               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Starwalker PR LLC                            )      ASBCA No. 61520
                                             )
Under Contract No. W91B4N-09-D-5005          )

APPEARANCES FOR THE APPELLANT:                      Richard L. Moorhouse, Esq.
                                                    Jozef S. Przygrodzki, Esq.
                                                     Greenberg Traurig, LLP
                                                     McLean, VA

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    Frank A. March, Esq.
                                                     Trial Attorney

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

       The government moves to dismiss ASBCA No. 61520* for lack of jurisdiction
because, it says, the contracting officer never received appellant's September 14, 2017
claim, which is attached to appellant's complaint. It is up to appellant to demonstrate
by a preponderance of the evidence that we have jurisdiction by showing that it first
presented its claim to the contracting officer. See Rover Construction Co., ASBCA
No. 60703, 17-1 BCA ,i 36,682 at 178,613; King Aerospace, Inc., ASBCA No. 57057,
16-1 BCA ,i 36,451 at 177,653. Appellant's response to the motion points to an email
addressed to the contracting officer and others that references an "attached" certified
claim; that response, however, does not provide the referenced attachment. In
addition, the contracting officer has declared under oath that she did not receive the
claim (gov't mot., ex. 3).

       Finally, appellant's response does not request that we deny the government's
motion; it says that we should stay proceedings to give the contracting officer (who,
appellant says, "now has a complete copy of the September 14, 2017 claim") time to




*   This decision only pertains to ASBCA No. 61520, which is consolidated with
         ASBCA No. 61557.
I
l   decide the claim (app. resp. at 2). The preponderance of the evidence before us is not
    that appellant first presented its claim to the contracting officer. Therefore, the appeal
    is dismissed for lack of jurisdiction.

           Dated: August 1, 2018




                                                        Administrative Judge
                                                        Armed Services Board
                                                        of Contract Appeals


    I concur in result                                  I concur in result
       ~ · ·



    ~Jk~~S~~CKLEFORD                                   J. REID PROUTY
    Administrative Judge                               Administrative Judge
    Acting Chairman                                    Vice Chairman
    Armed Services Board                               Armed Services Board
    of Contract Appeals                                of Contract Appeals


    I concur in result                                  I concur


      c~4
    REBA PAGE
    Administrative Judge
                                                       D~zL
                                                       DONALDE.KINNER~
                                                       Administrative Judge
    Armed Services Board                               Armed Services Board
    of Contract Appeals                                of Contract Appeals




                                                2
       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. 61520, Appeal of Starwalker PR LLC,
rendered in conformance with the Board's Charter.

      Dated:



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




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