ASBCA 61085

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Horton Construction Co., Inc. ) ASBCA No. 61085 ) Under Contract No. W9124E-11-C-0021 ) APPEARANCE FOR THE APPELLANT: Gregory D. Coleman, Esq. Johnson Hopewell Coleman, LLC Decatur, GA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPI John M. McAdams III, JA MAJ Bruce L. Mayeaux, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This is an appeal of a contracting officer's denial of a claim by Horton Construction Co., Inc. (Horton or appellant), alleging that it is owed $274,599.00 because the contract required, in part, crushing and removal of approximately 69,000 tons of concrete but the actual amount was closer to 29,000 tons and, alternatively, $244,282.00 under the "Variation in Estimated Quantity clause," which was not in the contract (R4, tab 27 at 25). In its complaint, Horton alleges that one of three clauses should have been used to grant its relief: Federal Acquisition Regulation (FAR) 52.243-4, CHANGES (JUN 2007); FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984 ); or FAR 52.211-18, VARIATION IN ESTIMATED QUANTITY (APR 1984 ). The government moves to dismiss because it alleges that Ms. Dominique Horton Washington was not a vice president of the company. Further, the government moves to dismiss because Horton was administratively terminated by the Louisiana Secretary of State on 19 January 2017. In response, Horton filed copies of documentation from government officials in Louisiana, including: 1) Ms. Washington's appointment as the executrix of Mr. Johnny Lee Horton, Sr., who was the president of Horton; 2) Horton's certification of incorporation, dated 27 October 2017, which demonstrates that the company has been reinstated; and 3) Horton's certificate of reinstatement, dated 23 October 2017. The government further contends, as raised in its reply brief, that any action to ratify the notice of appeal post-reinstatement is beyond the 90-day statutory time limit for filing an appeal with the Board. As such, the government contends, the Board lacks jurisdiction to decide the appeal. We deny the government's motion to dismiss.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. In September 2011, a contracting officer from the Directorate of Contracting, Mission and Installation Contracting Command, Fort Polk, Louisiana, awarded Contract No. W9124E-11-C-0021, a firm-fixed-price contract in the amount of$1,943,148.51, to Horton. The work to be performed included crushing a concrete stockpile and work associated with erosion control at Fort Polk, Louisiana (R4, tab 1 at 3, 7, 9). The contract was awarded as a non-competitive Small Business Section 8(A) Set-Aside, or direct award (R4, tab 1 at 49). 2. The contract contained FAR 52.243-1, CHANGES-FIXED-PRICE (AUG 1987), which stated in relevant part: "( e) Failure to agree to any adjustment shall be a dispute under the Disputes clause" (R4, tab 1 at 48). The Disputes clause is at FAR 52.233-1 and is substantively the same today as it was when the contract was executed. 1 3. On 12 November 2012, Mr. Chauncy Horton signed FP Form 1186, Certification of Final Payment, Contractors Release of Claims ( final payment and final release) (R4, tab 16). 4. On 6 March 2014, the parties executed a bilateral modification to de-obligate funds, signed for appellant by Mr. Chauncy Horton (R4, tab 18). 5. Between 23 October 2014 and 17 July 2015, Mr. Johnny L. Horton, Sr., signed several letters requesting an equitable adjustment due to the difference between the estimated 69,000 tons of crushed concrete and the lower actual amount of crushed concrete (R4, tabs 19-24). 6. On 27 May 2016, attorneys for Horton submitted a certified claim for equitable adjustment in the amount of $274,599.00 (R4, tab 27). Ms. Dominque Horton Washington signed the certification and listed her title as vice president (id. at 26). 7. On 2 June 2016, Mr. Johnny L. Horton, Sr., passed away (gov't mot. at 2; app. resp. at 2). 8. On 16 December 2016, in a final decision, the contracting officer denied the claim (R4, tab 28). The contracting officer denied the claim because Horton made a business decision to enter into a subcontract with a different pricing scheme than the government's contract with Horton (id.