Environmental Safety Consultants, Inc.
Docket: ASBCA 58221
Decision date: 2013-06-06

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Environmental Safety Consultants, Inc. 
Under Contract No. N62470-95-C-2399 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58221 
Mr. Peter C. Nwogu 
President 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Ellen M. Evans, Esq. 
Senior Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE FREEMAN 
ON THE GOVERNMENT'S MOTION TO DISMISS 
Environmental Safety Consultants, Inc. (ESCI), appeals a contracting officer's 
refusal to approve a request for a progress payment for work performed under the 
captioned contract (hereinafter "Contract 2399"). The government moves to dismiss for 
lack of jurisdiction on the grounds, among others, that (i) the request was never submitted 
to the contracting officer for a decision under the Contract Disputes Act of 1978 (CDA), 
41 U.S.C. §§ 7101-7109, and (ii) ifthe request was otherwise a valid CDA claim, it was 
barred by the CDA statute oflimitations. Since we agree with the government on its first 
ground, we do not reach the other grounds and accordingly dismiss the appeal. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. We incorporate by reference the Findings of Fact in our decision of 
28 September 2011 sustaining ESCI's appeal from the government's default termination 
of Contract 2399 and converting that termination to one for convenience. Familiarity 
with those facts is presumed. See Environmental Safety Consultants, Inc., ASBCA 
No. 51722, 11-2 BCA ~ 34,848. The facts stated below are those most pertinent to this 
appeal. 
2. The request for payment that ESCI characterizes in its notice of appeal as a 
"non-routine request for payment in accordance with Contract Dispute [sic] Act of 1978" 
was in fact a routine progress payment request (Invoice No.7) in the amount of 
$138,506.50 for work performed on Contract 2399 from 19 April through 23 June 1997. 
Neither Invoice No. 7 nor the 23 June 1997 transmitta11etter stated that the invoice was a 
claim under the CDA, nor did they expressly or by implication request a contracting 

officer's CDA decision on the invoiced amount, nor was the invoice certified as required 
by the CDA for claims in excess of$100,000. 1 (R4, tab 4; app. opp'n, ex. 20)2 
3. Invoice No.7 was not in dispute when received by the contracting officer on 
24 June 1997. However, by letter dated 30 June 1997 she returned the invoice to ESCI 
on the grounds that: "Your prompt payment certification is invalid as we have received 
notification from your surety that they have paid several of your subcontractors on this 
project" (R4, tab 13(a)). ESCI replied to this rejection of Invoice No.7 by letters dated 
7 July, 17 July and 15 August 1997. These letters presented ESCI's reasons why Invoice 
No.7 should be paid. However, none of these letters gave written notice to the 
contracting officer that ESCI was converting Invoice No. 7 to a CDA claim. None of 
these letters provided Invoice No. 7 with the CDA certification required for claims 
exceeding $100,000. (R4, tabs 13(b), 13(c); app. opp'n, ex. 10) 
4. Fourteen years later, ESCI submitted to the contracting officer a payment 
request with an invoice dated 29 November 2011 for the original amount of Invoice No. 7 
($138,506.50) plus $433,381.33 for interest on that original amount from 1 January 1997 
through 31 December 2011. 3 The transmittal letter stated that the request was "in 
accordance with contract specification section 01400." Neither the transmittal letter nor 
the revised Invoice No.7 stated that the request was a claim under the CDA, nor did they 
provide a CDA certification for the revised Invoice No. 7. (R4, tab 29) There is no 
evidence in the record on the motion of any response by the contracting officer to ESCI's 
submission. 
5. Contract 2399 included, among other provisions, the FAR 52.232-27, PROMPT 
PAYMENT FOR CONSTRUCTION CONTRACTS (MAR 1994) clause (R4, tab 1 at 28). 
Paragraph (a)(1)(i)(A) of that clause provided that "The due date for making [progress 
payments] shall be 14 days after receipt of the payment request by the designated billing 
office." The original Invoice No.7 was received by the billing office on 24 June 1997 
(R4, tab 13(a)). Accordingly, the due date for payment of Invoice No.7, if it had not 
been disputed by the government, would have been 8 July 1997. 
1 See 41 U.S.C. § 7103(b). 
2 In response to the government's motion to dismiss, ESCI filed a document entitled 
"Appellant's Motion to Government's Motion to Dismiss." That document 
opposes the government motion and we will refer to it as such. 
3 ESCI cites the Prompt Payment Act (PP A), 31 U.S. C. § § 3 90 1-3 907, as the basis for its 
request for 14 years of interest. However,§ 3907(b) ofthe PPA states: "An 
interest penalty under this chapter does not continue to accrue ... for more than one 
year." 
2 

DECISION 
Submission of a claim in writing for a contracting officer's decision, and an appeal 
of the decision or an appeal of a failure of the contracting officer to issue a timely 
decision, is a prerequisite under the CDA for Board jurisdiction to entertain the appeal. 
Madison Lawrence, Inc., ASBCA No. 56551, 09-2 BCA ~ 34,235 at 169,206. The CDA 
does not define "claim," but FAR 2.101 provides the following definition: 
Claim means a written demand or written assertion by one 
of the contracting parties seeking, as a matter of right, the 
payment of money in a sum certain, the adjustment or 
interpretation of contract terms, or other relief arising under 
or relating to the contract. However, a written demand or 
written assertion by the contractor seeking the payment of 
money exceeding $100,000 is not a claim under the Contract 
Disputes Act of 1978 until certified as required by the Act. 
A voucher, invoice, or other routine request for payment that 
is not in dispute when submitted is not a claim. The 
submission may be converted to a claim, by written notice to 
the contracting officer as provided in [FAR] 33.206(a), if it is 
disputed either as to liability or amount or is not acted upon in 
a reasonable time. 
We have found above that what ESCI states was a "non-routine" payment request 
was in fact a routine monthly progress payment request (Invoice No. 7) that was not in 
dispute when submitted to the contracting officer for payment on 24 June 1997. There 
was nothing in the invoice or transmittal letter indicating that the invoice was intended as 
a CDA claim. On 30 June 1997, the contracting officer put Invoice No.7 in dispute by 
rejecting it for an alleged "invalid" certification of payment of subcontractors. ESCI 
responded to the rejection with three argumentative letters, but none of these letters 
informed the contracting officer that ESCI was converting the invoice to a CDA claim. 
(SOF ~~ 2, 3) 
ESCI's submission on or about 29 November 2011 requesting payment of Invoice 
No.7 ($138,506.50), plus PPA interest penalty ($433,381.33), was not a routine invoice 
but it neither expressly nor by implication presented the request as a CDA claim, and it did 
not provide in any form the required CDA certification for claims exceeding $100,000 
(SOF ~ 4 ). Without such certification, the Board lacks jurisdiction to entertain the appeal. 
Tejirom Insaat Enerji Sanayi ve Ticaret A.S., ASBCA No. 56667, 11-1 BCA ~ 34,628 
at 170,630. 
3 

The appeal is dismissed without prejudice for lack of jurisdiction. 4 
Dated: 6 June 2013 
I concur 
~~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
CHERYL L. SCOTT 
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. 58221, Appeal of 
Environmental Safety Consultants, Inc., rendered in conformance with the Board's 
Charter. 
Dated: 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
4 Since we lack subject matter jurisdiction, we do not reach the government's Statute of 
Limitations argument. 
4