Long Wave, Inc.
Docket: ASBCA 60713, ASBCA 60716
Decision date: 2018-09-24

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Long Wave, Inc. 
Under Contract No. N00604-13-C-3002 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61483 
Stephen D. Knight, Esq. 
Sean K. Griffin, Esq. 
Smith Pachter Mc Whorter PLC 
Tysons Comer, VA 
Craig D. Jensen, Esq. 
Navy Chief Trial Attorney 
Richard W. Carlile, Esq. 
Melissa Martin, Esq. 
Trial Attorneys 
NA VSUP Fleet Logistics Center 
Pearl Harbor, HI 
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 
ON THE GOVERNMENT'S MOTION TO DISMISS 
Appellant, Long Wave, Inc. (Long Wave) seeks additional payments related to 
vacation pay, wage increases, and severance pay on a contract with the Navy. The 
government moves to dismiss, contending that the appeal is untimely and does not 
relate to or arise under an agreement for which we possess jurisdiction. We deny the 
motion. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
The following facts are undisputed or represent our findings for purposes of the 
present motion based upon our review of the Rule 4 file. 
On November 28, 2012, the Navy awarded Long Wave the above-referenced 
contract for firm-fixed-price operation and maintenance services for a communication 
facility in Dixon, California (see generally R4, tab 2; gov't mot. ,r l; app. opp'n ,r 1). 
In 2015, the Navy re-solicited the work and awarded the contract to another 
bidder, giving rise to the present dispute (R4, tab 3 at 1, tab 4 at 1-2). 

On January 23, 2017, Ms. Johnson wrote to Ms. Kirkwood, with a copy to CO Craft, 
stating that the government's legal counsel had approved the supporting documentation and 
that she had informed "the customer" that she needed funds to pay the claim. She stated 
that when she received the funds, she would "build and process the modification." (R4, 
tab 36 at 3) 
On January 25, 2017, Ms. Kirkwood wrote to Ms. Johnson with a copy to CO Craft, 
asking the government to confirm that the amount of $139,791.93 "is agreeable." 
Ms. Johnson replied later that day with a copy to CO Craft, stating: "Yes, I verified with 
your supporting documents, and this amount $139,791.93, looks agreeable." (App. supp. R4, 
tab 94 at 1) 
For the next three months the parties were in regular communication and, based 
on the contract specialist's statements in a series of emails, resolution of the matter 
always seemed to be just around the corner (R4, tabs 37-40). For example, on Tuesday, 
April 4, 2017, Ms. Johnson wrote to Ms. Kirkwood, with a copy to CO Craft, stating: 
I do apologize, but we just received the funding last week 
Friday 31 March 2017. I attached a copy of the acceptance 
letter so that you can see the approval date .... I am making 
it my top priority this week to process this modification. I 
plan to get the mod to you by Friday. 
(R4, tab 37 at 1) 
The first sign of a major problem came on May 11, 2017, when Ms. Johnson 
informed Ms. Kirkwood that "our legal counsel found out some new information" 
about vacation pay. She stated that the Navy had decided to halt processing that 
portion of the claim but it would continue with the severance pay and CBA wage 
increase issues. (R4, tab 41 at 1) 
On June 7, 2017, a different contract specialist, Robert Dunn, informed 
Long Wave that the Navy would not pay general and administrative, overhead, or 
profit on the CBA wage adjustments (R4, tab 43 at 1 ). 
On August 7, 201 7, Long Wave submitted a certified claim to the contracting 
officer and requested a final decision. 1 Long Wave contended that its June 2016 claim 
had been "resolved," citing Ms. Johnson's January 25, 2017 email, and requested that 
the contracting officer "stand by [the agreement] and enforce it." (R4, tab 1 at 3-4) 
1 The Navy identifies the submission date as August 14, 2017 (gov't mot. at 5-6) but 
this need not be resolved at the moment. 
3 

On October 13, 2017, Ms. Johnson wrote to Long Wave (with a copy to CO Craft) 
stating that the contracting officer's final decision from September 2016 "has not changed" 
and that ''we do not consider your second claim submission to be a new claim because it 
has already been addressed by the COFD" (R4, tab 55 at 2). 
On October 24, 2017, CO Craft wrote to Long Wave concerning the vacation 
pay issue. He acknowledged that he had agreed the previous November that the Navy 
could pay Long Wave for the vacation pay, but he stated that the Navy had been 
"presented" with "information ... that suggested that the vacation amount" had already 
been paid to Long Wave during the contract. (R4, tab 58 at 1-2) 
CO Craft wrote to Long Wave again on December 6, 2017, stating that "[ a ]s it 
stands today," the Navy planned to issue a contract modification paying Long Wave 
$23,790.65 for severance pay and $32,000.69 for CBA wage increases for a total of 
$55,791.34 (R4, tab 67). 
CO Craft did not issue a final decision on Long Wave's August 7, 2017 certified 
claim and on January 11, 2018, Long Wave appealed to the Board based on a deemed 
denial. 
DECISION 
The government makes two contentions in its motion to dismiss: 1) that the 
purported settlement of the original claim did not result in a contract for which we 
possess jurisdiction; and 2) that the appeal is untimely. We consider these in tum. 
Jurisdiction of the Board 
In a motion to dismiss for lack of jurisdiction, we accept as true uncontroverted 
factual allegations. Facts underlying the jurisdictional allegations are subject to 
fact-finding based upon our review of the record. L-3 Communications Integrated 
Systems, L.P., ASBCA Nos. 60713, 60716, 17-1 BCA ,r 36,865 at 179,625. When a 
factual dispute involves an element of the claim, this is a matter that goes to the merits 
and is not determined by the Board at the preliminary stage. Id. ( citing Arbaugh v. 
Y&H Corp., 546 U.S. 500, 514 (2006)). 
The Contract Disputes Act (CDA) provides that the Board may "decide any 
appeal from a decision of a contracting officer of ... the Department of the Navy ... relative 
to a contract made by" the Navy. 41 U.S.C. § 7105(e)(l)(A). The Court of Appeals for 
the Federal Circuit has held that an appellant "need only allege the existence of a 
contract to establish the Board's jurisdiction under the CDA 'relative to' an express or 
implied contract with an executive agency." Engage Learning, Inc. v. Salazar, 660 F.3d 
1346, 1353 (Fed. Cir. 2011). 
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To prevail on the merits, a party alleging a contract with the government must 
show a mutual intent to contract (including an offer, an acceptance, and consideration), 
that the government representative who entered or ratified the agreement had actual 
authority to bind the United States, and that the government breached the contract. 
Trauma Service Group v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) (citing 
City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990)); see Engage 
Learning, 660 F.3d at 1351. A failure to plead these elements would result in a failure 
to state a claim, not a lack of jurisdiction. 
In Engage Learning, the Federal Circuit reversed a decision of the Civilian 
Board of Contract Appeals in which that Board dismissed an appeal for lack of subject 
matter jurisdiction. The Civilian Board's dismissal was based, in part, upon its 
determination that the purchase order at issue had not been amended to add the 
disputed work. In addition, the Board had held that appellant failed to show that the 
government employee who ordered the work had actual authority to do so. Engage 
Learning, 660 F.3d at 1351-52. 
The Federal Circuit observed that it was undisputed that the parties had entered 
into a contract, that appellant had submitted a claim to the contracting officer,2 and that 
the contracting officer had denied the claim. Accordingly, it held that "Engage's 
appeal to the Board on this claim undoubtedly met the jurisdictional requirements of' 
the CDA. Engage Learning, 660 F.3d at. 1354. The Court held that whether or not the 
contract was in fact modified to include the disputed work was not a jurisdictional 
question but was rather a decision on the merits. Id. at 1355 (citing Bell v. Hood, 327 
U.S. 678, 682 (1946)). 
Similar to Engage Learning, there is no dispute in the present matter that the 
parties entered into an express written contract 3 or that Long Wave submitted a 
(second) certified claim in August 2017 and requested a final decision from the 
contracting officer. It is also undisputed that Long Wave filed an appeal based on a 
deemed denial of that claim after the government informed it that the contracting officer 
did not intend to issue a final decision. The government has not alleged that Long 
Wave's claim failed to provide adequate notice of the basis or amount of the claim. 
2 The Federal Circuit has also held that for court or Board jurisdiction the contractor 
must submit a "proper claim" in writing that contains: (1) adequate notice of 
the basis and amount of the claim; and (2) a request for a final decision. 
M Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 
2010). These requirements do not appear to have been at issue in Engage. 
3 To be clear, Long Wave's complaint alleges that the government's failure to pay the 
$139,791.93 allegedly agreed to constituted a breach of the original 2012 
contract, not that it was a breach of a separate oral contract with Ms. Johnson or 
the contracting officer. Whether or not breaking the alleged 2017 agreement is a 
breach of the 2012 contract is a merits decision. 
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Instead, the government in its motion to dismiss takes square aim at the contractual 
elements identified in Trauma Service. The government contends that we lack jurisdiction 
because: 1) acceptance must be accomplished through a signed SF 30, which did not 
occur; 2) the agreement lacks consideration for the government; and 3) Ms. Johnson, the 
contract specialist who informed Long Wave that the proposed $139,791.93 "looks 
agreeable" lacked authority to bind the government. (Gov't supp. br. at 7-12) 
The Federal Circuit rejected the government's contentions in Engage Learning that 
the lack of a signed writing and the lack of a contracting officer's warrant from the person 
who ordered the work deprived the Board of jurisdiction because these contentions go to 
the merits. Engage Learning, 660 F.3d at 1354-55. We are bound by the Court's holding 
in this appeal with respect to the lack of a signed SF 30 and the lack of a warrant. 
Similarly, we must also reject the government's contention that the agreement lacked 
consideration because it is also a merits argument. 
In sum, the government's motion is jurisdictional in name only. Just as in 
Engage Learning, questions such as whether emails between the contract specialist 
and Long Wave actually modified the contract will have to wait for another day to be 
resolved. 4 
Timeliness of the Appeal 
The contracting officer issued his decision on Long Wave's original claim on 
September 12, 2016. The CDA provides that a contractor must file an appeal of a final 
decision at the Board within 90 days of receipt of that decision. 41 U.S.C. § 7104(a). 
Because Long Wave filed a notice of appeal on January 11, 2018, the Navy contends 
the appeal was late by more than a year (gov't mot. at 10). 
The Navy acknowledges that Long Wave submitted a second certified claim on 
August 7, 2017, but it regards that claim as a mere subterfuge to evade the 90-day 
appeal time limit. It states "[i]n an attempt to revive its statutorily precluded claim, on 
August 14, 2017, Long Wave filed a repetitious claim concerning the same cause of 
action as Long Wave's June 23, 2016 claim." (Gov't mot. at 11) 
4 The Board requested supplemental briefs from the parties on a line of cases 
including SCM Corp. v. United States, 595 F.2d 595 (Ct. Cl. 1979). In these 
decisions, the Federal Circuit and its predecessor court examined factual 
situations that have some similarity to the present matter, namely, those in 
which the parties appeared to settle a dispute but one party reneged before 
signing the modification. After reviewing the briefs, we agree with appellant 
that Engage Learning controls and that the SCM Corp. line of cases should be 
considered as part of our merits determination. 
6 

We disagree. Based on our review of the second claim, the notice of appeal, and 
the complaint, we do not see any indication that Long Wave seeks the Board's review 
of the merits of the original claim. 5 Rather, the only issues the second claim and this 
appeal raise are whether the government breached the contract by refusing to effectuate 
the settlement or breached the covenant of good faith and fair dealing by not abiding by 
the terms of the purported agreement (see compl. 1135, 37). The enforceability of the 
purported settlement is a distinct legal issue from the merits of the original claim. 
Because the contracting officer never issued a final decision on the second claim, 
Long Wave's appeal is timely under 41 U.S.C. § 7103(£)(5). 
CONCLUSION 
The government's motion to dismiss is denied. 
Dated: September 24, 2018 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
,J~~QJ.0C0v~ 
CHAEL N. O'CONNELL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
J. iijfuj PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
5 Thus, we do not see any indication that Long Wave is attempting to appeal the 
September 2016 final decision, nor do we see any contention by Long Wave that 
such an appeal was timely because it was within 90 days after the contracting officer 
concluded reconsideration of the claim. See Guardian Angels Medical Service 
Dogs, Inc. v. United States, 809 F.3d 1244 (Fed. Cir. 2016). 
7 

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. 61483, Appeal of Long 
Wave, Inc., rendered in conformance with the Board's Charter. 
Dated: 
8 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals