ASBCA 60808

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Andrews Contracting Services, LLC ) ASBCA No. 60808 ) Under Contract No. W912JV-15-C-0001 ) APPEARANCE FOR THE APPELLANT: Mr. Justin Andrews President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Evan C. Williams, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION The government moves to dismiss the appeal for lack of jurisdiction because, the government says, appellant, Andrews Contracting Services, LLC (ACS or appellant), never submitted a properly certified claim to a contracting officer requesting a final decision pursuant to the Contracts Disputes Act, 41 U.S.C. §§ 7101-7109 (CDA) (gov’t mot. at 1). ACS responds that its self-styled “Request for Equitable Adjustment” (REA) was a proper claim within the context of the CDA because it met the conditions of certification in accordance with the CDA (app. reply at 5). We find the following. On 21 January 2015, the government awarded to ACS the contract referenced above (R4, tab 1 at 2). The contract incorporates by reference Federal Acquisition Regulation (FAR) clause 52.233-1, DISPUTES–ALTERNATE I (MAY 2014) (R4, tab 1 at 5), which provides, among other things: (a) This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. .... (c) Claim, as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter or right, the payment of money in a sum certain....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. The submission may be converted to a claim under 41 U.S.C. chapter 71, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time. (d)(1) A claim by the Contractor shall be made in writing and, unless otherwise stated in this contract, submitted within 6 years after accrual of the claim to the Contracting Officer for a written decision. .... (e) ...For Contractor claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made. (R4, tab 1 at 5) On 16 May 2016, ACS presented to the contracting officer (CO) a “Request for Equitable Adjustment” in the price of the contract referenced above in the amount of $293,797.51 (R4, tab 1452 at 7543). The REA contained a certification, pursuant to Defense Federal Acquisition Regulation Supplement (DFARS) 252.243-7702 which read: “the request is made in good faith and that the supporting data are accurate and complete to the best of my knowledge and belief.” The certification was signed by Mr. Justin Andrews, President. (R4, tab 1452 at 1) The CO denied the REA on 29 August 2016 (R4, tab 1440). The denial does not state that it is a contracting officer’s final decision (COFD), and concludes that “[i]f ACS wishes to continue this request for equitable adjustment then do so in accordance with contract clause 52.233-1 Disputes” (id. at 7288). On 19 September 2016, ACS filed this appeal with the Board. ACS does not dispute that the REA does not request a final decision; rather, it says that the CO’s written response did purport to be a COFD statutorily (i.e., by waiting 105 days to issue a decision – presumably contending that the CO did not comply with the 60-day decision requirement of the Disputes clause 52.233-1(e)) and by advising that any further action desired by ACS be pursued with the Disputes clause. Thus, ACS contends that it did not need to request a final decision.