ASBCA 58569

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Laguna Construction Company, Inc. ) ASBCA No. 58569 ) Under Contract No. FA8903-04-D-8690 ) APPEARANCE FOR THE APPELLANT: Carolyn Callaway, Esq. Carolyn Callaway, P.C. Albuquerque, NM APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Gregory T. Allen, Esq. Trial Attorney Defense Contract Management Agency Manassas, VA OPINION BY ADMINISTRATIVE JUDGE DELMAN ON APPELLANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Laguna Construction Company, Inc. (Laguna, appellant, LCC), moves to dismiss this appeal for lack of jurisdiction, contending that the government's monetary claim was filed more than six years from the date the claim accrued, and therefore is barred under the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a)(4)(A). 1 STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 21November2003, the Air Force Center for Environmental Excellence (government) awarded to appellant Contract No. FA8903-04-D-8690 for Worldwide Environmental Remediation and Construction (WERC) (R4, tab 1)2 • Laguna received 16 task orders (TOs) under this contract to perform various items of construction work in Iraq. 1 In response to appellant's motion to dismiss, the government conceded: "The Government Acknowledges Its Cost Reasonableness Claim ... on TO [Task Order] 0002 was Untimely" (gov't opp'n at 9). Accordingly, we address herein the balance of the government's claim, under TOs 0006 and 0015. 2 We cite to the Rule 4 file submitted under ASBCA No. 57977, as supplemented thereafter, which appeal was later consolidated with ASBCA Nos. 58324 and 58569 (SOF ~ 13).  2. Under TO 0006, awarded to appellant on 25 June 2004, appellant was to renovate facilities at the An Numaniyah Training Base (R4, tab 4). Under this TO appellant awarded a subcontract to "Yacoub & Ramzi Snobar Company" (Snobar) for 11 Kv Distribution Loop and Transformers (app. reply, attach. 4 at 3). It also awarded a subcontract to "Al Huda Company" (AHC) to perform work on a range complex (id., attach. 5 at 5). According to the government's claim, the Snobar and AHC subcontracts were not awarded based upon adequate competition, and appellant failed to document that these award prices were reasonable (see SOF ~ 12). 3. During contract performance in 2005 appellant submitted vouchers for progress payments to the government on behalf of these subcontractors, which vouchers identified the progress payment requested and the awarded subcontract price (app. reply, attach. 4 at 6, attach. 5 at 6). 4. Under TO 0015, awarded to Laguna on 12 July 2005 (gov't opp'n, appx. 1), appellant was to construct inter alia, barracks and classroom buildings for the Baghdad Police College. "Sigma International Construction, LLC" (Sigma) was awarded a subcontract to construct the barracks (app. reply, attach. 1 at 7). 'The New Millennium" (TNM) was awarded a subcontract to construct the classroom buildings (id., at 10). According to the government's claim, the awarded subcontract prices - which significantly increased from those initially proposed by the subcontractors - were not based upon adequate competition. As for TNM, it received award for the classroom buildings but was not the lowest bidder for this work. According to the government's claim, appellant failed to justify award to TNM as other than the lowest bidder, and failed to document that the Sigma and TNM subcontract award prices were reasonable. (SOF iI 12) 5. The government was aware of Sigma's and TNM's original subcontract price proposals through appellant's original cost proposal (2nd supp. R4, tabs 45, 46), and was also aware of the proposed increases to these prices prior to their award (mot., attach. 2). The government was also aware of the subcontract prices ultimately awarded. As was the case with TO 0006, during performance in 2005, LCC requested progress payments from the government on behalf of the TO 0015 subcontractors for work performed, which included the amount of the progress payment requested and the subcontract price (app. reply, attach. 1 at 7, 10). 6. On 6 December 2005, the Defense Contract Audit Agency (DCAA) Iraq Branch Office issued Audit Report No.