               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Green Valley Company                          )      ASBCA No. 61275
                                              )
Under Contract No. W912Dl-05-A-0063           )

APPEARANCE FOR THE APPELLANT:                        Salma William Saikaly, Esq.
                                                      Willoughby Hills, OH

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     CPT William T. Wicks, JA
                                                      Trial Attorney

            OPINION BY ADMINISTRATIVE JUDGE MELNICK
       ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

         Green Valley Company (Green Valley) seeks the payment of invoices it
presented in 2006 under a Blanket Purchase Agreement (BPA) with the United States
Army. The government correctly responds that Green Valley's 2017 certified claim
that it submitted to the contracting officer was time-barred. Accordingly, summary
judgment is granted to the government. Green Valley's appeal is denied.

           STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

       On April 26, 2005, the United States Army Regional Contracting Command
SWA-Kuwait (the government) executed the BPA identified above with Green Valley.
The BPA was for the supply of life support services, including water supply and
removal, portable latrines and toiletry for United States military forces in Kuwait. (R4,
tab 9) Between January 2 and October 2, 2006, Green Valley invoiced the government
for services performed under the BPA (compl. 12; gov't mot. at 2). On May 18, 2007,
the United States Army debarred Green Valley until December 1, 2009 (R4, tab 419;
compl. 15; gov't mot. at 2).

       On March 9, 2017, Green Valley submitted a certified claim to the contracting
officer for payment of its unpaid invoices in the amount of 427,822.96 Kuwaiti Dinars
(R4, tabs 484-85; compl. 1 10; gov't mot. at 3). The unpaid invoices were for a period
ranging from December!, 2005 to September 23, 2006 (id. at 4). The claim was denied
by contracting officer decision dated June 7, 2017 (R4, tab 485). This appeal followed.
                                       DECISION

         The government seeks summary judgment on the ground that Green Valley's
claim is time-barred. Under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109,
a timely claim must be submitted to the contracting officer within six years after accrual.
41 U.S.C. § 7103(a)(4). Summary judgment will be granted to the government on this
issue if there are no genuine issues of material fact and the government is entitled to
judgment as a matter oflaw. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Adamant Grp. for Contracting and Gen. Trading, ASBCA No. 60316, 16-1 BCA
,r 36,577 at 178,134. A claim accrues when "all events, that fix the alleged liability
of... the Government...and permit assertion of the claim, were known or should have been
known." FAR 33.201. Although an invoice that is not in dispute when submitted is not
a claim, it may be converted to one by a written notice to the contracting officer "if not
acted upon in a reasonable time." FAR 2.101; see Adamant Grp., 16-1 BCA ,r 36,577 at
178,134.

        It is undisputed that Green Valley submitted the invoices that are the subject of
the claim to the government between January and October of 2006. Green Valley
knew or should have known it could convert them to a claim within a reasonable time
after that. However, Green Valley waited over a decade, until 2017, to do so. That is
well more than six years after it became reasonable to convert the invoices to a claim.

         Green Valley maintains that the six-year limitation period to submit its claim
should be equitably tolled. Equitable tolling might be appropriate when "a litigant has
( 1) been pursuing [its] rights diligently, and (2) some extraordinary circumstance 'stood
in [its] way and prevented timely filing."' Adamant Grp., 16-1 BCA ,r 36,577 at
178,136 (quoting Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755
(2016)). Green Valley argues that from November 5, 2009, until December 16, 2016, it
was a defendant in a government lawsuit filed in the United States District Court for the
Western District of Texas. It contends that it could not submit its claim for the invoices
while that matter was pending, and that if it had the government would have pursued
fraud based defenses and causes of action against it, exposing it to harsh legal
consequences. It argues that it was therefore required to forego the submittal of its claim
while it diligently worked to relieve itself from debarment and the government suit.

       Green Valley has not demonstrated the elements of equitable tolling. It has not
shown that the pendency of a government suit against it in district court, or its
debarment, prevented it from submitting a CDA claim. Nor does it explain why the
possibility that the government might respond to its claim with fraud based defenses or
causes of action would block it from submitting a claim. The mere fact that such a
response from the government might be undesirable to Green Valley is irrelevant.
Thus, there is no basis for concluding Green Valley diligently pursued its rights and
that some extraordinary circumstance prevented it from advancing its claim.


                                            2
  Accordingly, equitable tolling is inapplicable and Green Valley's claim is time-barred
  under the CDA.

                                     CONCLUSION

         The government's motion for summary judgment is granted. The appeal is
  denied.

        Dated: 13 February 2018



                                                    MARK A. MELNICK
                                                    Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals


  I concur                                          I concur


      ~
  RICHARD SHACKLEFORD                              OWEN C. WILSON
  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 No.61275 Appeal of Green
Valley Company rendered in conformance with the Board's Charter.

        Dated:


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




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