Ken Laster Company
Docket: ASBCA 61292, ASBCA 61828
Decision date: 2009-09-19

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of - ) 
) 
Ken Laster Company ) 
) 
Under Contract No. W912BV-09-D-I013 ) 
Task Order 0003 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 61292, 61828 
Cody A. Reese , Esq. 
Maria A. Luckert , Esq. 
Barber & Bartz 
Tulsa, OK 
Michael P. Goodman , Esq. 
Engineer Chief Trial Attorney 
Stephanie Darr, Esq. 
Jennifer A. Aranda , Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District , Tulsa 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE GOVERNMENT 'S MOTION TO DISMISS 
The government has moved to dismiss these appeals on the grounds that we do 
not possess jurisdiction because appellant Ken Laster Company (appellant or Laster) 
asserts a new claim, and appellant 's claims are time-barred by the statute of limitations 
or lack sufficient detail. We deny the motion because appellant does not assert a new 
claim , and its Original Claim was timely and contained sufficient detail. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
I. Factual Background 
1. On September 19, 2009, the government and appellant entered into Contract 
No. W912BV-09-D-1013 to repair and/or replace gates, liners, seals, and a discharge 
conduit at Pine Greek Lake and Tenkiller Lake in Oklahoma (R4, tabs 3A, 3B). 
2. There were delays in completing the project. Appellant completed the 
project on March 5, 2012. (R4, tab 10 at 3,691) 
3. The government made progress payments during and after performance (R4, 
tab 5C at 433). On or about June 8, 2011, the government withheld $36,855 as 

liquidated damages from Payment No. 9 (R4 , tab SA at 356; tab SC at 433; tab 11 
at 3,740). On or about September 2, 20 11 , the government withheld an additional 
$52 ,000 as liquidated damages from Payment No. 12 (R4, tab SA at 374; tab SC 
at 433). Finally, on or about April 23, 2015 , the government withheld liquidated 
damage s from Payment No. 14. The government stated that , in total , "$9 1,035 are 
being wit hheld as liquidated damage s." (R4, tab 11 at 3,755 ; see also R4, tab SA 
at 386; tab SC at 433) 
II. Procedural History 
4. On April 4, 2017 , appellant submitted a claim for $91,035 (Original Claim) 
(R4, tab 14 ). The claim asserted that "Laster disputes the assessment of liquidated 
damages because any dela ys in the project were not the fault , or subject to the control, 
of Laster" (id. at 4,202). In support of that assertion , the Original Claim stated that the 
factors dela ying performance "include , but are not limited to, a lack of stop logs on the 
project , water releases by the Corps of Engineers , expensive and time consuming 
testing , improper rejection of parts , weather, and other dela ys" (id. at 4,203). 
5. On June 2, 20 17, the contracting officer (CO) issued a final decision 
(COFD) , den ying the Original Claim (R4 , tab 2). 
6. On August 29, 2017 , appellant filed a notice of appeal , whic h we 
docketed as ASBCA No. 61292 . 
7. The government moved to dismiss ASBCA No. 61292 on the grounds 
that the Original Claim lacked sufficient detail. Appellant opposed that motion. 
8. During a conference call to discuss the motion , we stayed ASBCA 
No. 61292 to allow appellant to file a clari fying claim. 
9. On May 11 , 2018 , appellant submitted anot her claim ( Clarifying Claim) 
(gov't supp. R4, tab 15). The Clarifying Claim disputed the withholding of liquidated 
damages on the grounds that any dela ys were not the fault , or subject to the control , of 
appellant (id. at 4,208). The Clarifying Claim then explained that the delay factors 
included the government's (1) failure to provide stop logs ; (2) water releases; (3) 
interference with Laster 's means and methods for service gates-including the means 
and method for painting the gate; and ( 4) unreasonable inspection of roller chains , 
welding, and brass seals and bolts (id. at 4208-15). 
10. On July 13, 2018 , the CO issued a COFD denying the Clarifying Claim 
(gov't supp. R4, tab 16). 
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11. On October 9, 2018, appellant filed a notice of appeal, which we 
docketed as ASBCA No. 61828. 
12. On October 9, 2018, we consolidated ASBCA No. 61828 with ASBCA 
No. 61292, and ordered appellant to file a complaint in ASBCA No. 61828 within 
30 days. 
13. On November 7, 2018, appellant submitted a document which, although 
captioned an "appeal brief," substanti vely was a complaint (61292 Complaint ). The 
61292 Complaint alleges that the government wrongfully withheld liquidated damages 
because the government delayed performance by making signific ant changes to the 
contract , including changing the means and methods for painting the service gates, and 
the inspection requirements for the roller chains (id. at 1-4 ). The 61292 Complaint 
also alleges that those changes materially breached the contract , increased 
requirements , and constituted constructive changes (id.). The 61292 Complaint does 
not seek delay damages ; it merely seeks $91,035 for the liquidated damages allegedly 
wrongfully withheld by the government (id. at 1, 8). 
DECISION 
We possess jurisdiction over this appeal because appellant does not assert a new 
claim, and the Original Claim was timely and contained sufficient detail. 
I. Appellant Does not Assert a new Claim 
Appellant does not assert a new claim. We do not posses s jurisdiction to 
entertain a claim unless a contractor presented that claim to the CO. Monica Walker, 
ASBCA No. 60436 , 16-1 BCA ,i 36,452 at 177,657. "The introduction of additional 
facts which do not alter the nature of the original claim ... or the assertion of a new legal 
theory of recovery, when based upon the same operative facts as included in the 
original claim, do not constitute new claims." Trepte Constr. Co., ASBCA No. 38555, 
90-1 BCA ii 22,595 at 113,385-86. 
Here, as the government concedes , the 61292 Complaint merely alleges the 
"new theories " of change , material breach, cardinal change , and increased 
requirements (SOF ,i,i 9, 13; gov 't mot. at 6). However , those new legal theories are 
based upon the same operative facts as the legal theories asserted in the Clarifying 
Claim because the new legal theories - like the legal theories asserted in the Clarifying 
Claim-are based upon the means and methods for painting the service gates, and the 
inspection of the roller chains (SOF ,i,i 9, 13). Therefore , the 61292 Complaint does 
not assert a new claim that appellant failed to present to the CO in the Clarifying 
Claim. 
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Indeed, the 61292 Complaint does not even assert a new claim that appellant 
failed to present to the CO in the Original Claim. The 61292 Complaint merely 
introduces additional facts which do not alter the nature of the Original Claim because 
the factual allegations in the 61292 Complaint-like the factual allegations in the 
Original Claim-concern government delays that allegedly led to the late project 
completion and liquidated damages (SOF 114, 13). Because the 61292 Complaint 
does not assert a new claim , we possess jurisdiction. 1 
II. Appellant's Original Claim was Timely and Contained Sufficient Detail 
Appellant's Original Claim was timely , and contained sufficient detail. In order for 
us to possess jurisdiction over an appeal , a contractor must submit the underlying claim to 
the CO within six years after the accrual of that claim. 41 U.S.C. § 7103(a)(4)(A) . A 
claim accrues when all of the events that fix alleged liability and permit assertion of the 
claim were known , or should have been known . FAR 33.201. In particular, a claim 
alleging wrongful withholding of liquidated damages accrues when the government 
withholds the liquidated damages. The R.R. Gregory Corp ., ASBCA No. 58517, 14-1 
BCA 135 ,524 at 174,111. Moreover , a claim must contain sufficient detail to notify the 
CO of the basic factual allegations upon which the claim is premi sed. Blake Const. Co., 
ASBCA No. 34480 , et al. , 88-2 BCA 120 ,552 at 103,890. "The statement of claim must 
provide a basis for meaningful dialogue between the parties aimed toward settlement or 
negotiated resolution of the claim if possible , or for adequate identification of the issues to 
facilitate litigation should that be necessary following issuance of the decision. " Id. 
Here, appellant ' s claim is for wrongfully withheld liquidated damages. While 
appellant alleges that the government delayed performance , that is only to establish 
that the government wrongfully withheld liquidated damages because it was 
responsible for the delays that resulted in the imposition of liquidated damages. 
(SOF 1 13) Appellant does not seek compensation for any delays ; it merely seeks to 
recover the allegedly wrongfully withheld liquidated damages (id.). Because 
appellant's claim is for wrongfully withheld liquidated damages , that claim accrued 
when the government withheld the liquidated damages , which was between June 8, 
2011 and April 23, 2015 (SOF 13). 
Even assuming that appellant's claim accrued on June 8, 2011, and that the 
Clarifying Claim submitted more than six years later on May 11, 2018 , was untimely , 
we still would possess jurisdiction because the Original Claim was timely , and 
1 The government ' s assertion that appellant failed to file a complaint in ASBCA 
No. 61292 elevates form over substance (gov't mot. at 2). While not captioned as 
a "complaint ," the 61292 Complaint substantively was a complaint (SOF 1 13). 
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contained sufficient detail (SOF ,r,r 3, 9).2 Appellant submitted the Original Claim on 
April 4, 2017-within six years after the earliest date its wrongfully withheld 
liquidated damages claim accrued on June 8, 2011 (SOF ,r,r 3-4). Moreover , the 
Original Claim provided a basis for meaningful dialogue by identifying some of the 
specific government delays that purportedl y led to the project delay and the imposition 
of liquidated damages , such as the lack of stop logs, water releases , excessive testing, 
and improper rejection of parts (SOF ,r 4 ). Therefore , the timely Original Claim 
contained sufficient detail , and we possess jurisdiction. 
CONCLUSION 
We possess jurisdiction over these appeals because appellant does not assert a 
new claim, and the Original Claim was timely and contained sufficient detail. 
Therefore , we deny the government's motion to dismiss . 
Date: July 18, 2019 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
JAMESR. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
2 To be clear, we do not hold that the potentiall y untimely Clarifying Claim corrected 
any lack of detail in the Original Claim, and that that Clarifying Claim related 
back to the Original Claim. The relation back doctrine does not apply to claims 
submitted to COs . Thorington Elec. And Const. Co., ASBCA No. 60476 , 17-1 
BCA ,r 36,661 at 178,535-36. Rather , we hold that the timely Original Claim 
contained sufficient detail. 
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I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 61292, 61828, Appeals of 
Ken Laster Company, rendered in conformance with the Board 's Charter. 
Dated : 
6 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals