               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                )
                                            )
Areyana Group of Construction Company       )      ASBCA No. 60648
                                            )
Under Contract No. W5J9LE-12-C-0013         )

APPEARANCE FOR THE APPELLANT:                      Mr. Zabit Khan
                                                    President

APPEARANCES FOR THE GOVERNMENT:                    Michael P. Goodman, Esq.
                                                    Engineer Chief Trial Attorney
                                                   James D. Stephens, Esq.
                                                   Edward J. McNaughton, Esq.
                                                    Engineer Trial Attorneys
                                                    U.S. Army Engineer District, Memphis

                   OPINION BY ADMINISTRATIVE JUDGE PAUL
                  ON THE GOVERNMENT'S MOTION TO DISMISS

       This is a timely appeal of a contracting officer's (CO's) final decision denying
appellant Areyana Group of Construction Company's (AGCC's) request for a 188-day time
extension and the return of liquidated damages withheld by the government in a total amount
of $380,512. The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, is applicable.
The government filed a motion to dismiss, contending that AGCC failed to certify its request
and that, accordingly, the Board lacked jurisdiction to review its allegations. 1

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. On 28 December 2011, the government entered into fixed-price contract,
No. W5J9LE-12-C-0013, with AGCC in a total amount of $13,058,609.03 (R4, tab 3 at 1-2).
Under the contract, AGCC was required to design and construct "the Open Bay Barracks for
the Afghan National Civil Orders Police (AN COP) Patrol Battalion at Tarim K wot, Uruzgan
Province, Afghanistan" (id. at 5).

       2. The contract incorporated by reference several Federal Acquisition Regulation
(FAR) clauses, including FAR 52.233-1, DISPUTES (JUL 2002) (R4, tab 3 at 11), which
included in pertinent part:

1
    This decision pertains only to ASBCA No. 60648, which is consolidated with ASBCA
           No. 60649.
                        (c) Claim, as used in this clause, means a written
                demand or written assertion by one of the contracting parties
                seeking, as a matter by right, the payment of money in a sum
                certain, the adjustment or interpretation of contract terms, or
                other relief arising under or relating to this contract.
                However, a written demand or written assertion by the
                Contractor seeking the payment of money exceeding
                $100,000 is not a claim under the [CDA] until certified.

  The contract also contained FAR 52.211-12, LIQUIDATED DAMAGES-CONSTRUCTION
  (SEP 2000), which provided for damages in the amount of $2,024 for each day of delay in
  completing the work. In addition, the contract included FAR 52.211-10, COMMENCEMENT,
  PROSECUTION, AND COMPLETION OF WORK (APR 1984), which stated:

                The Contractor shall be required to (a) commence work under
                this contract within 10 calendar days after the date the
                Contractor receives the notice to proceed, (b) prosecute the
                work diligently, and ( c) complete the entire work ready for
                use not later than 460 calendar days from notice to proceed.
                The time stated for completion shall include final cleanup of
                the premises.

(Id. at 33)2

         3. On 4 December 2012, the contracting officer's representative (COR) informed
 AGCC that she was withholding 5 percent of progress payment No. 7 due to
 unsatisfactory performance (R4, tab 12). On 12 December 2012, the CO informed
 AGCC that, although it should have achieved completion of 52 percent, it had only made
 progress in the amount of 30 percent. He asked AGCC to provide a remediation plan.
 (R4, tab 13 at 1) As of2 January 2013, AGCC had not produced the requested plan. On
 that date, the COR informed AGCC that it was over 10 percent behind schedule and that
 accordingly, 10 percent of progress payment No. 8 was being withheld. (R4, tab 14 at 1)

       4. On 8 January 2013, the COR informed AGCC that it was "over 20% behind
 schedule." On this basis, she wrote that she was preparing "an interim unsatisfactory
 evaluation" with respect to AGCC's work on the contract. (R4, tab 15 at 1) On
 4 February 2013, the COR informed AGCC that it was withholding 10 percent of
 progress payment No. 9 for unsatisfactory performance (R4, tab 17). On 17 April 2013,

 2
     On 28 January 2012, the CO advised AGCC that the notice to proceed date would be
         18 February 2012 and that it had 460-calendar days from that date to complete the
        project (R4, tab 7 at 1-2). Thus, the contract completion date was 23 May 2013
        (R4, tab 13 at 1).

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the COR reminded AGCC that the contractual completion date was 23 May 2013 and that
the project was only 63 percent complete. She sought a completion plan from AGCC and
noted that liquidated damages would be assessed for "each calendar day of delay." (R4,
tab 19 at 1)

       5. AGCC did not complete the project in a timely manner. On 24 August 2013, it
cited security problems and bad weather as part of a request for equitable adjustment
(REA). Through its request, AGCC sought a "no-cost time extension of...120 calendar
days." (R4, tab 20 at 1-5) On 6 September 2013, the CO returned the REA "without
action as it does not comply with the requirement of your contract" (R4, tab 22 at 1).

       6. On 11 November 2013, AGCC forwarded another REA to the CO in which it
sought a "no-cost time extension of...176 calendar days due to delay." It once again
referred to ''the security situation," as well as "bad weather." (R4, tab 23 at 1-5)

      7. On 25 November 2013, the CO forwarded the following response to AGCC's
second REA:

                     Reference is made to your Serial Letter H-0008 ...
             subject as above. The following information is provided
             concerning your REA. After a thorough review, the
             Government notes that REA H-0008 submission is identical
             to your previous submission, H-0006 .... The only difference
             between AGCC's REA H-0006 and H-0008 is that your first
             submission included delay related to Pre-Engineering
             Building (PEB) Subcontractor under section "C" ofH-0006
             which has now been omitted from H-0008. In fact, all other
             narratives in both letters are identical. Essentially, AGCC
             has submitted the same exact REA without any changes
             besides the exception noted. Your justification for time
             extension to the Contract Completion Date remains
             unchanged; same justification that was rejected and found to
             be "non-compliant" with the Contract requirements per
             Government SL C-0014 ....

                    You are hereby advised once again that your REA is
            returned without action as it does not comply with the
            requirements of your Contract as well as making an equitable
            adjustment request that is specifically excluded by the
            contract. As submitted, neither of your REAs can be
            reviewed for merit and furthermore, AGCC's reasoning and
            justification of merit for additional time is without basis. You
            are strongly urged to review the Contract requirements


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               specifically identified in SL C-0014 and comply with those
               requirements accordingly. No further action will be taken by
               the Government concerning this matter pending receipt of an
               REA that is compliant with the requirements of your signed
               Contract.

                      Should you have further questions, concerns or need
               additional clarification on this matter, please do not hesitate
               to contact the PE/COR or the undersigned. Your
               acknowledgement of this notice shall be provided to the
               Government within twenty-four (24) hours of receipt.

(R4, tab 24 at 1)

        8. On 4 December 2013, the COR wrote to inform AGCC of the following:

                       As a result of the prefinal inspection conducted on
               27 November 2013 it has been determined that your
               construction progress is sufficiently complete to allow the
               Government use and possession of the facility effective
               27 December 2013. In accordance with Clause 52.246-21,
               titled "Warranty of Construction," your warranty coverage
               shall commence from this date and continue for a period of
               one year. This clause stipulates the terms for and
               administration of the warranty and also provides that the work
               performed under this contract be guaranteed to conform to the
               contract requirements and be free of defects in equipment,
               materials, design-furnished and workmanship.

                     Deficiencies and/or incomplete work found during the
              prefinal inspection, as well as the outstanding administrative
              actions required on your part, are identified on the attached
              list. This office shall be advised, in writing, the date that each
              item listed will be completed and/or corrected. Please
              provide this schedule to me no later than 5 December 2013.
              Final acceptance for this contract will be made when all work
              is completed and all deficiencies corrected.

(R4, tab 25 at 1)

       Through correspondence dated 4 December 2013, the COR notified AGCC that
"all work associated with the above contract is physically complete and all issues have
been resolved" (R4, tab 16 at 1).


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       9. On 20 April 2014, AGCC filed "the latest iteration of' its REA in which it
requested "a time extension of 131 calendar days as a result of shipment delays caused by
security issues." The CO found no merit in AGCC's request in a decision issued on
8 September 2014, and, accordingly, denied it in its entirety. (R4, tab 31 at 1-4)

        10. On 10 May 2015, AGCC submitted a voluminous package in support of its
REA in which is sought a "no-cost time extension" for 188 days (R4, tab 32, passim). In
a letter dated 7 June 2015, the CO, once again, denied AGCC's delay claim. He
concluded by stating: "This will be the Government's final response regarding the
referenced Request for Equitable Adjustment." (R4, tab 33 at 1-2)

       11. On 3 October 2015, AGCC filed a self-styled "claim" for a no-cost time
extension of 188 days and the return of liquidated damages in a total amount of $380,512
(R4, tab 34 at 5). The "claim" package largely replicated AGCC's final iteration of its
REA (id.,passim). Although the amount in dispute exceeded $100,000, AGCC did not
submit a certification. In addition, the "claim" did not contain a request for a CO's final
decision. (Id.)

       12. In a letter, dated 17 March 2016, the CO, once again denied AGCC's request
for a 188-day, no-cost time extension and the release of previously withheld liquidated
damages in a total amount of$380,512. She also wrote:

              Finally, the letter identified as Claim Letter-01 stated to be
              a claim as per Federal Acquisition Regulation Section
              Subpart 33.2-Disputes and Appeals. We are unable to
              treat this as a claim as AGCC failed to properly certify the
              document. AGCC requested the return of liquidated
              damages in the amount of $380,512.00. Any claim for more
              than $100,000.00 is required to be certified. Please see FAR
              Part 33 .207 (c) Contractor Certification. This subparagraph
              states, "The certification shall state as follows: "I certify
              that the claim is made in good faith,· that the supporting
              data are accurate and complete to the best of my
              knowledge and belief; that the amount requested
              accurately reflects the contract adjustment for which the
              contractor believes the Government is liable,· and that I
              am duly authorized to certify the claim on behalf of the
              contractor." However, your failure to properly certify
              your claim has not kept us from another review of the
              available documentation.

(R4, tab 2 at 2-4)


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       13. In an email dated 24 May 2016, the government's project manager notified
AGCC of its appeal rights under the CDA. He described the document as "the final
decision of the Contracting Officer." The letter also contained the Board's address and
the time limitations for filing CDA claims. (R4, tab 2 at 6) This appeal followed.

                                         DECISION

      The linchpin of the Board's jurisdiction over a contractor claim is the contractor's
submission of a proper claim to the CO for a decision. Air Services, Inc., ASBCA
No. 59843, 15-1 BCA ,r 36,146. Pursuant to the CDA, 41 U.S.C. § 7103(b), and
FAR 33.207, a contractor must submit a certification to the CO for any claim exceeding
$100,000.

        Here, AGCC did not submit a certification to the CO as part of its "claim" dated
3 October 2015 (SOF ,r 11 ). As we have held, the "absence of a certification .. .is not
considered a 'defect."' A "claim" exceeding $100,0000 not accompanied by any
certification precludes the Board from exercising jurisdiction. CDM International, Inc.,
ASBCA.No. 52123, 99-2 BCA ,r 30,467 at 150,514. Moreover, the fact that the CO
purported to issue a final decision does not serve to remedy this problem. W.M Schlosser
Co. v. United States, 705 F.2d 1336 (Fed. Cir. 1983). Accordingly, the submittal is not a
claim and the Board lacks jurisdiction to review the request.

                                     CONCLUSION

       The appeal is dismissed.

       Dated: 11 May 2018



                                                 MICHAEL T. PAUL
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

(Signatures continued)




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 I concur                                       I concur




 RJC~CKLEFORD                                   OWEN C. WILSON
 Administrative Judge                           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. 60648, Appeal of Areyana
Group of Construction Company, rendered in conformance with the Board's Charter.

      Dated:


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




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