                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                )
                                             )
POZ Engineering and Environmental Consulting )           ASBCA Nos. 58853, 59004
                                             )
Under Contract No. W912K6-11-P-0024          )

APPEARANCE FOR THE APPELLANT:                            Mr. Emanuel T. Posluszny, P.E.
                                                          President

APPEARANCES FOR THE GOVERNMENT:                          Raymond M. Saunders, Esq.
                                                          Army Chief Trial Attorney
                                                         MAJ Joseph K. Venghaus, JA
                                                         CPT Vera A. Strebel, JA
                                                          Trial Attorneys

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

       POZ Engineering and Environmental Consulting (POZ) seeks $51,203.74 in
termination settlement costs. The government moves to dismiss the appeal in ASBCA
No. 58853 1 for lack of jurisdiction, alleging that there is no claim before the Contracting
Officer (CO) and no CO's decision. POZ opposes the motion. The contract is subject to
the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. The government's
motion to dismiss is granted but we retain jurisdiction over the dispute under ASBCA
No. 59004.

              STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

       I. On 11 January 2011, the United States Property and Fiscal Office (USPFO) for
Maryland awarded Contract No. W912K6-11-P-0024 to POZ to provide quality
assurance, inspection and engineering services in connection with the alteration and
construction of an addition to the Army Aviation Support Facility, Havre de Grace,
Maryland. At award, the contract price was $417,158.72. (R4, tab 1 at 1, 4of13) It
appears from the CO's termination decision and appellant's notice of appeal in ASBCA
No. 58853 that the parties are confused as to whether the contract is a commercial items


1
    There are two POZ appeals pending, ASBCA Nos. 58853 and 59004. The appeals
         have been consolidated. The government moved to dismiss in ASBCA No. 58853
         and, after the docketing of ASBCA No. 59004, stated that the motion also applies
         to ASBCA No. 59004 (ASBCA No. 59004, gov't letter dtd. 5 Dec. 2014).
contract. For purposes of this motion, we note only that FAR 52.212-4(1) is not in the
contract and FAR 52.249-2 is (R4, tab 1at10of13).

        2. The CO terminated the contract for the convenience of the government on 17 July
2012 2 (R4, tab 7).

       3. On 29 November 2012, POZ submitted a termination settlement proposal
(TSP) to the CO in the amount of $22,852.07 (R4, tab 14 at 2).

       4. On 2 July 2013, the CO offered POZ $15,357.00 to settle the proposal
(R4, tab 18).

       5. On 9 July 2013, POZ rejected the government's offer and asked the CO to
reconsider (R4, tab 21 ). The CO responded by requesting POZ to submit a revised
proposal (R4, tab 22).

      6. On 11July2013, POZ submitted a revised proposal of$30,916.53 (ASBCA
No. 58853, notice of appeal, ex.Cat 2 of3; mot. at 2).

      7. On 28 August 2013, POZ filed a notice of appeal with the Board that sought
$46,592.57 in termination for convenience costs. We docketed the appeal as ASBCA
No. 58853 on 4 September 2013.

        8. On 11 September 2013, the CO sent appellant an email with an attached letter
stating: "Research and final review of referenced settlement proposal dated July 11, 2013
has been completed." The CO determined to offer appellant $17,468.00. The CO stated
that processing of payment of this amount would be accomplished within 10 business
days of POZ's acceptance. No appeal rights were recited in the letter. (R4, tab 25)

        9. On 2 October 2013, the government moved to dismiss ASBCA No. 58853 for
failure to submit a claim and failure to obtain a CO's final decision. POZ opposed the
motion.

       10. On 6 November 2013, POZ filed a notice of appeal from the CO's
11 September 2013 determination with the Board, and noted its alleged settlement costs
were $51,203.74. We docketed that appeal as ASBCA No. 59004. Except for the
increased dollar amount, the claims in ASBCA Nos. 58853 and 59004 of28 August 2013
and 6 November 2013 appear to be the same.




2
    Citing FAR 52.212-4.

                                            2
                                        DECISION

        It is well-settled that a termination settlement proposal is submitted to the CO for
negotiation and does not become a claim under the CDA until it has been submitted to the
CO for a decision. See James M Ellett Construction Co. v. United States, 93 F.3d 1537,
 1543-45 (Fed. Cir. 1996); Triad Mechanical, Inc., ASBCA No. 57971, 12-1 BCA
ir 35,015 at 172,059. It cannot be seriously argued that the events comprising the record
in ASBCA No. 58853 meet the Ellett standard. POZ submitted a TSP on 29 November
2012, received an offer from the CO on 2 July 2013, revised its proposal on 11 July 2013
and without further contact with the CO appealed little more than a month later. It cannot
be reasonably concluded that matters were at an impasse and the TSP converted to a
CDA claim. Ellett, 93 F.3d at 1544. We conclude that with respect to ASBCA
No. 58853, we lack jurisdiction because no CDA claim was before the CO, and we
therefore grant the government's motion and dismiss ASBCA No. 58853 without
prejudice for lack of jurisdiction.

        The analysis of the facts material to ASBCA No. 59004 does not result in the same
conclusion. An impasse is considered reached when an objective observer would
conclude that resolution through continued negotiation is unwarranted or has been
abandoned and the contractor desires a decision. Ensign-Biclford Aerospace & Defense
Company, ASBCA No. 58671, slip op. at 5 (5 May 2014), and cases cited therein. The
passage of time and evidence that one party desires to begin the disputes process are
factors in determining whether an impasse has been reached. Ellett, 93 F .3d at 1543;
Ensign-Biclford at 5; Central Environmental, Inc., ASBCA No. 51086, 98-2 BCA
ir 29,912 at 148,080. In ASBCA No. 59004, the CO issued a determination on
 11 September 2013, subsequent to appellant's filing of a notice of appeal in ASBCA
No. 58853 concerning the same matter. She could not, at that point, have reasonably
concluded that the matter was not at an impasse, that further negotiations were warranted
(particularly after no significant progress was evident from 29 November 2012 until
 11 September 2013), or that POZ did not desire to start the disputes process. An impasse
had clearly been reached and the CO's letter of 11 September 2013 with its "final
review" language and promise to pay within 10 business days, qualifies as a settlement
by determination by the CO, which is an appealable event. See FAR 52.249-2(g) and G).
We conclude that we have jurisdiction over the same matter as was appealed in ASBCA
No. 58853, in 59004, and deny the government's motion as to ASBCA No. 59004.




                                             3
                                    CONCLUSION

       Accordingly, the government's motion in ASBCA No. 58853 is granted and the
appeal is dismissed for lack of jurisdiction without prejudice. The government's motion
in ASBCA No. 59004 is denied.

      Dated: 13 May 2014


                                               ~l           /~
                                               E~TUNKS
                                               Administrative Judge
                                               Armed Services Board
                                               of Contract Appeals


I concur                                       I concur




Administrative Judge
                                               ~CKLEFORD
                                               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 Nos. 58853, 59004, Appeals of
POZ Engineering and Environmental Consulting, rendered in conformance with the
Board's Charter.

      Dated:



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




                                           4
