Shavers-Whittle Construction, LLC
Docket: ASBCA 60025
Decision date: 2016-02-09

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Shavers-Whittle Construction, LLC 
Under Contract No. 000000-00-0-0000 
APPEARANCE FOR THE APPELLANT: 
) 
) 
) 
) 
) 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60025 
Richard B. Ehret, Esq. 
Boykin & Utley 
New Orleans, LA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
J. Emmanuel I. Santa Teresa, Esq. 
David R. Dyer, Esq. 
Stephan C. Roth, Esq. 
William G. Meiners, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, New Orleans 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE 
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 
INTRODUCTION 
Appellant, Shavers- Whittle Construction, LLC, requests that the Board "void" 
certain government contracts, and claims entitlement 
to payment for work that it 
performed as a subcontractor on those contracts. The government requests that the 
Board dismiss the appeal for lack of jurisdiction. We grant the motion. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
On 29 July 2008, the U.S. Army Corps of Engineers (government) awarded 
Contract No. W912P8-08-D-0047, a section 8(a) Multiple Award Task Order Contract 
(MATOC), to DQSI Corporation (R4, tab 3). On 30 September 2010, the government 
awarded Task Orders 9 and 10 under Contract No. W912P8-08-D-0047 (R4, tabs 4, 5). 
Task Order 9 was awarded to "DQSI, LLC" (R4, tab 4), and Task Order 10 was 
awarded to DQSI Corporation (R4, tab 5). In general, the task orders were for work 
on hurricane storm damage risk protection systems in New Orleans, Louisiana (R4, 
tab 4 at 1, tab 5 at 2-11). 

In October 2010, DQSI, LLC, subcontracted with appellant for appellant to 
perform work required by Task Orders 9 and 10 (R4, tab 8 at 1). On 24 October 2013, 
appellant wrote to the contracting officer informing her that DQSI, LLC, owed 
appellant $499,753.60 under those task orders (app. supp. R4, tab 10). The letter did 
not demand that the government pay appellant, or state any particular dollar amount 
that the government would pay (id.). Nor was it accompanied by the certification 
required by the Contract Disputes Act (CDA), 41 U.S.C. § 7103(b)(l), for monetary 
claims of more than $100,000 (id.). Rather, the purpose of the letter appears to have 
been to ask the government to prevent DSQI, LLC, from assessing liquidated damages 
against appellant (id. at 2). 
On 26 March 2015, appellant's counsel wrote to the government's contracting 
officer asserting that appellant and DQSI, LLC, were in litigation involving "division 
of the remaining contract dollars" (R4, tab 6). The letter also asserted that DQSI, 
LLC, had obtained its prime contract by fraud (because, according to the letter, DQSI, 
LLC, was not a certified 8(a) contractor and, therefore, had not been qualified to have 
been awarded the contract) (id.). The letter further stated that "under [Federal 
Acquisition 
Regulation (FAR)] 49.108.8 [sic], the Corps has the authority to terminate 
the prime contract, which is probably void ab initio, and settle with the subcontractors 
which for these Task Orders is only [appellant]" (id.). However, like the 24 October 
2013 letter, the 26 March 2015 letter did not demand that the government pay 
appellant any money, or state any particular payment amount; nor did it include 
the 
certification required for monetary claims over $100,000 (id.). 
In a 20 April 2015 letter to appellant, the contracting officer stated that "the 
contract project has been physically completed," and that "[t]o terminate at this time is 
not in the Government's best interest" (R4, tab 7). The contracting officer encouraged 
appellant "to continue to pursue your remedies through the Federal and State Courts 
enforcing the terms and conditions of your subcontracts" (id.). Appellant filed this 
appeal on 1June2015, requesting "the voiding ofthe ... contract and payment of all 
monies due" (R4, tab 2 at 5, ii 21).1 The government moved for dismissal for lack of 
jurisdiction, and the Board held an evidentiary hearing on the issue of jurisdiction. 
1 Although appellant's notice of appeal requests "the voiding ofthe ... contract" (R4, 
tab 2 at 5, ii 21), appellant's brief in response to the motion to dismiss refers to 
termination of the task orders (app. br. at 5). For simplicity, we interpret 
appellant's appeal to request the "voiding," or termination, of Contract 
No. W912P8-08-D-0047, Task Order 9, and Task Order 10. 
2 
I 
r 
I . 
i 
i 

DECISION 
We grant the government's motion and dismiss the appeal for lack of 
jurisdiction. 2 For the Board to exercise jurisdiction over an appeal under the CDA, the 
appeal must be filed by a contractor, SKE Technical Services GmbH, ASBCA 
No. 59711, 15-1BCA,-r35,941 at 175,662; that is, a 
non-governmental party to a 
government contract. Winter v. FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 2009); 
41 U.S.C. §§ 7101(7), 7104(a). Appellant admits that it did not have a contract with 
the government (tr. 1/14), and invokes no recognized exception to the general rule, 
United States v. Johnson Controls, Inc., 713 F.2d 1541, 1551 (Fed. Cir. 1983), that a 
subcontractor cannot bring a direct appeal against the government. Rather, appellant 
contends that provisions such as FAR 49 .108-8(b ), which allows the government "to 
settle and pay any settlement proposal arising out of the termination of subcontracts," 
imply a contract in law between appellant and the government (app. br. at 6-7). 
However, whatever authority the government may have to settle directly with 
appellant, the Board does not possess jurisdiction to entertain any implied-in-law 
contract claims that appellant might be asserting in this appeal. ASF A Construction 
Industry and Trade, Inc., ASBCA No. 57269, 15-1BCA,-r36,034 at 176,005. 
The Board, also, does not possess jurisdiction to order injunctive relief such as 
appellant's request for the ''voiding," or termination, of contracts. See CDM 
Constructors, Inc., ASBCA No. 59524, 15-1BCA,-i36,097 at 176,240. In addition, for 
the Board to possess jurisdiction to entertain appellant's request for the payment of 
money, appellant must first have presented a monetary claim to the contracting officer in 
a sum certain. Al Bahar Co., ASBCA No. 58416, 14-1BCA,-r35,691 at 174,689 (citing 
41 U.S.C. § 7103). As appellant concedes (app. hr. at 5), its 26 March 2015 letter to the 
contracting officer, which appellant contends is its claim, "does not seek a sum certain." 
Even considering the 24 October 2013 letter as part of appellant's claim, and the 
reference to $499,753.60 in that letter as a request for payment of that amount, appellant 
never provided a CDA certification of that amount, which is a prerequisite for Board 
jurisdiction to entertain a claim for more than $100,000. GSC Construction, Inc., 
ASBCA No. 59401, 15-1BCA,-r35,887 at 175,445. For these reasons, we do not 
possess jurisdiction to entertain any monetary claim that appellant presents in this appeal. 
2 We find it unnecessary to decide whether, as the parties address, DSQI Corporation 
and DSQI, LLC, are the same entity. 
3 

CONCLUSION 
For these reasons, the appeal is dismissed for lack of jurisdiction. 
Dated: 9 February 2016 
I concur 
~~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrat ve Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
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. 60025, Appeal of 
Shavers-Whittle Construction, LLC, rendered in conformance with the Board's 
Charter. 
Dated: 
4 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals