4, tab 1).

       2. On April 24, 2010, the contracting officer issued a notice to proceed for the
contract (R4, tab 2).

      3. On May 17, 2010, the contracting officer issued Modification No. POOOOl
which deobligated $569,300 from the contract citing the authority as FAR 52.243-4,
CHANGES. The contracting officer reduced the amount of the contract to $300, which
allowed payment for DBA insurance. (R4, tab 3) The Defense Finance and
Accounting Service administratively removed the funds because no one ever invoiced
or charged for the required OBA insurance (R4, tab 7 at 129-30). We find that this is
the date (May 17, 2010) that EACL knew, or should have known, the events that fix
the alleged liability of its claim against the government.

       4. On September 3, 2017, EACL submitted a certified, but unsigned, claim to
the contracting officer, requesting $336,816.00 for the total amount EACL spent on
the contract (R4, tab 4 ).

      5. On September 5, 2017, the contracting officer informed EACL that the claim
needed to be signed (R4. tab 5 at 82).

        6. On September 12. 2017, more than seven years after the contract was
terminated, EACL submitted a signed copy of the certified claim. The signed,
certified claim included the information provided with the September 3, 2017 letter
and additional supporting documents. EACL provided email conversations that
occurred prior to termination to the contracting officer. EACL did not provide any
correspondence or evidence that demonstrated it sought payment or disputed the
no-cost termination before the claim was initially filed on September 3, 2017. (R4,
tab 5 at 85)

       7. On December 7, 201 7. the contracting officer denied the claim. She listed
several problems with contract performance and stated that Modification No. POOOO I
was a no-cost cancellation which reduced the amount of the contract to an amount that
only covered OBA insurance. She also stated that there was no evidence that EACL
ever purchased DBA insurance. She rejected EACL's claim, stating, "[m]oreover, in
accordance with FAR 3 3 .206 Initiation of a Claim, EACL did not submit a written
claim to the Contracting Officer within the six (6) year statute oflimitations." The
contracting officer included the required appeal language in her final decision. (R4,
tab 8)

      8. On March 7, 2018, EACL appealed the decision. The appeal was docketed
as ASBCA No. 61553.

       9. On April 23, 2018, EACL filed its complaint. In its complaint, EACL
requested $336,816.00 for money spent on the contract and noted portions of the
contract that caused its performance to be delayed. EACL stated, "EACL has truly
suffered a loss of $336,816 due to honest misunderstandings and, we believe, a lack of
necessary detail in the original contract award, which did not account for unavoidable
requirements of the awarded work." EACL stated it was willing to provide whatever
documentation was required.

      10. On May 22, 2018, the government filed its answer. In "Part III" of its
answer, the government "raise[ d] as an affirmative defense the statute of limitations."


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The government opined that because EACL did not submit its claim within six years,
the statute of limitations barred appellant's claim and requested the claim be
dismissed.

        11. On August 21, 2018, the Board informed the parties that it was considering
Part III of the government's answer a motion for summary judgment for failure to file
a claim within six years of the accrual of the claim. The Board allowed EACL to
respond to the motion by September 24, 2018. The Board did not receive a response.
On November 8, 2018, the Board informed EACL that it had not responded and
allowed EACL until November 21, 2018, to respond to the motion. Failure to respond
by that date, the Board added, would result in the issuance of a decision on the motion
without EACL's response. To date, the Board has not received a response from
EACL.

                                      DECISION

        The Board interpreted Part III of the government's answer as seeking summary
judgment because EACL failed to submit a timely claim. While it is not a condition of
jurisdiction, the Contract Disputes Act (CDA) requires that a claim be submitted
within six years of its accrual. 41 U.S.C. § 7I03(a)(4); Menominee Indian Tribe of
 Wisconsin v. United States, 136 S. Ct. 750, 757 (2016); Sikorsky Aircraft Corp. v.
United States, 773 F.3d 1315, 1320 (Fed. Cir. 2014); Green Valley Co., ASBCA
No. 61275, 18-1 BCA ,i 36,977 at 180,119. "Accrual ofa 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." FAR 33.201.

        The Board has long recognized "that summary judgment is appropriate where
the moving party establishes that there are no disputed material facts, and the moving
party is entitled to judgment as a matter of law." American Boys Constr. Co .. ASBCA
No. 61163, 18-1 BCA ,i 36,949 at 180,051 (citations omitted). "When considering
summary judgment motions, the evidence of the non-moving party is to be believed,
and all justifiable inferences are to be drawn in his favor." Id. (citations and internal
quotations removed).

       There is no dispute that the government terminated EACL' s contract on
May 17, 2010 (SOF ,i 3). Further, the record does not contain any evidence, nor does
EACL even argue, that it submitted a claim to the contracting officer within the
six-year period. In fact, the claim was submitted more than seven years after the
contract was terminated (SOF ,i, 3, 6)

       In order to submit a claim that met the timeliness requirements of the CDA,
EACL was required to submit its certified claim within six years of the no-cost
termination, or by May 16, 2016. September 2017 is over one year later than the CDA


                                            3
requirement to submit a claim to the contracting officer within six years of an accrued
claim. Thus, we must deny the appeal.

                                    CONCLUSION

       The government's motion for summary judgment is granted. EACL's appeal is
denied.

      Dated: February 14, 2019


                                                "-11<lJ~
                                                  HEIDI L. si'TERHOUT
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

 I concur                                         I concur



 RI~CKLEFORD
Administrative Judge
                                                     &L-
                                                  0 WEN C. WILSON
                                                  Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals


      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. 61553, Appeal of Europe
Asia Construction Logistic, rendered in conformance with the Board's Charter.

      Dated:



                                                  JEFFREYD. GARDIN
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals




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