Selevive Group, LC
Docket: ASBCA 63292, ASBCA 63293
Decision date: 2022-10-18

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE EYESTER  
PURSUANT TO BOARD RULE 12.2 ON  
THE GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION  
 
Selevive Group, LC (Selevive or appellant) appeals two contracting officer 
final decisions (COFD) and has elected to proceed under the Board’s Small Claims 
(Expedited) Procedures, Board Rule 12.2.  The Contract Disputes Act, 41 U.S.C. 
§ 7106(b)(4)-(5), as implemented by Board Rule 12.2, provides that this decision shall 
have no precedential value, and in the absence of fraud, shall be final and conclusive 
and may not be appealed or set aside.   
 
The government contends the Board lacks jurisdiction and has moved to 
dismiss the appeals.  For the reasons stated below, we grant the government’s motion 
in part and deny it in part. 
 
 
 
 
 
Appeals of - )  
 )  
Selevive Group, LC ) ASBCA Nos. 63292, 63293 
 )  
Under Contract No. W91QF4-21-P-0023 )  
   
APPEARANCES FOR THE APPELLANT: Nicole D. Pottroff, Esq.  
Shane J. McCall, Esq.  
John L. Holtz, Esq.  
Stephanie L. Ellis, Esq.  
Greg P. Weber, Esq. 
    Koprince McCall Pottroff LLC 
    Lawrence, Kansas 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
  Army Chief Trial Attorney 
MAJ Chris C. Walton, JA 
Dana J. Chase, Esq. 
CPT Camille J. Grathwohl, JA 
  Trial Attorneys 
  
 

2 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On December 10, 2020, the Department of the Army, Mission and 
Installation Contracting Command, issued Solicitation No. W91QF421Q0010 for 
visual inspection and certified testing of lightning protection systems (LPS) at Fort 
Leavenworth (R4, tab 1 at 1, 6).  The solicitation was set-aside for women-owned 
small businesses (id. at 1).  Offerors were to submit quotations using fixed-prices for 
all contract line-item numbers (CLINs), which included the base year CLIN and two-
option year CLINs, and award was to be made on a lowest-priced technically 
acceptable (LPTA) basis (id. at 26-27, 29).  The solicitation had two technical exhibit 
(TE) attachments:  Technical Exhibit A – Facilities Lists & Measurements, and 
Technical Exhibit B – Installation Map (id. at 26). 
 
2.  On April 27, 2021, the agency awarded purchase order No. 
W91QF421P0023 in the amount of $23,087.50 to Selevive for the base year (R4, tab 7 
at 64).  The purchase order included Federal Acquisition Regulation (FAR) 52.212-4, 
Contract Terms and Conditions – Commercial Items (OCT 2018), which requires 
resolution of a dispute pursuant to FAR 52.233-1, Disputes, and for the contractor to 
proceed with performance pending final resolution of the dispute.  FAR 52.212-4(d).  
 
3.  Pursuant to the performance work statement (PWS), the appellant was to 
provide all supervision, labor, supplies, and equipment “necessary to perform visual 
inspections, and certified testing of [LPS] for facilities at Fort Leavenworth as defined 
in this [PWS] and the Technical Exhibits and Attachments” (R4, tab 7 at 70).  The 
purchase order stated several times that the appellant shall “accomplish all inspection 
and testing tasks [in accordance with] the Unified Facilities Criteria [(UFC)] 3-575-01, 
[National Fire Protection Association (NFPA)] 780, [Department of the Army 
Pamphlet (DA Pam)]-385-64, UL Lighting Protection Standards and other listed 
regulatory standards” (id. at 78; see also id. at 70).  In addition, the appellant was to 
ensure all work was accomplished in accordance with the documents in paragraph 7, 
which included the technical exhibits, and identified “which buildings/areas belong to 
each building type, the approximate square footage of the building/areas roofs, any 
special security considerations, and any constraints” (id. at 70, 90).   
 
4.  Further, the appellant was to provide the government “with a comprehensive 
report showing inspections, tests and results therein performed on all facilities” (R4, 
tab 7 at 71).  The inspection and testing reports developed for each building were 
required to list, “at a minimum, facility number, [a] brief description of facility type or 
style (smoke stack, office building, control tower etc.), [a] comprehensive list of 
installed LPS system(s) and their respective locations and coverage of the facility it is 
installed on, [a] list of all tests performed, satisfactory and unsatisfactory results of the 
installation of the system or equipment or test results” (id. at 78).   
 

3 
 
5.  The purchase order also required appellant to “develop isometric projection 
diagrams of each facility and inspected/tested system, and develop comprehensive 
reports from each inspection of and test of, each facility and its respective installed 
LPS system in its entirety, indicating each inspection and testing result for each 
system, and facility covered under this contract” (R4, tab 7 at 78).  The purpose of the 
drawings was to “identify faulty or inadequate installations of, or deteriorated, broken, 
missing, or otherwise unsatisfactory installed parts of the LPS in order to make 
informed and required repairs in the future” (id. at 79).   
 
6.  According to the order, it was the appellant’s “sole responsibility” to 
directly coordinate with the facility occupants for the scheduling of inspection and 
testing requirements (R4, tab 7 at 70).  However, the contracting officer’s 
representative (COR) could “assist with this if there are issues scheduling or 
coordinating with individual facilities as needed.”  (Id.)   
 
7.  The order set forth numerous requirements concerning access to the base.  
For example, it stated that all personnel entering must report to the visitor’s center for 
a background check and a day pass (R4, tab 7 at 74).  In the alternative, personnel 
working on an approved contract could apply for a Local Access Credential (LAC) 
card that would give them extended access to the base without going to the visitor 
center every day (id.).  The appellant was to submit the LAC application form to the 
COR; the purchase order provided detailed instructions about the application process 
and a website to access the form (id.).  The average time for standard background 
checks from submission until approval/denial was ten business days, and during busy 
times the average was one month.  (Id.) 
 
8.  In addition, if the appellant was to use special equipment or lifts and booms 
in an inaccessible area or one designated as general parking to perform direct 
inspection and testing of installed systems for facilities, the appellant was to 
coordinate with the Ft. Leavenworth Provost Marshall/Military Police Traffic Section 
at least four days ahead of the scheduled work (R4, tab 7 at 73).  The purchase order 
provided a phone number for the traffic section.  (Id.)   
 
9.  In April and May of 2021, the agency emailed the appellant the government 
points of contact, information regarding LAC applications, and other information 
about accessing the facilities (R4, tabs 36-37, 40-41).  Also in May of 2021, the 
government approved the appellant’s LAC passes, but the appellant failed to pick them 
up in time and they expired (R4, tab 44).  The appellant resubmitted the LAC 
applications and was given the option of obtaining day passes to complete the work (as 
explained in the purchase order) or reschedule the work once the long-term passes 
were approved (id. at 755).   
 

4 
 
10.  On June 22, 2021, the appellant asked the COR if the agency would 
provide a guide to work with them especially since heavy equipment would be used, 
and stated some of the buildings did not have a contact person and asked how to get 
access to the buildings to establish access and notify them of the impending work (R4, 
tab 8 at 102).  The COR emailed the appellant with the PWS sections explaining the 
coordination process (R4, tab 45 at 767).  The appellant also emailed the COR and 
stated it was waiting for LAC approval, missing contact information, coordination 
with military police, and a training waiver (R4, tab 47 at 771).  By June 25, 2021, the 
COR provided the appellant an updated points of contact list (R4, tab 48).  At this 
point, the COR emailed the contracting officer and expressed concern over the 
appellant’s ability to perform (R4, tab 8 at 101-02).       
 
11.  On August 13, 2021, the appellant provided the COR an inspection report 
for the LPS (R4, tab 9 at 112-13).  This was the beginning of the issues relating 
primarily to the isometric drawings.  On August 16, 2021, the COR responded and 
requested the isometric drawings and diagrams and the required test data (id. at 111-
12).  That same day, the appellant responded and stated that it needed the original 
lightning protection as built drawings or, if those were unavailable, architectural or 
mechanical roof drawings with actual scaling (id. at 110).  According to the appellant, 
without this information, there “will be a price per building and a lead time associated 
per building based on the amount of engineering time required to produce” the 
documents (id. at 110).  There continued to be much back and forth about the 
isometric drawings (id. at 105-09).   
 
12.  On August 18, 2021, the appellant asked for the height of each of the 
buildings and a modification of the contract to a cost-type, level-of-effort for a 
specified number of hours to be worked by engineering personnel (R4, tab 9 at 105).  
On that same day, in an internal email, the COR explained that the heights were 
provided as approximates to the bidders to consider potential costs in buying or renting 
lifts and the omitted heights would be captured by the vendor at the time of inspection 
(R4, tab 10 at 122).   
 
13.  On August 19, 2021, the contracting officer emailed the COR and others, 
expressing concern about the project and stating the appellant underbid in order to get 
this award, there were three acceptable quotations and the appellant’s was $80,000 
under the next acceptable quotation for the base period alone but the agency could not 
evaluate realism, and the agency could make the appellant whole by stating there was 
a mistake in the quotation (R4, tab 10 at 120-21).  The contracting officer stated it was 
likely the appellant would file a request for equitable adjustment (REA) and then a 
claim due to the specific language she used in her request for a modification (id. 
at 121).   
 

5 
 
14.  On August 24, 2021, the appellant informed the contracting officer that the 
engineers created the isometric drawings despite the missing information relating to 
the height of each building, but this resulted in an additional cost (R4, tab 9 at 104).  
On August 27, 2021, the COR informed appellant the drawings were unacceptable 
because none showed the installed LPS or the test results (id.; R4, tab 11 at 136-37).  
The appellant resubmitted the drawings and test reports and they were again rejected 
(see R4, tab 12 at 138).  This appears to be the beginning of the issues relating 
primarily to the inspection/testing requirements.   
 
15.  On September 7, 2021, the agency requested additional drawings and the 
inspection readings for all components (R4, tab 13 at 143).  In response, the appellant 
stated the lightning protection inspection was performed as a visual inspection and 
could only be performed as such on the components, with a continuity test at the 
through roof connections, and no other testing could be performed (id. at 142-43).  The 
COR responded that all systems can be tested to ground, as the PWS states, using an 
industry standard vibroground device and other means (id. at 141).   
 
16.  The next day, the agency again rejected the submitted drawings (R4, tab 14 
at 145).  On September 21, 2021, the appellant again sent the deliverables stating they 
“satisfy NFPA 780 inspections;” the agency accepted the deliverable the next day (R4, 
tab 15 at 149-50).  The appellant then asked to proceed with close-out and payment, 
but was informed that there were still missing deliverables, namely, the test results (id. 
at 148-49).  The appellant disagreed and stated that testing was performed under the 
requirements of NFPA 780.  (Id. at 148)   
 
17.  On September 30, 2021, the appellant emailed the contracting officer and 
requested payment on its invoice (R4, tab 16 at 154).  In addition, the appellant 
submitted an REA using the template prescribed by DFARS 243.205-71, Requests for 
Equitable Adjustment, again asking for a modification to a cost-type, level-of-effort 
purchase order for a specified number of hours to be worked by engineering personnel 
due to not having the requested information (id. at 154-55).  The REA also stated that 
a specified number of hours increased due to requested coordination with officers for 
building access and other documents not foreseen in the original scope of work (id. 
at 155).  The total requested was $12,700 (id.).  On October 8, 2021, the contracting 
officer requested the appellant provide the specific amounts tied to a government-
caused issue (id. at 152).   
 
18.  On October 26, 2021, the contracting officer emailed the appellant and 
others in the government and stated that there was a “dispute” about the testing 
requirements and that the appellant believed the previously provided inspection reports 
satisfied the contract (R4, tab 17 at 157).  The government maintained that ground 
testing was required, and not provided by the appellant.  (Id.)  On October 27, 2021, 

6 
 
the appellant submitted an invoice for isometric drawings in the amount of $11,543.75; 
the invoice was accepted the same day (R4, tab 30).     
 
19.  On November 30, 2021, a different contracting officer issued a COFD 
regarding appellant’s September 30, 2021 email asserting it provided all deliverables 
and requesting payment in full (R4, tab 18 at 159).  The COFD stated the purchase 
order was ambiguous regarding the type of testing required such that while the PWS 
references NFPA 780 and DA Pam 385-64 “there is not an immediately clear 
correlation in the statement of what tests are to be performed nor what tests are 
referenced or a location within the specifications to locate applicable testing. . . .”  (Id. 
at 160).  However, because the appellant waited more than 90 days to challenge the 
ambiguity, it was required to perform the testing on the LPS (id.).  The contracting 
officer asked the appellant to provide a revised schedule regarding the testing by 
December 3, 2021 (R4, tab 19 at 178).  The COFD also stated that the REA relating to 
coordination of access to facilities would be handled as a separate matter (R4, tab 18 
at 159).   
 
20.  On December 1, 2021, the appellant requested a meeting (R4, tab 19 
at 172-73).  In addition, the appellant submitted a new report (id. at 169).  The 
contracting officer stated that it appeared to be the original report and requested a 
report with the ohm value readings which were needed to determine LPS compliance. 
(id. at 168)  The appellant informed the agency that it subcontracted the testing work 
and it would be performed the week of January 17, 2022 (id. at 162, 166).   
 
21.  On February 18, 2022, the agency held a teleconference with the appellant 
to discuss the partial acceptance of the deliverables (R4, tab 21 at 182).  According to 
the meeting minutes, the appellant stated the former contacting officer informed her by 
telephone that she only needed to provide the minimum deliverables which she had 
already provided, and there was no requirement to provide additional data (id.).  The 
appellant also stated that the government must meet with her subcontractors and walk 
them around each facility to show them what the government wanted (id.).  In 
response, the government stated that there were no documented or verbal discussions 
with any of the assigned contracting officers that changed the scope of the work or 
deliverables which were relayed to the COR (id. at 183).  The government also stated 
that the facilities, locations, and access processes were in the PWS and the appellant 
has had access to each facility as confirmed by its own prior admission (id.).  The 
agency agreed to pay a portion--$8,338.05--of the remaining balance due to the 
partially accepted test result deliverables (id.).   
 
22.  On March 9, 2022, the contracting officer asked the appellant for more 
details concerning the September 30, 2021 REA, such as the hours not included in the 
original scope, the personnel not available, and the documentation to be provided that 
was out of scope (R4, tab 24 at 194).  In response, the appellant stated that only roof 

7 
 
testing was required but the agency insisted on ground testing per the November 30, 
2021 COFD, and the blueprint of the original installation of the LPS was never 
provided (id.).  The appellant failed to address the allegations relating to access to 
government buildings.   
 
23.  On March 13, 2022, the agency issued a COFD on the September 30, 2021 
REA (R4, tab 22 at 185-86).  The agency disputed the REA and concluded the PWS 
did not state a requirement for the government to provide drawings or blueprints for 
the LPS but stated the appellant was required to provide a drawing of each facility (id. 
at 185).  The COFD did not address any issues relating to base access.     
 
24.  On March 16, 2022, the agency and appellant held another meeting, which 
included the appellant’s subcontractors, to explain what test data was still due (R4, 
tab 23 at 189).  The government insisted the appellant test every installed LPS 
component and sub-component for electrical resistance (id.).  The appellant argued 
that the government was asking for deliverables not required by the purchase order, 
that all deliverables provided to date satisfied the order, and the government was 
requesting items which were not “industry standard acceptable practice” and 
impossible to provide (id. at 190).  The government disagreed and stated that it 
received this exact same product on another contract (id.).  The parties did not resolve 
their issues and the appellant insisted it did not owe the government anything more.  
(Id.)  Nonetheless, the appellant continued work on the purchase order.  
 
25.  On March 25, 2022, the COR spoke with an individual working for the 
appellant to discuss the LAC/pass process and how to maneuver the boom on the 
streets (R4, tab 68 at 1013).  On March 30, 2022, the agency sent the appellant and a 
subcontractor links to webpages on visitor access to the base such as the visitor’s 
office hours and location and pass requirements (R4, tab 67).   
 
26.  On March 31, 2022, the appellant’s subcontractor stated it needed a larger 
boom lift because it was missing needed information (R4, tab 26 at 218-19).  In 
response, the appellant asked the subcontractor to confirm that the building dimensions 
originally sent were insufficient to determine the building heights because she need to 
justify the additional costs for equipment and labor (id. at 218).  On that same day, the 
subcontractor confirmed that the information was not enough to gauge the size of the 
boom lift required (id.).   
 
27.  Also on March 31, 2022, the appellant emailed the contracting officer with 
an REA seeking $97,370 for missing information not provided by the agency, which 
caused an increase in overall costs such as manpower and equipment (R4, tab 26 
at 207).  The REA listed a cost of $24,470 for the inspection of all 18 buildings and 
inspection reports to “include any necessary remediations;” $34,800 for isometric 
drawings due to missing information from the agency; and $38,100 for the cost of 

8 
 
additional testing and measurements due to missing information from the agency (id. 
at 209).  It included a copy of a check to Lightning Masters Corporation, a copy of a 
wire transfer to Scientific Lightning Solutions, LLC, and various emails relating to 
missing building heights (id. at 210-14, 217).  The appellant informed the contracting 
officer that it was “going this route of Equitable Adjustment rather than a different 
route for now because I want to preserve a good working relationship with your team” 
(id. at 208).   
 
28.  In early April 2022, the appellant informed the government it could not 
finish the work due to weather conditions and trying to get cars moved or maneuvering 
the boom around parked cars (R4, tab 68 at 1011-12).  On April 5, 2022, the appellant 
emailed the COR and asked to work the weekend to complete the job (id. at 1011).  
The contracting officer approved the request, but reminded the appellant to read the 
PWS, especially the sections relating to hours of operation, parking, weather 
conditions, and coordination with the traffic section (id. at 1010).  The contracting 
officer stated she was not granting any additional money for overtime work.  (Id.) 
 
29.  On April 8, 2022, the agency issued a COFD denying the REA (R4, tab 
27).  According to the COFD, the PWS:  (1) required the appellant provide remedies 
and solutions for substandard or deficient systems or components; (2) stated the 
appellant would provide the government isometric drawings; and (3) stated the 
appellant would provide testing and measurements of the buildings (id. at 221).  The 
COFD stated the government provided building heights for the five tallest buildings in 
technical exhibit A, and therefore appellant had knowledge of the appropriate 
equipment needed.  (Id.)   
 
30.  On April 11, 2022, the appellant emailed the contracting officer and stated 
“see attached claim” (R4, tab 28 at 223).  The claim consisted of a claim summary 
schedule (setting forth costs for direct labor, staff payroll, general and administrative 
(G&A) expenses and profit), and several corresponding invoices, and requested a total 
amount of $97,370 (id. at 224-31).  Specifically, the appellant attached the following 
invoices:  (1) $7,625 from Bolt Lightning Protection for testing, travel, and ground 
readings on 13 buildings; (2) $18,470 from Lightning Master for inspection of all 18 
buildings, lift rental, travel, inspection reports to include necessary remediations 
required to bring LPS up to industry standard per NFPA 780; and (3) $24,012.58 from 
Scientific Lightning Solutions, LLC for a feasibility study for lightning protection and 
surge protection with notes that the building heights were not provided so the 
assumption was a 60-ft boom lift was required (id.).    
 

9 
 
31.  On April 13, 2022, the agency issued a COFD on the claim (R4, tab 29). 1  
First, with respect to the $7,265 for the test reports and grounding readings, the 
government denied the claim because the testing and inspection services were required 
by the PWS (id. at 233).  The COFD also stated:  “Additionally, there is no evidence in 
the contract file that the contractor posed any questions related to testing and 
inspection that would warrant an increase in costs” (id.).  The government also denied 
the claim seeking $18,470 for testing and inspection reports and isometric drawings 
(id. at 232).  According to the government, the PWS required the appellant provide all 
supplies, equipment, management and labor personnel to perform inspection and 
testing services for the specified buildings; and the appellant was to provide remedies 
and solutions to get substandard or deficient systems or components within acceptable 
standards along with a scale isometric projection drawing of each facility listed in the 
TE (id.).  The government stated that the appellant had an opportunity to account for 
these costs in its quotation and again stated that there was no evidence in the contract 
file that the appellant posed any questions on the testing and inspection procedures that 
would warrant an increase in costs (id.).   
 
32.  The government also denied the request for $24,012.58 for a feasibility 
study, which included providing measurements for all buildings listed in the PWS (R4, 
tab 29 at 233).  According to the government, the PWS required testing and 
measurements of the buildings (id.).  The government also denied the requests for staff 
payroll, G&A, and profit because the PWS required the appellant provide all 
supervision, management, tools, equipment, and labor necessary to perform inspection 
and testing services (id.).  The contracting officer concluded by requiring the appellant 
provide the required testing of the LPS (id.).  
 
33.  On April 22, 2022, the appellant emailed Thomas Prayne and stated that 
testing and inspection would be conducted on April 25-26, 2022 and that all 
stakeholders had been informed and vehicles will need to be parked away from the 
building to allow access (R4, tab 71 at 1029).  On April 22, 2022, Mr. Prayne stated 
that he could provide the appellant cones but the appellant would have to pick them up 
(id.).  On April 25, 2022, the appellant informed the COR she was having problems 
with access to certain buildings (R4, tab 70 at 1022-23).  The COR asked the appellant 
if she had coordinated with the military traffic section to have the areas coned off, as 
described in the PWS (id. at 1022).  The appellant then forwarded her email to 
Mr. Prayne and asked for assistance in accessing the buildings (id. at 1022).   
 
34.  On May 18, 2022, the appellant filed a Notice of Appeal on the COFD on 
the REA, which the Board docketed as ASBCA No. 63292.  On May 25, 2022, the 
 
1 The government found a discrepancy in the amount requested and provided a 
response to each of the amounts requested in the various invoices (R4, tab 29 
at 232).   

10 
 
appellant filed a Notice of Appeal filed on the COFD on the claim, which the Board 
docketed as ASBCA No. 63293.  On May 31, 2022, the appellant submitted a final 
invoice for final testing in the amount of $11,543.75; the government accepted the 
invoice on June 3, 2022 (R4, tab 31 at 239, 243).   
 
35.  On June 21, 2022, the appellant, this time through counsel, submitted a 
Statement of Clarification to the Board explaining that the two “claims” submitted 
initially by the pro se owner are for the same amount of $97,370 and therefore within 
the monetary limits for expedited procedures (app. corr. dtd. June 21, 2022).  On 
July 19, 2022, the appellant submitted a Second Statement of Clarification explaining 
that the March 31, 2022 REA and April 11, 2022 claim submitted by the appellant to 
the contracting officer “are for the same matters and based on the same allegations, 
which shows why the amounts claimed in each are identical.”  (App. corr. dtd. July 19, 
2022) 
 
36.  In its amended complaint, the appellant alleges the following:  (1) there 
was promissory estoppel because the contracting officer verbally modified the 
solicitation prior to award when it informed the appellant during a call that the 
solicitation only sought annual inspection services which the appellant says “would 
only consist of visual inspection services in accordance with NFPA 780”(amended 
compl. ¶¶ 30-37); and (2) the government breached its implied duty of good faith and 
fair dealing when it failed to cooperate and prevented the appellant from accessing the 
site to conduct work under the contract, resulting in wasted expenditures on labor, 
equipment and subcontractors (amended compl. ¶¶ 38-43).   
 
DECISION 
 
The government has made several arguments that the Board lacks jurisdiction 
over the appeal.  First, the government argues the appellant never submitted a “valid” 
claim to the contracting officer.2  The government contends the April 11, 2022 
correspondence was “simply seeking reimbursement of its costs as if the Contract were 
cost-reimbursement type, rather than firm-fixed price type, similar to the appellant’s 
efforts in its March 31, 2022 REA” (gov’t reply at 12).  The government further 
contends the April 11, 2022 communication fails to provide clear language providing 
the basis of the claim (gov’t mot. at 11-12; gov’t reply at 12-13).   
 
2 The government has moved to dismiss the appeals by arguing that the April 11, 2022 
submission is not a “valid” claim and only averring that the March 31, 2022 
submission is an REA even though the agency issued COFDs for both (see e.g., 
gov’t reply at 14-16).  As noted, Selevive appeals both COFDs and asserts that 
the two are for the same matters and based on the same allegations; the Board 
consolidated the appeals.  Further matters, if any, relating to the March 31, 
2022 REA will be addressed in a decision on the merits.  

11 
 
 
The appellant argues that it submitted a claim as evidenced by the earlier 
correspondence and communications which preceded the claim, along with the claim 
itself (app. resp. at 11-15).  According to the appellant, these documents provided a 
clear statement of the basis of the claim, and the contracting officer understood the 
basis of the claim, as evidenced by the COFD (id.).    
 
Selevive bears the burden of establishing jurisdiction by a preponderance of the 
evidence.  Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 
1988) (citations omitted); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA 
¶ 35,700 at 174,816
 (citing Hanley Indus., Inc., ASBCA No. 58198, 14-1 BCA 
¶ 35,500 at 174,015).  “The facts supporting jurisdiction are subject to our fact-finding 
upon a review of the record.”  CCIE & Co., 14-1 BCA ¶ 35,700 at 174,816 (citing 
Raytheon Missile Sys., 
ASBCA No. 58011, 13 BCA ¶ 35,241 at 173,016).  
 
Is the April 11, 2022 correspondence a claim?  
 
The FAR 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 adjustment or interpretation of contract terms, or other relief arising under 
or relating to this contract.”  48 C.F.R. § 52.233-1(c).  Claims under $100,000 need not 
be certified.  41 U.S.C. § 7103(b)(1); see 48 C.F.R. § 52.233-1(d)(2)(i).  The FAR also 
explains that “[a] voucher, invoice, or other routine request for payment that is not in 
dispute when submitted is not a claim under 41 U.S.C chapter 71.”  48 C.F.R. 
§ 52.233-1(c).  To determine whether a claim was submitted, “we apply a common 
sense analysis, looking at specific communications on a case-by-case basis and the 
‘totality of previous correspondence between the parties.’”  Kellogg Brown & Root 
Servs., Inc., ASBCA No. 62681, 21-1 BCA ¶ 37,974 at 184,427 (quoting Holmes & 
Narver, Inc., ASBCA No. 51430, 99-1 BCA ¶ 30,131 at 149,054).   
 
The April 11, 2022 submission is a claim.  It followed the COFD denying the  
March 31, 2022 REA which likewise sought $97,370 for, among other things, 
inspection and testing.  Further, the April 11, 2022 submission followed months of 
conflict between the appellant and government over many things including the 
requirements for testing.  Based on the record before us, as far back as February 18, 
2022, the appellant disputed the requirement to perform ground tests on the LPS due to 
an alleged conversation she had with the contracting officer (SOF ¶ 21).  Accordingly, 
the April 11, 2022 submission sought compensation due to alleged unforeseen or 
unintended circumstances and is therefore not a routine submission made “‘in 
accordance with the expected or scheduled progression of contract performance.’” 
James M. Ellett Constr. Co., Inc., 93 F.3d 1537, 1542 (Fed. Cir. 1996) (quoting 
Reflectone, Inc., v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995)).   
 

12 
 
Was there a clear and unequivocal statement providing adequate notice of the claim? 
 
The government contends the claim never specifically referenced anything 
relating to the first allegation in the complaint--the alleged pre-award clarification call 
with the contracting officer--and is only a table of expenses and several invoices which 
failed to explain their relevance (gov’t mot. at 2-3, 11; gov’t reply at 20-21).  “A claim 
need not be submitted in any particular form or use any particular wording, but it must 
provide a clear and unequivocal statement that gives the contracting officer adequate 
notice of the basis and amount of the claim.”  Tolliver Grp., Inc., 20 F.4th 771, 776 
(Fed. Cir. 2021) (quoting K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005 
(Fed. Cir. 2015)).  In addition, “[i]n determining a claim’s scope, we are not limited to 
the claim document but can examine the totality of the circumstances.”  Dawson-
Alamo1 JV, LLC, ASBCA No. 60590, 19-1 BCA ¶ 37,357 at 181,645 (quoting Sauer, 
Inc., ASBCA No. 60366, 16- 1 BCA ¶ 36,565 at 178,101).   
 
When looking at the circumstances in total, the April 11, 2022 claim provided 
adequate notice that the appellant was contesting the scope of work due to prior 
discussions with the contracting officer.  Again, the record shows that during a 
February 2022 meeting, the government disputed appellant’s allegations that any of 
the assigned contracting officers had discussions that changed the PWS or 
deliverables.  (R4, tab 21 at 183)  The appellant then submitted what it labeled an REA 
on March 31, 2022, listing as relevant here a cost of $24,470 for the inspection of all 
18 buildings and inspection reports and $38,100 for the cost of additional testing (R4, 
tab 26 at 207, 209).  The agency issued a COFD denying the REA, contending the 
PWS required testing (R4, tab 27).  Next, on April 11, 2022, the appellant submitted 
the claim at issue here which included invoices for testing and inspection reports (R4, 
tab 28).  In response, the COFD specifically states twice that there was “no evidence in 
the contract file that the contractor posed any questions” related to testing and 
inspection that would warrant an increase in costs (R4, tab 29 at 232-33).  Therefore, 
the government was aware of the basis of the claim, at least as it relates to the 
requirement for more than visual inspections.   
 
With respect to the second allegation that the government failed to cooperate 
and prevented the appellant from accessing the site, the government argues the claim 
says nothing about these issues relating to base access (gov’t mot. at 9; gov’t reply 
at 22).  The record shows the appellant had raised this issue as far back as 
September 2021 (R4, tab 16 at 155), and the issue concerning access to facilities was 
apparently discussed again during the teleconference on February 18, 2022 (SOF 
¶ 21).  However, on March 9, 2022, the contracting officer requested a detailed 
response regarding the REA in which this issue was raised and asked for “personnel 
not available”; the appellant failed to provide information regarding access to the 
facilities (SOF ¶ 22).  Further, the March 31, 2022 REA seeking $97,370 for missing 
information and the cost of inspections and additional testing failed to set forth any 

13 
 
allegations regarding lack of access to the buildings (SOF ¶ 27).  Likewise, the 
subsequent April 11, 2022 claim seeking $97,370 for testing and inspection and other 
costs never discussed this issue (SOF ¶ 30).  While there is communication in the 
record showing in late April 2022 that the appellant believed there were base access 
issues, these occurred after both COFDs.  Accordingly, the claim failed to provide 
adequate notice of this allegation to the contracting officer, and this allegation is 
dismissed.  
  
Is this the same claim as presented to the contracting officer?  
 
The government also moved to dismiss the appeals arguing that the causes in 
the complaint are not based on the same operative facts and basis of the claim 
submitted to the government for a COFD (gov’t mot. at 8-10; gov’t reply at 12).  The 
Contract Disputes Act requires that “[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. § 7103(a)(1).  The purpose of presenting a claim to the 
contracting officer first is “to create opportunities for informal dispute resolution at the 
contracting officer level.”  Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 (Fed. 
Cir. 2021) (quoting Raytheon Co. v. United States, 747 F.3d 1341, 1354 (Fed. Cir. 
2014)).  Because ‘“[t]he scope of [an] appeal is determined by the claim originally 
submitted to the contracting officer for a final decision’. . . . we do not possess 
jurisdiction over new claims that were not previously presented to the contracting 
officer.”  Parwan Grp. Co., ASBCA No. 60657, 18-1 BCA ¶ 37,082 at 180,495 
(quoting MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 at 169,673).   
 
A claim presented to the Board may be considered the same as the one 
presented to the contracting officer if it “derives from the same set of common or 
related operative facts” and “seeks the same or similar relief.”  Anthony and Gordon 
Constr. Co., ASBCA No. 61916, 21-1 BCA ¶ 37,887 at 184,001 (quoting Parwan 
Grp. Co., 18-1 BCA ¶ 37,082 at 180,495).  In general, we look at the “operative facts” 
of the claim submitted to the contracting officer, which are “the essential facts that 
give rise to the cause of action.”  M.A. DeAtley Constr., Inc. v. United States, 75 Fed. 
Cl. 575, 579 (2007) (quoting Kiewit Constr. Co. v. United States, 56 Fed. Cl. 414, 420 
(2003)).    
 
In addition, a claim that introduces “additional facts which do not alter the 
nature of the original claim” or asserts “a new legal theory of recovery, when based 
upon the same operative facts as included in the original claim” does not constitute a 
new claim.  Trepte Constr. Co. Inc., ASBCA No. 38555, 90-1 BCA ¶ 22,595 
at 113,385.  The claimant is free to change its legal theory as long as it is not 
materially different from what was presented in the claim.  Wilwood Eng’g, ASBCA 
No. 62773, 22-1 BCA ¶ 38, 116 at 185,144.     
 

14 
 
 
Selevive’s complaint argues there was promissory estoppel because the 
contracting officer verbally modified the solicitation prior to award when it informed 
the appellant during a call that the solicitation only sought annual inspection services 
which the appellant says would only consist of visual inspection services in 
accordance with NFPA (amended compl. ¶ 30-37).  “[P]romissory estoppel is 
essentially an equitable cause of action whereby one who reasonably relies on 
another’s promise can subsequently require that person to make good on his promise.”  
Carter v. United States, 98 Fed. Cl. 632, 638 (2011).  Although Selevive did not 
specifically articulate, or use the words, promissory estoppel in its claim, the Army 
understood the claim was based on the appellant’s reliance of alleged oral advice from 
a contracting officer.  Accordingly, we conclude that Selevive did present this theory 
of recovery in its claim to the contracting officer.   
 
The parties were asked to provide briefing on whether the Board has 
jurisdiction over the appellant’s allegation of promissory estoppel.  The government 
contends that the Board does not have jurisdiction.     
 
“An obligation based upon promissory estoppel is a type of contract implied-in-
law. . . and cannot be asserted against the government.” RGW Commc’ns., Inc. d/b/a 
Watson Cable Co., ASBCA Nos. 54495, 54557, 05-2 BCA ¶ 32,972, at 163,338 n.13 
(citations omitted).  A contract implied-in-law is one “in which there is no actual 
agreement between the parties, but the law imposes a duty in order to prevent 
injustice.”  International Data Products Corp. v. U.S., 492 F.3d 1317, 1325 (Fed. Cir. 
2007).  The Board does not possess jurisdiction over a contract implied-in-law, and 
therefore we do not possess jurisdiction over a claim of promissory estoppel.  See 
Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,085 at 180,534.  Here, the appellant 
has argued that it relied on information provided by the contracting officer prior to 
award, and the appellant “adjusted [its] proposal to only account for visual inspection 
services” (amended compl. ¶ 36).  As the promissory estoppel allegation concerns an 
implied-in-law contract, we dismiss for lack of jurisdiction.   
 
In its brief, the appellant argued that “this situation is unique as it is one where 
an express contract was made. . . [and] Selevive’s claim can be more properly 
described as one for negligent misrepresentation” (app. br. at 1).  The appellant has 
sought to amend its complaint (app. br. at 2).  Accordingly, as appellant has raised an 
additional issue that requires further briefing, the appeal remains before the Board and 
that issue will be resolved at a later time.    
 
CONCLUSION 
 
 For the foregoing reasons, the government’s motion on jurisdiction is granted in 
part and denied in part, and the Board dismisses the allegation regarding promissory 

15 
 
estoppel.  Accordingly, ¶¶ 31 through 32, and 38 through 43 are stricken from the 
amended complaint. 
 
 Dated:  October 18, 2022
 
 
 
 
 
 
 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 63292, 63293,
 Appeals of 
Selevive Group, LC, rendered in conformance with the Board’s Charter. 
 
 Dated:  October 18, 2022 
 
 
 
 
 
 
 
 
LAURA EYESTER 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals