MTS General Trading & Construction¹
Docket: ASBCA 57940, ASBCA 57941
Decision date: 2024-02-15

1 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE ARNETT  
ON THE GOVERNMENT’S MOTION TO DISMISS 
 
 MTS General Trading & Construction (appellant or MTS) filed an appeal from the 
denial of its claim involving missing trucks arising from orders against a Blanket 
Purchase Agreement (BPA) issued by the U.S. Army (the government or the Army).  
Alleging “fatal” defects in the claim and notice of appeal, the government has moved to 
dismiss this appeal pursuant to Rule 7(b) (gov’t mot. at 1).  Based upon discrepancies in 
appellant’s name, the government asserted that neither the claim nor the notice of appeal 
was submitted by a contractor in privity with the government (id. at 7-12).  Following 
issuance of the Board’s January 22, 2024 decision in ASBCA No. 63521 addressing the 
name discrepancies, the government withdrew these arguments (gov’t reply at 1).   
 
 In addition to the withdrawn arguments, the government also moved the Board to 
dismiss this appeal for failure to state a claim upon which relief can be granted (gov’t 
mot. at 12-14).  The government argues that appellant’s claim seeks compensation under 
two separate contracts and does not state a sum certain for the costs sought under each 
contract at issue (id.).  Appellant opposes the government’s motion and asserts that its 
claim specifies “sums certain for each piece of equipment” at issue (app. opp’n at 16-17). 
 
 
1 In accordance with the Board’s decision issued in ASBCA No. 63521 on January 22, 2024, 
appellant’s name in this appeal is changed to MTS General Trading & Construction to be 
consistent with its name on most of the orders issued under the BPA and its registration 
in SAM.gov.
 
Appeal of - )  
 )  
MTS General Trading & Construction1 ) ASBCA No. 63522 
 )  
Under Contract No. W56KGZ-15-A-6000 )  
   
APPEARANCE FOR THE APPELLANT: Abathar N. Alkudari, Esq. 
    At Law Group, PLLC 
    Dearborn, MI 
 
APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. 
    Army Chief Trial Attorney 
 CPT Jules L. Szanton, JA 
    Trial Attorney 
  
 

2 
 
 Because the question of whether a claim comprises one or multiple claims, each 
requiring a sum certain, is a factual dispute for the Board to resolve on the merits, the 
government’s motion is denied. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 1.  On May 17, 2015, the government awarded BPA No. W56KGZ-15-6000 to 
MTS (R4, tab 1 at 1, 3
2).  Under the BPA, the government could place call orders for the 
provision of material-handling equipment in Erbil, Iraq (id. at 1, 3-7).  From May 2015 
through December 2017, the government issued more than one hundred orders under the 
BPA (see generally R4, tabs 32-173, 176).  Each order under the BPA is a separate 
contract.
3 
 
2.  On October 7, 2022, MTS submitted a certified claim to the government 
requesting $453,000 for two trucks leased under BPA call orders4 (R4, tab 27 at 328).  
Alleging that the two trucks were missing in Syria, the claim sought lease payments of 
$2,000 per month for a black water truck for the period from January 2018 through claim 
submission in October 2022 and $3,500 per month for a fuel truck for the period from 
September 2017 through October 20225 (id.).  For these periods, MTS requested a 
combined total of $333,0006 in unpaid lease payments (id.).  In addition, the claim sought 
a combined total estimate of $120,000 for the “value of both trucks” but does not appear 
to provide a breakdown of the separate amount sought for each vehicle (id.).  MTS has 
subsequently clarified that its request included an estimated value of $50,000 for the 
black water truck and $70,000 for the fuel truck (app. opp’n at 17).   
 
3.  On October 27, 2022, the contracting officer issued a final decision denying the 
October 7, 2022 claim (R4, tab 26 at 324-27).  On January 24, 2023, MTS filed its notice 
with the Board appealing the contracting officer’s October 27, 2022 final decision.  The 
appeal was docketed as ASBCA No. 63522.  
 
 
 
2 Documents in the Rule 4 file are numbered using a letter prefix and leading zeros.  For ease, we 
have dropped the prefix and leading zeros in this decision. 
3 See Hewlett-Packard Co., ASBCA Nos. 57940, 57941, 13-1 BCA ¶ 35,366 at 173,551. 
4 It has not been established which BPA call order(s) serve as a basis for lease of the two trucks 
at issue in this matter. 
5 The claim seeks black water truck lease payments of $2,000/month for the period January 2018 
through October 2022 totaling $116,000.  The claim seeks fuel truck lease payments of 
$3,500/month for the period September 2017 through October 2022 totaling $217,000.  
The black water truck unpaid lease amount of $116,000 plus the fuel truck unpaid lease 
amount of $217,000 total $333,000 sought by MTS for unpaid lease payments. 
6 MTS’s opposition to the government’s motion indicates that it considers the monthly lease 
payments to be an ongoing obligation that continues to accrue (app. opp’n at 17). 

3 
 
DECISION 
 
I.  The Parties’ Contentions 
 
 The government challenges the sufficiency of the sum certain on the basis that 
appellant asserts two distinct claims under separate contracts and lacks a sum certain for 
each distinct claim (gov’t mot. at 13-14).  In its motion, the government argues that MTS 
seeks costs arising from two vehicles leased under two separate contracts thereby giving 
rise to two claims (id.).  In its reply, the government expands its position, arguing for the 
first time that appellant’s claim includes four distinct sub-claims:  (1) rent for the black 
water truck, (2) rent for the fuel truck, (3) replacement of the black water truck, and (4) 
replacement of the fuel truck (gov’t reply at 4). 
 
 Conversely, appellant’s claim is packaged as a single document requesting 
compensation under the BPA
7 (SOF ¶ 2).  In its response to the government’s motion, 
appellant refers to one claim while arguing that its claim specifies “sums certain for each 
piece of equipment” at issue (app. opp’n at 16-17). 
 
II.  The Complaint Does Not Fail to State a Claim for Relief Due to the Lack of a 
“Sum Certain.” 
 
 Dismissal 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.  Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).  The Board will 
deny a motion to dismiss for failure to state a claim when the complaint alleges facts 
plausibly suggesting a showing of entitlement to relief.  See Parsons Gov’t Servs., Inc., 
ASBCA No. 60663, 17-1 BCA ¶ 36,743 at 179,100.  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.”  Kellogg Brown & Root Servs., 
Inc. v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 2013) (citing Lindsay, 295 F.3d at 
1257).  The scope of our review is limited to considering the sufficiency of the 
allegations set forth in the complaint, “matters incorporated by reference or integral to the 
claim, items subject to judicial notice, [and] matters of public record.”  A&D Auto Sales, 
Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014).  In determining whether an 
appeal before us states a claim upon which relief can be granted, the primary document 
setting forth the claim is the contractor’s claim to the contracting officer rather than the 
complaint.  Lockheed Martin Integrated Sys., Inc., ASBCA Nos. 59508, 59509, 17-1 
BCA ¶ 36,597 at 178,281. 
 
 
7 Appellant mistakenly characterizes the BPA as one contract and does not identify which call 
order(s) correspond with the leased trucks at issue (Compl. ¶¶ 1, 5-6).  

4 
 
 While the CDA does not define “claim,” the Federal Acquisition Regulation 
(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 the contract.”  FAR 2.101 and 52.233-1(c).  A claim is set forth in a sum certain when 
the contractor has submitted in writing to the contracting officer “a clear and unequivocal 
statement that gives the contracting officer adequate notice of the basis and amount of the 
claim.”  Precision Standard, Inc., ASBCA No. 55865, 11-1 BCA ¶ 34,669 at 170,788 
(quoting Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 
1987). 
 
 In ECC Int’l Constr., LLC v. Sec’y of Army, 79 F.4th 1364, 1377-79 (Fed. Cir. 
2023), the Court of Appeals for the Federal Circuit recognized that the sum certain 
requirement is an element of a CDA claim that a claimant must satisfy in order to recover 
but concluded that it was not a jurisdictional requirement.  The Court held that it was 
“mandatory for a party submitting a claim under the CDA seeking monetary relief to 
include a sum certain indicating for each distinct claim the specific amount sought as 
relief.”  Id. at 1380.  The Court also noted that the sufficiency of a sum certain in a 
specific case is a matter for the Board to explore on the merits.  Id. at 1377-78.   
 
 Here, MTS submits a single document stating a total amount sought for two types 
of compensation (lease and replacement) for two missing vehicles arising from one or 
more contracts.  We conclude that MTS has provided a sum certain for the total amount 
sought and that this provides adequate notice of the basis and amount of the total claim to 
the government.  However, there is a dispute as to whether MTS’s claim is one or 
multiple distinct claims.  
 
 We lack sufficient information at this stage to resolve the parties’ dispute over 
whether the claim for missing trucks includes separate claims or is one claim arising from 
the same operative facts.  A disagreement over whether a claim comprises one or 
multiple claims, each requiring a sum certain, is a factual dispute for the Board to resolve 
on the merits.  ECC Int’l, 79 F.4th at 1377-78. 
  

5 
 
CONCLUSION 
 
 For the foregoing reasons, the government’s motion is denied. 
 
 Dated:  February 15, 2024 
 
 
 
 
 
 
 
 
 
 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative 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. 63522, Appeal of MTS 
General Trading & Construction, rendered in conformance with the Board’s Charter. 
 
 Dated:  February 15, 2024 
 
 
 
 
 
 
 
 
 
LAURA J. ARNETT 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals