Blanchard's Contracting, LLC
Docket: ASBCA 62508
Decision date: 2021-02-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
 
 The government moves to dismiss this appeal in part because appellant did not 
submit certain issues to the contracting officer that it has raised at the Board.  The Board 
grants the motion. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  The parties entered into the above-referenced design-build contract in the 
amount of $523,513.60 on June 25, 2019.  It required appellant, Blanchard’s Contracting, 
LLC (Blanchard), to furnish relocatable buildings.  As modified, the contract provided 
for completion by July 31, 2020.  (R4, tab 3 at 1, tab 4 at 1, 6, 49, tab 18) 
 
2.  On April 17, 2020, Blanchard submitted a claim to the contracting officer (CO) 
in the amount of $73,304.  It contended that the government had delayed the project from 
June 25 to October 22, 2019, or 119 days, at a rate of $616 per day.  (R4, tab 20)  The 
claim does not explain why Blanchard contends it was delayed, other than to state that the 
government did not issue a notice to proceed. 
 
 3.  The CO denied the claim on May 6, 2020.  She professed not to understand 
what the claim was about.  She observed that the period for which Blanchard claims to 
have been delayed corresponded almost exactly with the design phase of the project 
(which she said Blanchard completed on October 17, 2019).  She stated that Blanchard’s 
project manager was “heavily involved” in this process and that “[w]e never received any 
concern.”  The CO determined that the Navy had not delayed the project but that 
Blanchard subsequently caused 138 days of delay due to problems with its heating, 
Appeal of - )  
 )  
Blanchard’s Contracting, LLC ) ASBCA No. 62508 
 )  
Under Contract No. N40080-19-C-2026 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Quentin W. Blanchard 
  President/CEO 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Daniel J. Monahan, Esq. 
  Senior Trial Attorney 

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ventilation, and air conditioning (HVAC) design between October 30, 2019, and 
March 16, 2020.  (R4, tab 21) 
 
4.  Blanchard filed a timely appeal on May 9, 2020.   
 
 5.  On August 12, 2020, Blanchard filed a motion for summary judgment.  It stated 
in the motion that it had attached an amended claim at tab 9 to the motion (mot. at 2).  
The amended claim repeated Blanchard’s demand for the $73,304 sought in the original 
claim.  In addition, it sought $50,000 for meeting with government officials and 
producing drawings (the “drawing claim”).  It further sought $173,712 for delay from 
October 23, 2019 (the day after the first delay claim ended) to the revised completion 
date of July 31, 2020 (the “second delay claim”).  (Mot., tab 9)  The motion states:  “the 
delays were caused by internal government issues relating to changes the end user require 
[sic] e.g. HVAC Upgrades, Electrical Upgrades, additional research for cubical layout 
additional requirements and increased requirement regarding number of personnel the 
new room will accommodate . . .” and references modification A00001, which extended 
the contract completion date from March 20 to July 31, 2020 (mot. at 2).   
 
 6.  The Board conducted a status conference on September 24, 2020.  A 
memorandum of the conference call authored by the previous judge stated that the Board 
would hold Blanchard’s summary judgment motion in abeyance until appellant had 
conducted sufficient discovery to support the motion.  The Board also directed Blanchard 
to file a chronological list of events that reflect the government actions that delayed its 
performance.   
 
 7.  On October 7, 2020, the Navy filed a motion to dismiss for lack of jurisdiction 
Blanchard’s drawing claim and the second delay claim because, it contends, Blanchard 
never submitted these issues to the CO in a claim. 
 
 8.  Blanchard filed a response to the motion on October 9, 2020.  It did not dispute 
the Navy’s contention that neither the drawing claim nor the second delay claim had been 
submitted to the CO.  However, it contended without elaboration that the claim(s) is 
“related” to the initial claim (app. resp. at 1), but it is not clear if it makes this contention 
with respect to just the second delay claim or the drawing claim as well.  The response 
contains a chronological list as the Board ordered during the September 24 status 
conference but it is not illuminating as to the specific government actions that caused 
delays.  The closest it gets is a reference to tab B-4 to its response, which it describes as 
“Government Changes that delayed the project are field changing the contract” (app. 
resp. at 4).  Tab B-4 contains a potpourri of documents (emails, letters, subcontractor 
change order requests, requests for information, drawings), on a variety of issues (for 
example, fire alarms, electrical issues, and cuts to walls), many of which are internal to 
appellant and its subcontractors.  However, due to the absence of a clear narrative 

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explaining how these events delayed the project, appellant’s position with respect to the 
specific causes of either the first or second delay claim remains unclear.  
 
DECISION 
 
 The Contract Disputes Act (CDA) provides that “[e]ach claim by a contractor 
against the Federal Government relating to a contract shall be submitted to the contracting 
officer for a decision.”  41 U.S.C. § 7103(a)(1).  For the Board to possess jurisdiction 
under the CDA, “the contractor must submit a proper claim—a written demand that 
includes (1) adequate notice of the basis and amount of a claim and (2) a request for a 
final decision.”  M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 
(Fed. Cir. 2010).  In addition, the contractor must have received the CO’s final decision, 
or a deemed denial, on that claim.  Id.  A contractor who has appealed to the Board may 
increase the amount of its claim but may not pursue new claims not presented to the CO.  
Santa Fe Engineers, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987).   
 
 The Court of Appeals for the Federal Circuit has stated that two claims may be 
considered the “same” for CDA jurisdictional purposes if “they arise from the same 
operative facts, claim essentially the same relief, and merely assert differing legal 
theories for that recovery.”  Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. 
Cir. 2003).  In Scott Timber, the Federal Circuit characterized the claim submitted to the 
CO and the claim the plaintiff pursued in court as presenting “slightly different legal 
theories” but held that they could be treated as the same claim for jurisdictional purposes.  
Scott Timber, 333 F.3d at 1366.   
 
 More recently, the Federal Circuit has held that “we should treat requests as 
involving separate claims if they either request different remedies (whether monetary or 
non-monetary) or assert grounds that are materially different from each other factually or 
legally.”  K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015) 
(emphasis by the Court).  Similarly, in Lee’s Ford Dock, Inc. v. Secretary of the Army, the 
Court of Appeals held that a “claim is new when it ‘present[s] a materially different factual 
or legal theory’ of relief.”  865 F.3d 1361, 1369 (Fed. Cir. 2017) (quoting K-Con, 778 F.3d 
at 1006).  In Lee’s Ford, the Court held that the Board lacked jurisdiction when the 
contractor had presented to the CO a claim for reformation based on mutual mistake and 
frustration of purpose but at the Board had pursued a claim for knowing misrepresentation 
by nondisclosure.  Id. at 1369-70.  The Federal Circuit has also emphasized that this rule is 
not so rigid that a party is precluded from adding factual details or legal argumentation in 
the course of litigating the claim.  K-Con, 778 F.3d at 1006.   
 
 Applying this test to the current matter, we conclude that appellant’s drawing 
claim is clearly a new claim because it is not a delay claim but rather a claim for 
additional or changed work that arises from operative facts involving creation of 
drawings (SOF ¶ 5) that were not presented to the contracting officer.  E.g., Santa Fe 

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Engineers, 818 F.2d at 859 (contractor that had presented claim to CO for impact costs 
related to three change orders could not pursue a claim at the Board for “total job 
disruption” due to the collective nature of all the changes on the project).  The drawing 
claim is dismissed for lack of jurisdiction. 
 
 With respect to delay, the government states in its brief that “the factual and legal 
underpinnings of Appellant’s April 17, 2020 claim are not clear,” but it has not moved to 
dismiss that first delay claim (mot. at 3).  Because the Navy has not moved to dismiss, the 
Board will not address that claim.   
 
 With respect to the second delay claim, Blanchard apparently contends that the 
basis for that delay claim is “HVAC Upgrades, Electrical Upgrades, additional research 
for cubical layout additional requirements and increased requirement regarding number 
of personnel the new room will accommodate” (SOF ¶ 5).  None of these assertions were 
brought to the attention of the CO in a claim and, as a result, she never had the 
opportunity to consider them and resolve them prior to litigation.  They also involve a 
different period of time than the submitted claim.  Accordingly, the Board lacks 
jurisdiction to consider the second delay claim.  41 U.S.C. § 7103 (a)(1); K-Con, 
778 F.3d at 1006; Maropakis, 609 F.3d at 1328.   
 
CONCLUSION 
 
 The government’s motion is granted.  The drawing claim and the second delay 
claim are dismissed for lack of jurisdiction. 
 
 Dated:  February 22, 2021 
 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 


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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. 62508, Appeal of 
Blanchard’s Contracting, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  February 23, 2021 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals