Soap Creek Marina, LLC
Docket: ASBCA 59445
Decision date: 2015-08-18

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Soap Creek Marina, LLC ) 
) 
Under Contract No. DACW21-1-07-5252 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59445 
Gary Gerrard, Esq. 
Alfred E. Fargione, Esq. 
Lexington, GA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Laura J. Arnett, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Savannah 
OPINION BY ADMINISTRATIVE JUDGE DELMAN ON JURISDICTION 
The Board, sua sponte, raised the question of whether it had jurisdiction over 
this appeal and requested the parties to address the issue. In response, the government 
contends we are without jurisdiction over this appeal, and alternatively, that we are 
without jurisdiction over that portion of the appeal seeking future damages in the 
amount of $985,462. Appellant contends that we have jurisdiction over all elements of 
the appeal. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF JURISDICTION 
1. On or about 6 February 2008, the U.S. Army Corps of Engineers (government), 
as lessor, entered into Lease No. DACW21-1-07-5252 with Soap Creek Marina, LLC 
(lessee or appellant), for commercial concession purposes on the J. Strom Thurmond Lake 
project. The term of the lease was 20 years, beginning 1 January 2008 and ending 
31December2027. (R4, tab 3) 
2. The lease contained a Disputes clause, paragraph 34, which stated in 
pertinent part as follows: 
34. DISPUTES CLAUSE 
a. Except as provided in the Contract Disputes Act 
of 1978 (41 U.S.C. 601-613) (the Act), all disputes arising 
under or relating to this lease shall be resolved under this 
clause and the provisions of the Act. 

b. "Claim," as used in this clause, means a written 
demand or written assertion by the Lessee seeking, as a 
matter of right, the payment of money in a sum certain, 
the adjustment of [sic] interpretation of lease terms, or 
other relief arising under or relating to this lease. A claim 
arising under this lease, unlike a claim relating to that 
lease, is a claim that can be resolved under a lease clause 
that provides for the relief sought by the Lessee. 
However, a written demand or written assertion by the 
Lessee seeking the payment of money exceeding $100,000 
is not a claim under the Act until certified as required by 
subparagraph c.(2) below. The routine request for rental 
payment that is not in dispute is not a claim under the Act. 
The request may be converted to a claim under the Act, by 
this clause, if it is disputed either as to liability or amount 
or is not acted upon in a reasonable time. 
c. (1) A claim by the Lessee shall be made in 
writing and submitted to the District Commander for a 
written decision. A claim by the Government against the 
Lessee shall be subject to a written decision by the District 
Commander. 
(2) For Lessee claims exceeding $100,000, the 
Lessee shall 
submit with the claim a certification that: 
(i) The claim is made in good faith; 
(ii) Supporting data are accurate and complete to 
the best of the Lessee's knowledge and belief; and 
(iii) The amount requested accurately reflects the 
lease adjustment for which the Lessee believes the 
Government is liable. 
(R4, tab 3 at 15-16) 
3. Insofar as pertinent, paragraph 33 of the lease provided as follows: 
33. TRANSIENT USE 
a. Camping, including transient trailers or 
recreational vehicles, at one or more campsites for a period 
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longer than thirty (30) days during any sixty (60) 
consecutive day period is prohibited. The Lessee will 
maintain a ledger and reservation system for the use of any 
such campsites, said system to be acceptable to the District 
Commander. 
(R4, tab 3 at 15) 
4. During the course of lease performance, the parties came to dispute the 
interpretation of the Transient Use clause. On 24 January 2013, the government issued 
a Final Notice of Non-Compliance to appellant, with respect to, among other things, 
appellant's failure to comply with said clause (R4, tab 25). 
5. On 19 December 2013, appellant submitted a letter to the contracting officer 
(CO) alleging that the government's interpretation of the Transient Use clause caused 
damage to appellant in the amount of "roughly $65,000/yr .... If you expand that over 
the full course of the lease we are talking $975,000 .... Lost slip rentals, ship store 
sales, and gas sales add to this figure .... " Appellant also noted that 
"We will have our 
accountant work up a more detailed estimate of losses once a documented estimate of 
actual loss from a CPA is needed." (R4, tab 12) Appellant provided no claim 
certification with this letter. 
6. On 8 January 2014, the CO responded to appellant's 19 December 2013 
letter, informing appellant that: 
(R4, tab 10) 
Per condition 34(b) of your lease instrument, a 
written demand over $100,000 is not a claim under the 
[Contract Disputes] Act until certified as required by 
subparagraph c.(2). Until the demand is submitted in 
accordance with the lease instrument, I cannot make a 
determination on the specifics of that demand. 
7. On 24 January 2014, appellant submitted a second letter to the CO, stating 
that: "[t]he damages incurred amount to roughly $81,000/yr .... If you expand that 
over the full course of the lease we are talking $1,215,000 just in lost income from 
campsites rentals. Lost slip rentals, ship store sales, and gas sales add to this figure .... " 
Appellant provided a "certification" as follows: "The figures on rental incomes 
presented above are certified to be true and accurately reflect the impact of changing to 
a fully transient campground." (R4, tab 9 at 1-2) 
3 

8. On 25 February 2014, the CO responded to appellant's letter, stating, inter 
alia, that appellant failed to state a sum certain and failed to meet other requirements 
for filing a claim as set forth in paragraph 34(b) of the lease (R4, tab 7 at 1 ). 
9. Appellant responded by letter to the CO dated 16 March 2014. Insofar as 
pertinent, appellant's letter requested as follows: "[W]e are asking for $95,000 to 
replace lost incomes and a return to operating our campground in the manner it was 
operated prior to us purchasing the marina and for several years following that 
purchase." (R4, tab 5 at 2) Appellant's monetary claim did not exceed $100,000, and 
therefore no claim certification was needed. 
10. By letter dated 14 May 2014, the CO denied appellant's $95,000 claim (R4, 
tab 2). 
11. On 22 July 2014, appellant filed a timely notice of appeal with the Board, 
claiming to have lost $95,000 as a result of the government's interpretation of 
paragraph 33 in the lease (R4, tab 1 at 2). 
12. Appellant filed its complaint, dated 11 September 2014, requesting in 
pertinent part as follows: 
A. Its appeal be sustained and the Corps be ordered to 
pay Soap Creek the amount of $123,127 for damages 
to the date of the claim Pl plus accrued damages to the 
date of the award plus interest from March 16, 2014, 
and future damages in the amount of $985,462; or in 
the alternative, 
B. Its appeal be sustained and the Corps be ordered to 
pay Soap Creek the amount of $123,127 for damages 
to the date of the claim plus accrued damages to the 
date of the award plus interest from March 16, 2014, 
and that an order be entered interpreting the lease and 
determining that the Transient Use Rule is ambiguous 
and Soap Creek's interpretation is a reasonable 
interpretation and compliance with which is not a 
breach of the lease, or declaring that the course of 
dealing of the parties has extinguished the Transient 
Use Rule in Paragraph 33 of the lease as to Soap 
Creek, and that Soap Creek is entitled to operate the 
1 Appellant has provided an affidavit from counsel, asserting that the $123,127 damage 
figure in the complaint was the amount of damage accrued to the date of the 
complaint, not to the date of the claim (app. resp., aff. iii! 4, 5). 
4 

leased premises under its interpretation of the 
Transient Use Rule for the duration of the lease .... 
DECISION 
It is well settled that a claim not in excess of $100,000, which need not be 
certified, may not be increased to an amount over $100,000 without being certified 
where the increase was based on information that the contractor should have known at 
the time it submitted its claim to the CO. Robert T. Peacock & Peter D. Ting, 
Contract Disputes Act Annotated, 5-22, Federal Publications, Inc. (1988). In order to 
obviate the need for claim certification: "The burden is upon a claimant to prove that 
increased amounts were based upon further information not reasonably available at the 
time it filed its initial claim." McNally Industries, Inc., ASBCA Nos. 43027, 44688, 
93-3 BCA ii 26,130 at 129,893. 
Appellant's complaint now seeks to recover future damages attributable to the 
government's lease interpretation of the Transient Use clause in the amount of 
$985,462 over the remaining term of the lease, which consists of campground rental 
losses in the amount of $400,946, and miscellaneous loss of rentals and sales of goods 
in the amount of$584,516 (comp!. iii! 45, 47). Appellant has not shown that these 
increased amounts were based upon information not reasonably available at the time it 
filed its uncertified claim of $95,000 in March 2014. These increased amounts appear 
to be future loss projections over the lease period, which could have been calculated 
and submitted to the CO at that time, and in fact such estimated amounts were 
submitted to the CO on an earlier date (SOF ii 5). Appellant was required to certify 
these claim amounts to the CO. 
Citing Sullivan Marina & Campground, LLC, ASBCA No. 55355, 06-2 BCA 
ii 33,389, appellant contends, alternatively, that we have jurisdiction over this appeal 
because we have jurisdiction over appellant's claim to the CO for lease interpretation 
that need not be certified. Appellant is correct that 
under Sullivan Marina we retained 
jurisdiction over a lessee's claims for lease interpretation. We also did so in Donald 
M Lake, ASBCA No. 54422, 05-1BCAii32,920 at 163,071: "Our jurisdiction over 
'non-monetary' claims involving such interpretations and/or those seeking so-called 
'declaratory relief is also well settled." 
However, there is a material difference between the "non-monetary" claims 
filed by the lessees in the above cases and the claim filed by appellant with the CO 
here. Appellant's claim, as amended, is a monetary claim, and as such, it needed to be 
certified if in excess of $100,000. 
Alternatively, appellant contends that its claim for its losses over the lease 
period was in fact certified, albeit defectively, in its 24 January 2014 letter to the CO. 
Assuming arguendo, that this letter contained curable, defective certification language, 
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41 U.S.C. § 7103(b)(3), the certified amount was not stated in a sum certain. To the 
contrary, the letter provided for an indefinite, unknown claim amount - "we are talking 
$1,215,000 just in lost income ... (l]ost slip rentals, ship store sales, and gas sales add to 
this figure ... " (SOF ~ 7). A failure to provide a monetary claim in a sum certain to the 
CO is a jurisdictional defect. Northrop Grumman Computing Systems, Inc. v. United 
States, 709 F.3d 1107, 1112 (Fed. Cir. 2013). 
CONCLUSION 
For reasons stated, we conclude that we are without jurisdiction over the 
amount of future damages, $985,462, sought in appellant's complaint, and we strike 
this amount from the complaint without prejudice to its proper submission to the CO. 
We retain jurisdiction over appellant's lost income claim of $95,000 (SOF ~ 9), for 
which certification to the CO was not required. 2 
Dated: 18 August 2015 
I concur 
MARK N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
\ 
\ 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RI~HARDSHACKLEFORD 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
2 In accordance with the affidavit of appellant's counsel (see note 1 above), the 
demand in appellant's complaint for $123,127 constitutes appellant's $95,000 
claim as accrued to the date of the complaint. 
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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 No. 59445, Appeal of Soap 
Creek Marina, LLC, rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals