ASBCA 59127

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Creek Services, LLC ) ASBCA No. 59127 ) Under Contract No. W912P8-09-D-0045 ) APPEARANCE FOR THE APPELLANT: Ms. Terri Hightower CEO APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Denise D. Frederick, Esq. District Counsel J. Emmanuel I. Santa Teresa, Esq. William Meiners, Esq. Engineer Trial Attorneys U.S. Army Engineer District, New Orleans OPINION BY ADMINISTRATIVE JUDGE TUNKS ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Creek Services, LLC, (appellant) appeals the contracting officer's final decision (COFD) denying appellant's certified claim for $29,800 for providing additional seeding and $89,235 in "liquidated damages" 1 in connection with a contract to provide flood protection improvements in and around New Orleans. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On 14 May 2009, the Corps awarded Multiple Award Task Order Contract (MATOC) No. W912P8-09-D-0045 to Creek Services for "Greater New Orleans Hurricane and Storm Damage Risk Reduction System" (R4, tab 52). Task Order No. 0003 was awarded to Creek on 25 September 2009 for flood protection improvements in the New Orleans area (R4, tab 8). 1 The record does not contain a final decision assessing liquidated damages against appellant. We note, however, that in addition to $29,800 for seeding, appellant's claim requested an unspecified sum for 5 days of direct work and 59 days of impact.  2. Appellant submitted a request for equitable adjustment (REA) to the contracting officer (CO) on 3 January 2012. The REA included seven separate items including one for reseeding due to unusually severe weather. (R4, tab 3) 3. By letter dated 28 June 2013, Creek requested a final decision on its claim for reseeding (R4, tab 34). 4. On 18 July 2013 Creek asked for a meeting with the Corps - [A ]bout all remaining open requests for contracting officer final decision[ s] for the ... project. Creek Services still has several more requests to submit, but we are willing to discuss the possibility of a global settlement for the project in exchange for a release of claims. Cindy Nicholas, Chief of the Contracting Division, replied on the same day stating: I will talk with Jim [St. Germain] and get back with you. Internally we would have to discuss all outstanding issues. I will see if I can't get with Jim tomorrow to discuss and let you know. (App. resp., appx. 1) 5. On 15 August 2013, appellant sent a second email to Ms. Nicholas stating it was in the process of preparing a claim for overzealous inspection, explained the nature of that potential claim and referenced other claims then pending for a CO' s decision, including the instant claim for additional seeding. With respect to the total amounts of claims then pending before the CO, including the instant claim for additional seeding, and claims not yet submitted, but quantified, Creek stated that it was interested in settling the project and communicated a willingness for a global settlement of the contract for $725,000. (App. resp., appx. 2) 6. On 27 August 2013, the CO issued a final decision denying the claim for reseeding and that decision was received by Creek on 28 August 2013 (R4, tab 32). The final decision was issued over a month after appellant first proposed a global settlement. 7. By email of 5 September 2013, Creek inquired as to whether the Corps had a chance to review its global offer and stated that it would like an answer one way or the other (app. resp., appx. 3). 8. On 6 September 2013, Creek was advised that Timothy Black had replaced Cynthia Nicholas as the CO (app. resp., appx. 4). On 18 September 2013, Creek 2 reached out to Mr. Black and asked if he had had a chance to review its request for a global settlement (id., appx. 5) 9. On 18 September 2013, Mr.