GSC Construction, Inc.
Docket: ASBCA 59046
Decision date: 2015-02-04

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
GSC Construction, Inc. ) 
) 
Under Contract No. W9126G-11-D-0061 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59046 
James S. Delsordo, Esq. 
Argus Legal, LLC 
Manassas, VA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Ronald J. Goodeyon, Esq. 
Jason R. Chester, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Tulsa 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT'S 
MOTION FOR LEA VE TO FILE A SECOND AMENDED COMPLAINT 
INTRODUCTION 
Appellant moves for leave to file a second amended complaint, 1 to add two distinct 
claims to this appeal. The government opposes the motion. The motion is denied. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 15 September 2011, the Department of the Army (government) awarded 
appellant, GSC Construction, Inc. (GSC), Task Order 0001 pursuant to Contract 
No. W9126G-11-D-0061, an indefinite delivery, indefinite quantity contract (R4, 
tab 4(p) at 3377). 
2. The task order provides that GSC would "[ c ]omplete the Design and 
Construction of the Central Issue Facility" (a warehouse) at Fort Sill, Oklahoma (R4, 
tab 4(p) at 3374, 3380, 3383). 
3. On 14 March 2013, GSC presented to the contracting officer a certified claim 
for $826,355 for five categories of utility work that GSC categorized as "Natural Gas, 
Water Mains, Sanitary Sewer, Electrical, and Communications" 
(utility work claim) 
1 With its first amended complaint, appellant replaced its original complaint, which 
set forth allegations unrelated to this appeal. 

(R4, tab 2 at 1, 6). GSC explicitly requested a contracting officer's final decision (id.). 
In the 14 March 2013 claim, GSC made assertions regarding work on water lines, a 
sanitary sewer main, "primary underground electrical and the pad mounted transformer," 
and "Site Communications beyond the primary manhole" (R4, tab 2 at 4-6). 
4. On 11 June 2013, GSC presented to the contracting officer a claim for 
$54,671.20 and a 45-day extension of time for what GSC contended was a differing 
site condition (without specifying whether the condition was a type I or type II 
differing site condition); that is, groundwater that GSC contended it encountered at the 
worksite. In that claim, GSC explicitly requested a contracting officer's final decision. 
(App. reply, ex. 1) 
5. By letter dated 18 June 2013, GSC revised its utility work claim to add a 
request for a contract modification for "a (112) day time extension with extended 
overhead in the amount of $162,309.28," asserting delays to work on "the site power 
and site communications" (R4, tab 3 at 1-2). Appellant certified the claim on 24 June 
2013 (id. at 26). 
6. In a 22 August 2013 final decision, the contracting officer granted GSC's 
utility work 
claim in part, and denied the claim in part (R4, tab 1 at 13 ). 
7. On 30 August 2013, GSC received the contracting officer's final decision 
upon its utility work claim (notice of appeal dated 26 November 2013). 
8. On 9 October 2013, the contracting officer issued a final decision denying 
the differing site condition claim. GSC received that decision on or about 20 October 
2013. (Bd. corr. file, gov't ltr. dtd. 9 December 2014) 
9. On 26 November 2013, GSC timely filed this appeal from the denial of its 
utility work claim. 
10. On 5 February 2014, GSC presented to the contracting officer a letter 
regarding a dispute between GSC and the government concerning GSC's design of a 
"truck turnaround area" at a loading dock at the project site. GCS contended that it 
had met its contract requirements regarding 
"truck maneuvering at the loading dock," 
and that the Army's direction that a 53-foot trailer be able to make a single-point tum 
at the loading dock was a "new requirement.. .in addition to the Contract 
requirements." GSC explained that having "previously submitted (3) solutions," 
"[a]ttached is a fourth solution to allow 53 foot tractor trailers to tum around at the 
loading dock with a single point tum." GSC stated that it "fe[lt] this is work outside 
the scope of contract and is requesting a change order to complete this." This 
"turnaround" letter did not include any express request for a contracting officer's final 
decision. (App. reply, ex. 2) 
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11. On 3 March 2014, GSC presented to the contracting officer a letter 
requesting that the government "release all [payment] withholdings" (app. reply, ex. 3). 
GSC stated that "the end user started moving into the building on October 9, 2013," and 
that "GSC feels this is the date of beneficial occupancy and no withholdings should 
have been made past this point" (id.). This "withholdings" letter does not include any 
explicit request for a contracting officer's final decision, contains no certification, and, 
although it references GSC having "perform[ed] over $400,000 of additional work on 
the project," does not specify the dollar amount of the "withholdings" that GSC wanted 
released (id.). However, GSC's motion asserts that the amount of withheld payments is 
$373,166.96 (app. mot. at 5). 
12. The record does not contain any responses by the contracting officer to 
GSC's "turnaround" or "withholdings" letters. 
13. Neither the 14 March 2013 utility work claim nor the 18 June 2013 revision 
to that claim asserts that the government ordered GSC to perform extra-contractual 
"turnaround" work at a loading dock, or that the government improperly withheld 
payments beyond the date of beneficial occupancy (R4, tabs 2, 3). 
14. On 10 October 2014, GSC filed a second motion to amend its complaint to 
add to this appeal three claims: (1) the differing site condition "groundwater" claim 
that it presented to the contracting officer on 11 June 2013; (2) a "turnaround" claim 
related to its 5 February 2014 letter to the contracting officer; and (3) a "withholdings" 
claim related to its 3 March 2014 letter to the contracting officer (app. mot. at 4-5). 
15. On 16 December 2014, GSC withdrew from its motion the request to 
amend the complaint to add the groundwater differing site condition claim. 
DECISION 
The Board may permit a party to amend its pleading upon conditions fair to both 
parties. Board Rule 6(d) (revised 21 July 2014). However, the Board will deny a 
request to amend a complaint to add to the appeal what is tantamount to a new claim; 
that is, a claim that is based upon operative facts not already presented in the claim that 
is the subject of the appeal. See Lockheed Martin Aircraft Center, ASBCA No. 55164, 
07-1BCA,33,472, at 165,933-34. That is because the Board does not possess 
jurisdiction, within a given appeal, to entertain a claim that is new to the appeal. See 
Lasmer Industries, Inc., ASBCA Nos. 56946, 56966, 11-1 BCA, 34,671 at 170,801; 
Shams Engineering & Contracting Co. & Ramli Co., ASBCA Nos. 50618, 50619, 98-2 
BCA, 30,019, at 148,524-25. 
Here, GSC wants to add to its complaint claims that are based upon operative 
facts that were not presented to the contracting officer in the claim the denial of which 
is the subject of this appeal. The "turnaround" claim is based upon assertions that the 
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government required GSC to perform additional work so that a 53-foot trailer could 
make a single-point tum in a loading dock area; the withholding claim is based upon 
the assertion that the government should not have withheld payments past 9 October 
2013, which GSC asserts was the date of beneficial occupancy (SOF ,, 10-11). None 
of those operative facts was presented to the contracting officer in the utility work 
claim that GSC presented to the contracting officer on 14 March 2013 and revised by 
letter dated 18 June 2013 (SOF ,, 3, 5). Consequently, neither of those claims can be 
added to this appeal through amendment of the complaint. 
Nor will we docket new appeals for those claims. The Board may docket a 
separate appeal for a new claim where an appellant files a motion to amend (instead of 
a separate notice of appeal) within 90 days of the receipt of the contracting officer's 
final decision upon that claim; however, that presumes that the new claim is a proper 
claim within the meaning of the Contract Disputes Act (CDA), 41 U.S.C. § 7101-7109. 
See Shams Engineering, 98-2 BCA, 30,019, at 148,525. Here, neither the 
"turnaround" claim nor the "withholdings" claim is a proper CDA claim; therefore, we 
do not possess jurisdiction to entertain either claim, either by way of amendment of the 
complaint or notice of separate appeals. Our jurisdiction to entertain a contractor claim 
depends on the prior submission of the claim to a contracting officer for decision and a 
final decision on, or deemed denial of, the claim. Lael Al Sahab & Co., ASBCA 
No. 58346, 13 BCA, 35,394, at 173,662 (citing 41 U.S.C. § 7103). A "claim" is "a 
written demand or written assertion by one of the contracting parties seeking, as a 
matter of right, the payment of money in a sum certain, the adjustment or interpretation 
of contract terms, or other relief arising under or relating to the contract." Federal 
Acquisition Regulation (FAR) 2.101. The CDA does not require a contractor claim to 
explicitly request a contracting officer's decision, so long as the contractor implicitly 
requests a decision. Linc Government Services, LLC, ASBCA No. 58561 et al., 
14-1 BCA, 35,473 at 173,934. 
Whether a contractor's communication constitutes a CDA claim is determined 
on a case-by-case basis, employing a common sense analysis. Id. A claim need not 
contain any particular language or conform to any specific format; in assessing whether 
a claim has been submitted, it is appropriate to look at the totality of the 
correspondence and the continuing discussions between the parties. Lael Al Sahab, 
13 BCA, 35,394 at 173,663. In addition, where a claim exceeds $100,000, it must be 
certified. Id. Finally, where a claim does not specify a sum certain, but the amount 
demanded can be determined by simple mathematical calculation, a contractor's 
submission constitutes a valid claim over which the Board has jurisdiction. 
Mohammad Darwish Ghabban Est., ASBCA No. 51994, 00-2 BCA, 31,114 
at 153,671. 
The "withholdings" claim is not a proper CDA claim; it is a request for the 
payment of money not in a sum certain. Although GSC's "withholdings" letter asserts 
that GSC performed "over $400,000 of additional work," the letter does not specify 
4 

$400,000 - or any other amount - as the amount of withheld payments that GSC 
wanted the government to release (SOF ~ 11). Even if the letter's request for "all 
withholdings" is a claim for the $373,166.96 in withheld payments referenced in the 
motion to amend (id.), the Board does not possess jurisdiction to entertain such a claim 
because GSC did not provide the required certification. See Paradyne Corp., ASBCA 
Nos. 29300, 29728, 84-3 BCA ~ 17,600 at 87,683-85. 
On this certification point, GSC's reliance on Blue Cross Association & Blue 
Shield Association, ASBCA No. 25778, 89-2 BCA ~ 21,840 (app. reply at 3), is 
misplaced. There the Board explained that: 
[W]here the contracting officer issues a final decision 
making a cost disallowance or reducing or demanding a 
reduction of the contract price, it is often (but not always) a 
Government claim, and in that event no contractor 
certification is required .... 
On the other hand, a contractor can submit a formal 
"claim" for the costs disallowed or amounts withheld 
(provided he is willing to certify the claim if the amount is 
over $50,000 .... 
Id. at 109,909 n.41 (emphasis added). Here, GSC wants to appeal from what it 
contends is a deemed-denied claim for release of payment withholdings, not from a 
contracting officer's final decision assessing withholdings, and contends that, in such a 
case, no certification is required (app. reply at 2-3). However, because GSC relies 
upon its own affirmative request for withheld contract payments (that is, the 3 
March 
2014 "withholdings" letter (SOF ~ 11)), it was required to certify that request ifthe 
amount exceeded $100,000. See Paradyne Corp., 84-3 BCA ~ 17,600 at 87,683-85. 
The "turnaround" claim is, also, not a proper CDA claim. The "turnaround" 
letter does not request a contracting officer's final decision, either explicitly or 
implicitly. Rather, the turnaround letter is an offer to perform certain work - GSC's 
proposed "fourth solution" - to satisfy the government's presumed dissatisfaction with 
GSC's design of the loading dock truck turnaround area (SOF ~ 10). The turnaround 
letter represents, therefore, GSC's latest negotiation position on the turnaround issue, 
without also explicitly or implicitly requesting that the contracting officer issue a final 
decision upon what the contract required with respect to the loading dock. Cf Oni 
Construction, Inc., ASBCA No. 45394, 93-3 BCA ~ 26,063 at 129,556 (holding that 
time extension request that proposed settlement terms but did not explicitly or 
impliedly request a contracting officer's final decision was not a claim). This is in 
stark contrast to GSC's 14 March 2013 and 11 June 2013 correspondence to the 
contracting officer, in which GSC, less than a year earlier and concerning the same 
contract, twice explicitly requested contracting officer's final decisions upon its 
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contentions, respectively, that it had performed extra-contractual work, and had 
encountered a "groundwater" differing site condition (SOF ~~ 3, 4). 
CONCLUSION 
Because the two claims that are the subject of GSC's motion to amend the 
complaint are new to this appeal, the motion to amend is denied. Because GSC did not 
present those claims to the contracting officer as proper CDA claims, the Board does 
not possess jurisdiction to entertain them. 
Dated: 4 February 2015 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~!~ 1~.MCILIL 
Administrative 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. 59046, Appeal of GSC 
Construction, Inc., rendered in conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals