Vox Optima, LLC
Docket: ASBCA 62313
Decision date: 2020-06-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
Vox Optima, LLC ) 
 ) 
   ) 
 
APPEARANCES FOR THE APPELLANT: Darrell M. Allen, Esq. 
  Counsel 
 
Ms. Merritt Allen 
  Owner 
  
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
  Navy Chief Trial Attorney 
Matthew B. Hawkins, Esq. 
  Trial Attorney 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
 
The Navy excluded appellant’s proposal from the competitive range on a task 
order; appellant then appealed to the Board.  The government moves to dismiss, 
contending that the appeal is essentially a bid protest for which we lack jurisdiction.  We 
dismiss for a more basic reason, however, because appellant never submitted a claim to 
the contracting officer. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
For purposes of this motion, we accept as true the following facts, most of which 
are culled from the affidavit of Merritt Hamilton Allen, which it submitted 
contemporaneously to the complaint.  Ms. Allen is appellant’s owner and chief executive 
officer (Allen aff. ¶ 1). 
 
On January 2, 2019, the Navy awarded appellant, Vox Optima, LLC, the 
indefinite-delivery, indefinite-quantity, contract referenced above.  A relevant 
requirement for present purposes is that the contract contained a maximum pass through 
rate of 8% on subcontractors.  (Allen aff. ¶ 2; see R4, tab 1 at 7) 
 
The Navy issued a solicitation for a task order dated March 26, 2019.  According 
to appellant, the solicitation was complex with many challenging requirements, including 
letters of commitment from key personnel, along with a requirement to notify the 
ASBCA No.  62313 
Under Contract No.  N00178-19-D-8818 

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contracting officer if a key employee became unavailable.  Appellant listed Scott Webb 
as a key employee in the proposal.  (Allen aff. ¶ 3; see R4, tab 2) 
 
Appellant submitted a proposal by the April 23, 2019, deadline.  The proposal 
contained a spreadsheet indicating that its pass-through rate was 8.15%, which is higher 
than the 8% maximum identified above.  Ms. Allen states that this was the result of a 
clerical error and “odd rounding conventions” in the government spreadsheet formulae.  
Appellant had intended to offer a 6% pass-through rate, as identified in the narrative 
portion of its proposal.  (Allen aff. ¶ 4) 
 
On May 1, 2019, the contracting officer invited appellant to make an oral 
presentation.  Thereafter, appellant incurred costs involving time and travel from 
New Mexico to Northern Virginia to make the presentation.  (Allen aff. ¶¶ 5-6; R4, 
tab 20 at attach. 9a) 
 
While the original award date had been June 30, 2019, the Navy extended it to 
December 31, 2019.  Appellant did not have any “direct billable work” for Scott Webb 
during this time but carried him as an employee anyway because it did not want to 
jeopardize its proposal by losing a key employee.  (Allen aff. ¶¶ 7-8) 
 
On December 2, 2019, the contracting officer notified appellant that it had been 
excluded from the competitive range due to what it calls “the minor clerical error” of a 
pass-through rate more than 8%, which the contracting officer found to be a “material 
nonconformance.”  Later that day, appellant submitted a corrected pass-through rate to 
the contracting officer, who declined to change his decision.  (Allen aff. ¶¶ 9-11; R4, 
tabs 9-13) 
 
From December 3-13, 2019, appellant attempted to resolve the matter with various 
ombudsmen, but these efforts were unsuccessful (Allen aff. ¶¶ 12-15). 
 
Four days after the ombudsmen process ended, on December 17, 2019, appellant 
submitted to the Board a document labeled in the subject line as a “CLAIM FOR 
PROPOSAL COSTS.”  Appellant requested reimbursement of $56,961.09 in costs or 
restoration to the competitive range.  The Board’s Recorder docketed this as an appeal. 
 
Appellant itemized the amount it seeks in the Allen affidavit.  Ms. Allen testified 
that it seeks $55,451.83 in costs for carrying Mr. Webb as an employee from May 1 to 
November 30, 2019.  It also seeks costs related to travel and the oral presentation that 
bring the total claim amount to $56,961.09.  (Allen aff. ¶ 17)  
 
The Board contacted the parties by email on April 13, 2020, to determine whether 
appellant had submitted a claim to the contracting officer.  Appellant’s counsel confirmed 
by email on April 14, 2020 that it had not submitted a claim to the contracting officer.  

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DECISION 
 
Pursuant to the Contract Disputes Act (CDA), “[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.A. § 7103(a)(1).  The CDA further provides 
that “[a] contracting officer shall issue a decision on any submitted claim of $100,000 or 
less within 60 days from the contracting officer's receipt of a written request from the 
contractor that a decision be rendered within that period.”  Id. § 7103(f)(1).  The 
contractor may file an appeal of the contracting officer’s final decision at the Board 
within 90 days after receipt of the final decision, or after a deemed denial (if the 
contracting officer fails to issue a decision).  Id. §§ 7103(f)(5),7104(a).  As our reviewing 
court has explained, a valid claim and a contracting officer’s final decision are 
prerequisites for our jurisdiction.  Securiforce Int’l America, LLC v. United States, 879 
F.3d 1354, 1359 (Fed. Cir. 2018); M. Maropakis Carpentry, Inc. v. United States, 609 
F.3d 1323, 1327 (Fed. Cir. 2010). 
 
Because appellant failed to submit a claim to the contracting officer and obtain a 
final decision before filing its appeal, the Board lacks jurisdiction over the appeal.  
Maropakis, 609 F.3d at 1327-29. 
 
CONCLUSION 
 
The appeal is dismissed without prejudice for lack of jurisdiction. 
 
Dated:  June 2, 2020 
 
 
 
MICHAEL N. O'CONNELL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 


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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. 62313, Appeal of Vox 
Optima, LLC, rendered in conformance with the Board’s Charter. 
 
Dated:  June 3, 2020 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals