ASBCA 60666

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Melwood Horticultural Training Center, Inc.) ASBCA No. 60666 ) Under Contract No. W911S0-11-F-0040 ) APPEARANCES FOR THE APPELLANT: Larysa Kautz, Esq. General Counsel Christie Roberts, Esq. Assistant General Counsel APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ David H. Stem, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This appeal arises out of a contract between the United States Army (Army) and Melwood Horticultural Training Center, Inc. (Melwood or appellant) for base operations facility maintenance services at Fort George G. Meade (Fort Meade or FGGM) in Maryland. Appellant's request for additional funds in ASBCA No. 60666 seeks to recover costs for three separate matters: (1) reimbursement for retention bonuses; (2) reimbursement for subcontractor payments associated with alleged breaches of the contract; and (3) an amount "TBD" (to be determined) for lost profits associated with services procured from vendors other than appellant, allegedly in violation of the terms of the contract. The Board consolidated this appeal with ASBCA No. 60323* and appellant subsequently filed a consolidated complaint. The Army moves to dismiss ASBCA No. 60666 for lack of jurisdiction. The government challenges the Board's jurisdiction on three grounds: (1) that the contracting officer (CO) never issued a final decision as to appellant's claim; (2) that appellant's claim fails to state a sum certain; and (3) that appellant's claim fails to state a claim on which relief may be granted. Although appellant's request for additional relief *While ASBCA No. 60666 is consolidated with ASBCA No. 60323, this decision pertains only to the government's motion to dismiss in ASBCA No. 60666. However, the Rule 4 and supplemental Rule 4 references in this decision pertain to the submittal filed under ASBCA No. 60323. contains specific dollar amounts for some elements, the total amount of the request is an unspecified amount "to be determined" and a total amount cannot readily be calculated by simple arithmetic. Accordingly, we hold that we lack jurisdiction to entertain appellant's request in ASBCA No. 60666, because it fails to state a sum certain. STATEMENT OF FACTS CSOF) FOR PURPOSES OF THE MOTION 1. On 1 July 2011, the Mission & Installation Contracting Command, Fort Eustis, Virginia (MICC or Army) awarded Contract No. W911S0-11-F-0040 to Melwood for facilities maintenance and repair, sustainment, restoration, and modernization at Fort Meade (supp. R4, tab 5 at 1). 2. The contract incorporated by reference FAR 52.212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JUN 2010), which reads in pertinent part: (d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract. (Supp. R4, tab 5 at 46) 3. The contract also incorporated by reference FAR 52.233-1, DISPUTES (MAY 2014 ), which reads in pertinent part: (c) Claim, as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under 41 U.S.C. chapter 71 until certified. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under 41 U.S.C. chapter 71.