StructSure Projects, Inc.
Docket: ASBCA 62927
Decision date: 2021-12-02

 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE EYESTER  
ON THE GOVERNMENT’S MOTION TO DISMISS 
 
 StructSure Projects, Inc. (appellant or StructSure) filed an appeal alleging it is 
owed money for the government’s use of certain temporary phasing facilities and other 
services.  The U.S. Army Corps of Engineers (government or USACE) has moved to 
dismiss the appeal, arguing that:  (1) the notice of appeal was filed by StructSure’s 
project manager, who did not have the requisite authority to file such an appeal; and 
(2) StructSure lacks proper representation because it is represented by its subcontractor’s 
counsel who, for several reasons, has a conflict of interest.  Because we find that the 
notice of appeal was filed properly and StructSure is represented by an individual who 
meets the requirements of Board Rule 15, we deny the government’s motion.     
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 1.  On July 14, 2017, USACE awarded multiple award task order contract 
(MATOC) No. W9127S-17-D-6004 to StructSure for design-build construction services 
(R4, tab 1 at 2-3).
1  Subsequently, on September 27, 2018, USACE issued task order  
No. W9127S-18-F-0112 to StructSure for various services, including design and 
alteration services for and temporary phasing facilities at the David Grant Medical 
                                              
1 The MATOC was actually awarded to United Excel Corporation (R4, tab 1 at 3).  
However, on July 1, 2019, the government issued a modification changing the 
Appeal of - )  
 )  
StructSure Projects, Inc. ) ASBCA No. 62927 
 )  
Under Contract No. W9127S-17-D-6004 )  
   
APPEARANCE FOR THE APPELLANT: Michael S. Alfred, Esq. 
    Hallett & Perrin, P.C. 
    Dallas, TX 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Michael T. Geiselhart, Esq. 
Liz K. Harris, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Little Rock 

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Center, Travis Air Force Base (R4, tab 2 at 46, 48-52).  StructSure’s subcontractor for the 
temporary phasing facilities was Sustainable Modular Management (Sustainable 
Modular) (see R4, tab 13 at 158).   
 
2.  In March and April of 2020, the government issued several notices to 
StructSure stating that the task order award was designated non-mission essential and 
StructSure and its subcontractors could not continue on-site construction activity until 
later notified (R4, tabs 4, 7-9).  On April 29, 2020, the government informed StructSure 
that it could recommence immediately on-site construction activities (R4, tab 10 at 134).   
 
3.  StructSure submitted a request for equitable adjustment (REA) stating that the 
temporary phasing facilities and associated rental furniture and equipment were in use by 
the government during the time the project was classified as non-mission essential and as 
such, StructSure incurred extended rental costs (R4, tab 13 at 155).  The agency denied 
the REA, and StructSure next submitted a claim seeking reimbursement for the same 
costs (R4, tabs 14-18).  The claim was signed by Mark Benne, a program manager for 
StructSure (R4, tab 15 at 170).  The claim was later certified by C. Kevin Rogers, chief 
executive officer of StructSure (R4, tab 18 at 190).  On March 30, 2021, USACE issued a 
contracting officer’s final decision (COFD) denying the claim (R4, tab 19 at 191-92).   
 
4.  On May 14, 2021, StructSure filed a notice of appeal of the COFD with the 
Board, which was signed by StructSure’s project manager, Matt Callaway, and submitted 
on StructSure letterhead.  Copies of the notice of appeal were also sent to several 
individuals, including:  StructSure’s chief executive officer, president, and vice president; 
Michael S. Alfred, Esq., of Hallett and Perrin; the chief executive officer for Sustainable 
Modular; and the contracting officer.  (Notice of Appeal at 1)  The notice also included 
several attachments, including the COFD (id. at 4-5).  Another attachment was a letter to 
Matt Callaway from Michael S. Alfred, Esq., stating that Mr. Alfred’s firm represents 
Sustainable Modular who “expresses its intent for [StructSure] to facilitate the appeal of 
the [COFD]” (id. at 2).   
 
5.  The Board issued an Order on May 20, 2021, stating that the record did not 
identify Mr. Callaway as a corporate officer or attorney and therefore, StructSure was 
directed to show it was represented by a person meeting the requirements of Board 
Rule 15(a), or to designate a proper person as its representative.  On May 26, 2021, 
Michael S. Alfred, Esq., entered a notice of appearance “as counsel for Sustainable 
Modular Management, Inc., which is prosecuting the above-referenced appeal in the 
name of Appellant, StructSure Projects, Inc.” (notice of appearance at 1).  It is not 
disputed that Mr. Alfred is a duly licensed attorney in Texas. 
                                              
contractor’s name to StructSure Projects, Inc. on the MATOC and all task order 
awards (R4, tab 3 at 116).  
 

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6.  On June 21, 2021, “Appellant, Sustainable Modular Management, Inc. [], 
which is prosecuting this appeal on behalf of StructSure Projects, Inc.” filed a complaint 
(compl. at 1).  A footnote in the complaint stated the following:  “By prosecuting this 
appeal, [Sustainable Modular] is not waiving any of its rights, claims, positions or 
remedies against [StructSure] and/or its surety, Arch Insurance Company, all of which 
are expressly reserved” (compl. at 2 n.2).  The complaint’s caption stated it was the 
appeal of StructSure (compl. at 1).  The complaint was signed by Michael S. Alfred of 
Hallett & Perrin, PC, as attorney for Sustainable Modular (compl. at 2).   
 
7.  On June 23, 2021, the government filed its motion to dismiss (gov’t mot. at 1).   
 
8.  On June 29, 2021, StructSure’s chief executive officer, Kevin Rogers, filed a 
letter with the Board stating that “Matt Callaway, Project Manager, is an authorized 
representative for StructSure Projects [and StructSure] has named Matt Callaway as an 
authorized agent for the purposes of filing claims or taking appeals on behalf of 
[StructSure]” (app. corr. ltr. dtd. June 29, 2021).   
 
9.  In addition, in its response to the government’s motion, Michael S. Alfred, Esq., 
clarified that Sustainable Modular “is pursuing this appeal in the name of [StructSure]” as 
permitted by the subcontract between the two companies.  Mr. Alfred also stated that as 
“the undersigned counsel [he] is representing [StructSure] for purposes of this appeal 
based on the waiver of a conflict of interest set forth” in the subcontract.  As such, 
Mr. Alfred states that because he represents StructSure in “this narrow and limited 
situation,” Sustainable Modular has not waived any of its rights against StructSure or the 
surety for monies that may be owed under the subcontract.  (App. resp. at 1)   
 
10.  The Board finds that Matt Callaway was authorized to file the notice of appeal 
on behalf of StructSure and that Mr. Alfred, a licensed attorney, represents StructSure in 
this matter.   
 
DECISION 
Authority to File Appeal 
 The government contends that Mr. Callaway, as the project manager for 
StructSure, did not have authority to file an appeal on behalf of the company at the time 
the appeal was filed and therefore, the Board lacks jurisdiction over the appeal (gov’t 
reply at 3-4).  As support, the government argues that since Mr. Callaway did not submit 
the claim to the agency, and was not authorized as an agent of StructSure until after the 

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appeal was filed, he did not have authority to pursue the timely filed appeal at the Board 
(gov’t reply at 4).   
 
 The Contract Disputes Act states that a contractor--a party to a Federal 
government contract--may appeal a COFD to the Board.  41 U.S.C. §§ 7101(7), 7104(a).  
To take an appeal, an appellant (contractor) must file a notice of appeal with the Board 
within 90 days from the date of receipt of the COFD.  Board Rule 1(a).  We have 
previously held that an authorized representative or agent may file a notice of appeal on 
behalf of a contractor.  See, e.g., Left Hand Design Corp., ASBCA No. 62458, 21-1 BCA 
¶ 37,916 at 184,142-43 (holding that an administrative assistant was acting as an 
authorized agent on behalf of the contractor when she filed the appeal); Garrison 
Engineers Constr., Inc., NW Mech., Inc., ASBCA Nos. 29015, 29536, 85-1 BCA 
¶ 17,731 at 88,514.   
 
 Matt Callaway was authorized to file the notice of appeal on behalf of StructSure 
(SOF ¶ 10).  In this case, it is irrelevant that StructSure’s chief executive officer notified 
the Board that Mr. Callaway was an authorized representative after the notice was filed 
because the notification serves as a clear indication that Mr. Callaway was acting on 
appellant’s behalf at the time the appeal was filed.  In other words, and to state the 
obvious, if the chief executive officer of StructSure did not believe Mr. Callaway should 
have filed the notice of appeal, he would have said so in the correspondence with the 
Board rather than specifically name Mr. Callaway as an authorized agent to take appeals 
on behalf of the company.   
 
Representation of Appellant 
 
 The government also contends that, to the extent Mr. Alfred has clarified he 
represents StructSure in this matter, Mr. Alfred is not a “proper” representative due to 
conflicts of interest (gov’t reply at 1-3).2  According to the government, Mr. Alfred also 
represents Sustainable Modular, who has sued StructSure’s surety in the Eastern District 
Court of California on these exact claims.  The government argues that the surety would 
only be liable if StructSure has wrongfully failed to pay.  (Id. at 2)  Further, according to 
the government, since Sustainable Modular states it is not waiving any rights against 
StructSure or its surety, it is not proper for Mr. Alfred to represent both the subcontractor 
and prime contractor here (gov’t reply at 2; gov’t mot. at 5).   
 
 Board Rule 15(a) states that a corporation may be represented by one of its 
officers or a licensed attorney.  There is no dispute that Mr. Alfred, a licensed attorney, 
                                              
2 The government initially argued that StructSure was not represented by a corporate 
officer or licensed attorney as required by Board Rule 15(a) (gov’t mot. at 1).  
Mr. Alfred, a licensed attorney, clarified that he represents StructSure (SOF ¶ 9), 
and the government subsequently amended its argument.     

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represents StructSure in this matter (SOF ¶ 10).  Although the government argues the 
appeal should be dismissed for lack of proper representation due to a conflict of interest, 
we interpret the government’s contention as an attempt to have Mr. Alfred disqualified as 
appellant’s attorney, thereby creating a Board Rule 15(a) compliance conundrum. 3   
 
The Board has entertained motions to disqualify counsel before as the discretion to 
regulate attorney conduct is inherent in our judicial capacity.  Asahi Gen. Trading & 
Cont. Co. W.L.L., ASBCA No. 62445, 21-1 BCA ¶ 37,767 at 183,323.  For example, “[i]f 
a conflict of interest resulting in demonstrable bias is shown to exist, it may have an 
effect on the proceeding.”  AEC Corp., ASBCA No. 42920, 95-2 BCA ¶ 27,750 
at 138,354.  The moving party bears the burden of proving that we should disqualify 
counsel and the issue is resolved based upon the established record and parties’ 
submissions.  Asahi General Trading & Cont. Co. W.L.L., 21-1 BCA ¶ 37,767 
at 183,323.   
 
As the government has acknowledged, sponsorship by a prime contractor of a 
subcontractor’s claim has long been allowed by the Board, approved by the Federal 
Circuit, and is expressly permitted by regulation.  TPS, Inc., ASBCA No. 52421, 01-1 
BCA ¶ 31,375 at 154,917; Federal Acquisition Regulation 44.203(c).  However, the 
government believes that this appeal is somehow different in that if the appeal fails, the 
prime contractor may ultimately owe the subcontractor, and there has been no express 
waiver of the conflict (gov’t reply at 3).  The government has not shown how any of this 
will prejudice the government in defending its case or affect the current proceeding, nor 
has it specifically identified any statute, regulation, case law, or code of professional 
responsibility to support its position.   
 
At this time, both StructSure and Sustainable Modular maintain the same position-
-that the government owes StructSure the rental costs associated with the use of 
temporary phasing facilities, rental furniture and equipment during the time the project 
was classified as non-mission essential.  Therefore, on this record, we are unable to 
conclude that any of the alleged adverse interests would create a conflict of interest in 
counsel representing both companies as to essentially require disqualification of 
StructSure’s counsel.  See AEC Corp., 95-2 BCA ¶ 27,750 at 138,354.  Further, as 
Mr. Alfred, an attorney at law, has confirmed to the Board that he represents StructSure 
for purposes of this appeal, and StructSure itself has not alleged there is any conflict of 
interest, we will not require StructSure to expressly waive any perceived conflict.   
 
                                              
3 In this regard, it is not clear why, even if there were an issue with representation, the 
Board would not first provide an opportunity for StructSure to obtain a new 
representative and file a new notice of appearance.  

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CONCLUSION 
 
 For the foregoing reasons, the government’s motion is denied.   
 
 Dated:  December 2, 2021
 
 
 
 
 
 
 
 
 
 
 
LAURA EYESTER 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 62927, Appeal of StructSure 
Projects, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  December 2, 2021 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals