               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
GSC Construction, Inc.                         )      ASBCA No. 59046
                                               )
Under Contract No. W9126G-11-D-0061            )

APPEARANCE FOR THE APPELLANT:                         James S. Delsordo, Esq.
                                                       Argus Legal, LLC
                                                       Manassas, VA

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      Ronald J. Goodeyon, Esq.
                                                      Jason R. Chester, Esq.
                                                       Engineer Trial Attorneys
                                                       U.S. Army Engineer District, Tulsa

     OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT'S
      MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

                                    INTRODUCTION

       Appellant moves for leave to file a second amended complaint, 1 to add two distinct
claims to this appeal. The government opposes the motion. The motion is denied.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. On 15 September 2011, the Department of the Army (government) awarded
appellant, GSC Construction, Inc. (GSC), Task Order 0001 pursuant to Contract
No. W9126G-11-D-0061, an indefinite delivery, indefinite quantity contract (R4,
tab 4(p) at 3377).

       2. The task order provides that GSC would "[ c]omplete the Design and
Construction of the Central Issue Facility" (a warehouse) at Fort Sill, Oklahoma (R4,
tab 4(p) at 3374, 3380, 3383).

       3. On 14 March 2013, GSC presented to the contracting officer a certified claim
for $826,355 for five categories of utility work that GSC categorized as "Natural Gas,
Water Mains, Sanitary Sewer, Electrical, and Communications" (utility work claim)

1
    With its first amended complaint, appellant replaced its original complaint, which
        set forth allegations unrelated to this appeal.
(R4, tab 2 at 1, 6). GSC explicitly requested a contracting officer's final decision (id.).
In the 14 March 2013 claim, GSC made assertions regarding work on water lines, a
sanitary sewer main, "primary underground electrical and the pad mounted transformer,"
and "Site Communications beyond the primary manhole" (R4, tab 2 at 4-6).

        4. On 11 June 2013, GSC presented to the contracting officer a claim for
$54,671.20 and a 45-day extension of time for what GSC contended was a differing
site condition (without specifying whether the condition was a type I or type II
differing site condition); that is, groundwater that GSC contended it encountered at the
worksite. In that claim, GSC explicitly requested a contracting officer's final decision.
(App. reply, ex. 1)

       5. By letter dated 18 June 2013, GSC revised its utility work claim to add a
request for a contract modification for "a (112) day time extension with extended
overhead in the amount of $162,309.28," asserting delays to work on "the site power
and site communications" (R4, tab 3 at 1-2). Appellant certified the claim on 24 June
2013 (id. at 26).

        6. In a 22 August 2013 final decision, the contracting officer granted GSC's
utility work claim in part, and denied the claim in part (R4, tab 1 at 13 ).

       7. On 30 August 2013, GSC received the contracting officer's final decision
upon its utility work claim (notice of appeal dated 26 November 2013).

        8. On 9 October 2013, the contracting officer issued a final decision denying
the differing site condition claim. GSC received that decision on or about 20 October
2013. (Bd. corr. file, gov't ltr. dtd. 9 December 2014)

        9. On 26 November 2013, GSC timely filed this appeal from the denial of its
utility work claim.

        10. On 5 February 2014, GSC presented to the contracting officer a letter
regarding a dispute between GSC and the government concerning GSC's design of a
"truck turnaround area" at a loading dock at the project site. GCS contended that it
had met its contract requirements regarding "truck maneuvering at the loading dock,"
and that the Army's direction that a 53-foot trailer be able to make a single-point tum
at the loading dock was a "new requirement.. .in addition to the Contract
requirements." GSC explained that having "previously submitted (3) solutions,"
"[a]ttached is a fourth solution to allow 53 foot tractor trailers to tum around at the
loading dock with a single point tum." GSC stated that it "fe[lt] this is work outside
the scope of contract and is requesting a change order to complete this." This
"turnaround" letter did not include any express request for a contracting officer's final
decision. (App. reply, ex. 2)


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        11. On 3 March 2014, GSC presented to the contracting officer a letter
requesting that the government "release all [payment] withholdings" (app. reply, ex. 3).
GSC stated that "the end user started moving into the building on October 9, 2013," and
that "GSC feels this is the date of beneficial occupancy and no withholdings should
have been made past this point" (id.). This "withholdings" letter does not include any
explicit request for a contracting officer's final decision, contains no certification, and,
although it references GSC having "perform[ed] over $400,000 of additional work on
the project," does not specify the dollar amount of the "withholdings" that GSC wanted
released (id.). However, GSC's motion asserts that the amount of withheld payments is
$373,166.96 (app. mot. at 5).

      12. The record does not contain any responses by the contracting officer to
GSC's "turnaround" or "withholdings" letters.

        13. Neither the 14 March 2013 utility work claim nor the 18 June 2013 revision
to that claim asserts that the government ordered GSC to perform extra-contractual
"turnaround" work at a loading dock, or that the government improperly withheld
payments beyond the date of beneficial occupancy (R4, tabs 2, 3).

         14. On 10 October 2014, GSC filed a second motion to amend its complaint to
add to this appeal three claims: (1) the differing site condition "groundwater" claim
that it presented to the contracting officer on 11 June 2013; (2) a "turnaround" claim
related to its 5 February 2014 letter to the contracting officer; and (3) a "withholdings"
claim related to its 3 March 2014 letter to the contracting officer (app. mot. at 4-5).

      15. On 16 December 2014, GSC withdrew from its motion the request to
amend the complaint to add the groundwater differing site condition claim.

                                       DECISION

         The Board may permit a party to amend its pleading upon conditions fair to both
parties. Board Rule 6(d) (revised 21 July 2014). However, the Board will deny a
request to amend a complaint to add to the appeal what is tantamount to a new claim;
that is, a claim that is based upon operative facts not already presented in the claim that
is the subject of the appeal. See Lockheed Martin Aircraft Center, ASBCA No. 55164,
07-1BCA,33,472, at 165,933-34. That is because the Board does not possess
jurisdiction, within a given appeal, to entertain a claim that is new to the appeal. See
Lasmer Industries, Inc., ASBCA Nos. 56946, 56966, 11-1 BCA, 34,671 at 170,801;
Shams Engineering & Contracting Co. & Ramli Co., ASBCA Nos. 50618, 50619, 98-2
BCA, 30,019, at 148,524-25.

        Here, GSC wants to add to its complaint claims that are based upon operative
facts that were not presented to the contracting officer in the claim the denial of which
is the subject of this appeal. The "turnaround" claim is based upon assertions that the

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government required GSC to perform additional work so that a 53-foot trailer could
make a single-point tum in a loading dock area; the withholding claim is based upon
the assertion that the government should not have withheld payments past 9 October
2013, which GSC asserts was the date of beneficial occupancy (SOF ,, 10-11). None
of those operative facts was presented to the contracting officer in the utility work
claim that GSC presented to the contracting officer on 14 March 2013 and revised by
letter dated 18 June 2013 (SOF ,, 3, 5). Consequently, neither of those claims can be
added to this appeal through amendment of the complaint.

       Nor will we docket new appeals for those claims. The Board may docket a
separate appeal for a new claim where an appellant files a motion to amend (instead of
a separate notice of appeal) within 90 days of the receipt of the contracting officer's
final decision upon that claim; however, that presumes that the new claim is a proper
claim within the meaning of the Contract Disputes Act (CDA), 41 U.S.C. § 7101-7109.
See Shams Engineering, 98-2 BCA, 30,019, at 148,525. Here, neither the
"turnaround" claim nor the "withholdings" claim is a proper CDA claim; therefore, we
do not possess jurisdiction to entertain either claim, either by way of amendment of the
complaint or notice of separate appeals. Our jurisdiction to entertain 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 (citing 41 U.S.C. § 7103). A "claim" is "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." Federal
Acquisition Regulation (FAR) 2.101. The CDA does not require a contractor claim to
explicitly request a contracting officer's decision, so long as the contractor implicitly
requests a decision. Linc Government Services, LLC, ASBCA No. 58561 et al.,
14-1 BCA, 35,473 at 173,934.

        Whether a contractor's communication constitutes a CDA claim is determined
on a case-by-case basis, employing a common sense analysis. Id. A claim need not
contain any particular language or conform to any specific format; in assessing whether
a claim has been submitted, it is appropriate to look at the totality of the
correspondence and the continuing discussions between the parties. Lael Al Sahab,
13 BCA, 35,394 at 173,663. In addition, where a claim exceeds $100,000, it must be
certified. Id. Finally, where a claim does not specify a sum certain, but the amount
demanded can be determined by simple mathematical calculation, a contractor's
submission constitutes a valid claim over which the Board has jurisdiction.
Mohammad Darwish Ghabban Est., ASBCA No. 51994, 00-2 BCA, 31,114
at 153,671.

       The "withholdings" claim is not a proper CDA claim; it is a request for the
payment of money not in a sum certain. Although GSC's "withholdings" letter asserts
that GSC performed "over $400,000 of additional work," the letter does not specify

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$400,000 - or any other amount - as the amount of withheld payments that GSC
wanted the government to release (SOF ~ 11). Even if the letter's request for "all
withholdings" is a claim for the $373,166.96 in withheld payments referenced in the
motion to amend (id.), the Board does not possess jurisdiction to entertain such a claim
because GSC did not provide the required certification. See Paradyne Corp., ASBCA
Nos. 29300, 29728, 84-3 BCA ~ 17,600 at 87,683-85.

       On this certification point, GSC's reliance on Blue Cross Association & Blue
Shield Association, ASBCA No. 25778, 89-2 BCA ~ 21,840 (app. reply at 3), is
misplaced. There the Board explained that:

              [W]here the contracting officer issues a final decision
              making a cost disallowance or reducing or demanding a
              reduction of the contract price, it is often (but not always) a
              Government claim, and in that event no contractor
              certification is required ....

                     On the other hand, a contractor can submit a formal
              "claim" for the costs disallowed or amounts withheld
              (provided he is willing to certify the claim if the amount is
              over $50,000....

Id. at 109,909 n.41 (emphasis added). Here, GSC wants to appeal from what it
contends is a deemed-denied claim for release of payment withholdings, not from a
contracting officer's final decision assessing withholdings, and contends that, in such a
case, no certification is required (app. reply at 2-3). However, because GSC relies
upon its own affirmative request for withheld contract payments (that is, the 3 March
2014 "withholdings" letter (SOF ~ 11)), it was required to certify that request ifthe
amount exceeded $100,000. See Paradyne Corp., 84-3 BCA ~ 17,600 at 87,683-85.

        The "turnaround" claim is, also, not a proper CDA claim. The "turnaround"
letter does not request a contracting officer's final decision, either explicitly or
implicitly. Rather, the turnaround letter is an offer to perform certain work - GSC's
proposed "fourth solution" - to satisfy the government's presumed dissatisfaction with
GSC's design of the loading dock truck turnaround area (SOF ~ 10). The turnaround
letter represents, therefore, GSC's latest negotiation position on the turnaround issue,
without also explicitly or implicitly requesting that the contracting officer issue a final
decision upon what the contract required with respect to the loading dock. Cf Oni
Construction, Inc., ASBCA No. 45394, 93-3 BCA ~ 26,063 at 129,556 (holding that
time extension request that proposed settlement terms but did not explicitly or
impliedly request a contracting officer's final decision was not a claim). This is in
stark contrast to GSC's 14 March 2013 and 11 June 2013 correspondence to the
contracting officer, in which GSC, less than a year earlier and concerning the same
contract, twice explicitly requested contracting officer's final decisions upon its

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contentions, respectively, that it had performed extra-contractual work, and had
encountered a "groundwater" differing site condition (SOF ~~ 3, 4).

                                    CONCLUSION

       Because the two claims that are the subject of GSC's motion to amend the
complaint are new to this appeal, the motion to amend is denied. Because GSC did not
present those claims to the contracting officer as proper CDA claims, the Board does
not possess jurisdiction to entertain them.

       Dated: 4 February 2015


                                               ~!~
                                               1
                                                ~.MCILIL
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

I concur                                         I concur




                                                 RICHARD SHACKLEFORD
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. 59046, Appeal of GSC
Construction, Inc., rendered in conformance with the Board's Charter.

       Dated:


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




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