Derian, Inc.
Docket: ASBCA 63283
Decision date: 2023-02-01

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE YOUNG 
ON THE GOVERNMENT’S MOTION TO DISMISS 
 
 Derian, Inc. (Derian or appellant) filed a notice of appeal alleging the contracting 
officer had not issued a timely decision.  Appellant did not include a copy of a purported 
claim or any other documentation about the contract.  The U.S. Army Corps of Engineers 
(USACE) Walla Walla District (government) filed a motion to dismiss for lack of 
jurisdiction alleging appellant did not submit a claim to the contracting officer.  The 
Contract Disputes Act (CDA), 41 U.S.C. §§7101-7109, is applicable.  For the reasons 
stated below, the appeal is dismissed. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 1.  On May 3, 2022, appellant submitted correspondence to the Board stating as 
follows: 
 
USACE Walla Walla District refuses to issue timely 
responses or decisions; therefore, Derian considers these 
actions a deemed denial.  USACE is unreasonably delaying 
final contract completion and payment. 
 
Owner:  USACE Walla Walla District 
Contact:  Jani Long Jani.C.Long@usace.army.mil 
Contractor:  Derian, Inc. 
Contract:  W912EF-20-C-0029 
Title:  McNary Unwatering Upstream Sump Repair 
Appeal of - )  
 )  
Derian, Inc. ) ASBCA No. 63283 
 )  
Under Contract No. W912EF-20-C-0029 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Mark Jensen 
    President 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Theresa L. Hampson, Esq. 
  Deputy District Counsel 
    U.S. Army Engineer District, Walla Walla 

2 
 
Project Substantial Completion: September 2021 
 
Modifications: 
 
Electrical/Fire:  USACE issued January 2021 
Derian response February 2021 
USACE response March 2022 
Negotiations fail March 2022 
USACE refuses to issue unilateral modification or respond 
P-10 Pump:  Performance test completed August 2021 
USACE informs Derian mod issuance/final acceptance 
forthcoming in September 2021 
 
USACE refuses to respond 
 
Final closeout and payment pending issuance of modifications. 
 
(Notice of appeal at 1) 
 
 2.  On May 17, 2022, the Board docketed appellant’s correspondence as ASBCA 
No. 63283. 
 
 3.  On June 15, 2022, the government filed a motion to dismiss for lack of 
jurisdiction, arguing that appellant did not submit a claim to the contracting officer. 
 
 4.  On June 22, 2022, the Board issued an Order directing appellant to respond to 
the motion within 30 days of the Order.  
 
 5.  Appellant did not file a response as directed.  On August 23, 2022, the 
government submitted correspondence to the Board noting that appellant had failed to 
respond within the timeframe directed by the Board.  (Gov’t. corr. dtd. August 23, 2022) 
 
 6.  On August 24, 2022, the Board issued an Order directing appellant to file an 
opposition to the government’s motion if appellant elected to do so, within 14 days of the 
date of the Order. 
 
 7.  To date, appellant has not submitted a response to the government’s motion to 
dismiss for lack of jurisdiction, or any other correspondence to the Board. 
 

3 
 
 
DECISION 
 
 “It is axiomatic that, in order for this Board to review an appeal under the CDA, 
there must be an underlying claim.”  Golden Build Co., ASBCA No. 62294, 20-1 BCA 
¶ 37,649 at 182,774 (citing Parsons Evergreene, L.L.C., ASBCA No. 57794, 12-2 BCA 
¶ 35,092 at 122,346).  The CDA requires that “each 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. § 7103(a)(1).  A valid claim from a contracting officer’s final 
decision is a prerequisite to jurisdiction by the Board.  See Parsons Glob. Servs., Inc. v. 
McHugh, 677 F.3d 1166, 1170 (Fed. Cir. 2012).  
 
 Here, appellant’s submission of May 3, 2022 (SOF ¶ 1) contains no information as 
to whether a claim was submitted to the contracting officer.  Appellant simply states that 
the government “refuses to issue timely responses or decisions” which Derian considers a 
deemed denial (app. corr. dtd. May 3, 2022).  Nothing in the record supports that Derian 
submitted a claim to the contracting officer.  Despite multiple Orders to respond, 
appellant has not provided any evidence that a claim was submitted to the contracting 
officer.  Therefore, we must grant the government’s motion to dismiss for lack of 
jurisdiction.   
 
CONCLUSION 
 
 The appeal is dismissed for lack of jurisdiction. 
 
 Dated:  February 1, 2023 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
 
 
LIS B. YOUNG 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
  

4 
 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
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. 63283,
 Appeal of Derian, 
Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  February 1, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals