ASBCA 58616

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Metag lnsaat Ticaret A.S. ) ASBCA No. 58616 ) Under Contract No. W912ER-10-C-0027 ) APPEARANCES FOR THE APPELLANT: Thomas J. Fraser, Jr., Esq. Ivania Perez, Esq. Reznicsek, Fraser, White & Shaffer, P.A. Jacksonville, FL APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney James D. Stephens, Esq. Engineer Trial Attorney Tania Wang, Esq. Assistant District Counsel U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE DELMAN ON GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The government moves to dismiss this appeal for lack of jurisdiction as premature because when the appeal was filed the contracting officer (CO) had not yet issued a final decision on appellant's claim and fewer than 60 days had elapsed between appellant's submission of the claim and the filing ofthe appeal. As of the date ofthe government's motion, roughly 176 days had elapsed since submission of the claim and the CO still had not issued a decision. We conclude that we have jurisdiction, and we deny the government's motion to dismiss. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 19 April2010, the United States Army Corps ofEngineers (the government) awarded Contract No. W912ER-10-C-0027 (the contract) to Metag Insaat Ticaret, A.S. (appellant) at a price of$24,200,000 for the design and construction of three storage warehouses and a vehicle maintenance facility at Bagram Air Field, Afghanistan (R4, tabs 11, 12). 2. The contract incorporates by reference FAR 52.233-1, DISPUTES (JUL 2002) (R4, tab 10 at 42 of 126), which defines "claim" at paragraph (c) 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 this contract. 3. The procedures for evaluating the appellant's contractual performance are identified in the contract at part "N" of section 00800, "CONTRACTOR PERFORMANCE EVALUATIONS," which states: In accordance with the provisions of Subpart [sic] 36.201 (Evaluation of Contractor Performance) of the Federal Acquisition Regulation (FAR), construction Contractor's performance shall be evaluated throughout the performance of the contract.... For Construction Contracts awarded at or above $100,000.00, the USACE will evaluate Contractor's performance and prepare a performance report using the Construction Contractor Appraisal Support System (CCASS) .... (R4, tab 12 at 73 of84) The Construction Contractor Appraisal Support System (CCASS) "provides procedures for systematically assessing contractor performance as required by FAR Part 42," including accurate and timely performance reviews to ensure the performance of construction contractors is evaluated "fairly and objectively." Department of Defense, CCASS Policy Manua/1-2 (2010), available at http://www.acq.osd.mil/dpap/ ccap/cc/jcchb/Files/Topical/Past_Performance/guides/ccasspolicy_manual_2010.pdf. 4. The CO issued to appellant a "final" performance evaluation dated 18 October 2012. The CO rated appellant's performance as "MARGINAL" or "UNSATISFACTORY" on 11 of the 33 listed performance elements and gave appellant an overall rating of "MARGINAL." Appellant provided a detailed written response to the CO's position and stated that it did not concur with the evaluation. On 25 November 2012, the government's performance evaluation reviewer entered his concurrence with the CO's evaluation. (R4, tab 88 at 1, 6) 5. By claim letter dated 19 February 2013, appellant requested the CO to issue a CO's final decision pursuant to 41 U.S.C. § 7103(1) on the 25 November 2012 performance evaluation, seeking reconsideration of that evaluation.