ASBCA 60905

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Anaconda Construction Company ) ASBCA No. 60905 ) Under Contract No. W91B4N-12-P-5086 ) APPEARANCE FOR THE APPELLANT: Mr. Shoib Khan CEO APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Christopher M. Coy, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE GOVERNMENT'S MOTION TO DISMISS Appellant Anaconda Construction Company (ACC) brings this action challenging the government's decision that it was not entitled to the costs of two loaders allegedly destroyed in the course of performing the above-captioned contract, and the government's decision to deny ACC's settlement proposal. The government has moved to dismiss this action for failure to timely appeal the relevant contracting officer's final decisions. ACC submitted a short response to the motion. The motion is granted. STATEMENT OF FACTS CSOF) FOR PURPOSES OF THE MOTION 1. The Bagram Regional Contracting Center (government) awarded Contract No. W91B4N-12-P-5086 to ACC to operate and maintain a burn pit for solid waste at Bagram Airfield in Afghanistan (R4, tab 1 at 4, 45 1). 2. The government terminated the contract for convenience, effective 15 October 2013 (R4, tab 35 at 164). The termination notice directed ACC to submit any settlement proposal by 15 November 2013 (id. at 165). 3. On 24 October 2013, ACC submitted a claim (October claim) for the cost to replace two loaders that were destroyed by fire during incineration operations (R4, tab 40 at 185). The October claim was for $160,000 (id.). The October claim also 1 All Rule 4 cites are to the consecutively-numbered pages. contained a certification in accordance with the requirements of the Contract Disputes Act (41 U.S.C. §§ 7101-7109) (id. at 184). 4. On 28 October 2013, the contracting officer (CO) emailed ACC a final decision on the October claim (October decision) (R4, tab 42). The CO determined that the government did not owe any funds to ACC (id. at 189). He also informed ACC that "[t]his is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency." (Id.) 5. On 7 November 2013, ACC apparently submitted a settlement proposal (settlement proposal) to the CO for $451,600, which represented labor and leased equipment expenses (R4, tab 49 at 210). 2 6. On 18 November 2013, the CO sent ACC a "Notice of Intent to Settle by Contracting Officer Determination." The notice stated that the government intended to reject the settlement proposal due to a lack of supporting documentation. (R4, tab 49 at 210) The notice also requested that ACC submit supporting documentation within 15 days (id.). 7. Within 15 days, ACC submitted a revised settlement proposal (R4, tab 48). The revised settlement proposal sought to recover ( 1) $160,000 for the two loaders that were the subject of the October claim; and (2) $112,900 in other costs (id.). The revised settlement proposal did not contain a certification3 (id.). 8. On 26 November 2013, the CO sent ACC a final decision (November decision) on the revised settlement proposal (R4, tab 53). The November decision stated that, "[s]ince the matter of the loaders was addressed by previous Contracting Officer Final Decision (dated 28 Oct 2013) outside the termination process, ... the cost could not be included in the settlement" (id. at 223). The November decision also found that ACC was not entitled to any of the claimed $112,900 in costs (id.). As with the October decision, the November decision stated that "[t]his is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency." (Id. at 224) 2 The settlement proposal is not part of the record, but is referenced in the 18 November 2013 notice of intent to settle (R4, tab 49 at 210; SOF ii 6). 3 Nor was one required as a settlement proposal is typically submitted for negotiation and it becomes a claim after the parties reach an impasse. 2  9.