               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
American Boys Construction Company             )      ASBCA No. 61163
                                               )
Under Contract No. W91B4N-13-C-8028            )

APPEARANCE FOR THE APPELLANT:                         Mr. Shams, Esq.
                                                       Counsel

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      MAJ Christopher M. Coy, JA
                                                       Trial Attorney

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

       This is an appeal of a contracting officer's denial of a claim by American Boys
Construction Company (American Boys or appellant), alleging that it is owed
$107,280.00 for settlement costs due to a termination for convenience of construction
Contract No. W91B4N-13-C-8028 (the contract) to construct a prime power overhead
cover issued by the Regional Contracting Center East, Bagram Airfield, Afghanistan
(the government). The government filed a motion for summary judgment requesting
that we deny the appeal because American Boys waited more than one year to file its
settlement proposal as required by the contract. We agree.

       STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

      1. On 24 January 2013, the government awarded Contract No. W91B4N-13-C-8028
to American Boys Construction Company in the amount of $117 ,687.30 (R4, tab I).

      2. The contract incorporated Federal Acquisition Regulation (FAR) clause
52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE)
(APR 2012)-ALTERNATE I, by reference. Specific to this appeal, the clause included
language about termination settlement proposals:

                       (e) After termination, the Contractor shall submit a
               final termination settlement proposal to the Contracting
               Officer in the form and with the certification prescribed by
               the Contracting Officer. The Contractor shall submit the
               proposal promptly, but no later than 1 year from the
              effective date of termination, unless extended in writing by
              the Contracting Officer upon written request of the
              Contractor within this 1-year period. However, ifthe
              Contracting Officer determines that the facts justify it, a
              termination settlement proposal may be received and acted
              on after 1 year or any extension. If the Contractor fails to
              submit the proposal within the time allowed, the
              Contracting Officer may determine, on the basis of
              information available, the amount, if any, due the
              Contractor because of the termination and shall pay the
              amount determined.



                     G)   The Contractor shall have the right of appeal,
              under the Disputes clause, from any determination made
              by the Contracting Officer under paragraph (e ), (g), or (1)
              of this clause, except that ifthe Contractor failed to submit
              the termination settlement proposal or request for equitable
              adjustment within the time provided in paragraph (e) or (1),
              respectively, and failed to request a time extension, there is
              no right of appeal.

       3. On 13 April 2013, the contracting officer (CO) sent American Boys a Notice of
Termination for Convenience. It included a stop work order and notification to submit a
settlement proposal within one year from the effective date of the termination. (R4, tab 6)

       4. On 13 April 2013, American Boys sent a signed acknowledgement of the
notice of termination. It was signed by someone who listed the name and title as
"Nadeem, CEO President of A.B.C.C." (R4, tab 8)

       5. On 28 July 2013, the government issued Modification No. POOOOl to
deobligate all but $500.00 from the contract. That amount was left on the contract
because American Boys had not yet been reimbursed for its DBA insurance it had
purchased. American Boys signed the modification on 8 September 2013. It was again
signed by someone with the name and title, "Nadeem, CEO President." (R4, tab 13)

     6. On 16 August 2013, the government completed a DD Form 1594, Contract
Completion Statement, which annotated that final payment had been processed (R4, tab 14).

       7. On 17 November 2015, the government received a notice from DF AS that it
had received reimbursement for the $500.00 DBA insurance.



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       8. On 14 January 2017, American Boys filed an appeal with the Board that was
assigned ASBCA No. 60996. On 16 February 2017, the government filed a motion to
dismiss for lack of jurisdiction because American Boys had never submitted a certified
claim to the CO. On 25 April 2017, the Board dismissed the appeal. American Boys
Constr. Co., ASBCA No. 60996, 2017 WL 1957300.

       9. On 9 February 2017, more than 3.5 years after the notice of termination,
American Boys submitted a termination settlement proposal as a certified claim to the
CO (gov't mot.~ 14; app. resp. at 2). On 12 April 2017, the CO issued its contracting
officer's final decision, denying the claim in full because American Boys did not file a
settlement proposal within one year of the termination (R4, tab 16). The record does
not contain any evidence regarding a request for a time extension by appellant between
13 April 2013 and 9 February 2017.

      10. On 5 May 2017, American Boys filed the instant appeal with the Board,
which we docketed as ASBCA No. 61163.

                                       DECISION

Jurisdiction

        As an initial matter, "we must satisfy ourselves that we have jurisdiction to
entertain the appeal." Ryste & Ricas, Inc., ASBCA No. 54514, 06-1BCA~33,124 at
164,146, aff'd, Ryste & Ricas, Inc. v. Harvey, 477 F.3d 1337 (Fed. Cir. 2007). In
Ryste & Ricas, appellant certified its proposal as a claim. American Boys did the same
in this case. As a result, we conclude that we have jurisdiction. See Black Bear
Construction Co., ASBCA No. 61181, 17-1BCA~36,914 at 179,847.

Summary Judgment

        It is well settled that summary judgment is appropriate where the moving party
establishes that there are no disputed material facts, and the moving party is entitled to
judgment as a matter oflaw. Riley & Ephriam Constr. Co. v. United States, 408 F.3d
 1369, 1371-72 (Fed. Cir. 2005); Mingus Constructors, Inc. v. United States, 812 F.2d
 1387, 1390 (Fed. Cir. 1987). When considering summary judgment motions, "the
evidence of the non-moving party is to be believed, and all justifiable inferences are to
be drawn in his favor." Tri-County Contractors, Inc., ASBCA No. 58167, 13 BCA
~ 35,310 at 173,346 (citing FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986)). The parties do not genuinely dispute any of the material
facts set forth in our SOF.

      The parties do not dispute that the government terminated the contract on 13 April
2013 (app. resp.~ 4; gov't mot.~ 7). The parties also do not dispute that American Boys


                                            3
did not file its termination settlement claim until 9 February 2017 (app. resp. ii 5; gov't mot.
ii 14 ). Further, the parties do not dispute that the contract was issued and do not dispute the
terms and conditions of the contract (app. resp. ii 1; gov't mot. ii 1). As a result, the
inclusion of FAR 52.249-2, Alt I, is not contested. Thus, American Boys was required to
submit its termination settlement proposal within one year of the effective date of the
termination, which would have occurred by 12 April 2013. However, American Boys
waited until 9 February 2017, over three additional years, before submitting its claim to the
CO. Appellant has not provided any evidence that it requested a time extension pursuant to
the contract.* (See SOF iii! 2, 9) Thus, because American Boys' termination settlement
claim was late and no extension was granted by the CO, we must deny the appeal.

                                     CONCLUSION

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

       Dated: 9 January 2018




                                                   HEIDI L~TERHOUT
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals


(Signatures continued)




*Appellant was allowed "1 year from the effective date of termination, unless extended
      in writing by the Contracting Officer upon written request of the Contractor
      within this I-year period" to file its claim pursuant to FAR 52.249-2( e),
      Termination for Convenience of the Government. Further, FAR 52.249-20)
      states "that if the Contractor failed to submit the termination settlement
      proposal or request for equitable adjustment within the time provided in
      paragraph (e) or (I), respectively, and failed to request a time extension, there is
      no right of appeal" (see SOF ii 2). American Boys does not contest that the
      claim was not filed until 9 February 2017 (SOF ii 9). American Boys also does
      not claim that it submitted any requests for extension. American Boys does not
      provide any rationale for why its claim was late and simply states that the
      government is liable for the costs it incurred. (Compl.; app. resp.)

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 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. 61163, Appeal of American
Boys Construction Company, rendered in conformance with the Board's Charter.

      Dated:



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




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