URS Federal Services, Inc.
Docket: ASBCA 37986
Decision date: 2021-03-23

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
URS Federal Services, Inc. ) 
 ) 
   ) 
 
 
APPEARANCES FOR THE APPELLANT: 
 
  
Terry L. Elling, Esq.  
Amy L. Fuentes, Esq.  
Angela M. Jimenez, Esq. 
  Holland & Knight LLP 
  Tysons, VA 
  
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. 
  Air Force Deputy Chief Trial Attorney 
Colby L. Sullins, Esq. 
  Trial Attorney 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON GOVERNMENT’S 
MOTIONS TO STRIKE FOR LACK OF JURISDICTION AND TO DISMISS FOR 
FAILURE TO STATE A CLAIM 
 
 Appellant, URS Federal Services, Inc., seeks $748,507.92 for the performance of 
maintenance and repair services (at a U.S. Coast Guard Air Station in North Carolina) 
that it says the government has accepted but for which URS has not yet been paid (compl. 
¶¶ 3, 12-13, 52).  The government moves to strike Count III of URS’s three-count 
complaint for lack of jurisdiction, saying that the claim set forth in that count has not 
been presented to the contracting officer, and moves to dismiss the appeal for failure to 
state a claim, saying that URS’s claim is barred by the six-year statute of limitations 
found in the Contract Disputes Act, 41 U.S.C. § 7103(a)(4)(A) (gov’t mot. at 1, 5).   
 
Motion to strike 
 
 The government asks that we strike Count III of URS’s complaint for lack of 
jurisdiction because, the government says, the claim of breach of the implied duty of 
good faith and fair dealing set forth in that count has not been presented to the contracting 
officer (gov’t mot. at 8).  We may strike from a complaint a claim that we lack 
jurisdiction to entertain.  See Nat’l Mfg. Co., Inc., ASBCA No. 37986, 89-3 BCA 
¶ 21,994 at 110,599 (striking monetary claim for lack of jurisdiction).  For the Board to 
possess jurisdiction to entertain a claim, the claim must first have been presented to a 
ASBCA No.   62475 
Under Contract No.  FA8108- 09-D-0006 

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contracting officer for decision.  James M. Smith, Inc., ASBCA No. 31701, 87-1 BCA 
¶ 19,369 at 97,948.  We do not possess jurisdiction to entertain a new claim; that is, a 
claim that is based upon operative facts not already presented in the claim that is the 
subject of the appeal.  Envtl. Chem. Corp., ASBCA No. 58871, 15-1 BCA ¶ 36,110 
at 176,286. 
 
Central to Count III are allegations that the government has refused to pay URS 
the amounts it claims, including by denying its November 2018 claim to the contracting 
officer (see compl. ¶¶ 46-52).  Count III alleges that “URS is due the entire amount of its 
Claim—i.e., $748,507.92—as a consequence of [the government’s] breach of its duty of 
good faith and bad dealing” (compl. ¶ 52).  Count III further alleges that the government 
breached the implied duty of good faith and fair dealing in that it “[r]epeatedly and 
continually, from 2010 through 2018, [] took no issue—and in no event disputed—URS’ 
entitlement to the amounts owed to URS for its work performed (and accepted by [the 
government]) under its invoices and the other payments for which it was seeking 
payment” (compl. ¶ 47).  Count III also alleges that “[t]he Final Decision at issue here 
underscores [the government’s] lack of good faith, as [the government] denies URS’s 
Claim solely on the basis of the limitations period, without disputing that work was 
acceptably performed, and without acknowledging that it was [the government], not 
URS, that is accountable for most, if not all, of the delay that has ensued in resolving the 
payments due URS” (id. ¶ 50).  Finally, the count alleges that “it is apparent that the 
Final Decision, which was not issued to or received by URS until late March 2020, was 
in fact prepared and signed in September 2019 as evidenced by the date on the CO’s 
electronic signature” (id. ¶ 51).  URS’s November 9, 2018 claim to the contracting officer 
does not set forth allegations concerning the contracting officer’s March 2020 decision 
denying payment, which is not surprising because, of course, URS’s claim predates the 
government’s denial of that claim (R4, tab 109).  Because Count III is based upon 
operative facts—namely the denial of URS’s claim—that are not presented in the claim 
to the contracting officer, we do not possess jurisdiction to entertain that count.  Cf. Envtl. 
Chem. Corp., 15-1 BCA ¶ 36,110 at 176,287 (no jurisdiction over breach of implied 
duties count alleging contracting officer signed an “arbitrary” final decision, where claim 
to the contracting officer pre-dated contracting officer’s final decision).  Consequently, 
the motion to strike is granted, and Count III is stricken. 
 
Motion to dismiss for failure to state a claim 
 
The government moves to dismiss the appeal for failure to state a claim because, it 
says, URS’s claim is barred by the six-year statute of limitations (gov’t mot. at 1, 5). 
Count I of the complaint claims entitlement to $310,881.31 in invoiced amounts; Count II 
of the complaint claims entitlement to $437,626.61 in what URS calls “unbilled invoices” 
or “unbilled amounts” (see compl. at 9-11 ¶¶ 35-45).  The total amount that URS seeks is 
$748,507.92 (compl. at 13 ¶ 53). 
 

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A motion to dismiss for failure to state a claim upon which relief can be granted is 
appropriate where the facts asserted in the complaint do not entitle the claimant to a legal 
remedy.  Matcon Diamond, Inc., ASBCA No. 59637, 15-1 BCA ¶ 36,144 at 176,407.  In 
deciding a motion to dismiss for failure to state a claim, we must accept well-pleaded 
factual allegations as true and must draw all reasonable inferences in favor of the 
claimant.  Id.  We are limited to considering the sufficiency of allegations set forth in the 
complaint and the documents attached to or incorporated into the complaint.  See id. 
(citing and quoting Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 606 (4th Cir. 
2015)). 
 
The six-year statute of limitations is an affirmative defense.  Raytheon Co., 
ASBCA No. 58849, 15-1 BCA ¶ 36,000 at 175,865.  Dismissal for failure to state a claim 
on the basis of an affirmative defense is proper where the defense clearly appears on the 
face of the complaint.  See Matcon Diamond, 15-1 BCA ¶ 36,144 at 176,408.  A timely 
claim must be submitted to the contracting officer within six years after accrual.  
41 U.S.C. § 7103(a)(4)(A).  A claim accrues when all events that fix the alleged liability 
of the government and permit assertion of the claim were known or should have been 
known.  Green Valley Co., ASBCA No. 61275, 18-1 BCA ¶ 36,977 at 180,120 (citing 
and quoting Federal Acquisition regulation (FAR) 33.201).  Although an invoice that is 
not in dispute when submitted is not a claim, it may be converted to one by a written 
notice to the contracting officer if not acted upon in a reasonable time.  Id. (citing and 
quoting FAR 2.101). 
 
According to the complaint, (1) the period of contract performance was from 
March 3, 2009, through September 2, 2010; (2) URS billed the government $310,881.31 
by way of four invoices submitted from November 9, 2009, through September 9, 2010, 
in the combined amount of $415,269.63, as well as a fifth, December 16, 2014 invoice 
that credited the government $104,388.32; and (3) on November 9, 2018, URS presented 
its claim for $745,507.92 to the contracting officer, including its “unbilled and unfunded 
outstanding balance in the amount of $437,626.61 . . . along with detail supporting 
documentation from 2013 through 2018” (compl. ¶¶ 13, 24-25).  The complaint also 
incorporates by reference URS’s claim to the contracting officer (compl. at 2 n.1), which 
states that “[t]he unbilled amounts were provided to the Government [] with our 
invoices” (R4, tab 109 at 3). 
 
The government has established from the face of the complaint and the 
incorporated claim to the contracting officer that URS’s claim to $748,507.92 in invoiced 
and unbilled amounts is barred by the six-year statute of limitations.  That is, it clearly 
appears from the complaint and the claim that URS knew or should have known all the 
events that fixed the alleged liability of the government and permitted assertion of its 
claim at least by September 9, 2010, the date of the most recent invoice referenced in the 
complaint, which is more than eight years before URS presented to the contracting officer 
its November 9, 2018 claim.  And although URS correctly points out that an invoice that 

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is not in dispute when submitted is not a claim (app. resp. at 24), URS knew or should 
have known that it could have converted its invoices to claims within a reasonable time 
after submitting them.  See Green Valley Co., ASBCA No. 61275, 18-1 BCA ¶ 36,977 
at 180,120.  However, URS waited more than eight years after submitting its last, 
September 9, 2010 invoice, to do so; that is, until November 9, 2018.  That is well more 
than six years after it became reasonable to convert the invoices to a claim.  Cf. id. 
(barring claim to contracting officer submitted more than a decade after invoices were 
submitted); Adamant Grp. for Contracting & Gen. Trading, ASBCA No. 60316, 16-1 
BCA ¶ 36,577 at 178,136 (same; nearly nine years).  Consequently, the claims set forth in 
Counts I and II are barred by the six-year statute of limitations.  
 
CONCLUSION 
  
The motion to strike is granted, and Count III is stricken for lack of jurisdiction.  
The motion to dismiss for failure to state a claim is granted with respect to the remaining 
Counts I and II, and the appeal is, accordingly, dismissed. 
 
 Dated:  March 23, 2021 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur in result (see separate opinion) 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur in result (see separate opinion) 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 


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OPINION BY JUDGE SHACKLEFORD AND JUDGE WILSON 
CONCURRING IN RESULT 
 
We concur in the result because the appeal should be denied, as the underlying 
claim was brought beyond the applicable statute of limitations period.  However, we do 
not join the portion of the draft which separately dismisses Count III of the complaint 
because that portion of the government’s motion was rendered moot by the decision on 
the statute of limitations. 
 
 Dated:  March 23, 2021 
 
 
  
_______________________________ 
 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. 62475, Appeal of URS 
Federal Services, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  March 23, 2021 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
  
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals