                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                        )
                                     )
PROTEC GmbH                          )                ASBCA Nos. 61161, 61162, 61185 1
                                     )
Under Contract Nos. W912CM-14-D-0007 )
                    W912CM-14-P-0008 )

APPEARANCES FOR THE APPELLANT:                        Paul D. Reinsdorf, Esq.
                                                       Frankfurt, Germany

                                                      Steven J. Kmieciak, Esq.
                                                       Seyfarth Shaw LLP
                                                       Washington, DC

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     Dana J. Chase, Esq.
                                                      Trial Attorney

                  OPINION BY ADMINISTRATIVE JUDGE SWEET
                  ON THE GOVERNMENT'S MOTIONS TO STRIKE

        The Regional Contracting Office, Wiesbaden (government) moves to strike ASBCA
Nos. 61161 and 61162 Complaint Count I on the grounds that we do not possess jurisdiction
over that count because it seeks specific performance. Appellant PROTEC GmbH
(PROTEC) argues that it does not seek specific performance. Because PROTEC is correct
that it does not seek specific performance, the motion is denied as to ASBCA Nos. 61161
and 61162 Complaint Count I. The government also moves to strike ASBCA Nos. 61161
and 61162 Complaint Count III and ASBCA No. 61185 Complaint Count II on the grounds
that we do not possess jurisdiction over those counts because they allege quantum meruit
theories. PROTEC argues that we possess jurisdiction over its quantum meruit claims.
Because the government is correct, the motion to strike ASBCA Nos. 61161 and 61162
Complaint Count III and ASBCA No. 61185 Complaint Count II is granted.




1
    ASBCA Nos. 61161 and 61162 are consolidated. However, ASBCA No. 61185 is a
       separate appeal. Nevertheless, because the issues raised in the motions to strike
       overlap, we have decided to issue one decision for all three appeals.
         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS

l ASBCA Nos. 61161 and 61162

       1. On 28 September 2014, the government awarded Contract
No. W912CM-14-D-0007 (0007 contract) to PROTEC, for the maintenance, inspection,
and repair of fire alarm, fire suppression, and evacuation systems at the U.S. Army
Garrison, Wiesbaden (R4, tab 1 at 4-8).

       2. The 0007 contract stated that "[i]n compliance with [Federal Acquisition
Regulation (FAR)] Subpart 42.15 'Contractor Performance Information', an evaluation of
Contractor performance will be conducted at contract completion" (R4, tab 1 at 25).
Under FAR Subpart 42. l 503(b )( 1), the "evaluation should reflect how the contractor
performed. The evaluation should include clear relevant information that accurately
depicts the contractor's performance."

      3. On 26 October 2015, the contracting officer (CO) posted an initial evaluation on
the Contractor Performance Assessment Reporting System (CP ARS), which rated
PROTEC as unsatisfactory in the areas of quality, schedule, management, and regulatory
compliance (R4, tab 112).

        4. The government also refused to pay some PROTEC invoices (R4, tab 115).

        5. On 17 September 2016, PROTEC submitted a certified claim regarding the
CPARS evaluation (R4, tab 114 ). Then on 23 September 2016, PROTEC submitted a
certified claim in the amount of€143,615.92 for the unpaid invoices (R4, tab 115).

        6. On 6 February 2017, the CO issued a final decision (COFD) addressing the
CPARS evaluation and unpaid invoice claims together. The COFD corrected one
error in the CPARS evaluation, 2 but otherwise denied the claims. (R4, tab 122 at 7-8)

        7. PROTEC timely appealed the COFD to the Board.

       8. In its ASBCA Nos. 61161 and 61162 complaint, PROTEC alleges three
counts (compl. ,r,r 67-82).

       9. Count I is entitled "Unreasonable Ratings in CPARS" (compl. at 11). It
alleges that the CPARS ratings were unreasonable because they contain inaccurate
information. As a result, PROTEC seeks an order remanding the appeal to require the

2
    In particular, the original CPARS evaluation incorrectly indicated that that the
         termination type was "default." The COFD corrected that evaluation to indicate
         that the termination type was "none." (R4, tab 122 at 7-8)

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CO to provide PROTEC with a fair and accurate performance evaluation by asking
that we order the government to "revisit the evaluations." (Id. 1171-72)

       10. Count II is entitled "Payment for Work Performed in Accordance with the
Contract" (comp!. at 12). It seeks damages for the government's failure to pay the
invoices (id. 1 78).

       11. Count III is entitled "Quantum Meruit" (compl. at 13 ). It alleges that
PROTEC is entitled to payment for the reasonable value of services and parts received by
the government. The ASBCA Nos. 61161 and 61162 complaint does not allege that the
government claimed that the 0007 contract was illegal or void. (Id. 1 79)

II. ASBCA No. 61185

       12. On 20 December 2013, the government awarded Contract
No. W912CM-14-P-0008 (0008 contract) to PROTEC, for the maintenance and repair of
electronic doors, gates, scanners, sauna compact system and electric/hydraulic barriers,
and bollards, also at U.S. Army Garrison, Wiesbaden (R4, tab 3).

       13. The government refused to pay some PROTEC invoices (R4, tab 119).

       14. PROTEC then submitted a certified claim in the amount of €141,827.88 for
the unpaid invoices (R4, tab 198).

       15. On 28 February 2017, the CO issued a COFD.denying the claim (R4, tab 199 at 7-9).

       16. PROTEC timely appealed the COFD to the Board.

       17. In its ASBCA No. 61185 complaint, PROTEC alleges two counts (compl. 1148-54).

       18. Count I is entitled "Payment for Work Performed in Accordance with the Contract"
(comp!. at 9). It seeks damages for the government's failure to pay the invoices (id. 150).

         19. Count II is entitled "Quantum Meruit" (comp!. at 13). It alleges that PROTEC
is entitled to payment for the reasonable value of services and parts received by the
government. The ASBCA No. 61185 complaint does not allege that the government
claimed that the 0008 contract was illegal or void. (Id. 1 51)

                                      DECISION

       On the one hand, we possess jurisdiction over ASBCA Nos. 61161 and 61162
Complaint Count I because it does not seek specific performance. The government is
correct that we do not possess jurisdiction to order an agency to revise a CPARS rating.


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MicroTechnologies, LLC, ASBCA Nos. 59911, 59912, 15-1BCA136,125 at 176,348;
Colonna 's Shipyard, Inc., ASBCA No. 56940, 10-2 BCA 1 34,494 at 170,139; Versar,
Inc., ASBCA No. 56857, 10-1BCA134,437 at 169,953. However, we may remand a
matter to require a CO to follow applicable regulations and provide appellant with a fair
and accurate performance evaluation. Id. Here, by seeking an order that the Army
"revisit the evaluation," ASBCA Nos. 61161 and 61162 Complaint Count I merely seeks
an order remanding the appeal to require the CO to provide PROTEC with a fair and
accurate performance evaluation (SOF 19). Therefore, we possess jurisdiction over
ASBCA Nos. 61161 and 61162 Complaint Count I.

       On the other hand, we do not possess jurisdiction over ASBCA Nos. 61161 and
61162 Complaint Count III or ASBCA No. 61185 Complaint Count II because they
allege quantum meruit theories. "[T]his Board generally does not have jurisdiction to
grant relief to a party who sues to recover compensation on a quantum meruit basis,
which is an action on a contract implied in law." Cousins Contracting, Inc., ASBCA
No. 50382, 97-1BCA128,906 at 144,111; see also Int'! Data Products Corp. v.
United States, 492 F.3d 1317, 1325-26 (Fed. Cir. 2007); Honeywell Int 'l, Inc., ASBCA
No. 57779, 15-1BCA136,121 at 176,340. There is an exception to that general rule
when the government seeks to avoid payment on the grounds that a contract is illegal or
void ab initio. Id. Here, ASBCA Nos. 61161 and 61162 Complaint Count 1111 and
ASBCA No. 61185 Complaint Count II seek recovery on a quantum meruit basis (SOF
11 11, 19). Moreover, they do not allege that the government claimed that the contracts
were illegal or void (id.). Therefore, we do not possess jurisdiction over ASBCA
Nos. 61161 and 61162 Complaint Count III or ASBCA No. 61185 Complaint Count II.

       PROTEC argues that the motions to strike are untimely. Because the government's
motions address our jurisdiction, that issue cannot be waived by any failure to raise it on
time. See Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 807 (Fed.
Cir. 1990). Therefore, the motions to strike for lack of jurisdiction are timely.

        PROTEC also argues that the motions to strike are not the proper way to seek
dismissal of the appeals. However, the government is not seeking to dismiss the
appeals. Rather, it requests that we strike certain counts of the complaints. (ASBCA
Nos. 61161, 61162, gov't mot. at 12; ASBCA No. 61185, gov't mot. at 16) A motion
to strike is the appropriate vehicle through which to seek such relief. See, e.g., Mitch
Moshtaghi, ASBCA No. 53711, 03-2 BCA 132,274 at 159,669.




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                                    CONCLUSION

      The motion to strike is denied as to ASBCA Nos. 61161 and 61162 Complaint
Count I. The motion to strike is granted as to ASBCA Nos. 61161 and 61162 Complaint
Count III and ASBCA No. 61185 Complaint Count II for lack of jurisdiction.

       Dated: 30 May 2018



                                                  JAMES R. SWEET
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


 I concur                                         I concur


                                                  o~---
 ~HACKLEFORD
 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. 61161, 61162, 61185,
Appeals of PROTEC GmbH, rendered in conformance with the Board's Charter.

       Dated:



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




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