                ARMED SERVICES BOARD OF CONTRACT APPEALS

Petition of--                               )
                                            )
Commissioning Solutions Global, LLC         )      ASBCA No. 59007-945
                                            )
Under Contract No. N55236-13-D-0001         )

APPEARANCE FOR THE PETITIONER:                     Mr. Victor Ogunniyi
                                                    President

APPEARANCES FOR THE GOVERNMENT:                    Ronald J. Borro, Esq.
                                                    Navy Chief Trial Attorney
                                                   Stephen D. Tobin, Esq.
                                                   Taylor Ferrell, Esq.
                                                    Trial Attorneys

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

        Pursuant to 41 U.S.C. § 7103(f)(4) and Board Rule 1(e), Commissioning Solutions
Global, LLC (CSG or petitioner) petitions the Board to direct the contracting officer to
issue a decision on its alleged non-monetary claim for breach of contract. In response,
the government moves to dismiss for lack of jurisdiction on the ground that CSG has not
filed a claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109.

        STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. The Department of the Navy's (government) Southwest Regional Maintenance
Center awarded Contract No. N55236-13-D-0001 (the contract) to CSG on 1 November
2012 for Hydraulic/lube oil system flush services on Navy vessels located within a
50-mile radius of San Diego, California (contract at 1, 221 ). The contract's period of
performance includes a base period of one year from effective date of award plus four
one-year option periods (contract at 24 7). The contract incorporates by reference FAR
52.233-1, DISPUTES (JUL 2002) (contract at 263).

      2. The contract is an Indefinite-Delivery/Indefinite-Quantity type. Work is issued
through firm fixed-price delivery orders in accordance with FAR 52.216-18, ORDERING
(OCT 1995) and FAR 52.216-19, ORDER LIMITATIONS (OCT 1995), which are
incorporated by full text. The contract also incorporates by full text FAR 52.216-22,
INDEFINITE QUANTITY (OCT 1995). (Contract at 247, 255-56, 264-65) The contract's
minimum contract guarantee is $3,000 within five years of contract award (contract at
255).

       3. By letter to the government dated 28 October 2013, with subject heading
"NOTIFICATION OF A BREACH OF CONTRACT OF THE NAVY CIS LUBE OIL
FLUSH CONTRACT- N55236-13-D-0001," CSG alleged the government breached the
contract by failing to issue any delivery orders to CSG for the entire base year of the
contract:

               We noted in your instruc[ti][ 11 ons that we must be prepared
               and capable to respond to within four (4) hours of
               no[tifi]ca[ti]on of any emergent work and whereas we have
               had no delivery orders for the en[ti]re Base year whilst we
               noted that you con[ti]nue to assign our type of specialty
               work I services to the Large Shipyards on all occasions since
               the contract has been in e[ ff]ect, thus denying us the
               opportunity and availability to perform our specialty work.
               Hence you are in breach of our contract. As of the date of
               this cer[tifi]ed mail, our company has drawn your
               a[tt]en[ti]on to this breach of contract in numerous
               correspondences with you, but you have failed to respond
               responsibly to all our inquiries.

The letter concluded with the following statement:

                [U]nless the breach is remedied within 14 days of the date of
                this le[tt]er, we will have no other alterna[ti]ve than to take
                necessary ac[ti]on to protect our rights under the Contract and
                under any applicable laws. All of our rights are therefore
                reserved under this no[ti]ce.

(CSG pet., attach. A)

      4. By email dated 12 November 2013, CSG petitioned the Board, pursuant to
Board Rule 1(e), to direct the government to:




1
    Petitioner's documents frequently contain words with missing letters. We have added
          letters in brackets to attempt to understand petitioner's position.

                                               2
              [P]rovide responsive answers on the various contractual
              correspondences that the appellant[2J has raised to the
              Respondent wanting to know the Respondent [sic] intent to
              enforce and implement the five ( 5) year Commercial
              Industrial Services (CIS) [sic] for the Lube Oil Flush [sic] on
              the Naval Fleet in San Diego and 50 miles radius [sic] or
              cancel the contract and pay the attending [sic] claims for not
              implementing a contract that is in effect and in force between
              both parties (breach of contract).

(CSG pet. at 1) In support of its contention that the government breached the contract,
CSG's petition provides the basis for the underlying dispute:

              [F]or the entire base year, the appellant anticipated a work
              load in the magnitude of $18.6M to be generated between her
              and the second contractor; but zero work was generated
              because the respondent has been assigning the work request
              of the contract to the MSM0[3J contractors ....

                     ...In order to avoid any doubt or controversy as to work
              existence, the appellant has provided the Respondent with
              active schedules highlighting the appellant's type of specialty
              work ready to be performed on new ship availabilities by the
              large shipyards.

(CSG pet. at 2-3) CSG states that it "has not requested any monetary damages at this
time but as a first step for the contract to be remedied immediately" (CSG pet. at 3).

       5. Upon receipt ofCSG's 12 November 2013 petition, the Board issued a
14 November 2013 Order directing the government to show cause why an order directing
the contracting officer to issue a decision should not be issued. The Board also directed
CSG to provide support that a claim meeting the requirements of the CDA was
submitted.

        6. CSG responded on 18 November 2013 with a submission that appears to be, in
full, the documents submitted as part of its 12 November 2013 petition. The government

2
  Although it refers to itself as "appellant," CSG submitted a petition for a contracting
       officer's final decision pursuant to 41 U.S.C. § 7103(f)(4) and Board Rule 1(e),
       rather than an appeal pursuant to 41 U.S.C. § 7103(f)(5) and Board Rule 1(a).
3
  Based on the limited record, MSMO contractors, or alternatively referred to by CSG as
       large shipyards, perform the same or similar work described in CSG's contract
       (CSG pet. at 2).

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filed, by letter dated 2 December 2013, a motion to dismiss the petition for lack of
jurisdiction, asserting that CSG has failed to submit a CDA claim, and that the "several
attachments comprised of letters and emails expressing concerns with the scarcity of
work, administration of the contract, and unrealized financial expectations of
CommSolGlobal; ... alone or collectively, [do not] constitute a CDA claim" (gov't mot. at
2).

       7. On 5 December 2013, CSG responded to the government's motion asserting
that CSG "has requested a decision bv the contracting officer which presently involves
no monetary amount." CSG further states that:

             [T]he appellant had submi[tt]ed to the contrac[ti]ng o[ffi]cer a
             cer[tifi]ed and formal no[tifi]ca[ti]on of breach of contract
             le[tt]er dated October 28, 2013 (A[tt]achment A) and had
             requested that unless the breach is remedied within 14 days
             from the date of the le[tt]er, the appellant will have no
             alternative than to take necessary ac[ti]on to protect her rights
             under the contract and under any applicable laws. Therefore,
             the plead [sic] before the honorable Board has met the
             no[tifi]ca[ti]on delivery requirement. The plead [sic] itself is
             not a monetary damages claim but as [fi]rst step start "a
             performance remedy requirement" to the breach of
             contract.

(CSG resp. at 2) CSG concludes with the following:

                     Consequently; it is very obvious that the breaching and
             viola[ti]on of the mutual agreement (no respect to the other
             party to the contract) has con[ti]nued to in[fl]ict serious harm
             and damages to a small business; though the Base year of the
             contract is completed, similar lax in contrac[ti]ng procedures
             con[ti]nue to unravel unguarded through Op[ti]onal [sic] Year
             1. These issues need to be se[tt]led and resolved through the
             Board [sic] interven[ti]on. THE RESPONSE ON HOW THE
             DEFENDANT INTEND [sic] TO RESTITUTE AND OR
             CANCEL THE CONTRACT IS CRUCIAL TO THE
             APPELLANT [sic] APPROACH TO DEAL WITH THE
             FILING OF CLAIM FOR DAMAGES AND BREACH OF
             CONTRACT. [Bold omitted]

(CSG resp. at 4) The government, in its reply to CSG's 5 December 2013 response,
acknowledged receipt of the 28 October 2013 letter but argued it was not a CDA claim



                                            4
because, among other things, it did not provide notice and basis as to what the contractor
was seeking (gov't opp'n at 2).

                                         DECISION

        Under the CDA, "[a] contractor may request the tribunal concerned to direct a
contracting officer to issue a decision in a specified period of time, as determined by the
tribunal concerned, in the event of undue delay on the part of the contracting officer."
41 U.S.C. § 7103(f)(4). Board Rule 1(e) implements this section of the CDA, providing
that "[i]n lieu of filing a notice of appeal under (b) or (c) of this Rule, the contractor may
request the Board to direct the contracting officer to issue a decision in a specified period
of time, as determined by the Board, in the event of undue delay on the part of the
contracting officer."

       For the Board to have jurisdiction under the CDA, a contractor must submit a
claim in writing to the contracting officer for a final decision. 41 U.S.C. § 7103. If a
contractor does not submit a proper CDA claim, the contracting officer lacks authority to
issue a decision. Gray Personnel, Inc., ASBCA No. 54652, 06-2 BCA -,r 33,378 at
165,474 (citing Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl.
1981)). The CDA does not define the term "claim." However, FAR 2.101 provides the
following definition:

              [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.

        CSG argues that it has filed a non-monetary claim for breach of contract as
evidenced by the 28 October 2013 letter (SOF -,r 7). We disagree with petitioner. We
believe that petitioner's request is essentially monetary in nature. Where a claim seeks
the adjustment or interpretation of contract terms, or other relief arising under or relating
to the contract, the Board has jurisdiction unless the essence of the disagreement is
monetary. Franklin L. Hassell, ASBCA No. 45242-697, 94-1 BCA -,r 26,289 at 130,776.
We lack jurisdiction of "a money claim clothed as a request for contract interpretation."
International Creative and Training, Ltd., ASBCA No. 42833, 93-3 BCA -,r 26,009 at
129,310. Assuming, arguendo, that CSG's 28 October 2013letter otherwise meets the
requirements of the FAR 2.101 definition of a CDA claim, it fails to state a sum certain.

        Here, the dispute at issue is a disagreement that in essence is monetary and similar
to the facts in International Creative and Training. CSG specifically stated that it
anticipated a workload in the magnitude of $18.6 million to be generated between CSG



                                              5
  and a second contractor for the base period but received no orders (SOF ~ 4). Also, CSG
  alleges work falling within the scope of the contract has been assigned to other
  contractors to CSG's detriment (SOF ~~ 3-4). CSG admits the 28 October 2013 letter
  was a first step to remedy the alleged breach before monetary damages would be sought
  (SOF ~~ 4, 7). Taking into account these statements, CSG was capable of filing a sum
  certain claim to the contracting officer for the alleged breach of contract but chose not to
  do so. Accordingly, we lack jurisdiction to order the contracting officer to issue a final
  decision pursuant to 41 U.S.C. § 7103(f)(4) and Board Rule 1(e).

                                        CONCLUSION

         The government's motion is granted. CSG's petition for an order directing the
  contracting officer to render a decision pursuant to 41 U.S.C. § 7103(f)(4) and Board
  Rule 1(e) is dismissed without prejudice to CSG filing a claim in a sum certain in
  accordance with the CDA.

         Dated: 5 February 20 14


                                                ~··
                                                 N: sfEMPLER
                                                    Administrative Judge
                                                    Acting Chairman
                                                    Armed Services Board
                                                    of Contract Appeals

  I concur                                          I concur


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  Administrative Judge                              Administrative Judge
  Armed Services Board                              Acting Vice Chairman
  of Contract Appeals                               Armed Services Board
                                                    of Contract Appeals




                                               6
       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. 59007-945, Petition of
Commissioning Solutions Global, LLC, rendered in conformance with the Board's
Charter.

       Dated:


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




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