               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
H2Ll-CSC, JV                                  )       ASBCA No. 61404
                                              )
Under Contract No. W912QR-14-D-0012           )

APPEARANCE FOR THE APPELLANT:                         Bernard Mandel, Esq.
                                                       Cleveland, OH

APPEARANCES FOR THE GOVERNMENT:                       Michael B. Goodman, Esq.
                                                       Engineer Chief Trial Attorney
                                                      Jennifer M. Payton, Esq.
                                                       Engineer Trial Attorney
                                                       U.S. Army Engineer District, Louisville

                  OPINION BY ADMINISTRATIVE JUDGE PAUL
                             ON JURISDICTION

       This is an appeal of a contracting officer's (CO's) decision denying appellant
H2Ll-CSC, JV's (HCJ's) purported claim. On 1 February 2018, the Board's recorder,
sua sponte, directed the parties to brief the issue of the Board's jurisdiction.
Specifically, he noted that appellant had requested telephonically-but not in
writing-that its request for an equitable adjustment (REA) be treated as a claim under
the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. The parties subsequently
briefed the issue. Because the Board lacks jurisdiction we dismiss the appeal.

                                FINDINGS OF FACTS*

        On 15 April 2014, the U.S. Army Corps of Engineers (Corps) entered into
Contract No. W912QR-14-D-0012 with HCJ. This was an indefinite-delivery,
indefinite-quantity type contract utilizing firm-fixed-price task orders for design/build
construction, and incidental service projects within the Louisville District. (R4, tab 1
at 2, 5) Appellant was awarded a task order under the contract on 30 September 2014
for construction services required to repair the roofs of two buildings at Westover Air
Reserve Base, Massachusetts (R4, tab 3,passim).

       On 28 March 2017, appellant filed an REA, denominated as such, for removal,
disposal, and replacement of existing gutters at the building. The amount of the
request was $225,472.01. (R4, tab 16 at 1) On 3 April 2017, Mr. Wesley Barber, the

* We cite these facts solely for purposes of resolving the jurisdictional issue.
administrative contracting officer (ACO), issued a decision denying appellant's
request in its entirety. He concluded by stating: "You have the right to submit a
claim requesting Contracting Officer Final Decision per the Disputes Clause at
FAR 52.233-1." (R4, tab 17 at 1, 4) Instead of filing a claim with the requisite
language, Mr. Latham Gray, appellant's director, forwarded a response to the ACO's
decision on 4 May 2017, in which he concluded: "The REA is justified, the directive
to install new gutters and downspouts was not in the scope of work" (R4, tab 18 at 7).

       Appellant did not submit any additional, written materials to the CO to support
its REA; however, it apparently did state telephonically that it "wish[ed] the REA to be
treated as a claim (R4, tab 1 at 1). On 16 August 2017, the CO, Mr. Chris Brackett,
issued a final decision in which he stated initially: "Your attention is directed to your
March 28, 2017 request for an equitable adjustment for removing and replacing existing
gutters. Your request, which does not explicitly seek a Contracting Officer's Decision
was initially treated as an REA, as per your letter." Citing appellant's telephonic
request that its REA be treated as a cognizable claim under the CDA, Mr. Brackett
proceeded to deny the "claim" and to inform appellant of its appeal rights. (Id. at 1, 4)
This appeal followed.

                                      DECISION

        The CDA provides that each "claim by a contractor against the Federal
Government relating to a contract shall be submitted to the contracting officer for a
decision." 41 U.S.C. § 7103(a)(l ). The linchpin of the Board's jurisdiction over a
contractor claim is the contractor's submission of a proper claim to the CO for a
decision. Air Services, Inc., ASBCA No. 59843, 15-1 BCA ,r 36,146 at 176,424
(citing Puget Sound Environmental Corp., ASBCA Nos. 58827, 58828, 14-1 BCA
,r 35,585 at 174,371; MACH II, ASBCA No. 56630, 10-1 BCA ,r 34,357 at 169,673).
        Although the CDA does not define the term "claim," the FAR defines a "claim"
as "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." FAR 2.101. A claim exceeding $100,000 must be certified in accordance
with 41 U.S.C. § 7103(b). We determine whether a contractor's submission is a CDA
claim on a case-by-case basis, applying a common sense analysis. CCIE & Co.,
ASBCA Nos. 58355, 59008, 14-1 BCA ,r 35,700 at 174,816; Precision Standard, Inc.,
ASBCA No. 55865, 11-1 BCA ,r 34,669 at 170,787. For the Board to have
jurisdiction under the CDA, the contractor must submit a proper claim, an element of
which is a request for a CO's final decision. See M Maropakis Carpentry, Inc. v.
 United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010); Zafer Taahhut Insaat ve Ticaret
A.S., ASBCA No. 56770, 11-2 BCA ,r 34,841 at 171,392, aff'd on recon., 12-1 BCA
,r 34,951.
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       However, that request for a final decision, like the totality of a claim submission,
must be in writing and the CO cannot waive this requirement by issuing a final
decision. Checker Moving, ASBCA No. 32654, 87-1BCA119,357. Here, the CO's
decision of 16 August 2017 was not issued in response to a written claim by appellant
and thus there is no CO decision from which an appeal could be taken to the Board.
Without such decision, we have no jurisdiction. Checker, 87-1 BCA 1 19,357 at 97,
905-06.

                                    CONCLUSION

       The appeal is dismissed.

       Dated: June 14, 2018



                                                   MICHAEL T. PAUL
                                                   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




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     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. 61404, Appeal of
H2Ll-CSC, JV, rendered in conformance with the Board's Charter.

      Dated:


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




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