Development & Evolution Construction Company
Docket: ASBCA 58342
Decision date: 2013-11-07

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
Development & Evolution Construction Company ) ASBCA No. 58342 
) 
Under Contract No. W5KA4N-11-C-0128 ) 
APPEARANCE FOR THE APPELLANT: Domenic Senger-Schenck, Esq. 
Rosenstock Legal Services 
Kabul, Afghanistan 
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Nicholes D. Dembinski, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S 
MOTION TO DISMISS FOR LACK OF JURISDICTION 
Development & Evolution Construction Company (DECC) had a contract with the 
government that was terminated for convenience. Its first termination settlement 
proposal exceeded the Contract Disputes Act (CDA) certification threshold of $100,000. 
Its second proposal, submitted during negotiations, was under the threshold. After the 
parties reached an impasse, the government issued a unilateral determination that was 
appealed to this Board. DECC's complaint seeks over $100,000. The government moves 
to dismiss the appeal for lack of jurisdiction. We dismiss the appeal. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 28 June 2011, the Herat Regional Contracting Office, Afghanistan, awarded 
Contract No. W5KA4N-11-C-0128 to DECC. The contract was for construction of a 
combat outpost for the Afghanistan National Army. (R4, tab 1) The contract 
incorporated the FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT 
(FIXED-PRICE) (May 2004)-ALTERNATE I (SEP 1996) clause (R4, tab 1 at 19). On 
13 July, the contracting officer (CO) issued a notice to DECC to proceed with the project 
(R4, tab 11 ). On 21 September 2011, the CO notified DECC by emails that the project 
was no longer required, it should stop all work, and the contract was cancelled (R4, 
tabs 14-15). 
2. On 3 November 2011, the CO forwarded a notice oftermination to DECC and 
a contract modification. The CO advised DECC that it had one year to submit a 
termination settlement proposal, but requested that one be provided within 30 days or as 

soon as possible. (R4, tab 26) DECC returned the signed notice and modification on 
15 November (R4, tab 27). 
3. On 11 December 2011, DECC submitted a settlement proposal to the CO. It 
listed line item costs for personnel, transportation, machinery, and material. The proposal 
sought a total of AFN6,308,493. The proposal was not provided on any standard 
government forms for this purpose, such as SF 1435 or 1436, and therefore did not 
provide the certifications included on those forms. (R4, tab 28) The amount sought 
converted to $128,456.38 (compl. ~ 15; gov't 12 June mot.~ 13). 
4. On 7 March 2012, the CO responded to DECC's proposal, challenging it. He 
proposed paying $12,453 based upon the government's estimate of the percentage of 
DECC's completion of contract tasks. (R4, tab 38) DECC rejected the government's 
proposal on 22 March (R4, tab 40). In a 2 April2012 email, the CO referred to 
discussions that had taken place with DECC, but stated he stood by his prior offer. He 
explained that DECC would have to justify any additional amount with receipts or 
invoices. He stressed that, in the event of a failure to reach agreement, he would be 
"within [his] rights to complete this termination settlement without [DECC's] 
endorsement." (R4, tab 42) 
5. On 9 April 2012, DECC submitted a new settlement proposal. It was broken 
into categories of incurred costs, which were mobilization, design, excavation, 
installation, and demobilization. The new proposal sought AFN3,777,477. It was not on 
any standard government forms containing any certifications. (R4, tab 44) The amount 
sought converted to approximately $75,833 (Bd. corr.ltr. dtd. 29 March 2013 at 1; gov't 
12 June mot.~ 17). 
6. On 10 April2012, the CO increased his offer to $19,652.49 (R4, tab 45). On 
25 April, DECC rejected that offer. It explained that its first settlement proposal had 
reflected its actual expenses. It had ignored most of those costs in its second proposal in 
the interest of ending the process. DECC requested the CO to "refer our issue to a third 
party." (R4, tab 47) By email dated 1 July 2012, the CO notified DECC that his last 
offer was the "best and final offer you will receive from the Government." He explained 
that ifDECC would not agree then its "only course will be to file a 
claim." He closed 
by 
declaring that if DECC did not accept his offer then "there is no need for us to 
communicate further." (R4, tab 50) 
7. On 2 July 2012, the CO issued a "Notice of Settlement by Determination" to 
DECC, stating that, in accordance with FAR 49.109-7, DECC would 
be paid 
AFN563,500.05. Further, the CO stated that "this is the contracting officer's final 
decision from which the contractor may appeal under the Disputes clause." (R4, tab 51) 
The figure converted to approximately $11,500 (com pl. and answer~ 17). 
2 

8. The Board received a notice of appeal from DECC on 1 October 2012. 
DECC's complaint contends that its original $128,456.38 settlement proposal was 
reasonable and seeks an award of termination for convenience costs in that amount. 
9. On 1 March 2013, the Board observed in a letter to the parties that DECC's 
claim exceeded $100,000. It therefore questioned its jurisdiction, given that there was no 
indication in the record that DECC provided a CDA certification pursuant to 41 U.S.C. 
§ 7103. The Board invited DECC to show that the claim was certified. Otherwise, the 
Board considered the appeal subject to dismissal. DECC responded by letter dated 
29 March 2013, followed by a government motion to dismiss for lack of jurisdiction. 
DECISION 
The government contends the appeal must be dismissed for lack of jurisdiction 
because DECC did not submit its $128,456.38 claim to a CO for a decision, as required 
by 41 U.S.C. § 7103, nor did it certify the claim, as that statute requires for claims 
exceeding $100,000. DECC responds that the second termination settlement proposal 
that it submitted to the CO on 9 April2012, for $75,833, ripened into a claim when 
negotiations reached an impasse. It contends that its appeal now from the CO's 
subsequent unilateral determination can seek an amount that exceeds $100,000 without 
having to be certified because the claim before the CO was beneath that threshold. 
We begin with the basic requirements of our jurisdiction. Under the CDA, for a 
contractor to pursue an appeal here it must first submit a written claim to the CO for a 
decision or deemed 
denial. To the extent the claim exceeds 
$100,000, it must be 
accompanied by a certification that it is made in good faith, the supporting data are 
accurate and complete to the best of the contractor's knowledge and belief, the amount 
requested accurately reflects the contract adjustment for which it believes the government 
is liable, and the certifier is authorized. Though a defective certification does not deprive 
us of jurisdiction (it must be corrected), the complete absence of one when it was 
required does and dictates dismissal. 41 U.S.C. §§ 7103-7105; Taj A! Safa Co., ASBCA 
No. 58394, 13 BCA ,-r 35,278. 
Obviously, if a certification is required for claims exceeding $100,000, then one is 
not necessary for claims of $100,000 or less. Early on in the application of this statutory 
scheme, the question was presented whether a contractor can increase the recovery it 
seeks here to an amount exceeding $100,000 if its claim to the CO was for less and 
therefore not certified. The guiding precedent has been Tecom, Inc. v. United States, 
732 F.2d 935 (Fed. Cir. 1984). There, a contractor submitted an uncertified claim to the 
CO for slightly more than $11,000, but later pursued an appeal before this Board in 
excess of $72,000, exceeding the $50,000 CDA certification threshold that existed at the 
time. The court ruled that when an uncertified claim is properly considered by the CO 
because it was below the threshold, the contractor can increase its demand 
above the 
3 

threshold in its appeal here when the increase is based on further information reasonably 
developed during the litigation. Tecom, 732 F.2d at 936-38. We have construed Tecom 
to only permit increases in the amount demanded here above the certification threshold 
when an appellant establishes that the increase is based on further information not 
reasonably available when the original claim was submitted. See Jema Corp., ASBCA 
No. 40985, 93-3 BCA ~ 26,076; E.C. Morris & Son, Inc., ASBCA No. 30385, 86-2 BCA 
~ 18,785. 
We now consider how the conditions necessary to our jurisdiction apply to this 
appeal seeking termination for convenience costs. Under the contract's Termination for 
Convenience clause, within one year after a contract is terminated the contractor is 
required to submit to the CO a final termination settlement proposal for the purpose of 
negotiation. FAR 52.249-2(e). Upon its initial submission, the proposal is not a CDA 
claim. James MEllett Constr. Co. v. United States, 93 F.3d 1537, 1543-44 (Fed. Cir. 
1996); Triad Mechanical, Inc., ASBCA No. 57971, 12-1 BCA ~ 35,015. If the 
negotiation reaches an impasse, the proposal can then ripen into a claim. Ellett, 93 F.3d 
at 1544. At that point, the CO must issue a unilateral determination, under terms dictated 
by the FAR, which constitutes a CO's final decision. That decision is appealable to this 
Board. FAR 52.249-2(g) (Alternate 1), (j); Ellett, 93 F .3d at 1544. 
Although the termination for convenience clause does not refer to whether a 
termination settlement proposal exceeding $100,000 must be certified to 
ripen into a 
claim, case law makes clear that it must. Ellett, 93 F .3d at 1545 ("We agree that the 
termination settlement proposal must be certified in accordance with the CDA"); 
Consolidated Defense Corp., ASBCA No. 52315, 03-1 BCA ~ 32,112 at 158,780; Cubic 
Defense Sys., Inc., ASBCA No. 39859, 91-2 BCA ~ 23,748 at II8,9I9-20. DECC's 
complaint seeks the $I28,456.3 8 that it sought in its initial II December 2011 settlement 
proposal. Because that proposal was never certified, it could not ripen into a claim upon 
which our jurisdiction can be premised. 
DECC contends that the appropriate proposal to consider is not its II December 
20II submission, but its subsequent 9 April20I2 proposal for $75,833. It argues that 
proposal was submitted in the spirit of compromise to comply with its obligation to 
negotiate a settlement in good faith, and that it is that proposal that ripened into a claim 
when the parties subsequently encountered an impasse. DECC suggests that because its 
second proposal was under $I 00,000, it need not have been certified to become a claim. 
Upon the proposal's rejection by the CO, DECC says this Board can exercise jurisdiction 
over an appeal demanding the full $128,456.38 DECC initially sought, even though the 
proposal was never certified. We disagree. 
It is true that, upon a contractor's submission of its termination settlement 
proposal, it is obligated, along with the government, to attempt to negotiate a settlement. 
However, when a contractor knows its claim exceeds the CDA certification threshold, it 
4 

cannot avoid the certification prerequisite to our jurisdiction because it has offered to 
accept less than that threshold during the settlement negotiation. In Consolidated 
Defense Corp., the contractor's termination settlement proposal included $30,852.64 in 
"pre-contract" costs. After an impasse arose, the CO issued a unilateral determination. 
On appeal here, the contractor demanded more pre-contract costs, totaling $431,921. 
Consolidated Defense, 03-1 BCA ~ 32,112 at 158,777-78. In considering whether we 
could exercise jurisdiction over a demand for more than the CDA certification threshold, 
arising from a termination settlement proposal seeking less, we applied the Tecom 
standard. We concluded the contractor had not established that the increase was based 
upon further information not reasonably available to it when it submitted its proposal. !d. 
at 158,780. Accordingly, the portion of the complaint seeking the additional pre-contract 
costs was dismissed without prejudice to the submission of a certified claim. See also 
Mediax Interactive Techs., Inc., ASBCA Nos. 43961, 46408, 96-1 BCA ~ 28,247 
(denying a request to amend a complaint to add $981,678 above what was sought in the 
termination proposal, given that the additional costs were known at the time of the 
proposal but not sought in the interest of achieving a settlement). 
Here, DECC originally submitted a $128,456.38 settlement proposal that exceeded 
the CDA certification threshold (SOF ~ 3). During subsequent negotiations, it reduced 
that proposal below the threshold to $75,833 in the interest of reaching a resolution (SOF 
~~ 5-6). Upon the failure of that negotiation, it now demands in this appeal the amount it 
originally sought (SOF ~ 8). The increase is not because of new information previously 
unavailable to DECC. DECC is simply seeking the amount to which it always believed it 
was entitled (SOF ~ 6). DECC's $75,833 proposal did not ripen into a claim upon which 
our jurisdiction to entertain this appeal can be based because that proposal did not submit 
to the CO "the full and certified amount of [DECC's] alleged recoverable ... costs." 
Consolidated Defense, 03-1 BCA ~ 32,112 at 158,780. To recover the $128,456.38 it 
now seeks, DECC must submit a certified claim for that amount to the C0. 1 See E. C. 
Morris & Son, Inc., 86-2 BCA ~ 18,785 at 94,653. 
1 
We take no position on whether the result would be different had DECC submitted its 
proposals on either SF 1435 or 1436, with their required certifications. 
5 

CONCLUSION 
The appeal is dismissed for lack of jurisdiction, without prejudice to the submittal 
of a certified claim to the CO. 
Dated: 7 November 2013 
I concur 
~~it9' 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~{au 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
~~-----------------
OWEN C. WILSON 
Administrative Judge 
Acting 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. 58342, Appeal of 
Development & Evolution Construction Company, rendered in conformance with the 
Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals