ASBCA 59843

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Air Services, Inc. ) ASBCA No. 59843 ) Under Contract No. W91QV1-12-C-0059 ) APPEARANCES FOR THE APPELLANT: Donald H. Spence, Jr., Esq. Cynthia A. Becker, Esq. Spence & Becker, LLC Gaithersburg, MD APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Frank A. March, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant, Air Services, Inc., appeals the contracting officer's 13 February 2015 decision denying its revised Request for Equitable Adjustment (REA) seeking $105,888 in extended general conditions costs. The government moves to dismiss for lack of jurisdiction, arguing that appellant failed to submit a proper claim pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 26 September 2012, the United States Army Mission & Installation Contracting Command awarded Contract No. W91QV1-12-C-0059 to appellant for the renovation of Building 324 at Fort Belvoir, Virginia (R4, tab 1 at 1-2). The contract was awarded as a direct award under the Small Business Administration's Section 8(a) Program (id. at 29). The contract incorporated numerous standard Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DF ARS) clauses, including FAR 52.233-1, DISPUTES (JUL2002); FAR 52.242-14, SUSPENSION OF WORK (APR 1984); and FAR 52.243-4, CHANGES (JUN 2007) (id. at 9, 27-28). 2. By email dated 7 March 2014 to contracting officer (CO) David P. Wallace and another government official, appellant submitted its change order proposal #8, dated 24 February 2014, seeking a 36-week time extension and an equitable adjustment of $247,900 for extended general conditions costs (R4, tab 49 at 4-19).  3. On 7 May 2014, CO Wallace emailed appellant's senior project manager, Mr. Donald Iak, with the subject line "RE: Building 324- Fire Alarm RFl#17- Response," stating: If you are submitting a claim under FAR Clause 52.233-1, please follow procedures in FAR Clause 52[.]233-1, Sub-paragraph (c ), ( d)( 1), ( d)(2)(i), ( d)(2)(iii), sub-paragraph (3 ), (e). If you are claiming Request for Equitable Adjustment (REA) please follow procedure under DF ARS 252.243-7002. In addition, please submit certified payroll information for contract W91QV1-12-C-0059. (R4, tab 49 at 2) 4. The paragraphs of the contract's Disputes clause, FAR 52.233-1, cited by CO Wallace's 7 May 2014 email define the term "claim," require that a claim be submitted to the CO for a written decision within six years of accrual, and require that a claim exceeding $100,000 be certified by the contractor. FAR 52.233-l(d)(2)(iii) provides: The certification shall state as follows: "I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the Contractor." DFARS 252.243-7002, REQUESTS FOR EQUITABLE ADJUSTMENT (DEC 2012), provides in pertinent part: (a) The amount of any request for equitable adjustment to contract terms shall accurately reflect the contract adjustment for which the Contractor believes the Government is liable. The request shall include only costs for performing the change, and shall not include any costs that already have been reimbursed or that have been separately claimed. All indirect costs included in the request shall be properly allocable to the change in accordance with applicable acquisition regulations. (b) In accordance with 10 U.S.C.