ASBCA 61483

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Long Wave, Inc. ) ASBCA No. 61483 ) Under Contract No. N00604-13-C-3002 ) APPEARANCES FOR THE APPELLANT: Stephen D. Knight, Esq. Sean K. Griffin, Esq. Smith Pachter Mc Whorter PLC Tysons Comer, VA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Richard W. Carlile, Esq. Melissa Martin, Esq. Trial Attorneys NAVSUP Fleet Logistics Center Pearl Harbor, HI OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE GOVERNMENT'S MOTION TO DISMISS Appellant, Long Wave, Inc. (Long Wave) seeks additional payments related to vacation pay, wage increases, and severance pay on a contract with the Navy. The government moves to dismiss, contending that the appeal is untimely and does not relate to or arise under an agreement for which we possess jurisdiction. We deny the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION The following facts are undisputed or represent our findings for purposes of the present motion based upon our review of the Rule 4 file. On November 28, 2012, the Navy awarded Long Wave the above-referenced contract for firm-fixed-price operation and maintenance services for a communication facility in Dixon, California (see generally R4, tab 2; gov't mot. ,r l; app. opp'n ,r 1). In 2015, the Navy re-solicited the work and awarded the contract to another bidder, giving rise to the present dispute (R4, tab 3 at 1, tab 4 at 1-2).  On January 23, 2017, Ms. Johnson wrote to Ms. Kirkwood, with a copy to CO Craft, stating that the government's legal counsel had approved the supporting documentation and that she had informed "the customer" that she needed funds to pay the claim. She stated that when she received the funds, she would "build and process the modification." (R4, tab 36 at 3) On January 25, 2017, Ms. Kirkwood wrote to Ms. Johnson with a copy to CO Craft, asking the government to confirm that the amount of $139,791.93 "is agreeable." Ms. Johnson replied later that day with a copy to CO Craft, stating: "Yes, I verified with your supporting documents, and this amount $139,791.93, looks agreeable." (App. supp. R4, tab 94 at 1) For the next three months the parties were in regular communication and, based on the contract specialist's statements in a series of emails, resolution of the matter always seemed to be just around the corner (R4, tabs 37-40). For example, on Tuesday, April 4, 2017, Ms. Johnson wrote to Ms. Kirkwood, with a copy to CO Craft, stating: I do apologize, but we just received the funding last week Friday 31 March 2017. I attached a copy of the acceptance letter so that you can see the approval date .... I am making it my top priority this week to process this modification. I plan to get the mod to you by Friday. (R4, tab 37 at 1) The first sign of a major problem came on May 11, 2017, when Ms. Johnson informed Ms. Kirkwood that "our legal counsel found out some new information" about vacation pay. She stated that the Navy had decided to halt processing that portion of the claim but it would continue with the severance pay and CBA wage increase issues. (R4, tab 41 at 1) On June 7, 2017, a different contract specialist, Robert Dunn, informed Long Wave that the Navy would not pay general and administrative, overhead, or profit on the CBA wage adjustments (R4, tab 43 at 1). On August 7, 201 7, Long Wave submitted a certified claim to the contracting officer and requested a final decision. 1 Long Wave contended that its June 2016 claim had been "resolved," citing Ms. Johnson's January 25, 2017 email, and requested that the contracting officer "stand by [the agreement] and enforce it." (R4, tab 1 at 3-4) 1 The Navy identifies the submission date as August 14, 2017 (gov't mot. at 5-6) but this need not be resolved at the moment. 3  On October 13, 2017, Ms.