Melville Energy Systems, Inc.
Docket: ASBCA 62045
Decision date: 2019-07-01

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Melville Energy Systems, Inc. ) 
) 
Under Contract No. DACA61-87-C-0015 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 62045 
John H. Melville 
Vice President 
Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
John A. Skarbek, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, 
Philadelphia 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
This is an appeal from a termination for default, denial of unpaid contract 
balance and contract price adjustments, as well as government-assessed reprocurement 
costs and damages, by Melville Energy Systems, Inc. (MES or appellant). The Board 
dismisses this appeal as barred by the election doctrine, as appellant has already 
pursued its action before the U.S. Court of Federal Claims (COFC). 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On August 14, 1987, the U.S. Army Corps of Engineers (the government) 
awarded Contract No. DACA61-87-C-0015 to MES for the replacement of boilers in 
five mechanical rooms on McGuire Air Force Base in Wrightstown, New Jersey. 
Melville Energy Systems, Inc. v. United States, 33 Fed. Cl. 616,617 (1995). 
2. On January 25, 1989, MES submitted a claim to the contracting officer (CO) 
seeking $312,464.27 as payment for an alleged unpaid balance on the contract plus 
contract price adjustments. By letter dated October 17, 1989, the CO terminated the 
contract for default due to a failure to complete the remaining work, and assessed 
reprocurement costs and damages against MES on December 1, 1989. (Id. at 618, 620) 
3. On April 4-7, 1995, appellant tried the validity of the default termination, 
unpaid contract balance, and price adjustments; the government tried its reprocurement 
costs and damages before the COFC. On June 30, 1995, the COFC ruled on the 
merits, disallowing recovery by either party (id. at 617, 627). 
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4. Appellant filed the instant appeal with the Board by email dated April 19, 
2019, requesting the termination for default be converted to a termination for 
convenience, recovery of an alleged unpaid contract balance, and contract price 
adjustments. On May 23, 2019, the Board sua sponte, ordered appellant to show cause 
why the appeal should not be dismissed in light of the election doctrine, and to explain 
the basis of the Board's jurisdiction. Appellant replied as follows: 
APPELLANT'S RESPONSE TO ORDER TO SHOW 
CAUSE 
RULES OF THE ARMED SERVICES BOARD OF 
CONTRACT APPEALS 
JURISDICTION FOR CONSIDERING APPEALS 
The Armed Services Board of Contract Appeals (referred 
to herein as the Board) has jurisdiction to decide any 
appeal from a final decision of a contracting officer, 
pursuant to the Contract Disputes Act, 41 US.C. 7101-
7109, or its Charter, 48 CFR Chap. 2, App. A, Pt. 1, 
relative to a contract made by the Department of Defense, 
the National Aeronautics and Space Administration or any 
other department or agency, as permitted by law. 
FRAUD ON THE COURT DISMISSES ELECTION 
DOCTRINE 
FRAUD ON THE US ARMY CORPS OF ENGINEERS 
that specific time period alleged only 
TERMINATES A TERMINATION FOR DEFAULT 
INDIVIDUAL O EMBEZZLED BILLIONS 
JURISDICTION 
If you fine intelligent folks all collaborate and decide to 
kick this can up the road stop and think hasn't 30 years 
been long enough and nipp [sic] this in the budd [sic] right 
here and right now 
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TERMINATE THE T4D RHRN 
(Emphasis in original) 
DECISION 
Under the Contract Disputes Act, "in lieu of appealing the decision of a 
contracting officer ... to an agency board, a contractor may bring an action directly on 
the claim in the United States Court of Federal Claims." 41 U.S.C. § 7104(b)(l). 
Courts have consistently interpreted the CDA as providing 
the contractor with an either-or choice of forum ... once a 
contractor makes a binding election to appeal the CO's 
final decision to a board of contract appeals or to the Court 
of Federal Claims, the contractor can no longer pursue its 
claim in the other forum. 
Bonneville Associates v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994) (citation 
omitted). A contractor is deemed to have made a binding election when: 1) it has 
sought to avail itself of one forum over another and 2) that forum has the ability to 
exercise jurisdiction at the time the election is attempted (id.; Subsurface 
Technologies, ASBCA No. 59775, 15-1 BCA, 36,100 at 176,251-252.). This is to 
ensure that while parties have their day in court, both appellant and government can 
rely on the resulting decision's finality. 
The 1995 decision which the COFC rendered on the merits of this claim evinces 
satisfaction of both prongs of this test. The Board alerted appellant to this obstacle to 
pursuing its claim before the Board, and appellant does not provide rationale for why 
the Board has jurisdiction over something already adjudicated at the COFC. Appellant 
provides no supporting statutory, regulatory, or case law authority for its proposition 
that fraud on the COFC provides the Board jurisdiction in the face of the election 
doctrine. Finding 4. We are unaware of any such support. As MES made a binding 
selection to pursue its action before the COFC, we lack jurisdiction to entertain this 
appeal. 
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CONCLUSION 
For the reasons stated above, the appeal is dismissed for lack of jurisdiction. 
Dated: July 1, 2019 
dministrative Judge 
Chairman 
Armed Services Board 
of Contract Appeals 
OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
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. 62045, Appeal of Melville 
Energy Systems, Inc., rendered in conformance with the Board's Charter. 
Dated: 
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PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals 
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