ASBCA 62736

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Joint Venture WMV Brussels American ) ASBCA No. 62736 School ) ) Under Contract No. W912GB-17-C-0018 ) APPEARANCE FOR THE APPELLANT: Seamus Curley, Esq. Stroock & Strook & Lavin, LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Pietro O. Mistretta, Esq. Herbert J. Aldridge, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Europe OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT This appeal involves a dispute between the United States Army Corps of Engineers (USACE or the government) and Joint Venture WMV Brussels American School (JV WMV or appellant) concerning Contract No. W912GB-17-C-0018 (the contract). Appellant initially filed the appeal with five counts in its Complaint, although it and the government later jointly moved to dismiss Counts II through V. The Board granted the joint motion. 1 Thus, the only portion of the Complaint remaining in this appeal is Count I. In Count I of the Complaint, appellant appeals the denial of a contract interpretation claim submitted by JV WMV on July 8, 2020, arguing that USACE embedded design specifications in the contract as opposed to performance specifications as alleged by the government (see compl. 7; R4, tab 3). 2 The Complaint sought “a ruling from the ASBCA interpreting the Contract to resolve this interpretation dispute, as the nature of Contract’s specifications has broad implications with respect to the parties’ respective obligations and liabilities, including ultimate liability for the project’s design” 1 Appellant subsequently filed additional appeals with the Board, ASBCA Nos. 63689, 63690, and 63691, pertaining to the same contract. These appeals were settled, and the Board dismissed them with prejudice on October 25, 2024. 2 Though the contract interpretation claim was signed, it was not purported to be “certified” by JV WMV (see R4, tab 3 at 9). (compl. at 15). In the joint request to dismiss Counts II through V, the parties further addressed Count I, stating, “However, the underlying issue of Count I (i.e., whether the contract contains design specifications or performance specifications) has manifested itself in [requests for equitable adjustments (REAs)] that have been filed, including primarily an REA submitted on 20 April 2021 (the ‘Mechanical REA’) regarding the mechanical system at the building being erected under the parties’ contract.” (Joint Partial Motion to Dismiss at 1) JV WMV anticipated submitting the Mechanical REA at the time it filed its complaint with the Board and that this REA would “seek a substantial price adjustment and approximately one additional year in schedule relief” (see compl. at 31). Indeed, the Mechanical REA sought more than 5.1 million euros 3 in damages and 910 days of schedule relief (app. resp. at 4). The parties provided further details about the Mechanical REA in their motion, including that appellant had already submitted part of an REA; was in the process of submitting supplemental REAs on the mechanical issue; and that it “intends to convert the referenced REA and its supplements into one [or] more [Contract Disputes Act (CDA)] claims, which Respondent will then respond to with a Contracting Officer’s Final Decision, as required by the CDA.” (Joint Partial Motion to Dismiss at 2) The government filed a motion to dismiss the appeal due to a lack of jurisdiction. In it, the government requested two possible forms of relief: 1) dismiss paragraphs 26 through 33 of the Complaint; or 2) dismiss ASBCA No. 62736 (gov’t mot. at 1). The government opined that paragraphs 26 through 33 had not yet been presented to the contracting officer for a final decision (id. at 2). Regarding dismissing the appeal in full, the government stated that appellant’s request for contract interpretation has now been converted to a monetary claim that has not been presented to the contracting officer, and a final decision has not been requested (id.).