TMS Envirocon, Inc.
Docket: ASBCA 57286
Decision date: 2012-06-18

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
TMS Envirocon, Inc. ) ASBCA No. 57286 
) 
Under Contract No. F44600-0 l-C-0029 ) 
APPEARANCE FOR THE APPELLANT: Neil S. Lowenstein, Esq. 
Vandeventer Black LLP 
Norfolk, VA 
APPEARANCES FOR THE GOVERNMENT: Alan R. Caramella, Esq. 
Acting Air Force Chief Trial Attorney 
Maj Sean Elameto, USAF 
Jeffrey Lowry, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE PARK-CONROY 
ON GOVERNMENT'S MOTION TO DISMISS 
At issue is the government's motion to dismiss which has been fully briefed by the 
parties. We grant the motion, except as to eight of eleven direct cost items. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
Contract No. F 44600-0 l-C-0029 was awarded to appellant TMS Envirocon, Inc. 
(TMS) as a small business iIuBZone set-aside tin the total amount of$3,229,283 on 
28 September 2001 for the replacement of all drinking water piping, including water 
mains, service connections, valves and hydrants at specified areas on Langley Air Force 
Base, Virginia (R4, tab 1). TMS then entered into a subcontract in the amount of 
$2,850,000 with International Technology Corporation (ITC) on 15 October 2001. ITC 
was a designated mentor to TMS under the Department of Defense MentorlProtege 
program and the contract work was subcontracted to ITC on a "turnkey" basis so(that 
TMS could obtain lTC's expertise and experience. (App. supp. R4, tab 571; decl. of 
Mehul S. Shah, TMS president", 1-2, 5-6) ITC commenced contract performance on 
17 October 2001, but filed for bankruptcy in January 2002 and the subcontract was 
assigned to Shaw Environmental, Inc. (Shaw) by the United States Bankruptcy Court for 
the District of Delaware (R4, tab 249 at 64; Shah decl. " 7-8). 
Beginning on 23 April 2002, and continuing through 11 September 2002, TMS 
notified the contracting officer of 170 differing site conditions allegedly encountered by 

Shaw (R4, tab 243 at 2422-29). The government issued Modification No. P00002, 
suspending work effective 6 September 2002, and Modification No. P00003, lifting the 
work suspension effective 17 October 2002 (R4, tab 3). TMS submitted two change 
order requests to the contracting officer seeking an equitable adjustment on behalf of 
itself and Shaw for the work suspension. The first was a letter dated 11 November 2002, 
seeking $133,805 and a contract extension of 40 days; the second was a letter dated 
27 January 2003, seeking a cost balance of$22,164 (bringing the total costs to $155,969). 
Both letters asked the contracting officer to review attached documents and expressed the 
hope that "this meets with your approval." Neither letter requested a contracting officer's 
fmal decision and the 11 November letter did not include a Contract Disputes Act (CDA) 
claim certification. (R4, tab 249 at 637-42) By a letter dated 21 August 2003, the 
contracting officer advised TMS that she had adjusted its combined change order requests 
for the work suspension to $83,858.57, but that funds were not available and that TMS 
could submit a revised REA at the completion of the project (R4, tab 249 at 644). TMS 
responded on 6 January 2004 that it would not accept an $83,858 adjustment and 
"res erv [ ed] the right to revisit and/or file a claim at a later date" (id. at 645). 
Beginning on 19 November 2002, and continuing through 17 February 2003, TMS 
notified the contracting officer of another 20 alleged differing site conditions (R4, tab 243 
at 2429-30). 
By a letter to TMS dated 30 May 2003, Shaw summarized the status of the project 
as follows: " 
As you are aware, this project has been one that has been 
subject to constant changes, delays, work stoppages and 
disruptions since the outset. Many issues remain unresolved. 
The project schedule, work sequencing and execution do not 
reflect the original as-bid conditions. While we understand 
that many of these issues may have been unavoidable and 
perhaps necessary, Shaw did not reasonably anticipate them 
on this fixed-price contract. 
(R4, tab 243 at 2474) Shaw's letter went on to identify $435,988 in changes that had 
been submitted and were pending approval, $190,-613 in changes that were to be 
submitted, an estimated $1,320,000 in extended field and home office support costs, and 
$750,000 in delay, disruption and change impacts that it was evaluating (id.). 
By a letter to the contracting officer dated 30 July 2003, TMS, in turn, complained 
about the "multitude of outstanding changes, changed, and differing conditions 
encountered" and the "significant increases in time and the cost of performance of the 
contract work because of the delays, disruptions, and indecisions"." It advised that the 
2 


rough magnitude of the estimate of the impacts for Shaw and TMS was "$2.5M to 
$3.5M." (R4, tab 243 at 2476) 
TMS notified the contracting officer of two more alleged differing site conditions 
in July 2003. This is a total of 192 differing site conditions, not 193 as stated by the 
government, the difference owing to reservation of item 190 by TMS. (R4, tab 243 at 
2430) On 29 August 2003, Shaw left the jobsite, leaving TMS to complete the project 
(R4, tab 241; Shah decl. ~ 10). 
A total of 18 modifications were issued to the contract, increasing the price to 
$4,262,938 and extending the completion date to 8 September 2004 (R4, tabs 2-19). 
TMS states, and the government does not disagree, that project work was completed on 
6 November 2004 (app. opp'n at 5). According to the declaration of Mr. Shah, the 
contracting officer acknowledged tha~ TMS was being impacted and that the government 
was obligated to compensate it for those impacts. Mr. Shah states that the government 
encouraged TMS to wait until the end of contract performance to submit its claims at 
which time they would be mature and final. (Shah decl. ~~ 11-17) He also states that 
TMS relied upon the government's assurances that it could submit its claims after 
contract completion and that it was not until TMS had completed performance that the 
governnlent gave any indication that it would not honor its assurance (id. ~ 18). Mr. Shah 
further states that "[b]y the end of the project (but not before then), it became apparent 
that the overall impacts to and results of performance caused by Government's multitude 
of key acts and omissions ... constituted ...a 'cardinal' change to/from the Contract 
requirements" (id. ~ 23). 
The 2004 Request for Equitable Adjustment (REA) 
On 17 March 2004, Shaw submitted to TMS an REA in the amount of$2,403,325 
through 30 September 2003 (app. supp.R4, tab 401 at 1 and table 7-2). Shaw stated that, 
as demonstrated in the REA, it had experienced a "vast number of design changes, 
disruptions due to differing site conditions and work stoppages, govenlillent directions to 
resequence work, delays in approval of contract modifications, delays in obtaining 
funding and restrictions of access to substantial areas of work" (R4, tab 241 at 2401). It 
requested that TMS forward the REA to the government "as soon as possible to expedite 
resolution of all outstanding issues" (id. at 2397). Despite Shaw's request, TMS did not 
pass the REA on to the contracting officer because some work was still ongoing and 
TMS wanted to submit an '''all inclusive' REA" that would reflect all of its costs (R4, tab 
249 at 9). 
On 9 August 2004, Shaw filed suit against TMS and its surety in the United States 
District Court for the Eastern District of Virginia (R4, tab 249 at 9). On 9 September 
2004, TMS submitted Shaw's REA to the contracting officer. The cover letter stated that 
3 


"TMS takes no position as to the merits of the proposals therein," but that the REA 
appeared to be submitted in good faith and that TMS was submitting it to the government 
at Shaw's request for "review, comment, and negotiation." TMS advised that it had 
added its "proposal/estimate" for markups and attached a summary sheet computing the 
total REA to be $3,197,210. TMS did not certify the REA and did not request a 
contracting officer's final decision. (App. supp. R4, tab 561) The REA was received by 
the contracting officer on 15 September 2004 (R4, tab 249 at 48). 
The contracting officer denied the REA for lack of certification by TMS (app. 
supp. R4, tab 564). By a letter dated 14 March 2005, TMS advised the contracting 
officer that Shaw was the real party in interest and that it took no position on the REA, 
but provided the REA certification required by DFARS 252.243.7002(b) and requested 
an opportunity to discuss and/or negotiate the REA (app. supp. R4, tab 565). Thereafter, 
the REA was summarily denied in its entirety by a letter dated 15 November 2005 which 
stated it was the contracting officer's final decision (R4, tab 249 at 62). 
TMS filed a protective law suit from the contracting officer's 15 Novelnber 2005 
decision on 12 November 2006 in the United States Court of Federal Claims seeking the 
value of the 2004 REA, $2,403,325, plus its apparently revised mark-ups, bringing the 
total to $3,098,644.17 (app. supp. R4, tab 574, ~ 20). The complaint in that law suit 
states that the 2004 REA was not a CDA claim (id. ~ 11). On 1 May 2007, following 
early neutral ,evaluation during which TMS indicated it intended to submit a new claim to 
the contracting officer, the suit was dismissed without prejudi~e at the request of the 
parties for lack of subject matter jurisdiction (app. supp. R4, tab 579; Shah decl. ~ 32). 
Mr. Shah states that he understood the government would fairly "evaluate and consider" a 
revised submission by TMS (Shah decl. ~~ 32, 33) . 
. On 26 Septelnber 2008, TMS and Shaw reached a settlement of Shaw's 2004 REA 
pursuant to which TMS and its surety paid Shaw $790,000 and Shaw assigned to TMS all 
of its rights, claims and interests in its REA (R4, tab 249 at 64-68). 
On 8 March 2010, TMS submitted a revised REA to the contracting officer, this 
tinle seeking $2,439,512. It did not contain a CDA claim certification. The cover letter 
stated: 
Time is of the essence for your evaluation of this proposal. 
Since there has already been much discussion regarding 
related issues, we believe it is appropriate that prompt 
negotiations of our proposal be initiated, and accordingly 
request that the undersigned be contracted upon receipt hereof 
to coordinate the same. 
4 


Because time is of the essence, please be advised that if such 
coordination is not made within the next 14 calendar days, we 
must presume lack of intention on the govenmlent's part to do so, . 
and will thereafter move forward to request a Final Decision .... 
(R4, tab 249 at 1, 29) 
The 2010 REA seeks "compensation in connection with Shaw's March 17,2004 
REA ... , plus additional compensation for additional job costs incurred by TMS because 
of the multitude of circumstances for which the Air Force is responsible" (R4, tab 249 at 
11). It stated that Shaw's proposal had been submitted as an REA and "not as a request 
for a fmal decision under the CDA" (id. at 10). Based upon the 26 September 2008 
settlement with Shaw, TMS requested the "Reasonable Value" of Shaw's 17 March 2004 
REA, computed to be $1,684,739 (R4, tab 249 at 19-24,29; Shah decl. ~ 25.a.). The 
certification provided is that required by DFARS 252.243.7002(b) for an REA (R4, tab 
249 at 34). 
The REA included another six cost items that total $754,773 (R4, tab 249 at 
25-29). The first item seeks $78,452 for extra work associated with tie-in service 
connections (R4, tab 249 at 26,910). The REA explains that, by letters dated 18 February 
2002 and 16 May 2002, TMS had advised the contracting officer that the specification 
clarification requiring it to install service connections from the main line valves to within 
five feet of the various buildings was contrary to the contract requirements and would 
result in extra costs. Neither of the letters specified any amount due and neither 
requested a contracting officer's final decision. (R4, tab 249 at 25-26, 896, 901-02) Bya 
letter dated 19 June 2002, the contracting officer directed TMS to perform the tie-in 
work,as TMS had indicated in its 16 May 2002 letter it would do "in the interest of 
customer satisfaction" (R4, tab 249 at 901, 905). According to the REA, TMS 
"mobilized a service tie-in crew (including an independent and licensed plumber) to 
perform this extra work" (R4, tab 249 at 26). 
The second item seeks $39,756 for TMS's portion of costs incurred as a result of 
the work suspension that occurred between 6 September 2002 and 17 October 2002. The 
REA explains that Shaw's portion of the suspension of work costs ($120,099) was 
included in the "reasonable value" of the Shaw 2004 REA. (R4, tab 249 at 26) 
The third is for extended, tinle-related site overhead costs computed to be 
$114,562 for 692 days due to "differing site conditions, changes, and extra-contractual 
weather delays." It does not seek extended overhead forthe 22 days of delay associated 
with the initial access/lay-down area, addressed in Modification No. P00001, or 39 days 
related to the suspension of"work addressed in Modification No. P00003. (R4, tab 249 at 
5 


26, 920) TMS'states that the claimed overhead "arises from the same circumstances as 
and is derivative of its entitlement to the Shaw REA" (app. opp'n at 24-25). 
The fourth item is for inefficiency. TMS seeks $370,213 resulting from its 
supplementation of "Shaw's field installation effort by providing additional craft labor 
and production equipment." (R4, tab 249 at 27, 9~3) TMS states that, "[l]ike its claim 
for extended time-related overhead, TMS' s entitlement to recover its inefficiency costs, 
$370,213, also arises from the same circumstances as and is derivative of its entitlement 
to the Shaw REA" (app. opp'n at 24-25). According to Mr. Shah's declaration, extended 
. site overhead costs and inefficiency costs are the types of costs the government 
represented would be negotiated and resolved at the end of the project (Shah decl. 
~~ 25.d. and f.). 
The fifth consists of 11 unpaid direct cost items allegedly resulting from changes 
occurring during the time period 7 March 2003 through 17 September 2004, which total 
$39,589. Three of these relate to events that occurred before 31 March 2004 and 
represent a total of$15,602 in costs. (R4, tab 249 at 946) On 7 March 2003, TMS 
discovered three additional fire hydrants on Durand Loop and two additional fire 
hydrants on Worley Road that had to be demolished at costs of $2,23 8 and $1,492, 
respectively, and so notified the contracting officer by letters dated 8 April 2004 
(R4, tab 249 at 963-69). On 29 March 2004, TMS was prevented fronl demolishing fire 
hydrants as scheduled because .water mains had not been decommissioned, incurring 
$11,872 in costs, and so notified the contracting officer on 1 April 2004 (R4, tab 249 at 
"947-51). The remaining eight incidents for which direct costs are claimed occurred 
between 19 April 2004 and 17 September 2004 and total $23,987 (R4, tab 249 at 946). 
The sixth seeks $112,201 in REA preparation costs (R4, tab 249 at 27-28; Shah 
decl. ~ 25). According to Mr. Shah, these costs were incurred in the preparation of the 
2010 REA in anticipation of negotiations, without knowing the government did not 
intend to negotiate with TMS (Shah decl. ~ 25 .g.) It appears from the invoices provided 
that the claimed attorneys' fees and costs were incurred beginning on 11 June 2009 and 
continuing through 29 January 2010, and that the claimed consulting fees and costs were 
incurred beginning on 2 July 2009 and continuing through 9 February 2010 (R4, tab 249 
at 1032, 1048,.1049). TMS has not allocated any of the REA preparation costs among 
the REA claim items. 
By a letter dated 30 March 2010, received by the contracting officer on 31 March 
2010, TMS noted that it had heard nothing from the governnlent and presumed there was 
a lack of intention to coordinate a discussion about the REA. The letter went on to state: 
Accordingly, we hereby convert the REA and the proposal 
bases and amounts therein to claims, and request the 
6 

Contracting Officer's Final Decision respecting those claims 
pursuant to the Contract Disputes Act [CDA]. 
The letter stated that the total amount claimed was $2,439,512 and provided a CDA 
certification. (R4, tab 249 at 1073-74; compI. ~ 7) The claim was denied on 20 April 
2010 (compI. ~ 8), and an appeal filed at the Board on 16 July 2010. 
DISCUSSION 
The government's motion to dismiss asserts that we lack jurisdiction over this 
appeal because the underlying claims accrued more than six y.eats before TMS converted 
the 2010 REA into a CDA claim and requested a contracting officer's fmal decision in a 
letter dated 30 March 2010, received by the contracting officer on 31 March 2010. 
The CDA provides that a claim must be submitted to the contracting officer within 
six years after it accrued. 41 U.S.C. § 7103(a)(4)(A). Accrual ofa claim means ~he date 
when all events that fix liability and permit assertion of the claim, with occurrence of 
some injury, were known or should have been known. FAR 33.201; The Boeing 
Company, ASBCA No. 57490, 12-1 BCA ~ 34,916 at 171,672. We are to examine the 
. legal basis of independent and distinct claim items to determine when liability is fixed. 
See Gray Personnel, Inc., ASBCA No. 54652, 06-2 BCA ~ 33,378 at 165,476-77. The 
date liability is fixed is dependent upon the nature of the claim. Id. at 165,475-76. 
However, the exact date of accrual need not be determined if the appellant knew or 
should have known of the claims more than six years before they were submitted to the 
contracting officer. See Robinson Quality Constructors, ASBCA No. 55784, 09-1 BCA 
.~ 34,048 at 168,395-96. 
TMS first argues that the Board should defer ruling on the motion to dismiss 
pending a hearing on both the motion and the merits of the appeal under Board Rule 5(a), 
in part because the government has conceded that not all of the TMS claims can be 
dismissed. TMS subsequently clarified that it did not seek a separate jurisdictional 
hearing, and oral argument on the government's motion to dismiss Was held on 3 April 
2012. TMS further argues that the government's motion is "misplaced or altehlatively 
premature" because the statute of limitation is an affirmative defense that does not go to 
the jurisdiction of the Board. 
The government points out that its concession relates only to eight unresolved 
direct cost items that did not accrue more than six years before the claims were filed. As 
to the rest of the claims, the government correctly argues that the submission of a claim 
within the six-year CDA statute of limitations is a condition of our jurisdiction, 
mandating dismissal of TMS' s claims for lack ofjurisdiction if they are untimely, subject 
to equitable tolling. Boeing, 12-1 BCA ~ 34,916 at,171,680 (concluding that Henderson 
7 


v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc), rev'd, 131 U.S. 1197 (2011) and 
Cloer v. Secretary o/Health and Human Services, 654 F.3d 1322 (Fed. Cir~ 2011) (en 
banc) did not abrogate Arctic Slope Native Ass'n v. Sebelius, 583 F.3d 785, 793 (Fed. Cir. 
2009), cert. denied, 130 S. Ct. 3503 (2010)). See also Systems Development Corp. v. 
McHugh, 658 F.3d 1341, 1345-47 (Fed. Cir. 2011) (affIrming our dismissal of an appeal 
based upon claims submitt~d to the contracting offIcer more than six years after accrual 
in Systems Development Corp., ASBCA No. 56682, 10-2 BCA ~ 34,579). Thus, we tum 
to an examination of when the TMS claims accrued and whether they are barred by the 
statute of limitations. 
The 2004 and 2010 REAs 
The government contends that the TMS claims arising under the Shaw 2004 REA 
accrued on or before 1 7 March 2004 when Shaw quantifIed its claims in its REA. TMS 
responds that the claims did not accrue until project completion on 6 November 2004, at 
the earliest, because the government deflected discussion of possible claims with 
assurances the issues would be addressed at the end of contract performance. Its 
argument is contrary to precedent. The TMS claims accrued when TMS knew or should 
have known of the events giving rise to liability. FAR 33.201; Boeing, 12-1 BCA 
~ 34,916 at 171,672. Although there is evidence that TMS knew or should have known 
of its claim earlier than 17 March 2004 (for example in May 2003 when Shaw 
summarized the status of the project or July 2003 when TMS identified the rough 
magnitude of various impacts), for purpo~es of the present motion, it is suffIcient for us 
to conclude that TMS knew, or should have known, of its claim when Shaw submitted its 
REA to TMS on 17 March 2004. 
Based predominately upon allegations made in the Shah declaration that the 
contracting offIcer acknowledged liability and encouraged TMS to wait until the end of 
contract performance to submit its claim, TMS contends the statute of limitations should 
be equitably tolled. Under Irwin v. Department o/Veterans Affairs, 498 U.S. 89,96 
(1990), TMS must show that it was "induced or tricked" by the government's conduct 
into allowing the six-year deadline for submission of its CDA claims to pass. We do not 
perceive the alleged government actions here to be of such a nature. See Bernard Cap 
Co., ASBCA No. 56679 et aI., 10-1 BCA ~ 34,387 at 169,800-01, aff'd, 409 Fed. Appx. 
347 (Fed. Cir. 2011) (general assurances to review and/or reconcile payment records not 
sufficient to satisfy standards for equitable tolling applied "sparingly and under limited 
circumstances"). On the contrary, the record shows that, after the contract was completed 
on 6 November 2004, TMS was not "induced or tricked." When Shaw fIled suit against 
it on 9 August 2004, TMS submitted Shaw's REA to the contracting offIcer on· 
9 September 2004. When the REA was denied for lack of certifIcation, TMS certified in 
under DF ARS 252.243. 7002(b) and when the REA was denied again on 15 November 
2005 in what purported to be a contracting offIcer's fmal decision, TMS fIled a protective 
8 


law suit in the Court of Federal Claims on 12 November 2006, where the case was 
dismissed for lack of subject matter jurisdiction on 1 May 2007. In the course of that 
litigation, TMS indicated it would submit a new claim to the contracting officer. TMS 
then settled Shaw's lawsuit on 26 September 2008, but it was not until 8 March 2010 that 
TMS submitted a revised REA to the contracting officer, which it converted to a CDA 
claim on 30 March 2010. As is apparent, TMS· did not miss the statutory deadline 
because the government tricked it into waiting until contract petformance was complete. 
Rather, TMS failed to act diligently in preserving its contract claim rights. Bernard, 10-1 
BCA -0 34,387 at 169,801. 
TMS next argues that its 8 March 2010 submission was a CDA claim and met the 
statutory time requirements. The argument ignores the fundamental requirements 
necessary to establish a proper CDA claim. See 41 U.S~C. § 7103; FAR 2.101. To be a 
valid CDA claim for money, there must be· a written demand made as a matter of right 
that seeks a sunl certain. James MEllett Constr. Co. v. United States, 93 F.3d 1537, 
1542 (Fed. Cir. 1996). The written den land must provide adequate notice of the basis and 
amount of the claim and a request for a final decision. M Maropakis Carpentry, Inc. v.. 
United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010). Additionally, claims over $100,000 
must be certified in accordance with 41 U.S.C. § 7103(b)(I), although a curable defect in 
the certification does not deprive the Board ofjurisdiction, so long as it is corrected 
before a decision is entered. 41 U.S.C. § 7103(b)(3); see FAR 33.201; Eurostyle 
Incorporated, ASBCA No. 45934, 94-1 BCA -0 26,458 at 131,654. 
The cover letter to the 8 March 2010 submission states that it is an REA proposal 
and gives the government 14 days within which to coordinate negotiations, absent which . 
TMS would move forward and request a contracting officer's fmal decision. In the face 
of such an unequivocal statement, we will not infer, as TMS suggests we should, that the 
REA was requesting a final decision. Further, the REA did not contain a CDA claim 
certification. Finally,to the extent there could possibly be·any doubt, by its 30 March 
2010 letter, TMS specifically converted the REA into a CDA claim, provided a CDA 
certification and requested a contracting officer's final decision. The 8 March 2010 REA 
was not a·CDA claim. 
The 17 March 2004 Shaw REA that TMS submitted to the contracting officer also 
was not a CDA claim. TMS specifically acknowledges this reality both in paragraph 11 
.of the complaint filed in the protective law suit at the Court of Federal Claims and in the 
8 March 2010 REA which states that the Shaw REA was "not. ..a request for a final 
decision under the CDA." Further, when TMS submitted the Shaw REA to the 
contracting officer on 9 September 2004, it did not adopt the Shaw REA as its own and 
assert it as a matter of right. Instead, it sought "review, conlffient and negotiation" of the 
REA at Shaw's request. Moreover, the "proposal/estimate" TMS provided for its 
markups was not a sum certain. See JP. Donovan Constr., Inc., ASBCA No. 55335, 
9 


10-2 BCA ~ 34,509 at 170,171, aff'd, No. 2011-1162, 2012 WL 1326634 (Fed. Cir. 
Mar. 27,2012) (amount demanded in claim cannot be subject to qualifying language). 
And, finally, the REA did not contain a CDA claim certification. 
The Additional Six Claim Items in the 2010 REA 
To the extent the installation of service tie-in connections item and the TMS costs 
of suspended work may be distinct and independent, they were not CDA claims either. 
The letters dated 18 February 2002 and 16 May 2002 that TMS relies upon regarding the 
tie-in service connections did not seek a sum certain and did not request a contracting 
officer's final decision. The TMS suspension of work item is based upon costs that 
were ~rst requested in letters dated 11 November 2002 and 27 January 2003. The 
11 November 2002 letter did not include a CDA certification. Neither of the two letters 
requested a contracting officer's final decision and neither contained anything from 
which the requisite request can be implied. To the contrary, the letters simply expressed 
the hope that the requests would meet with approval. That these were not CDA claims is 
further confirmed by the 6 January 2004 letter in which TMS rejected an $83,858 
adjustment for the suspension of work and specifically reserved its right to "file a claim 
at a later date." 
Next, as TMS itselfhas explained, the items for extended time-related site 
overhead and inefficiency included in its 8 March 2010 REA arise from the same factual 
circumstances that formed the basis of the Shaw 17 March 2004 REA and are derivative 
of it. As such, they are not independent and distinct claims. In any event, Shaw's 
30 May 2003 letter to TMS summarized the difficulties being encountered, quantified 
changes that had been and would be submitted and estimated its extended overhead, and . 
delay, disruption and change impact costs. The 30 July 2003 letter that TMS, in turn, 
sent to the contracting officer similarly summarizes the multitude of changes and 
differing site conditions and the· increase in time and costs due to delay and disruption, 
the magnitude of which TMS estimated was "$2.5M to $3.5M."Accordingly, it follows 
that the extended overhead and inefficiency claims were known and foreseeable to TMS 
during the course of contract performance, at which time the six-year statute of 
limitations began to run. See Robinson, 09-1 BCA,-r 34,048 at 168,396. 
With respect to the 11 direct cost items, TMS states only that the government has 
acknowledged the items are timely (app. opp'n at 25). Its statement is wrong. The 
government contends and the record supports the conclusion that three of the claim items 
accrued mbre than six years before they were submitted to the contracting officer as CDA 
claims on 31 March 2010. The remaining eight claim items are valued at a total of 
$23,987. 
10 


In sum, except for eight direct cost·items, TMS's claims relating to the project 
work were not submitted to the contracting officer within six years after they accrued and 
we have no jurisdiction to consider them: 41 U.S.C. § 70 13(a)(4)(A); Boeing, 12-1 BCA 
,-r 34,916 at 171,680. 
REA Preparation Costs 
Remaining is the claim for REA preparation costs which were incurred beginning 
in 2009. The costs of professional and consultant services are unallowable if they are 
incurred in connection with the prosecution of a claim against the government. FAR 
31.205-47(f)(1). Contract administration costs, on the otherhand, are "presumptively 
allowable if they are also reasonable and allocable." Bill Strong Enterprises, Inc. v. 
Shannon, 49 F.3d 1541, 1549 (Fed. Cir. 1995), overruled in part on other grounds, 
Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1579 (Fed. Cir. 1995) (en banc). In evaluating 
the costs claimed, we are to examine the obj ective reasons the costs were incurred to 
determine whether they are contract administration costs or costs incidental to the 
prosecution of a claim. Costs incurred for the "genuine purpose of materially furthering 
the negotiation process" should normally be viewed as contract administration costs, even 
if negotiations ultimately fail and a claim is filed. Bill Strong, 49 F.3d at 1550; States 
Roofing Corp., ASBCA No. 55504, 10-1 BCA,-r 34,360 at 169,688. 
In this case, the REA preparation costs were not incurred until many years after 
the contract work had been completed. TMS asserts that these costs were incurred in 
anticipation of negotiations on the 2010 REA. The record establishes that such an 
expectation was unreasonable. First, there were no on-going negotiations between the 
parties on the Shaw 2004 REA. Indeed, despite numerous requests by TMS, there is no 
evidence that there had ever been any negotiations whatsoever on it. Moreover, TMS 
advised the contracting officer that it would convert its 8 March 2010 REA into a CDA 
claim if the government did not coordinate negotiations within 14 days. We conclude 
that the costs incurred in preparation of the 8 March 2010 REA were incurred as the first 
step in litigation and not for the genuine purpose of materially furthering the negotiation 
process. See R.L. Bates General Contractor Paving & Assocs., ASBCA No. 53641,10-1 
BCA,-r 34,328 at 169,550, aff'd, 423 Fed. Appx. 996 (Fed. Cir. 2011); AEI Pacific, Inc., 
ASBCA No. 53806,08-1 BCA,-r 33,792 at 167,284. 
Even if that were not so, we have concluded that we have jurisdiction over only 
eight items, valued at $23,987. These are small direct cost items which could not have 
required any appreciable legal or consultant work. The amount claimed for REA 
preparation is $112,201. This is more than four times the claimed value of the direct cost 
itenls. In these circumstances, the REA preparation costs clearly are not reasonable and 
allocable to the eight direct cost items. Bill Strong, 49 F.3d at 1549. 
11 


CONCLUSION 
The government's motion to dismiss is granted, except as to the eight direct cost 
items that were submitted to the contracting officer before the six-year statute of 
limitations had run. 
Dated: 18 June 2012 
(ftwt/l &vt~~r AROL N. PARK-CONROY , 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur I concur 
~,/~ 
EUNICE W. THOMAS 
Administrative Judge Administrative Judge 
Acting Chairman . Vice Chairman 
Armed Services Board Armed Services Board 
of Contract Appeals of Contract Appeals 
MARK~ 
I certify that the foregoing is a true copy ofthe Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 57286, Appeal of TMS 
Envirocon, Inc., rendered in conformance with the Board's Charter. 
Dated: 
CATHERINEA. STANTON 
-Recorder, Armed Services 
Board of Contract Appeals 
12