ASBCA 59774

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Subsurface Technologies ) ASBCA No. 59775 ) Under Contract No. W9124M-07-D-0006 ) APPEARANCE FOR THE APPELLANT: Mr. Larrye Cheaves Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ James P. Leary, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Mr. Larrye Cheaves does business as Subsurface Technologies (Subsurface), a firm that locates underground utilities. He claims Subsurface has only received one fourth of the payments to which it is entitled under a contract with the Army Contracting Agency. The government moves to dismiss the appeal. Because Subsurface previously elected to pursue this claim before the United States Court of Federal Claims, where it was rejected, the Board lacks jurisdiction to entertain it. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION In April of2007, the Army awarded Contract No. W9124M-07-D-0006 to Subsurface to "locate underground utilities and complete/approve excavation permits" at Fort Stewart and Hunter Army Airfield, Georgia (gov't mot., ex. 1 at 3 of 40). The contract provided for a unit price of $125 per "[l]ocate" (id. at 6 of 40). On 18 August 2010, Subsurface submitted a certified claim to the contracting officer seeking, among other things, an additional $3,902,000 (gov't mot., ex. 4). Subsurface alleged that the government had underpaid it by not providing the unit price for each utility line (gas, sewer, electric, and water) it had discovered in a particular area. Instead, the government had only paid the unit price once for each site containing utilities. (Id. at 4-5) Because gas, electric, water, and two kinds of sewer utilities were typically present at each "locate," Suburface sought to multiply 7,804 locations for which it was paid by 5 to total 39,020, which it said should then be multiplied by $125 to total $4,877,500. Subsurface subtracted $975,500 that it had previously been paid to reach its $3,902,000 figure. (Id. at 5) The contracting officer denied the claim on 6 September 2011 (gov't mot., ex. 7). If f  On 10 April 2012, Subsurface filed suit upon its denied claim in the United States Court of Federal Claims (gov't mot., ex. 8). Like its claim, Subsurface's complaint alleged that "[t]he contract...contemplated payment of $125.00 per locate, or per location of each individual utility" (id. ~ 10). It maintained that "[e]ach physical location actually comprised 4 or more separate utilities which Plaintiff was required to locate and mark" and that "[a]s a result, Plaintiff was paid for only 114 of the work lawfully performed under [the contract]" (id.~~ 12-13). The complaint stated that "Defendant has refused to pay Plaintiff for each utility Plaintiff located ... and instead has only paid Plaintiff $125.00 per physical location at which Plaintiff located utilities" (id. ~ 16). The complaint concluded that Subsurface was entitled to compensation for each of four utilities at the 7,804 physical locations mentioned in the claim, which would total 31,216 utilities. The complaint sought $2,976,500 in damages. (Id. ~if 18-20) In a published ruling dated 10 January 2013, excluding Subsurface's expert report, the Court of Federal Claims recognized that the question before it was whether "the 'unit' referenced [in the contract's] entries is directed at each utility located by [Subsurface] or each permit processed after [Subsurface] .. .located all the utilities at a given physical location." Cheaves v. United States, 108 Fed. Cl. 406, 408 (2013). The court rejected Subsurface's contention that "each 'locate' (i.e., each separate utility he locates) is a contractual unit." Id. Rather, the court concluded "the contract contemplated payment on a per-permit basis." Id. at 410. Subsequently, on 29 April 2014, the court granted summary judgment for the government (gov't mot., ex. 13).