Parsons Evergreene, L.L.C.
Docket: ASBCA 57794
Decision date: 2012-06-22

ARMED SERVICES'BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
Parsons Evergreene, L.L.C. ) ASBCA No. 57794 
) 
Under ContractNo. FA8903-04-D-8703 ) 
APPEARANCES FOR THE APPELLANT: Douglas S. Oles, Esq. 
James F. Nagle, Esq. 
Jonathan A. DeMella, Esq. 
Oles Morrison Rinker & Baker LLP 
Seattle, WA 
APPEARANCES FOR THE GOVERNMENT: Alan R. Caramella, Esq. 
Acting Air Force Chief Trial Attorney 
Christopher M. McNulty, Esq. 
Maj Tyler D. Buckley, USAF 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON 
THE GOVERNMENT'S MOTION TO DISMISS 
Appellant Parsons Evergreene, L.L.C. (appellant or Parsons) appeals from "the 
assessment of liquidated damages pursuant to a letter of the Contracting Officer of 
27 December 2007" (notice of appeal dated 22 September 2011). The government 
moved to dismiss the appeal for lack ofjurisdiction under the Contract Disputes Act 
(CDA), 41 U.S.C. §§ 7101~7109, contending that appellant never filed a claim, nor has 
the contracting officer issued a final decision on a claim. In the alternative, the 
government maintains that should the Board find that there is a final decision, the appeal 
must be dismissed as untimely filed under 4.1 U.S.C. § 7104(a).As we believe there has 
been no final decision on a claim, we grant the motion and dismiss the appeal for lack of 
jurisdiction. 
STATEMENT OF FACTS (SOF) FOR P~OSES OF THE MOTION 
1. Parsons 1 was. awarded master Contract No. F A8903-04-D-8703 by the Air 
Force Materiel Command on 12 December 2003 (R4, tab 1). Delivery Order (DO) 0013 
1 The contract was originally awarded to Parsons Infrastructure & Technology Group, 
Inc. (R4, tab 1 at 1); however, by novation of9 September 2004, the contractor's 
name was changed to Parsons Evergreene, L.L.C. (R4, tab 2). 

under the contract, dated 13 July 2005, was issued for design 'and construction of a 
tenlporary lodging facility (TLF) and visiting quarters (VQ) at McGuire AFB, NJ 
(R4, tab 7 at 1-4, tab 8 at 4). 
2. The master contract includes, by reference, FAR 52.211-12, LIQUIDATED 
DAMAGES-CONSTRUCTION (SEP 2000) with the dollar amount to be specified in each 
individual order (R4, tab 1 at 9). The DO stated, in pertinent part, that "[i]fthe 
Contractor fails to complete the work within the time specified, the Contractor shall pay 
liquidated damages to the Government in the amount of$1347.00 for each calendar day 
of delay until the work is completed or accepted" (R4, tab 7 at 10). 
3. The master contract also contains, by reference, FAR 52.233-1, ,DISPUTES 
(JUL 2002) - ALTERNATE I (DEC 1991), which states in relevant part: 
(a) This contract is subject to the Contract Disputes 
Act of 1978, as amended (41 U.S.C. 601-613). 
(b) Except as provided in the Act, all disputes arising 
under or relating to this contract shall be resolved under this 
clause. 
(c) Claim, as used in this clause, me~s 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 this contract. . .. A 
voucher, invoice, or other routine request for payment that is 
not in dispute when submitted is not a claim under the Act .... 
(d)( 1 ) ... A claim by the Government against the 
Contractor shall be subject to a written decision by the 
Contracting Officer. 
(R4, tab 1 at 24) 
4. By letter dated 31 May 2007,the government issued a cure notice which 
included, among other deficiencies, delays in the performance schedule (R4, tab 22). 
,Over the next several months, correspondence was exchanged between Parsons and the 
government which discussed the contractor's attenlpts to comply with the cure notice and 
the government's demand for on-time completion, as scheduled, for 27 December 2007 
(R4, tabs 23~30). 
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5. By letter dated 27 December 2007, the scheduled completion date, the 
contracting officer notified Parsons that as of 28 December 2007, the contractor had 
failed to comply with the contract performance schedule stating that records indicated 
that the TLF was currently 82.1 percent complete, and the VQ was 73.4 percent complete 
(R4, tab 31). Critical to our decision is the second paragraph of the letter which stated: 
You are here by [sic] advised that based on your delinquent 
status and failure to meet the established completion date of 
27 Dec 07, your company will be accessed [sic] liquidated 
damages in accordance with Section I Contract Clause 
52.211-12 "Liquidated Damages-Construction (Sep 2000)" 
at the rate of $1,347.00 for each day of delay until Final 
Acceptance by the Govenlment has been accomplished. 
(Jd.) 
6. The government took beneficial use of the facilities as of 11 September 2008, 
prior to completion and acceptance of the work under the DO (R4, tab 42). 
7. By letter dated 4 February 2011, Parsons requested the release of $2, 1 00,000 
contract retainage held by the government on the DO (R4, tab 33). The government's 
response of 10 March 2011 stated that the balance on the DO was $2,796,971.76 of 
which "[t]he calculations for the liquidated damages are $347,526.00" (R4, tab 35 at 3). 
8. By letter dated 13 May 2011, Parsons made a second request for release of 
retainage. Starting with the same contract balance referenced in the government's 
10 March letter, $2,796,971, Parsons subtracted several dollar amounts, including the 
$347,526.00 in liquidated damages calculated by the contracting officer, and then 
requested the remaining retainage amount of$363,611.67. (R4, tab 37) 
9. The government's response, dated 26 May 2011, denied Parsons' request. The 
letter did not reference the liquidated damages. (R4, tab 39) 
10. By email dated 18 July 2011, Parsons requested the government confirm the 
amount of liquidated damages as $347,526 (R4, tab 41). The record contains no evidence 
of a government response. 
11. By letter of 22 September 2011, the contractor filed this appeal. The notice of 
appeal reads as follows: 
This is to appeal the assessment of liquidated damages 
pursuant to a letter of the Contracting Officer of 27 DeCelTlber 
2007. The liquidated damages were assessed soon thereafter. 
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Although the 27 December 2007 letter (attached) is not 
identified as a final decision, nor does it contain the required 
appeals right [sic] advice as required by FAR 33.211(a)(4), 
this assessment of damages against Parsons constitutes the­
assertion of a Government claim pursuant to applicable case 
law. Governing case law also establishes that because of the 
absence of the appeals rights advisement, this appeal is still 
tinlely. 
12. Appellant's complaint demands $577,863 and seeks CDA interest. Following 
the filing of the complaint, the government moved to dismiss the appeal for lack of 
jurisdiction. Parsons has submitted its opposition to the government's motion and the 
government filed a reply to appellant's opposition. 
DECISION 
The Parties' Contentions 
The government's motion to dismiss for lack ofjurisdiction cites to the need for a 
valid claim under the Contract Disputes Act (CDA), 41 U.S.C. § 7103, prior to the filing 
of an appeal. Further, should the Board find there is an appealable claim, there remains 
the requirement that appellant file its notice of appeal within ninety days of receipt of the 
final decision, and thus far," the only evidence that appellant has alleged meets the criteria 
" of a contracting officei's final decision is the government's letter of 27 December 2007, 
making the notice of appeal more than three years overdue. (Gov't mot. at 5-8) 
Appellant's opposition submits that the government's assessment of liquidated 
damages is a government claim from which appellant may appeal (app. opp'n at 5-6), and 
that there is no need to go through the formality of submitting a contractor's claim as the 
purpose of SUbmitting a claim is "to assure that the Government has full knowledge of " 
"and" a fair opportunity to negotiate each contractor claim before facing an appeal" (app. 
opp'n at 1, 6-8). Further, as this is a government claim and there is no evidence that the 
government intends to reconsider its decision to assess liquidated damages, the matter has 
ripened into an appealable dispute (app. opp'n at 9-11). Lastly, appellant characterizes 
the government's argument that the appeal is untimely filed, as being unreasonable given 
that the contracting officer never informed Parsons of its final decision or appel:ll rights, 
"an essential due process requirement of the CDA" (app. opp'n at 11-12). 

Dis'cussion 
With regard to our jurisdiction and the need for a CDA claim, we recently stated: 
The Board's jurisdiction under the Contract Disputes 
Act (CDA) is predicated upon a written claim by either the 
contractor or the government. 41 U.S.C. § 7103(a) (fonnerly 
codified at 41 U.S.C. § 605(a)); Parsons Global Services, Inc, 
ASBCA No. 56731, 11-1 BCA ~ 34,632 at 170,653 ("Under 
the CDA, the submission of a claim to the contracting officer 
and a final decision on (or deemed denial of) the claim are 
prerequisites to jurisdiction over contractor claims. "), appeal 
docketed, No. 11-1201 (Fed. Cir. Feb. 3, 2011); Hanley 
Industries, Inc., ASBCA No. 56976, 10-1 BCA ~ 34,425 (the 
CDA requires that government claims be the, subject of a 
contracting officer's final decision). 
Connectec Company, ASBCA No. 57546, 11-2 BCA ~ 34,797 at 171,258. 
In its opposition, Parsons states u~equivocally that it has not submitted a certified 
claim to the contracting officer, but rather the appeal is taken from the government's 
assessment of liquidated damages which is "the quintessential government claim" citing 
Sun Eagle Corp. v. United States, 23 Cl. Ct. 465,480 (1991) (app. opp'n at 4-5). 
As stated in our introduction to the discussion, our jurisdiction rests upon a CDA 
claim, either by appellant or the government. Here, rio one disputes 'that there 'is no 
contractor claim; therefore we limit our discussion to whether the government's letter of 
27 December 2007 will suffice as a government claim and a final decision thereon for 
purposes of our jurisdiction. 
Appellant rightly asserts that a claim for liquidated damages is the quintessential 
government claim, as stated in Sun Eagle. However, with regard to the Board's 
jurisdiction, our examination does not end with a finding that the government has or may 
have a claim for liquidated damages. There remains the necessity that the assessment of 
the liquidated damages be memorialized in a final decision by the contracting officer. 
Sharman Co. v. United States, 2 F.3d 1564, 1568-69 (Fed. Cir. 1993), overruled on other 
grounds, Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995) (en banc) (holding a 
final decision from the contracting officer on the government's monetary claim was a 
prerequisite to jurisdiction over the claim). 
Under the fact scenario presented, the government's 27 December 2007 letter was 
not a final decision on a government claim for liquidated damages. The CDA does not 
define a claim; however, the contract includes the Disputes clause, FAR 52.233-1 (SOF 
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~ 3). The clause defines a claim as, "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 government's 27 December 2007 letter did not make a demand for 
payment, but rather stated its right and intention to assess liquidated damages at the 
contract rate of $1 ,347 per day in the future, stating: "[Y]our company will be accessed 
[sic] liquidated damages in accordance with [the contract]" (SOF ~ 5). See Hanley . 
Industries, Inc., ASBCA No. 56976, 10-1 BCA ~ 34,425 (government revocation of 
acceptance reserving right to demand damages was not a claim). 
Parsons argues that the contracting officer can effectively make a final decision on 
a government claim once the contract is complete by declining to 'pay the contractor the 
balance due on the contract, citing Placeway Construction Corp. v. United States, 920 
F.2d 903, 906 (Fed. Cir. 1990) (app. opp'n at 10). In Placeway, the trial court held that it 
lacked jurisdiction because the contracting officer's letter of 4 September 1986, wherein 
it declined to pay the balance due on the contract, was not a final decision as it -lacked 
language stating it was a "final decision," there were no appeal rights as required by 
regulation, and the contracting officer had not yet ascertained the amount of the set off. 
Placeway Constr. Corp. v. United States, 18 Cl. Ct. 159, 164-165 (1989). However on 
appeal, the Federal Circuit held that -"the set off asserted is a government claim" and "the 
CO effectively made a final decision on the governinent claim" as "[i]t was undisputed 
that Placeway had completed performance of the contract. Moreover, the contract price 
for the work completed was undisputed and was due upon completion of work." 
Placeway Constr., 920 F .2d at 906. Unlike the facts presented in Placeway, in the 
'current appeal, when the contracting officer issued its 27 December 2007 letter to 
Parsons, the contract was 110t complete (SOF ~ 5) and the government had not declined to 
pay an undisputed balance due; therefore, the contracting officer's 27 December 2007 
letter was not an "effective" final decision on a government claim as enumerated in 
Placeway. 
CONCLUSION 
F or the reasons discussed above, we grant the government's motion to dismiss the 
appeal for lack ofjurisdiction without prejudice. 
Dated: 22 June 2012 
Administrati e Judge 
Armed Serv es Board 
of Contract Appeals 
(Signatures continued) 
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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 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals i!1 ASBCA No. 57794, Appeal of Parsons 
Evergreene, L.L.C., rendered in conformance with the Board's Charter. 
Dated: 
CATHERINE A. STANTON 
Recorder, Armed Services 
Board of Contract Appeals 
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