                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                               )
                                            )
Maersk Linc Limited                         )      ASBCA Nos. 59791. 59792
                                             )
Under Contract Nos. N00033-06-C-3305        )
                    N00033-06-C-3306        )

APPEARANCES FOR THE APPELLANT:                     Robert E. Korroch. Esq.
                                                   William A. Wozniak. Esq.
                                                    Williams Mullen
                                                    Norfolk, VA

APPEARANCES FOR THE GOVERNMENT:                    Craig D. Jensen, Esq.
                                                    Navy Chief Trial Attorney
                                                   Tricia A. Nicewicz, Esq.
                                                   Gordon D. Ivins, Esq.
                                                   Allison M. McDadc. Esq.
                                                    Trial Attorneys
                                                    Military Scalift Command
                                                    Norfolk. VA

                OPINION BY ADMINISTRATIVE JUDGE YOUNGER

       In these consolidated appeals, appellant Maersk Linc Limited (Maersk) seeks
amortized "hull depreciation costs" that arc said to result from the convenience
terminations of two dry cargo time charter contracts. Under a time charter, the owner
is responsible for crewing and maintaining the vessel. while the charterer may employ
the vessel for specified purposes. Both dry cargo time charters at issue here were
follow-on contracts. The principal issue is whether we have jurisdiction. with the
government asserting that Maersk's present claim differs from the claim that it
submitted to the contracting officer. We dismiss the appeals for lack of jurisdiction.

                                    FINDINGS OF FACT

       A. The 2001 Contracts

       1. Effective May 22, 2000. the Military Scali ft Command (MSC) awarded
Contract No.N00033-00-C-3201 to Macrsk for the dry cargo time charter for the M/V
LTC John U.D. Page (M/V Page) (ASBCA No. 59791 (59791) R4. tab A-1 at 1-2,
tab A-3 at 13 ). In addition, cffective May 22. 2000, MSC awarded to Maersk Contract
No. N00033-00-C-3202 for the dry cargo time charter for the M/V
SSG Edward A. Carter, Jr. (M/V Carter) (ASBCA No. 59792 (59792), R.4, tab /\-1
at 1-2, tab A-3 at 13) (the 2001 contracts). Each of the 2001 contracts was for a term
of up to and not to exceed 1,795 days, and each was for the transportation and
storage of ammunition in support of the Army's Prepositioning Program (59791 R4,
tab A-1 at 2, tab C-44 at 354; 59792 R4, tab A-1 at 2, tab C-29 at 313).

       2. Both the M/V Page and the M/V Carter had been container ships (tr. 11 ).
Maersk acquired the M/V Page in October 2000 for $10,000,000, and the M/V Carter
in February 2001 for the same price (tr. 47-48; exs. A-3, -4).

        3. It is undisputed that, in the interval between award and delivery of the
vessels under each of the 200 I contracts. Maersk incurred costs to modify both the
M/V Page and the M/V Carter to enable both vessels to transport and store
ammunition (tr. 11, 17). Maersk installed additional equipment on both vessels to
make them suitable for the transportation and storage of ammunition (tr. 11-12). This
equipment included specialized cranes, together with air conditioning, dehumidifier
systems, and sprinkler systems for the cargo holds, as well as tent-like structures
above the decks called cocoons, which could house additional ammunition containers
(tr. 11-12; 59791, R4, tab D-66 at 541; 59792, R4, tab D-60 at 545). Maersk
depreciated the costs to make each vessel suitable to transport and store ammunition
over the 59 months of the original contract period for each vessel (tr. 18).

      4. Performance of the 2001 M/V Carter contract lasted for its full term and was
completed on or about May 13, 2005 (59792, R4, tab A-23 at 73). Performance of the
M/V Page contract, by contrast, was terminated early. and by date of October 27,
2005, MSC issued unilateral Modification No. P00028. providing for payment to
Maersk of$2,190,571 in early redelivery costs (59791. R4, tab A-29 at 88).

       8. The 2006 Follow-On Contracts

       5. Following completion of the 2001 contracts, Maersk submitted a proposal to
MSC by date of November 9, 2005. for follow-on contracts for both the MN Page and
the MN Carter (59791, R4, tab 8-42 at 142; 59792. R4, tab B-27 at 98).
Significantly, Maersk stated in its proposals that it did not foresee ··any work
required ... to 'convert [either] vessel to a more useful military configuration'" (id.).
We find that neither proposal for the 2006 follow-on contracts included any
unrecovered depreciation from the 2001 contracts, or other acquisition costs (tr. 21, 26,
97; 59791 R4, tab 8-43 passim, 59792 R4, tab 8-28 passim).

        6. MSC thereafter awarded the two follow-on contracts at issue here.
Effective February 1, 2006, MSC awarded Contract No. N00033-06-C-3305 to Maersk
for the dry cargo time charter of the M/V Page. and, effective December 8. 2005, it



                                            2
awarded Contract No. N00033-06-3306 for the dry cargo time charter of the M/V
Carter (collectively, the 2006 contracts) (59791. R4, tab C-44 at 343; 59792, R4.
tab C-29 at 300).

        7. The 2006 contracts contained various standard clauses, including Federal
Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS --
COMMERCIAL ITEMS (Der 2003) (59791, R4, tab C-44 at 352; 59792, R.4, tab C-29
at 311 ). Each contract· s Termination for the Convenience of the Government clause
was separately set out and was identical to that appearing in FAR 52.212-4(1) (59791,
R4, tab C-44 at 372; 59792, R.4, tab C-29 at 333 ).

       8. The 2006 contracts contained identical Cancellation Fee clauses. which
provided:

             The contractor and Government agree the purpose of this
             clause is to induce the contractor to offer to provide and to
             provide the required services when the contractor
             otherwise would not offer to provide them because of the
             contractor's inability to recover its out-of-pocket costs in
             the event the Government docs not exercise an option to
             extend the term of the contract or terminates the contract
             for the convenience of the Government.

             In the event the Government does not exercise an option to
             extend the term of the contract or terminates the contract
             for convenience, the contractor shall be entitled to
             not-to-exceed cancellation costs subject to the following
             conditions ....

             ''Cancellation costs" means, and only means, costs
             specifically identified by the contractor in its proposal and
             actually incurred by the contractor between contract award
             and vessel delivery to the Government including, and
             limited to. the following categories of costs: costs incurred
             by the contractor for vessel acquisition. re flagging costs
             and modification, or conversion costs, and only to the
             extent such modification. or conversion costs \Vere
             incurred in order for the vessel to meet contract
             requirements.

(5979 L R4, tab B-43 at 167; 59792, R4, tab C-29 at 326-27)




                                           3
       9. MSC re.delivered the MN Page to Maersk on June 22, 2010, which was
before expiration of the contract (59791, R4, tab C-62 at 500-01). MSC also
redelivered the MN Carter to Maersk early (59792, R4, tab C-57 at 497-98). Maersk
was unable to put either ship to work after the terminations and they laid idle (tr. 19).

         10. By Modification No. P00020 to the M/V Page contract dated
September 28, 2011, the parties agreed to a full and complete equitable adjustment
for the early redelivery of the MN Page "[w]ith the exception of hull depreciation"
(59791, R4, tab C-64 at 505, 507). The parties agreed that Maersk "reserves the
right to submit a request for equitable adjustment for unrecovered hull depreciation"
(id. at 507). In a September 28, 2011 Memorandum to the File attached to the
modification, the contracting officer and a contract specialist recited that, in
March 2011, Andrew Rabuse, Maersk's General Manager for Government Ship
Management, explained that hull depreciation "represents the costs associated with
converting the vessel for military use by installing cranes, AC/DH systems, cargo hold
sprinkler systems and other modifications necessary to meet contract requirements"
(59791, R4, tab C-64 at 510).

        11. By date of September 25, 2013, Maersk submitted a "Request for
Contracting Officer Final Decision on [Maersk's] Unrecovered Costs Resulting From
Early Termination of [the 2006 Contracts]" covering both the M/V Carter and the
MN Page (the claim) (59791, R4, tab D-66 at 523-47). We find that the claim related
solely to the costs to modify both vessels for the purpose of transporting and storing
ammunition, and not to vessel acquisition. Maersk sought:

                      A contracting officer final decision regarding (i)
              unrecovered costs, resulting from the early termination of
              [the M/V Page contract], in the amount of $480,000
              incurred for the modification of the MN PAGE to comply
              with applicable contract requirements (hereinafter, the
              "Hull Depreciation Costs"), and (ii) unrecovered costs,
              resulting from the early termination of [the MN Carter
              contract], in the amount of $242,500 incurred for the
              modification of the M/V CARTER to comply with
              applicable contract requirements.

(59791, R4, tab D-66 at 523) Maersk asserted that it had "incurred over $10,000,000
in modification costs to the MN PAGE after award and prior to vessel delivery" and
that it "opted to depreciate [those] modification costs ... over the terms of both
contracts" (59791, R4, tab D-66 at 525). Maersk noted that, in prior negotiations over
the September 28, 2011 termination modification for the MN Page contract
(see finding 10), it had "asserted the right to payment of $450,000 for 'Hull
Depreciation' which consisted of' depreciation of the vessel's conversion costs


                                            4
incurred from the first ammo contract of this vessel. including installation of cranes,
AC/DH systems, cargo hold sprinkler systems, etc. required to perform contract
requirements" (59791, R4, tab D-66 at 526). Maersk contended that the early
termination of the contract "resulted in unrecovercd ["IIull Depreciation''] costs for the
contract periods that were not performed'' (id.). Summarizing, Maersk asserted that
the claim was for:

              (i) IUlnrecovered costs, resulting from the early
              termination of [the contract]. in the amount of $480,000
              incurred for the modilication of the M/V PAGE lo comply
              with applicable contract requirements (hcrcinaflcr the
              "Hull Depreciation Costs"), and (ii) unrccovered costs.
              resulting from the early termination of Ithe contract[, in the
              amount of $242,500 incurred for the modification of the
              M/V CARTER to comply with applicable contract
              requirements.

Maersk explained that:

                     The claim ... with respect to reimbursement of Hull
              Depreciation Costs for the M/V PAGE is equally
              applicable to unrecovcred vessel modification costs for the
              M/V CARTER, as the vessels are similarly situated with
              respect to the incurred modification costs, the depreciation
              schcdule ... as well as to the application and effect of the
              relevant contract clauses.

(59791, R4. tab D-66 at 524. 532-33) Maersk employed the term "Ilull Depreciation
Costs" on all but one page of its claim to refer to the costs that it sought (id. at 524-39).
Mr. Rabuse (see finding 10) certified the claim on behalf of Maersk (id. at 533).

       12. In an email to the contracting officer dated March 24. 20 I 1, Mr. Rabuse
offered:

              [F]urther clarification to our line item ''I-lull Depreciation"
              as it pertains to the [claim]. Upon review, we may have
              some terminology confusion with the "Hull Depreciation"
              line item. This is the depreciation of the vessels Isic I
              conversion costs incurred from the first [2001 J ammo
              contract of this vessel, including installation of cranes,
              AC/DII systems, Cargo I lold sprinkler systems, etc .. all of
              which arc required for the conduction !sic I of this contract.
              In the effort to offer the government a more balanced price


                                             5
              proposal, [Maersk] depreciated these conversion costs over
              10 years.

(59791 R4, tab D-66 at 540-541; 59792 R4, tab D-60 at 544-45; tr. 75-76)

        13. At trial, the contracting officer testified, and we find, that after reviewing the
claim and contemporaneous documents, her "understanding of hull depreciation was that
it covered the modification and conversion costs of the Page and the Carter under the
[2001] contracts" (tr. 80-81). She further testified that "[t]hroughout Maersk's
correspondence with me, during the claim, [hull depreciation] was always described as
the modifications, including the cranes, AC/DH, the cargos [sic] hold sprinklers"
(tr. 86-87). The contracting officer testified that she relied upon Mr. Rabuse's
explanation to this effect in his March 24, 2011 email in evaluating Maersk's claim
(tr. 73-79; see finding 12).

        14. By date of July 30, 2014, Maersk supplemented its claim (59791, R4,
tab D-69 at 554-60; see finding 11 ). Maersk requested that the contracting officer
decide "that MSC shall reimburse [Maersk] $480,000 in settlement of the Hull
Depreciation Costs, based on the 'reasonable charges' provision of [the 2006 MN
Page contract's] T4C clause [see finding 7], as supplemented by the operation of
the [MN Page] Contract's Cancellation Fee Clause" (see finding 8; 59791 R4, tab 69
at 555). The contracting officer testified, and we find that, in thus seeking recovery for
hull depreciation costs, Maersk made no mention of vessel acquisition costs (tr. 80).

       15. By date of October 17, 2014, the contracting officer rendered separate final
decisions denying Maersk's claim as supplemented (59791, R4, tab E-70 at 562-65;
59792, R4, tab E-64 at 567-570). We find that, with respect to the M/V Page contract,
the contracting officer's decision rested on the premise that, in its claim, Maersk
sought "reimbursement for vessel conversion costs" (59791, R4, tab E-70 at 562).
With respect to the M/V Carter contract, she used the identical terms (59792, R4,
tab E-64 at 567). We further find that neither decision purported to address a claim
based upon reimbursement for vessel acquisition costs.

       16. By date of January 13, 2015, Maersk filed a timely notice of appeal in each
of these appeals. In its complaint regarding the MN Page in ASBCA No. 59791,
Maersk sought the Board's de novo review of its "request for compensation for vessel
conversion costs" (59791 compl. at 1). Maersk alleged:

              Prior to delivering the M/V PAGE in 2001 under a
              preceding contract, [Maersk] incurred over $10,000,000 in
              modification costs .... Under [Maersk's] accounting
              system, under the Contract for Option Year[ s] [4 and 5],
              the depreciation for these required modifications is $2,500


                                             6
               per day ($75.000 per month) based on $ I 0,000,000 in
               conversion costs .... Based on 192 days remaining on the
               Contract, ... the actual .. hull depreciation'' amount reJlects
               the amortized cost of $2,500 per day for 192 days
               ($480,000).

(59791 compl. ilil 22-25) Maersk's complaint regarding the M/V Carter alleged the
identical rationale of modification costs as the basis for the $242,500 sought under that
contract (59792 compl. ,, 22-23, 25). By order dated May 26, 2015, we granted the
parties· joint motion to consolidate both appeals.

        I 7. By date of December 13. 2015, Macrsk filed a first amended complaint in
ASBCA No. 59791. In contrast to its allegations regarding modification costs in the
complaint (see finding 16 ). Maersk alleged in the first amended complaint that,
"[p]rior to delivering the M/V PAGE in 2001 under a preceding contract. [Maerskl
incurred over $10,000,000 in vessel acquisition costs.'' which it depreciated over ten
years (compl. ,i 22). Maersk further alleged that, under its accounting system for the
contract's Option Years 4 and 5. "the hull depreciation was $2.500 per day ... based on
$10,000.000 in vessel acquisition costs'' (id. ~I 23 ).

       18. In its first amended complaint in ASBCA No. 59792. Maersk made
substantially identical allegations in Count I regarding entitlement to "unrecovercd
hull depreciation" costs for the M/V Carter as those regarding the M/V Page
(compl. ,r,r33, 35).

        19. By substantially identical letters to the contracting officer dated
February 17, 2016, Maersk submitted ·'supplement! s] to our previously-submitted
requests for Contracting Officer's Final Decision! s J" relating to both the M/V Page
and the M/V Carter contracts ( ex. A-1 at 3, 7; tr. 88, 91-92). In the letter pertaining to
the MN Page, Maersk stated that its records show that it paid "$10,000.000 for the
M/V PAGE, depreciated those costs over IO years, and claims $480.000 in charges
arising from early redelivery and termination'' (ex. A-1 at 7). In this supplement.
Maersk made no mention of "conversion costs incurred for the first ammo contract of
this vessel, including installation of cranes, AC/DI I systems. Cargo I Iold sprinkler
systems" that it had previously told the contracting officer underlay its claim
(see finding 12). Maersk's letter to the contracting officer of the same date regarding
the M/V Carter was substantially identical. In the Jetter regarding the M/V Carter,
Maersk stated that it "paid "$10.000.000 for the Ivessel I, depreciated those costs over
10 years. and the claim for $242,500 pertains to those unrccovcred charges arising
from early termination" (ex. A-1 at 3).

      20. Following the convenience terminations of both contracts, Maersk sold
each vessel for scrap. By date of March 19, 2015, Maersk sold the M/V Page for the


                                              7
I
     aggregate price of $6,030,129.50 (ex. A-2; tr. 60-65). Macrsk sold the M/V Carter for
     an amount that docs not appear in the record.

              21. At trial. Maersk's chief financial officer for its non-liner side testified that
     hull depreciation "represented the depreciation expense, the. actually, the unrecovcrcd
     depreciation expense for the vessel. itself. the actual acquisition of the vessel. .. It
     wasn't [a] conversion cost" (tr. 21 ). He also testified that Maersk's previous
     characterization of hull depreciation costs as conversion costs (see finding 11) was ··a
     mistake" (tr. 21 ). We do not find these disavowals credible, inasmuch as they
     explicitly contradict Macrsk's certified claim (see finding 11 ). and there is no evidence
     that Maersk told the contracting ot'liccr that its representations had been erroneous
     (e.g., tr. 30-33 ).

             22. The contracting officer testified. and we find, that to decide a claim
     founded on vessel acquisition costs. she would have asked for different supporting
     documents from those that she considered for a claim for modification and conversion
     costs. She testified that she would have looked for "any kind of bill of salc, ... a
     depreciation schedule, and the, any other documents that would support what the value
     of the vessel was, for certain periods of time·· (tr. 98). She testified that none of these
     documents were provided to her before she issued her final decision, and none were in
     the contract file (tr. 98-99).

                                          DECISION

             In disputing Maersk's claims regarding both the MN Page and the M/V
     Carter, the parties advance multiple arguments on the merits. In our view, however.
     the issue of jurisdiction is dispositivc of both appeals. and we accordingly address it
     below.

             Before trial. we ruled on various motions by both parties. We denied the
    parties' cross-motions for summary judgment. and ruled on three other motions.
    Maersk Line, Limited. ASBCA Nos. 59791, 59792, 16-1 BCA ~[ 36,405. In disposing
    of those motions, we denied MSC's motion to dismiss for lack of jurisdiction,
    concluding, from the record as it then stood, that MSC had failed to demonstrate that
    different operative facts underlay the claim and the first amended complaints. Id.
    at 177,512-13. In addition, we denied both parties' motions for summary judgment.
    We denied MSC's motion in part because there were triable issues regarding the nature
    of the costs. Id. at 177,514. The triable issues revolved around the question of whether
    the costs at issue were for the conversion of the vessels to make them ready for contract
    performance. or were simply for Maersk's initial acquisition of the vessels. We
    characterized the issues regarding the claims as follows:



                                                                                                     ;
                                                                                                     I
                                                  8

                                                                                                     e
               Maersk tells us that the costs that it seeks to recover arc
               "depreciation of the costs of its acquisition of the vessels
               that was not recovered because of MSC's early redelivery
               and termination of the 2006 Contracts. By contrast, MSC
               asserts that the costs constitute "those associated with the
               vessels' modification to comply with the 2001 Contract
               requirements."' ICitations omitted I

 Id. at 177,514. We concluded that the parties' arguments regarding the nature of the
 costs claimed presented a triable issue, precluding summary judgment. Id. We added
 that our understanding of the nature of the costs at issue would be aided by extrinsic
 evidence. Id.

         After trial, MSC chiefly contends that we lack jurisdiction over the present
 claims because Maersk did not present them until after it had appealed the denial of its
 claims for conversion and modification costs to the Board (Respondent's Post-I Icaring
 Brief(resp. br.) at 9-12). In particular, MSC asserts that Macrsk's original claims
 under the 200 I contracts - submitted on September 25, 2013 (finding 11) ···were
 confined to the modification and conversion costs to add cranes, AC/DI I systems,
 cargo hold sprinkler systems, and above deck cocoons, and made no mention of vessel
 acquisition costs. By contrast, MSC argues, ·'Maersk's amended complaint [in these
 appeals] asserted for the first time its claims for the depreciation of vessel acquisition
 costs'' (resp. br. at 11 ).

         In response, Maersk's chief argument is that this issue has been resolved before.
 Maersk insists that "this action for unrecovered depreciation of the costs of acquiring
 the vessels arises from the same operative facts that were relied upon in the claims and
 seeks the same relief' (app. br. at 6). Macrsk also argues that "MSC has not produced
 any facts to cause the Board to reverse its previous holding that 'MSC fails to
 demonstrate a decisive difference between the claim as asserted to the contracting
 officer and the first amended complaints"' (app. br. at 6).

        At trial, we received extrinsic evidence regarding the nature of the costs
included in Maersk's claims. Now. aided by a fuller record than the one before us on
the parties' cross-motions for summary judgment, we conclude that the claims
articulated in Maersk's first amended complaints in these two appeals arc different
claims from those submitted to the contracting officer. We accordingly lack
jurisdiction over the present claims .. We reach this conclusion for three principal
reasons.

        First, it is familiar that we lack jurisdiction to consider new claims not
presented to the contracting officer. In Lee's Ford Dock, Inc. v. Secretary of1he Army,
865 F.3d 1361, 1369 (Fed. Cir. 2017). the court of appeals held that:


                                             9
              The Board may not consider ·'new" claims Ithat I a
              contractor failed to present to the contracting officer.
              Santa Fe IEngineers, Inc. v. United States'l, 818 F .2d 1856 J
              at 858 [(Fed. Cir. 1987) 1. A claim is new when it
              ·'present[ s] a materially different factual or legal theory'' of
              relief. K-Con Bldg. Sys., Inc. v. United States, 778 F.3d
              1000, 1006 (Fed. Cir. 2015). Materially different claims
              "will necessitate a focus on a different or unrelated set of
              operative facts.'' Placeway Constr. Corp. v. United States.
              920 F.2d 903, 907 (Fed. Cir. 1990).

See also Scott Timber Co. v. United States, 333 F.3d 1358. 1365 (Fed. Cir. 2003)
(reciting that the same claim before the court or Board must have been considered by
the contracting officer). In similar circumstances, we have held that we lack
jurisdiction over claims for which the contracting officer has not had "the opportunity
to investigate and pass on" in the first instance. Bay Decking Co., ASBCA No. 33868.
89-2 BCA, 21,834 at 109,848, accord The .Jonathan Corp., ASBCA No. 47059, 95-1
BCA, 27,390 at 136,537 (holding no jurisdiction over breach claim alleged in
complaint for first time); L. T.D. Builders. ASBCA No. 28005. 83-2 BCA ~J 16,685
(holding no jurisdiction over claims first raised in complaint): Modular Devices, Inc.,
ASBCA No. 24198, 82-1 BCA ii 15.536 (same).

        Second, Maersk's initial claims undeniably related to modification and conversion
costs for the two vessels. The record reflects that. during contract performance.
Mr. Rabuse, Maersk's General Manager for Government Ship Management,
authoritatively explained that "Hull Depreciation" costs were ''the costs associated with
converting the vessel for military use by installing cranes. AC/DH systems. cargo hold
sprinkler systems and other modifications necessary to meet contract requirements'·
(finding 10). On March 24. 2011, Mr. Rabuse repeated his clarification or··1Jull
Depreciation" as capturing conversion costs (finding 12).

       Mr. Rabuse's clarifications arc consistent with terms of the claim itself'. We
have found that the September 25, 2013 claim, as supplemented by date of July 30.
2014, related solely to modification costs, not to vessel acquisition costs ( findings 11.
14). To that end, Macrsk told the contracting officer that it wanted a decision for
"$480,000 incurred for the modification of the M/V PAGE ... and $242.500 incurred for
the modification of the M/V CARTER" (finding 11 ). As we have found. Macrsk did
not present these costs as relating to vessel acquisition ( findings 11- I 5).




                                             10


                                                                                             I
I
            The contracting officer's testimony similarly leaves no doubt that she
    understood that the claim related to conversion costs, not vessel acquisition costs.* She
    testified that, in evaluating the claim, she concluded that the nature of the costs
    grouped under the rubric of "hull depreciation," - the only cost category excepted from
    Modification No. P00020 (finding 10) - represented conversion costs chiefly because
    of Mr. Rabuse's March 24, 2011 email to the contracting officer stating that ''[h]ull
    [d]epreciation" costs represented "the depreciation of the vessels [sic] conversion costs
    incurred from the first [2001] ammo contract of this vessel, including installation of
    cranes, AC/DH systems, Cargo Hold sprinkler systems, etc." (finding 12).

           The contracting officer's testimony regarding her understanding of the claim is
    mirrored in her decision. She stated in her decision that, for the two vessels involved,
    Maersk sought "reimbursement for vessel conversion costs" (finding 15). As we have
    found, she did not purport to address a claim in either decision based upon
    reimbursement for vessel acquisition costs (id.).

             Third, the claims in their present iterations are undeniably predicated upon the
    acquisition costs for the two vessels. Maersk said explicitly in its allegations in the
    first amended complaints that it is entitled to hull depreciation costs "based on
    $10,000,000 in vessel acquisition costs" (findings 17-18). Maersk echoed that basis
    for its claim in its February 17, 2016 supplemental requests for contracting officer's
    final decisions regarding each contract. Maersk asserted in one that its records show
    that it "paid $10,000,000 for the MN PAGE, depreciated those costs over 10 years,
    and claims $480,000 in charges arising from early redelivery and termination" (finding
    19). In the other letter, Maersk stated that it "paid $10,000,000 for the [vessel],
    depreciated those costs over 10 years, and the claim for $242,500 pertains to those
    unrecovered charges arising from early termination" (id.). Maersk's current litigating
    position is consistent with recast claims. Thus, Maersk now tells us that "this action
    [is] for unrecovered depreciation of the costs of acquiring the vessels" (appellant's
    post-heating brief at 6).

           While Maersk has recast its claims as predicated upon acquisition cost, it is
    evident that it has abandoned its original claims predicated upon conversion and
    modification costs. However, no claims based on acquisition costs were ever
    submitted to the contracting officer (findings 11-15). In consequence, we lack



    * The test of whether a claim is "new" is an objective one; thus, to some extent the
           contracting officer's subjective view is immaterial. Nevertheless, the
           contracting officer may, as she did here, shed light upon the different factual
          predicates differentiating the old and new claims.


                                                11
jurisdiction over the claims based on acquisition costs. We accordingly dismiss both
ASBCA No. 59791 and ASBCA No. 59792 for lack of jurisdiction.

       In view of our disposition of the appeals on jurisdictional grounds, we do not
address the parties' other arguments on the merits.

                                    CONCLUSION

        ASBCA No. 59791 and AST3CA No. 59792 arc each dismissed for lack of
jurisdiction.

       Dated: April 9.2019

                                                  ALEXANDER~~~                   lLL______
                                                  Administrative Judge
                                                  Armed Services Board
                                                                                 V
                                                  of Contract Appeals

 I concur


 =1cvt
 RICHARD SHACKLEFORD
                                                  ~
                                                  J. -Ri·:1~n~Y------------------
 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 Nos. 5979L 59792. Appeals of
Maersk Line Limited, rendered in conformance with the Board's Charter.

       Dated:



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




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