ASBCA 60367

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Government Services Corp. ) ASBCA No. 60367 ) Under Contract No. SP0600-13-D-4025 ) APPEARANCE FOR THE APPELLANT: Gregory R. Rauch, Esq. Magyar, Rauch, & Associates PLLC Moscow, ID APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Kathryn M. Kelley, Esq. Jared M. Miller, Esq. Trial Attorneys DLA Energy Fort Belvoir, VA OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This appeal arises out of a deemed denial based on the failure of a contracting officer for the Defense Logistics Agency- Energy (DLA Energy or government) to issue a final decision in response to a certified claim filed by Government Services Corp. (GSC or appellant). The government has filed a motion to dismiss for lack of jurisdiction, 1 alleging that appellant's claim did not include a sum certain. Appellant opposes. For the reasons set forth below, we deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 24 June 2013 DLA Energy awarded Contract No. SP0600-13-D-4025 (the contract) to appellant for the provision of fuel to the Department of Defense and federal civilian agencies in the District of Columbia and eight states in the Midwest and Mid-Atlantic region (R4, tab 1 at 30, tab 2 at 1). 2. By letter dated 7 October 2015, appellant submitted a certified claim to the contracting officer in the amount of$100,000, alleging that a negative rating it received on 10 July 2015 via the Contractor Performance Assessment Report System (CPARS) constituted bad faith and a breach of the duty of good faith and fair dealing owed to it by the government (comp I. ~ 8, and attach. E). Appellant requested that the contracting 1 The government filed a "Motion to Dismiss Appellant's Complaint" for lack of jurisdiction, which we deem a motion to dismiss the appeal. officer issue a final decision with respect to its claim in accordance with the Contract Disputes Act (CDA) and the contract's Disputes clause (compl., attach. E). 3. By email dated 2 November 2015, the contracting officer requested appellant to provide "detailed substantiating records, within 15 days, to accurately account for the numerical calculation of $100,000.00" sought in its 7 October 2015 claim (compl., attach. F). Appellant responded by letter dated 18 November 2015, describing how it developed the $100,000 figure: The "numerical calculation of $100,000.00" was derived by a simple mathematical formula of estimating the future expense, both administrative and legal, that is expected to be required to counter the apparent bad faith libelous actions of the AO and RO in the CP ARS which are the subject of the claim. The good faith estimate was reached after considering the number and frequency of bid submittals by GSC on solicitations that require consideration of past performance ratings such as those contained within the CPARS. This calculation was then further refined by the applicable life of the subject CPAR (discounting the 15 month remaining suspension of GSC) and the cost; [sic] both administrative and legal, of addressing the issue with future Contracting Officers in the form of negotiations as well as protests. (R4, tab 11; compl., attach. G) 4. DLA Energy did not further respond to appellant's 7 October 2015 claim or its 18 November 2015 letter. Appellant filed its notice of appeal from the deemed denial of the claim on 11 December 2015. DECISION The Board's jurisdiction to hear this case depends upon the contractor's submission of a claim under the CDA, 41 U.S.C. §§ 7101-7109. CCIE & Co., ASBCA Nos. 58355, 59008, 14-1BCAii35,700 at 174,816.