Duncan Aviation, Inc.
Docket: ASBCA 58733
Decision date: 2006-06-01

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Duncan Aviation, Inc. 
Under Contract No. N00019-06-D-0018 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58733 
Gregory Petkoff, Esq. 
Matthew Haws, Esq. 
Carla Weiss, Esq. 
Wilmer Cutler Pickering Hale and Dorr LLP 
Washington, DC 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Robert C. Ash pole, Esq. 
Senior Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE TUNKS 
ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 
Duncan Aviation, Inc. (Duncan) seeks $1,568,496.91 for "over and above" costs 
allegedly incurred in connection with a contract to overhaul landing gear systems for T-34 
and T -44 aircraft. The Navy moves to dismiss for lack of jurisdiction, asserting that 
Duncan has failed to submit a proper claim. Duncan opposes the motion. The contract is 
subject to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 1 June 2006, the Navy awarded Duncan a firm fixed-price, indefinite 
delivery, indefinite quantity contract in the amount of$675,096.56 to overhaul landing 
gear systems for T-34 and T-44 aircraft (R4, tab 1 at GOV1-8). The performance period 
was 1 July 2006 through 30 September 2006 with four one-year option periods (id. 
at GOV20). 
2. The contract contained the Naval Air Systems Command (NA V AIR) clause 
5252.217-9507, OVER AND ABOVE WORK REQUESTS (NA V AIR) (OCT 2005), which 
provided, in part, as follows: 
(a) These procedures apply when the Contractor identifies 
needed repairs that are over and above the requirements of the 
contract and recommends corrective action during contract 

performance in accordance with DF ARS 252.217-7028, "Over 
and Above Work."[Il 
(b) The Contractor shall prepare and submit the applicable 
Over and Above Work Request (OA WR) Form ... for 
authorization to proceed. The Contractor shall use the OA WR 
to describe the over and above work that needs to be 
performed, including any parts and materials, in such detail as 
necessary to permit a thorough evaluation. The Contractor 
shall ... justify the total cost by specifying direct hours by labor 
category, as well as the type, quantity and cost of the material 
needed to perform the repair or replacement. 
(R4, tab 1 at GOV38) 
3. The 
contract incorporated FAR 52.243-1, CHANGES-FIXED-PRICE (AUG 1987)­
ALTERNATE II (APR 1984) and FAR 52.233-1, DISPUTES (JUL 2002)- ALTERNATE I 
(DEC 1991) by reference (R4, tab 1 at GOV47). 
4. On 22 February 2007, Duncan submitted its actual overhaul history for 1 July 
2006 through 23 January 2007. Duncan stated that the information was based solely on 
parts and the significant increase in parts replacement above what its experience had been 
on similar type gear. Duncan also stated that it 
did not make any adjustments to the labor 
portion of its quoted firm fixed-price for overhaul. (R4, tab 30 at GOV499, 501-11) 
5. By letter dated 15 June 2007, the Navy confirmed that the parties had agreed in 
principle to treat the following costs as over and above costs: (1) approximately $186,000 
in landing gear components that the Navy had not properly stored/preserved while 
awaiting shipment to Duncan; (2) the cost of repairing parts that had been previously 
subjected to aggressive maintenance; and (3) the cost of replacing "Tired Iron" (parts that 
could no longer be repaired) (R4, tab 31 at GOV513). 
1 
DF ARS 252.217-7028 was not in the contract. The clause defines over and above work 
as work discovered during the course of performing overhaul, maintenance, and 
repair efforts that is (i) within the general scope of the contract; (ii) not covered by 
the line item(s) for the basic work; and (iii) necessary in order to satisfactorily 
complete the contract. Subparagraph (b)( 1) requires OA WRs to contain data on the 
type of discrepancy disclosed, the specific location of the discrepancy, and the 
estimated labor hours and material required to correct the discrepancy. 
Subparagraph (f) states that failure to agree on the price of an OA WR is a dispute 
within the meaning of the Disputes clause. 
2 

6. On 3 July 2007, Duncan sent the Navy a spreadsheet outlining the over and 
above costs incurred as of that date (R4, tab 32). 
7. On 11 September 2007, Duncan submitted a Request for Equitable Adjustment 
(REA), in the amount of$1,293,399.84 for over and above costs incurred from 1 July 
2006 through 1 August 2007. Duncan estimated that it would incur an additional 
$329,797.63 in such costs from 1 August 2007 through 
30 September 2007 and stated that 
it would definitize the estimated portion of its REA after 30 September 2007. Duncan did 
not include any labor costs or markups or fees on the parts or labor for installing the parts. 
The REA was not certified. (R4, tab 34) 
8. On 1 June 2009, Duncan resubmitted its REA, updating it for actual costs 
incurred from 1 July 2006 until 30 September 2007. The updated REA requested 
$1,568,496.91 for over and above costs incurred during the base year and option year 1. 
The REA included a spreadsheet which listed the platform, part number, part names, 
delivery order, CLIN number, and the number of parts overhauled broken out for FY06 
and FY07. The REA did not include any labor or handling fees to install the parts or 
profit. (R4, tab 36) 
9. Duncan attempted to certify its claim on 1 June 2009 (R4, tab 35). 
10. On 20 August 2010, the contracting officer (CO) rejected Duncan's 1 June 
2009 
certification (R4, tab 37). The CO's letter referenced Duncan's "Claim Letter Dated 
01 June 2009" and stated, in part, as follows: 
The Government received subject claim on 3 June 2009 and 
has been reviewing facts and coordinating to prepare the 
written Contracting Officer's decision .... All claims 
exceeding $100,000 must be properly certified. Your 
document met these thresholds; however, [it] was not properly 
certified. 
To be properly certified in accordance with FAR 33.207, a 
(claim/REA) must: (1) be made in good faith; (2) include 
supporting data that are accurate and complete to the best of 
your knowledge and belief; and (3) request the sum which you 
believe accurately reflects the government's liability. The 
certification must be signed by an official duly authorized to 
bind the Contractor with respect to the claim. 
3 

The Decision will be issued after acceptance of contractor 
certification, technical reviews and legal reviews are complete. 
A final decision is expected by 17 April 2011. 
11. Duncan certified its claim on 25 August 2010 (SOF ~ 10) (R4, tab 38). No 
supporting data accompanied the certification. The certification referenced the CO's letter 
of 20 August 2010 and provided, in part, as follows: 
I certify that the claim is made in good faith; that the 
supporting data are accurate and complete to the best of my 
knowledge and belief; that the amount requested accurately 
reflects the contract adjustment for which the contractor 
believes the Government is liable; and that I am duly 
authorized to certify the claim on behalf of the contractor. 
12. In January and February of2011, the Navy issued three Requests for 
Information (RFI) to Duncan in connection with the processing of Duncan's claim: 
RFI CONTROL#: 001 dated 25 January 2011 requested 
a detailed explanation of how the Quoted Percentage Estimates 
in Attachments (a) and (b) of [Duncan's] 22 February 2007 
letter were developed (R4, tab 39). 
RFI CONTROL#: 002 dated 17 February 2011 requested 
Attachments (a) and (b) ofthe 22 February 2007letter in 
MSEXCEL format with original formulas and 
any referenced 
data sets (R4, tab 40). 
RFI CONTROL#: 003 dated 25 February 2011 requested a 
detailed cost breakdown of actual expenses incurred 
($1 ,568,496.91) in MSEXCEL format with applicable 
formulas (R4, tab 41 ). 
13. The CO did not issue a final decision. 
14. On 17 June 2013, Duncan appealed the deemed denial of its claim to this 
Board. We docketed the appeal as ASBCA No. 58733 on 19 June 2013. 
15. On 16 July 2013, the Navy moved to dismiss for lack of jurisdiction. Duncan 
opposes the motion. 
4 

DECISION 
The Navy moves to dismiss the appeal for lack of jurisdiction, alleging that Duncan 
has failed to submit a proper claim. The Navy argues that Duncan's claim is not proper 
because: (1) Duncan's 25 August 2010 certification "is a bare certification lacking any 
information about the claim or amount being certified"; (2) Duncan's 1 June 2009 REA 
did not request a final decision and was not certified; (3) even if the 25 August 20 10 
certification and the 1 June 2009 REA are taken together, the Navy argues that the claim 
is still invalid because Duncan did not seek recovery of all its costs. (Gov't mot. at 7-9) 
Duncan argues that its 25 August 2010 certification, taken together with the 1 June 2009 
REA, is a proper claim, that neither the CDA nor the FAR requires it to seek recovery of 
all possible costs, and that a request for a final decision was implicit in the 
communications between the parties. 
FAR 2.101 defines a claim as follows: 
"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 ... 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. 
We agree with Duncan that the 1 June 2009 REA and the 25 August 2010 
certification, taken 
together, constitute a proper claim. The 1 June 2009 REA was a written 
demand for a sum certain as a matter of right. It provided adequate notice of the basis and 
amount of Duncan's claim and was accompanied by detailed supporting data. Duncan 
converted the 1 June 2009 REA into a claim on 25 August 2010 by submitting a proper 
certification. Contrary to the Navy's assertion, the fact that Duncan did not certify its 
claim until25 August 2010 did not render the claim invalid. Duncan's 25 August 2010 
certification references the CO's letter of20 August 2010, and the CO's 20 August 2010 
letter references Duncan's REA of 1 June 2009. Reading these documents together, we are 
satisfied that Duncan properly certified its claim. United States v. General Electric Corp., 
727 F.2d 1567, 1569 (Fed. Cir. 1984). Although Duncan did not explicitly request a final 
decision, we are persuaded that such a request was implicit in the communications between 
Duncan and the CO. James MEllett Construction Co. v. United States, 93 F.3d 1537, 
1543 (Fed. Cir. 1996). In her letter of20 August 2010, the CO stated as follows: 
The Government received subject claim on 3 June 2009 
[Claim Letter Dated 01 June 2009] and has been reviewing 
5 

(SOF ~ 10) 
facts and coordinating to prepare the written Contracting 
Officer's decision .... 
The Decision will be issued after acceptance of contractor 
certification, technical reviews and legal reviews are complete. 
A final decision is expected by 17 April 2011. 
The Navy's argument that Duncan's claim is not proper because it failed to seek all 
of the costs to which it was potentially entitled is without merit. We are not aware of any 
requirement in the CDA or the FAR that a contractor seek all possible costs in a claim in 
order for this Board to exercise jurisdiction over the claim that is submitted. Duncan 
addressed this argument as follows: 
The Navy asserts that Duncan's claim is not "proper" 
because Duncan could have requested additional costs in its 
claim but did not do so. Duncan, in its REA of June 1, 
2009 ... did not seek reimbursement of direct labor costs, 
indirect costs, or profit. Duncan decided to only request an 
equitable adjustment for direct material costs because the vast 
majority of the costs to which Duncan is entitled are direct 
material costs. The Navy would have the Board impose a 
requirement that a claim is only "proper" if it seeks all costs to 
which the company is entitled in an equitable adjustment. In 
effect, the Navy is asserting that since Duncan did not ask for 
reimbursement for all the costs that it was entitled to recover, 
it is not entitled to recover anything. [Citation omitted] 
(App. resp. at 12-13) 
We see nothing improper in Duncan's decision to limit its claim to the cost of parts. 
6 

CONCLUSION 
The Navy's motion to dismiss is denied. 
Dated: 3 December 20 13 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~~kidd-.Ei A ETH A. TUNKS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
Administr ive 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. 58733, Appeal of Duncan Aviation, Inc., 
rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals