ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--

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F ) ASBCA No.60597

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Under Contract No. W9l B4M-09-C-7088

APPEARANCE FOR THE APPELLANT:
General Director

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attomey
CPT Sarah E. Park, JA
Trial Attomey

OPINION BY ADMINISTRATIVE JUDGE O’CONNELL
ON THE GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION

The government moves to dismiss this appeal for lack of jurisdiction, contending
that appellant failed to submit a claim pursuant to the Contract Disputes Act (CDA) of
1978, 41 U.S.C. §§ 7101-7109. We grant the motion.

STATEMENT OF FACTS LSOF) FOR PURPOSES OF THE MOTION

1. On 22 March 2009, the Army awarded Contract No. W9lB4M-09-C-7088 to
l (appellant) for construction at the
Forward Operating Base (FOB) Muqor, Afghanistan (R4, tab l).

2. On ll October 2011, the Army terminated the contract for convenience, stating
that it no longer needed the project (R4, tab 8).

3. By email dated 5 September 2012 1:26 PM, the contracting officer,
SSgt Gerardo Arias-Chong, emailed appellant the following:

Our team picked up this contract and noticed it was
terminated for convenience in Oct 201 l. However, we
couldn’t find, if any, your settlement proposal in the tile.

 

' The appeal caption has been modified to reflect the name of the contractor in the
contract.

Please reply all with your settlement proposal as soon as
possible.

(R4, tab 11)

4. By email dated 6 September 2012 10:15 AM, appellant responded, stating:
We are very happy finally to hear frorn yours regarding this
project, the project is terminated but the contracting officer
mentioned to us during terminating of this contract that they
will pay for us what we bought to this contract and they asked
us a BOQ that [I] have submitted to them...we were ready to
start our work and we bought some of material and was ready
to move to construction site but stopped by contracting
officer. [W]e are still ready to start this project....

(R4, tab 14) (Syntax in original)

5. The contracting officer replied that same day, informing appellant that the
government was not continuing the proj ect, and because the government never took
ownership of the materials, the government would not pay for them unless appellant
could “prove the US troops kept them.” The contracting officer asked for appellant’s
settlement proposal for any costs incurred, and expressed a willingness to negotiate after
submission of the proposal. (R4, tab 15 at 2) After an explanation from the contracting
officer as to what a settlement proposal was, appellant sent him an email stating, “Please
find attached our settlement proposal for [the contract]” (R4, tab 15 at l). There is no
settlement proposal in tab 15.

6. The Board ordered the government to identify the tab or tabs containing the
termination settlement proposal or supplement the Rule 4 with the appropriate
documents. In a 25 October 2016 letter to the Board, the government stated:

[T]he government has supplemented the Rule 4 file with what
is purported to be appellant’s Settlement Proposal as Tab 17.
Government has no record of this document within the
government contract file. The document at Tab 17 was
emailed by appellant to government counsel on 1 1 June 2016.

This document, titled Settlement Proposal, lists eight categories of costs as follows:

NO ITEM QTY UNIT UNIT Prices USD TOTAL
1 1 DBA Purchased 1 LS 6480 6480
2 2 DBA Purchased 1 LS 2400 2400
3 Materials 1 LS 495 877 495877
4 Grand Total for First 1 LS 74,850.00 748 50
employees items
5 Grand Total for above 1 LS 28,800.00 28 800
equipments
6 Mobilization of rebar, wood, 1 LS 13,600.00 13600
plywood and iron sheet
7 Grand Total for second 1 LS 18,200.00 18200
employees
8 Demobilization of rebar, 1 LS 9,600.00 9600
wood, plywood and iron
sheet
Grand Total Cost of Settlement Proposal in $ 649807

(R4, tab 17) This purported settlement proposal is not dated, contains no explanation of
the categories or back-up information, and is not signed or certified.

7. By email dated 9 November 2012, the contracting officer stated to appellant,
“Sir[,] After reviewing all your payrolls, you are short by $45,150. To keep on with the
negotiations, would you accept a counteroffer of $123,200?” (These payrolls are not in
the record.) Appellant responded by email dated 10 November 2012, “Dear SSG Arias,
As you know it took long time, however We accept to get pay $123,200.00 and to close
this contract” (R4, tab 12).

8. The contracting officer informed appellant that the agreement was undergoing
legal review, but promised payment by the beginning of 2013 (app. supp. R4, email dtd.
10 Nov. 2012 11:58 AM). Despite this promise, the government never paid.

9. Several emails between appellant and the successive contracting officers
followed, in which appellant sought information on when it would be paid (app. supp.
R4, emails dtd. from 5 Dec. 2012 12:06 AM through 1 August 2013 9:49 AM).

10. By email dated 25 May 2016, appellant filed an appeal With the Board,
including a complaint in which it sought $649,807. We docketed that appeal as ASBCA
No. 60597.

11. On 22 July 2016, the government moved to dismiss the appeal for lack of
jurisdiction, contending that appellant had not submitted a certified claim and that the
contracting officer had not issued a final decision (gov’t mot. at 1).

12. Appellant responded to the government’s motion by stating:

We submitted the Claim to the SSgt Stanke, Nicholas on the
Wed, May 4, 2011 at 8:31 PM, he confirm received of the
BoQ the materials we purchased for this project....

And we have final decision, which was the offered $123,200
ONLY for Labor and equipment[], the contracting officer said
us the materials to other project, as they promise us on the
phone will award other projects, but he not keep his promise
he not give the other project and we never used the materials.

My company never received the amount $123,200 for the
labor and equipment[].

(App. resp. at 1) However, appellant has not provided us with the 4 May 2011 claim it
references.

13. The government has filed a declaration from the contracting officer for the
Close~Out Division of Army Contracting Command _ Rock Island, Illinois, stating that she
had thoroughly reviewed appellant’s file and had not found a 4 May 2011 claim. Further,
she said counsel for the government provided her with a copy of appellant’s 25 May 2016
complaint which she would review as a claim and issue a contracting officer’s final
decision, (R4, tab 13) On 3 November 2016, she issued a final decision on the 25 May
2016 “claim.” The decision denies appellant’s request for $649,807, but finds entitlement
to the “original negotiated settlement costs of $123,200.00.” (R4, tab 18)

14. Appellant filed a notice of appeal from the contracting officer’s 3 November
2016 final decision, which we docketed as a separate appeal on 7 December 2016,
ASBCA No. 60915.

DECISION

The CDA states, “Each claim by a contractor against the F ederal Govemment
relating to a contract shall be submitted to the contracting officer for a decision.”
41 U.S.C. § 7103(a)(1). The Board’s jurisdiction depends on the submission of a claim
to the contracting officer, followed by a written contracting officer’s final decision or a
“deemed denial” of the claim. Where the claim is greater than $100,000, it must also be

certified in accordance with the CDA to be considered a claim.2 41 U.S.C. § 7103(b);
FAR 2.101; Bizhan Niazi Logistic Services Company, ASBCA No. 59205, 14-1 BCA
11 35,703 at 174,827. Appellant, as the proponent of the Board’s jurisdiction, must
demonstrate that it meets the requirements of our jurisdiction, Baghdaa' Fallujah
Company, ASBCA No. 58489, 13 BCA 11 35,390 at 173,641.

The record indicates that appellant submitted a settlement proposal to the
contracting officer in November 2012 (SOF 11 5). A settlement proposal is generally not
considered a claim within the meaning of the CDA but may become a claim if it is
submitted in the context of or develops into, a dispute. James M. Ellett Constr. Co. v.
Unitea’ States, 93 F.3d 1537, 1543-44 (Fed. Cir. 1996). When the contracting officer fails
to take action on the settlement proposal within a reasonable time and there is no
indication when there will be any action, a contractor may conclude “that for all practical
purposes the contracting officer had impliedly denied its claim.” Carmona Ina'ustrias
Electricas, S.A., ASBCA No. 42996, 93-3 BCA 11 25,975 at 129,164.

On this incomplete record, we cannot determine if a settlement proposal may have
developed into a claim before appellant filed this appeal. If that were the only issue we
would deny the motion and conduct fact finding. After providing the government multiple
opportunities to supplement the Rule 4 file what is clear is that, through bureaucratic
indifference, the government failed to keep its promise to pay appellant, failed to explain
why it was not paying, and failed to retain the records that demonstrate what happened.
While we are sympathetic to appellant’s predicament, the problem is that, even if we
assume that its settlement proposal ripened into a claim somewhere along the way, the
amount it seeks is well over 3100,000 and neither appellant nor the government has

 

2 Although the CDA does not define the term “claim,” it is defined at Federal
Acquisition Regulation (FAR) 2.101;

Claim means 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. However, a written demand or
written assertion by the contractor seeking the payment of
money exceeding $100,000 is not a claim under [the CDA],
until certified as required by the statute. A voucher, invoice,
or other routine request for payment that is not in dispute
when submitted is not a claim. The submission may be
converted to a claim, by written notice to the contracting
officer as provided in 33.206(a), ifit is disputed as to liability
or amount or is not acted upon in a reasonable time.

provided us with any document where appellant certified its claim. Thus, we lack

jurisdiction to consider this appeal.

CONCLUSION

The govemment’s motion is granted and this appeal, ASBCA No. 60597, is
dismissed. ASBCA No. 60915, appellant’s appeal from the CO’s 3 November 2016
decision rendered on appellant’s 25 May 2016 complaint/claim remains on the Board’s

docket.

Dated: 3 March 2017

I concur

/ 7 / _ _` f

MARK N. sTEMPLER ’
Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

/ymil/Ji».@ml

MICHAEL N. O’CONNELL
Administrative Judge

Armed Services Board

of Contract Appeals

l concur

M

RICHARD SHACKLEFORD
Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

l certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 60597, Appeal of _

_, rendered in conformance with the Board’s Charter.

Dated:

 

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

