PROTEC GmbH
Docket: ASBCA 61161, ASBCA 61162, ASBCA 611851
Decision date: 2018-03-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
PROTEC GmbH ) 
) 
Under Contract Nos. W912CM-14-D-0007 ) 
W912CM-14-P-0008 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 61161, 61162, 611851 
Paul D. Reinsdorf, Esq. 
Frankfurt, Germany 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
Dana J. Chase, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE GOVERNMENT'S MOTIONS TO DISMISS 
The Regional Contracting Office, Weisbaden (government) moves to dismiss these 
appeals for lack of jurisdiction. The government argues that the contracting officer's (CO's) 
final decisions (COFDs) were invalid-and thus we lack jurisdiction-due to the fact that 
the COFDs' basis for denying the claims purportedly was a suspicion of fraud. Because a 
suspicion of fraud was not the basis for the COFDs-let alone its only basis-we deny the 
motions. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
I. ASBCA No. 61161 and 61162 
1. On 28 September 2014, the government awarded Contract 
No. W912CM-14-D-0007 to appellant PROTEC GmbH (PROTEC), for the maintenance, 
inspection, and repair of fire alarm, fire suppression, and evacuation systems at U.S. Army 
Garrison, Wiesbaden (R4, tabs 1, 4-8). 
2. On 26 October 2015, the CO posted an initial evaluation on the Contractor 
Performance Assessment Reporting System (CPARS), which rated PROTEC as 
1 ASBCA Nos. 61161 and 61162 are consolidated. However, ASBCA No. 61185 is a 
separate appeal. Nevertheless, because the issues raised in the motions to 
dismiss are substantially similar, we have decided to issue one decision for all 
three appeals. 

unsatisfactory in the areas of quality, schedule, management, and regulatory compliance 
(R4, tab 112). 
3. The government also refused to pay some PROTEC invoices (R4, tab 115). 
4. On 17 September 2016, PROTEC submitted a certified claim regarding the CPARS 
evaluation (R4, tab 114 ). Shortly thereafter, on 23 September 2016, PROTEC submitted a 
certified claim in the amount of€143,615.92 for the unpaid invoices (R4, tab 115). 
5. On 6 February 2017, the CO issued a COFD addressing the CPARS evaluation 
and unpaid invoice claims together (R4, tab 122 at 7-8). The COFD corrected one error 
in the CPARS evaluation, 2 but otherwise denied the claims (id. at 8). The COFD rejected 
the claims for several reasons (id. at 8-18). First, PROTEC purportedly failed to maintain 
required professional certifications (id. at 8, I 0). Second, PROTEC purportedly 
submitted untimely maintenance schedules and condition reports, and failed to comply 
with schedules (id. at 11-14 ). As a result, the government could not verify whether 
PROTEC actually performed the invoiced work (id. at 12). Third, "[o]n the occasions the 
COR could verify ProTec technicians arrived at a building to attempt to perform some of 
the [testing] work, it was only partially attempted" (id. at 14). Fourth, PROTEC 
allegedly failed to provide a proper quality control program, properly maintain and 
replace limited life span equipment, and bring the child development center fire detection 
system online (id. at 16). As a result, the COFD concluded that the CPARS evaluation 
was accurate, and that "the Government cannot pay invoices when the contract called for 
services that, even if attempted, did not comply with the [performance work statement] 
and certification requirements, causing any work performed to be of no value to the 
Government" (id. at 18). The COFD did not state that it was denying the claim based 
upon a suspicion of fraud, or even mention fraud or false statements (id. at 1-18). 
6. PROTEC timely appealed the COFD to the Board. 
II. ASBCA No. 61185 
7. On 20 December 2013, the government awarded Contract No. W912CM-14-P-0008 
to appellant PROTEC, for the maintenance and repair of electronic doors, gates, scanners, 
sauna compact system and electric/hydraulic barriers, and bollards also at U.S. Army 
Garrison, Wiesbaden (R4, tab 3). 
8. The government refused to pay some PROTEC invoices (R4, tab 119). 
2 In particular, the original CP ARS evaluation incorrectly indicated that the 
termination type was "default." The COFD corrected that evaluation to indicate 
that the termination type was "none." (R4, tab 122 at 7-8) 
2 

9. PROTEC then submitted a certified claim on 3 1 October 2016, in the 
amount of€141,827.88 for the unpaid invoices (R4, tab 198). 
10. On 28 February 2017, the CO issued a COFD denying the claim. The COFD 
denied the claim because PROTEC failed to: ( 1) provide timely schedules, condition 
reports, and documentation for emergency; (2) follow such documents; and (3) provide 
such documentation in an electronic format or in English. As a result, the government 
purportedly was unable to inspect the work in order to verify the acceptability of 
PROTEC's performance. Further, the COFD stated that PROTEC failed to secure 
approvals for repair work in excess of €50. The COFD did not state that it was denying 
the claim based upon a suspicion of fraud, or even mention fraud or false statements. 
(R4, tab 199 at 7-9) 
11. PROTEC timely appealed the COFD to the Board. 
III. Facts Common to all Appeals 
12. After performance began on the contracts, but before the COFDs, the CO's 
representative (COR) sent the CO an email raising concerns that, in connection with the 
contracts, PROTECH was fraudulently: ( 1) submitting invoices for work that it had not 
performed; (2) utilizing unauthorized and unqualified personnel, and misrepresenting 
qualified personnel performed the work; and (3) submitting documents supporting invoices, 
which contained false information (R4, tab 25; gov't mot., ex. 1, 15). 
13. The COR also reported his suspicions to the United States Army Criminal 
Investigation Command (CID) (gov't mot., ex. 1, 15). CID compiled a Target 
Analysis File, which it subsequently forwarded to the CID Major Procurement Fraud 
Unit (id., 11 5, 8). The criminal investigation regarding the alleged fraud is on-going 
(id., 1 15). 
DECISION 
The government contends that the CO did not have authority to issue the final 
decision because the CO knew that appellant was under investigation for fraud at the time 
the COFD was issued. Therefore, the government argues that the COFD is a nullity and 
the Board does not have jurisdiction over the appeal. (Gov't resp. at 2) Appellant 
counters that the COFD was grounded exclusively in disputed contract issues and thus, 
the Board may properly exercise jurisdiction (app. reply br. at 1, 5). We agree. 
We possess jurisdiction because the COFDs were not based upon-let alone 
solely based upon-a suspicion of fraud, so they were valid COFDs. A CO's authority 
"to decide or resolve claims does not extend to ... [t]he settlement, compromise, payment 
or adjustment of any claim involving fraud." Federal Acquisition Regulation (FAR) 
3 

33.2IO(b). Rather, "[i]fthe contractor is unable to support any part of the claim and 
there is evidence that the inability is attributable to misrepresentation of fact or to fraud 
on the part of the contractor, the contracting officer shall refer the matter to the agency 
official responsible for investigating fraud." FAR 33 .209. As a result, the United States 
Court of Federal Claims and the Civilian Board of Contract Appeals ( CBCA) have held 
that a COFD is not valid if it is based upon a suspicion of fraud. Medina Cons tr. Ltd. v. 
United States, 43 Fed. Cl. 537, 555-56 (1999); Savannah River Nuclear Solutions, LLC 
v. Department of Energy, CBCA No. 5287, 17-1 BCA ,i 36,749. Moreover, because a 
valid COFD is a prerequisite for CDA jurisdiction, Medina Construction and Savannah 
River hold that there is no CDA jurisdiction when a COFD is invalid due to it being 
based upon a suspicion of fraud. Id.3 
However, a COFD is only invalid if it is based solely upon a suspicion of fraud. 
Daff v. United States, 78 F.3d 1566, 1572 (Fed. Cir. 1996). In Daff, a COFD offered 
two reasons for sustaining a default termination: ( 1) the hardware was defective 
because the personnel who worked on the contract were not certified; and (2) there 
was intentional falsification of the certification records. Id. Daffheld that that was a 
valid COFD for purposes of establishing Contract Disputes Act (CDA) jurisdiction 
because, even though the second reason constituted a suspicion of fraud, the first 
reason was a failure to perform according to the contract's terms, which was a 
rationale the CO was authorized to assert. Id. 
Here, the COFDs were not even based upon a suspicion of fraud. Unlike in 
Daff, nothing in the COFDs stated that there was intentional falsification, or any other 
suspicion of fraud. (SOF ,i,i 5, 10) At most, the COFDs could be read as citing facts 
similar to those in the report relied upon in the CID report (SOF ,i,i 5, 10, 12). 
However, "[t]he mere fact that there is an ongoing criminal investigation which 
encompasses events which were the basis for the contracting officer's decision being 
appealed is not enough to divest us of jurisdiction." Fleischzentrale Sudwest GmbH, 
ASBCA No. 37273, 89-3 BCA ,i 21,956, at 110,444. In any event, even ifthe COFDs 
could be read as expressing a suspicion of fraud, the COFDs also relied upon other 
rationales that the CO was authorized to assert, such as a failure to perform due to 
improper certification in ASBCA Nos. 61161, and 61162 and PROTEC purportedly 
preventing the government from inspecting PROTEC's work by failing to provide 
3 The government relies upon Savannah River and Medina. In Savannah River, the 
CBCA upheld a CO's determination that he lacked authority to issue a COFD 
due to suspected fraud on behalf of the contractor. In Medina, the court held 
that the COFD, which denied a claim based upon fraud, was unauthorized and 
invalid. For purposes of this motion only, we assume- without deciding-that 
Medina Construction and Savannah River are persuasive because, based on the 
facts under these appeals, there was a valid COFD, even under Medina 
Construction and Savannah River. 
4 

timely documentation in ASBCA No. 61185 (SOF 11 5, 10). Because we found that the 
COFDs were based upon rationales the CO was authorized to assert (id.), the COFDs 
were valid and each establishes CDAjurisdiction. Dajf, 78 F.3d at 1572. 
CONCLUSION 
We possess jurisdiction over these appeals. Therefore, the government's 
motions to dismiss are denied. 
Dated: 20 March 2018 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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 Nos. 61161, 61162, 61185, 
Appeals of PROTEC GmbH, rendered in conformance with the Board's Charter. 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals