                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                 )
                                              )
Linda Rugina Company                          )      ASBCA Nos. 62207, 62334
 D/B/A Ruginas Afrikan Village                )
                                              )
Under Contract No. FA2835-18-P-0103           )

APPEARANCE FOR THE APPELLANT:                        Ms. Linda Rugina
                                                      Owner

APPEARANCES FOR THE GOVERNMENT:                      Jeffrey P. Hildebrant, Esq.
                                                      Air Force Deputy Chief Trial Attorney
                                                     Capt Seiji Ohashi, USAF
                                                     Colby L. Sullins, Esq.
                                                      Trial Attorneys

                OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

       Appellant elected to proceed under the Board’s Small Claims (Expedited)
procedures, Board Rule 12.2. The Contract Disputes Act, 41 U.S.C. § 7106(b)(4)-(5),
as implemented by Board Rule 12.2, provides that this decision shall have no
precedential value, and in the absence of fraud shall be final and conclusive and may
not be appealed or set aside.

       In these consolidated appeals, appellant seeks $12,331.40 plus punitive
damages for what it seems to say was extra-contractual, “additional work” that it
allegedly performed at an Air Force facility pursuant to a carpeting contract (Bd. corr.
email dtd. March 16, 2020 at 2; Bd. corr. email dtd. March 19, 2020 at 4; Bd. corr.
email dtd. March 31, 2020 at 2; R4, tab 5 at 1, tabs 11-12).

                          SUMMARY FINDINGS OF FACT

       On September 27, 2018, the parties contracted for appellant to replace carpeting
on the third floor of a building on Hanscom Air Force Base in Massachusetts, for the
fixed amount of $44,484.18 (R4, tab 5 at 1-5, 16). Before presenting any claim for
additional compensation to the contracting officer, appellant filed with the Board an
October 2, 2019 Notice of Appeal, seeking compensation (R4, tabs 11-12). We
docketed that appeal as ASBCA No. 62207.
       On November 18 and 20, 2019, appellant presented a claim to the contracting
officer for $12,331.40 for what it says was “additional work” (R4, tabs 11-12). On
November 22, 2019, the contracting officer issued a final decision denying the claim
(R4, tab 13). Appellant filed a notice of appeal from that decision, seeking additional
compensation, including punitive damages. We docketed that appeal as ASBCA
No. 62334.

      The contract provides that “approxiamately [sic] 1000 sq. yd. of carpet tile”
would be needed (R4, tab 5 at 16). The contract also incorporates by reference Federal
Acquisition Regulation (FAR) 52.236-2, SITE INVESTIGATION AND
CONDITIONS AFFECTING THE WORK (APR 1984) (R4, tab 5 at 9), which
provides:

              The Contractor acknowledges that it has taken steps
              reasonably necessary to ascertain the nature and location of
              the work, and that it has investigated and satisfied itself as
              to the general and local conditions which can affect the
              work or its cost . . . . Any failure of the Contractor to take
              the actions described and acknowledged in this paragraph
              will not relieve the Contractor from responsibility for
              estimating properly the difficulty and cost of successfully
              performing the work, or for proceeding to successfully
              perform the work without additional expense to the
              Government.

48 C.F.R. § 52.236-3 (emphasis added). Appellant did not attend a September 2018
site visit before it submitted its proposal; had it done so, it presumably would have
seen and been able to measure the specific work that it ultimately contracted to
perform (see R4, tabs 3-4, 14, 19 at 5 (response to interrogatory no. 3)).

                                      DECISION

       With respect to ASBCA No. 62207, our jurisdiction to decide an appeal from a
contractor claim depends on the prior submission of the claim to a contracting officer
for decision and a final decision on, or deemed denial of, the claim. Lael Al Sahab &
Co., ASBCA No. 58346, 13 BCA ¶ 35,394 at 173,662. Appellant’s October 2, 2019
Notice of Appeal pre-dates its November 2020 claim (R4, tabs 1112); consequently,
we do not have jurisdiction to entertain ASBCA No. 62207, which is, therefore,
dismissed for lack of jurisdiction.




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       Turning to ASBCA No. 62334, we have no authority to award punitive
damages; consequently, we must dismiss the portion of appellant’s claim for punitive
damages for lack of subject matter jurisdiction. John Shaw LLC d/b/a Shaw Bldg.
Maint., ASBCA No. 61379, 18-1 BCA ¶ 37,003 at 180,197.

        With respect to its claim for non-punitive additional compensation, appellant
says that it “gave [the government] a quote for furnishing and installing the additional
carpet” and that the government “did not object or complain” (Bd. corr. email dtd.
March 19, 2020 at 4). The contract was for the fixed amount of $44,484.18.
Appellant does not demonstrate that any of what it says was “additional” work was
extra-contractual. A contractor is charged with knowledge of the conditions that a
pre-bid site visit would have revealed. H.B. Mac, Inc. v. United States, 153 F.3d 1338,
1346 (Fed. Cir. 1998). Pursuant to the contract’s site investigation clause, appellant
“acknowledges that has taken steps reasonably necessary to ascertain the nature and
location of the work,” and that “[a]ny failure . . . to take the actions described and
acknowledged in this paragraph will not relieve [it] from responsibility for estimating
properly the difficulty and cost of successfully performing the work, or for proceeding
to successfully perform the work without additional expense to the Government.” (R4,
tab 5 at 9) Appellant did not attend a September 2018 site visit before submitting its
proposal; had it done so it presumably could have measured the area to be carpeted.
And although the contract provides that “approximately 1000 sq. yd. of carpet tile”
would be needed, the contract did not promise that no more than 1,000 square yards of
carpet tile would be needed. Finally, the record includes a diagram of the areas to be
carpeted, and there is no indication that what appellant calls “additional work” was not
depicted in that diagram. For these reasons, appellant does not demonstrate that it is
entitled to any additional compensation for the work that it performed. Cf. Creative
Times Dayschool, Inc., ASBCA Nos. 59507, 59779, 16-1 BCA ¶ 36,535 at 177,982
(having failed to demonstrate that it performed any paving work in addition to that
depicted in contract sketch, contractor was not entitled to additional compensation for
paving); Orlosky Inc. v. United States, 68 Fed. Cl. 296, 305-06 (2005) (where
attending site inspection would have disclosed to contractor the problems that it
encountered, contractor could not recover for extra work or costs associated with those
problems). Appellant says that the contracting officer recognized that appellant had
performed additional work by offering to pay $5,779.26 for that work (Bd. corr. email
dtd. Mar. 31, 2020 at 2), but an offer to settle a claim is not admissible to prove the
validity (or amount) of a disputed claim. See FED. R. EVID. 408(a)(1).




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                                     CONCLUSION

      ASBCA No. 62207 is dismissed for lack of jurisdiction. ASBCA No. 62334 is
dismissed in part for lack of jurisdiction with regard to punitive damages, and is
otherwise denied.

      Dated: April 7, 2020




                                                TIMOTHY P. MCILMAIL
                                                Administrative Judge
                                                Armed Services Board
                                                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. 62207, 62334, Appeals of
Linda Rugina D/B/A, Ruginas Afrikan Village, rendered in conformance with the
Board’s Charter.

      Dated: April 8, 2020



                                               PAULLA K. GATES-LEWIS
                                               Recorder, Armed Services
                                               Board of Contract Appeals




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