               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Andrews Contracting Services, LLC             )      ASBCA No. 60808
                                              )
Under Contract No. W912JV-15-C-0001           )

APPEARANCE FOR THE APPELLANT:                        Mr. Justin Andrews
                                                      President

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     Evan C. Williams, Esq.
                                                      Trial Attorney

       OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
    GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION

        The government moves to dismiss the appeal for lack of jurisdiction because, the
government says, appellant, Andrews Contracting Services, LLC (ACS or appellant),
never submitted a properly certified claim to a contracting officer requesting a final
decision pursuant to the Contracts Disputes Act, 41 U.S.C. §§ 7101-7109 (CDA) (gov’t
mot. at 1). ACS responds that its self-styled “Request for Equitable Adjustment” (REA)
was a proper claim within the context of the CDA because it met the conditions of
certification in accordance with the CDA (app. reply at 5).

       We find the following. On 21 January 2015, the government awarded to ACS the
contract referenced above (R4, tab 1 at 2). The contract incorporates by reference Federal
Acquisition Regulation (FAR) clause 52.233-1, DISPUTES–ALTERNATE I (MAY 2014) (R4,
tab 1 at 5), which provides, among other things:

                 (a) This contract is subject to 41 U.S.C. chapter 71,
               Contract Disputes.

                     ....

                  (c) Claim, as used in this clause, means a written
               demand or written assertion by one of the contracting
               parties seeking, as a matter or right, the payment of money
               in a sum certain....However, a written demand or written
               assertion by the Contractor seeking the payment of money
               exceeding $100,000 is not a claim under 41 U.S.C. chapter
              71 until certified. A voucher, invoice, or other routine
              request for payment that is not in dispute when submitted
              is not a claim under 41 U.S.C. chapter 71. The submission
              may be converted to a claim under 41 U.S.C. chapter 71,
              by complying with the submission and certification
              requirements of this clause, if it is disputed either as to
              liability or amount or is not acted upon in a reasonable
              time.

                (d)(1) A claim by the Contractor shall be made in
              writing and, unless otherwise stated in this contract,
              submitted within 6 years after accrual of the claim to the
              Contracting Officer for a written decision.

                     ....

                 (e) ...For Contractor claims over $100,000, the
              Contracting Officer must, within 60 days, decide the claim
              or notify the Contractor of the date by which the decision
              will be made.

(R4, tab 1 at 5)

       On 16 May 2016, ACS presented to the contracting officer (CO) a “Request for
Equitable Adjustment” in the price of the contract referenced above in the amount of
$293,797.51 (R4, tab 1452 at 7543). The REA contained a certification, pursuant to
Defense Federal Acquisition Regulation Supplement (DFARS) 252.243-7702 which
read: “the request is made in good faith and that the supporting data are accurate and
complete to the best of my knowledge and belief.” The certification was signed by
Mr. Justin Andrews, President. (R4, tab 1452 at 1)

        The CO denied the REA on 29 August 2016 (R4, tab 1440). The denial does
not state that it is a contracting officer’s final decision (COFD), and concludes that
“[i]f ACS wishes to continue this request for equitable adjustment then do so in
accordance with contract clause 52.233-1 Disputes” (id. at 7288). On
19 September 2016, ACS filed this appeal with the Board.

       ACS does not dispute that the REA does not request a final decision; rather, it
says that the CO’s written response did purport to be a COFD statutorily (i.e., by
waiting 105 days to issue a decision – presumably contending that the CO did not
comply with the 60-day decision requirement of the Disputes clause 52.233-1(e)) and
by advising that any further action desired by ACS be pursued with the Disputes
clause. Thus, ACS contends that it did not need to request a final decision. Further

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ACS avers that its submittal was proper because it met the conditions and elements of
certification in accordance with the CDA. (App. resp. at 4-6)

                                       DECISION

       The CDA provides that each “claim by a contractor against the Federal
Government relating to a contract shall be submitted to the contracting officer for a
decision.” 41 U.S.C. § 7103(a)(l ). 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 ¶ 36,146 at 176,424 (citing
Puget Sound Environmental Corp., ASBCA Nos. 58827, 58828, 14-1 BCA ¶ 35,585 at
174,371; MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 at 169,673).

        Although the CDA does not define the term “claim,” the FAR defines a “claim”
as “a written demand or written assertion by one of the contracting parties seeking, as a
matter of right, the payment of money in a sum certain, the adjustment or interpretation
of contract terms, or other relief arising under or relating to the contract.” FAR 2.101.
A claim exceeding $100,000 must be certified in accordance with 41 U.S.C. § 7103(b).
We determine whether a contractor’s submission is a CDA claim on a case-by-case
basis, applying a common sense analysis. CCIE & Co., ASBCA Nos. 58355, 59008,
14-1 BCA ¶ 35,700 at 174,816; Precision Standard, Inc., ASBCA No. 55865, 11-1
BCA ¶ 34,669 at 170,787. We may examine the totality of the correspondence between
the parties in determining the sufficiency of a claim. Lael Al Sahab & Co., ASBCA
Nos. 58344, 59009, 15-1 BCA ¶ 35,809 at 175,129; Vibration & Sound Solutions Ltd.,
ASBCA No. 56240, 09-2 BCA ¶ 34,257 at 169,270.

        For the Board to have jurisdiction under the CDA, the contractor must submit a
proper claim, an element of which is a request for a contracting officer’s final decision.
See M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir.
2010); Zafer Taahhut Insaat ve Ticaret A.S., ASBCA No. 56770, 11-2 BCA ¶ 34,841 at
171,392, aff’d on recon., 12-1 BCA ¶ 34,951 (transmittal letter accompanying REA that
requested a COFD met the requirements of a claim); Certified Construction Company of
Kentucky, LLC, ASBCA No. 58782, 14-1 BCA ¶ 35,662 (REA did not implicitly or
explicitly request a COFD therefore it could not be deemed a claim.).

       In looking at the totality of the correspondence between the parties, the record
leads us to conclude that appellant’s REA submittal was not a claim. The REA here
does not implicitly or explicitly request a contracting officer’s final decision; not even
ACS says it does. Rather, ACS says it does not have to have requested a contracting
officer’s final decision, because the denial of the REA references the Disputes clause.
We disagree. The REA denial’s reference to the Disputes clause does not substitute
for a contractor’s request for a contracting officer’s final decision. See Engineering
Demolition, Inc., ASBCA No. 54924, 06-1 BCA ¶ 33,125 at 164,151 (directing

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contractor to Disputes clause after denial of portions of REA, government was
implicitly telling contractor to address its claim to the CO for decision). Because the
REA does not request a contracting officer’s final decision, it is not a proper CDA
claim, and we do not possess jurisdiction to entertain the appeal from its denial.
Because of this decision, we need not address the parties’ other arguments. The
motion is granted, and the appeal is dismissed for lack of jurisdiction.

       Dated: 22 May 2017



                                                  TIMOTHY P. MCILMAIL
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

 I concur                                         I concur



 RICHARD SHACKLEFORD                              OWEN C. WILSON
 Administrative Judge                             Administrative Judge
 Acting Chairman                                  Acting 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. 60808, Appeal of Andrews
Contracting Services, LLC, rendered in conformance with the Board’s Charter.

       Dated:



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




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