Patricia I. Romero, Inc. d/b/a Pacific West Builders
Docket: ASBCA 63093
Decision date: 2023-05-12

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCLISH ON THE 
GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT  
 
This appeal involves disputes arising under a task order issued by the Naval 
Facilities Engineering Systems Command Southwest (NAVFAC or the government) to 
Appellant Patricia I. Romero Inc. (d/b/a Pacific West Builders) (PWB) for repair work 
at Buckley Air Force Base in Aurora, Colorado.  PWB asserts that NAVFAC required 
extra work without due compensation or time extensions, improperly withheld 
superior knowledge, and caused numerous delays that resulted in extra costs to PWB.  
PWB also seeks interest under the Prompt Payment Act. 
 
The government moves for summary judgment on each of PWB’s claims on the 
grounds that (1) the claims are barred by the applicable statute of limitations, (2) 
certain claims are barred by accord and satisfaction, and (3) the claim for interest is 
barred by the Prompt Payment Act.  We dismiss some of the claims for lack of 
jurisdiction and grant summary judgment in the government’s favor except as to two 
of the remaining claims. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
I. The Contract 
The contract at issue is a task order issued under an indefinite-delivery, 
indefinite-quantity, multiple award construction contract.  The underlying contract is 
Contract No. N62473-08-D-8655, awarded by the NAVFAC to PWB on September 22, 
Appeal of - )  
 )  
Patricia I. Romero, Inc. d/b/a Pacific West 
  Builders                                                                                                                        
)
) 
ASBCA No. 63093 
 )  
Under Contract No. N62473-08-D-8655 )  
   
APPEARANCE FOR THE APPELLANT:    David A. Rose, Esq. 
       Rose Consulting Law Firm 
       Valdosta, GA 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
       Navy Chief Trial Attorney 
    Joshua S. Kauke, Esq. 
       Trial Attorney 

2 
 
2008.  (R4, tab 1 at 1)1  
 
The task order at issue was awarded on or about September 20, 2011, when 
NAVFAC issued PWB Task Order No. 0003 for the Denver NOSC Repair Project at 
Buckley Air Force Base in Aurora, Colorado in the amount of $3,431,294.00 (R4, tab 
4 at 208-09).  The original contract completion date was October 8, 2012, and the task 
order included a liquidated damages clause (R4, tab 4 at 225).   
 
Under the task order, PWB was to make renovations and repairs to existing 
buildings referred to as Buildings 1301, 1302 and 1304 and associated areas (R4, tab 2 
at 118).   
 
II. Contract Modifications 
During performance, eight written modifications were made to the 
Contract.  Seven of them were made bilaterally by both of the parties (Modification 
Nos. 1-3, 5-8) (R4, tabs 5-7, 9-12).  One the government issued unilaterally 
(Modification No. 4) (R4, tab 8).  
 
After performance was completed, on or about November 9, 2015, the 
government unilaterally issued Modification No. 9, which assessed liquidated damages 
against PWB for alleged late completion of the work (R4, tab 13).  Modification 
No. 10, discussed below, was issued on September 28, 2021.  It, among other things, 
rescinded the liquidated damages assessed in Modification No. 9.  (R4, tab 14) 
 
III. PWB’s Disagreement with CPARS Evaluation  
Meanwhile, on or about September 24, 2015, NAVFAC issued a performance 
evaluation under the Contractor Performance Assessment Reporting System (CPARS) 
regarding PWB’s performance of the contract.  The CPARS evaluation apparently 
criticized PWB’s performance of the contract in several respects.
2 
 
PWB submitted a letter to the Contracting Officer dated December 15, 2015, 
taking issue with the negative aspects of the CPARS evaluation (R4, tab 18 at 404-28).  
 
1 The government paginated the Rule 4 files with a prefix and several zeroes before 
each page number, e.g., “GOV000001.”  For ease of reference, we cite only the 
page numbers without the prefix and leading zeroes. 
2 The CPARS evaluation itself is not in the Rule 4 file or otherwise included in the 
parties’ submissions.  Our description of the CPARS evaluation is thus based 
on references to it in documents that are in the record, primarily PWB’s 
December 15, 2015, letter to the contracting officer disputing the accuracy of 
the evaluation (R4, tab 18 at 404-28).  

3 
 
Attached to the letter were 53 exhibits (id. at 429-606).  The December 15, 2015, letter 
alluded to PWB’s intent to submit a claim challenging the CPARS evaluation, as well 
as the assessment of liquidated damages, and indicated PWB would seek monetary 
relief for various acts and omissions by NAVFAC during contract performance (id. 
at 404-28).  
 
IV.   PWB’s Certified Claim, Contracting Officer’s Final Decision, and      
Appeal 
As forecast in the December 15, 2015, letter, PWB eventually did submit a 
certified claim to the contracting officer, but not until March 23, 2021 (R4, 
tabs 17-18).3  The claim attached and “incorporated . . . by reference for all purposes” 
the December 15, 2015, letter from PWB to the Contracting Officer (R4, tab 17 at 396) 
 
PWB’s claim first contended that the CPARS evaluation was unfair and 
“substantially incorrect” and should be replaced with a positive or, at a minimum, a 
neutral rating (R4, tab 17 at 396, 398).  Second, in addition to the CPARS claim, PWB 
alleged that “PWB has experienced actual damages and seeks the removal of 
liquidated damages and the final payment of the funds due under the contract of 
$366,193.48, which includes the additional amount of Modification 08 . . .” (id. 
at 398).  Modification No. 8 had added a requirement to install a glycol feeder system 
and add glycol solution to the air handler system (R4, tab 12).  
 
Third, the claim stated that “PWB also seeks an additional $324,923.72 for 
costs due to additional work and delay (See Exhibit 3)” (R4, tab 17 at 398).  Exhibit 3 
to the claim, entitled “PWB Additional Costs Breakdown,” contained PWB’s 
calculation of its claimed additional costs (R4, tab 18 at 611).  The claim letter alleged 
that NAVFAC caused delays and extra costs in the way it reviewed and commented on 
design documents for the SCIF4; by failing to advise PWB of security requirements in 
the SCIF; by failing to disclose that only one source could perform work on the 
controls system; and by failing to adequately maintain the existing hot water supply 
system, allegedly causing failure of two new air handling units (R4, tab 17 at 397).  The 
December 15, 2015, letter that PWB incorporated into its claim had raised those same 
contentions and also alleged various other instances of delay and uncompensated costs 
for which PWB claimed the government was responsible (R4, tab 18 at 404-28), as 
summarized here: 
 
 
3 The Government suggests that the claim may not have been fully submitted until 
March 30, 2021, when the contracting officer received the exhibits referenced 
in the March 23, 2021, submission.  We assume for purposes of this motion that 
the claim was submitted on the earlier date.  
4 A SCIF is a sensitive compartmented information facility. 

4 
 
 Event Giving Rise to Claim Date of Alleged Event 
1. PWB was directed not to begin 
work in Enclave on schedule 
(R4, tab 18 at 423) 
December 17, 2012-February 4, 2013 (id. and 
571-72) 
2. PWB denied access to begin 
flooring work in Rooms 1-208, 
1-212, 1-216 and 3-204 (id. at 
423) 
December 13, 2012– January 3, 2013 (id. and 
573-74) 
3.  Work in Room 3-109 stopped 
for Government to undertake 
mold abatement (id. at 423) 
January 23, 2013-May 31, 2013 (id. and 575) 
4. Subcontractors denied bases 
access because sponsor’s 
authorization expired (id. at 
423) 
March 13-25, 2013 (id. and 577) 
5. Renewal base passes denied for 
drywall crew for unknown 
reason (id. at 424) 
April 1-16, 2013 (id. and 578-80) 
6. Site work stopped to 
accommodate an advancement 
exam (id. at 424) 
March 5-11, 2013 (id.) 
7. Delay waiting for Government 
to clear closet where CRAC 
units to be located and to 
perform work relating to door 
security locks (id.) 
October 2013 (id. and 581-82) 
8. PWB was asked to re-locate 
ADA/ABA compliant restroom 
to different location at no cost, 
to which PWB agreed (id.) 
Unstated 
9.  Escorts into Enclaves not 
available (id. at 424) 
“Frequently” (id.) 
 
PWB also claimed entitlement to Prompt Payment Act interest “on the final 
contract amount, beginning at the time of interception [sic], on October 26, 2015, and 
prompt payment act interest for the amount of this claim” (R4, tab 17 at 398). 
 
The contracting officer issued a final decision on PWB’s claim on 
September 13, 2021, granting it in part and denying it in part (R4, tab 19).  Without 
addressing the merits of PWB’s challenge to the assessment of liquidated damages, the 

5 
 
contracting officer agreed to rescind the liquidated damages via a unilateral contract 
modification (R4, tab 19 at 615).  In addition, while disagreeing with PWB’s assertions 
about the CPARS ratings, the contracting officer agreed to change all “Unsatisfactory” 
ratings in the CPARS evaluation to “Satisfactory,” and change the narrative for each 
rating (R4, tab 19 at 615). 
 
The final decision went on to deny PWB’s claim for $324,923.72 in costs due to 
additional work and delay.  The contracting officer found the claims untimely 
because they had accrued more than six years prior to submission of the claim (R4, 
tab 19 at 615-16).  The decision also denied PWB’s claim for Prompt Payment Act 
interest and instead agreed to pay interest under the Contract Disputes Act on the 
rescinded liquidated damages (R4, tab 19 at 616). 
 
NAVFAC then unilaterally executed Modification No. 10, effective 
September 28, 2021.  That modification rescinded the assessment of liquidated 
damages and added Contract Disputes Act interest on that amount to the total task 
order price.  With respect to the CPARS evaluations, Modification No. 10 stated that, 
despite the contracting officer’s agreement to change PWB’s CPARS ratings and 
narratives, doing so was “no longer practical.”  Due to their age, the CPARS 
evaluations had been automatically archived and were no longer visible or accessible 
on the CPARS website.  Accordingly, changing the CPARS evaluations would be 
“administratively burdensome and result in no harm or benefit to Pacific West 
Builders or the government.”  (R4, tab 14 at 382) 
 
PWB filed this appeal on December 7, 2021.  It seeks relief in the amount of 
$324,953.72 in “additional work and delay costs,” $50,419.80 for “interest on withheld 
contract balance,” and $46,098.29 for “interest on additional funds expended” (compl. 
¶ 106).  
 
V. PWB’s Complaint 
PWB’s complaint breaks down PWB’s claims for relief into three categories: 
(1) “Unreasonable Delay/Violation of Duty to Cooperate,” (2) “Failure to Disclose 
Actual Construction Requirements of SCIFF [sic] Room,” and (3) “Additional Delays” 
(compl.
 ¶¶ 3, 6-7).5  PWB also contends that NAVFAC is responsible for costs 
incurred repairing two air handling units (AHU #2 and AHU #8) (see Board Order dtd. 
February 16, 2023 (memorializing conference call with the parties)). 
 
 
5 After inquiry from the Board, PWB confirmed that it is no longer pursuing its claims 
relating to liquidated damages or CPARs evaluations (app. notice dtd. 
March 17, 2023).  

6 
 
a. Alleged Unreasonable Delay/Violation of Duty to Cooperate 
PWB makes two assertions in this category.  First, PWB faults NAVFAC for 
issuing modifications to the Contract that, in PWB’s view, did not provide for 
sufficient time extensions to the contract completion date and did not adequately 
compensate PWB for its extended overhead costs (compl. ¶¶ 21-25).  Second, PWB 
contends that the government is responsible for delays and additional costs resulting 
from the alleged failure to disclose that only a single source could perform certain 
required work on the Direct Digital Control (DDC) system (compl. ¶¶ 26-35).  
 
 i.  Modifications 
 
With respect to contract modifications, PWB’s complaint does not make clear 
which modifications it contends provided insufficient time extensions or price 
increases (see compl. ¶¶ 23-25).  PWB’s claim to the contracting officer referred to 
certain instances of alleged delay and NAVFAC’s alleged refusal to grant proper time 
extensions or reimburse additional costs but did not identify the specific modifications 
it disputes (see e.g., R4, tab 18 at 421).  
 
Of the ten contract modifications, Modification Nos. 1-8 were all issued before 
2015, with the last one, Modification No. 8, being issued on December 11, 2014.  
PWB was aware of the terms of each such modification on or around the date it was 
issued.  (R4, tabs 5-12)6  
 
 ii.  DDC System  
 
 With respect to the DDC system, the complaint alleges that the performance 
verification testing (PVT); test, adjust and balance (TAB); and commissioning of the 
HVAC systems “were significantly delayed because PWB could not complete the 
scope of work relative to the DDC Controls” (compl. ¶ 27).  PWB contends that 
NAVFAC failed to disclose to PWB that work on the DDC system could be performed 
only by a single source, to which the system was proprietary (compl. ¶ 28).  PWB’s 
claim to the contracting officer contained additional information, contending that only 
one licensed distributor in the area was authorized to work on the proprietary system, 
and PWB found that subcontractor’s work to be unsatisfactory (R4, tab 18 at 406).  
This “forced PWB to seek government permission to replace the Solidyne proprietary 
system with a Honeywell open license system” (id.).  The government gave PWB 
 
6 PWB’s Complaint does not take issue with Modifications No. 9 or 10.  Modification 
No. 9 assessed liquidated damages.  Modification No. 10, which was issued 
after the contracting officer’s final decision, rescinded those liquidated damages 
and also addressed the CPARS issue, neither of which are the subject of PWB’s 
remaining claims. 

7 
 
permission to replace the Solidyne system with a Honeywell system in Modification 
No. 7, which was executed bilaterally on September 8, 2014 (R4, tab 11).  PWB faults 
NAVFAC for delay and failing to provide compensation to PWB for the upgraded 
DDC controls (compl. ¶¶ 25, 29).  PWB also asserts that the alleged failure to disclose 
resulted in extensive litigation between PWB and a subcontractor (compl. ¶¶ 27-35). 
 
b. Alleged Failure to Disclose Actual Construction Requirements of                                                                 
SCIF Room 
 
PWB alleges that, during performance, NAVFAC verbally changed the location 
of the Computer Room Air Conditioning (CRAC) units that were to be installed in an 
area referred to variably as the SCIF or the Enclave (compl. ¶¶ 36-44).  PWB alleges 
that, although PWB made its final design submittal on September 25, 2012, NAVFAC 
did not provide comments until July 24, 2013, which made “significant changes to the 
known scope of work in the [Enclave], pushing the start of that work until 8 November 
2013, AFTER the Contract Completion Date” (compl. ¶ 43 (emphasis in original); see 
also R4, tab 18 at 412-21). 
 
PWB finds fault with NAVFAC for not earlier disclosing that the change of 
location of the CRAC units would result in significant additional work in the SCIF and 
then refusing to agree to compensate PWB for its additional costs or extend the 
contract completion date to account for the additional work (compl. ¶¶ 36-44).   
 
c. Claims for Additional Delays  
PWB’s complaint describes numerous additional events that it contends caused 
delay to the completion of the contract (compl. ¶¶ 47-98).  It then alleges that these 
alleged delays had a cumulative “ripple effect” on the overall project and caused 
disruption to “multiple scopes of work, multiple trades and other subcontractors” (id. 
¶¶ 99-100).  These alleged causes of delay were not raised in PWB’s claim to the 
contracting officer (compare compl., with R4, tab 18).  
 
d. Repair of AHU #2 and AHU #8 
PWB’s complaint, while making general allegations relating to the hot water 
system and glycol, does not make any specific allegations about the causes of damage 
to or the repairs of AHUs #2 or #8 (see, e.g., compl. ¶¶ 75-78, 88).  PWB’s certified 
claim, however, contended that the government was at fault for the failure of two new 
air handling units PWB had installed, referred to as AHU #2 and AHU #8 (R4, tab 18 
at 406, 409-12).  After inquiry from the Board, PWB confirmed that it intends to 
pursue the claims relating to AHUs #2 and #8 that were asserted in its certified claim 
(see Board Order dtd. February 16, 2023).  
 

8 
 
The claim asserted that the AHUs failed because the government did not 
properly and adequately maintain the existing hot water supply system, including 
neglecting to add glycol to the system to keep it from freezing.  PWB claimed that 
NAVFAC improperly required PWB to repair the units at its own expense.  (R4, 
tab 18 at 406, 409-12)  
 
 AHU #2 failed in January 2014.  Apparently believing that the failure was a 
result of an installation problem caused by its subcontractor, PWB repaired AHU #2 at 
its own expense (id.).  AHU #8 then failed on or about November 7, 2014.  After the 
failure, an exterior pipe supplying hot water to AHU #8 froze and burst.  This revealed 
that the AHU had failed because the water contained little or no glycol, which would 
have prevented the pipe from freezing.  The absence of sufficient glycol, according to 
PWB, was the government’s fault.  (R4, tab 18 at 411-12) 
 
By no later than February 2015, PWB had concluded that both AHU #2 and AHU 
#8 had failed because of the government’s failure to maintain adequate levels of glycol in 
the system.  In correspondence dated February 11, 2015, PWB contended to NAVFAC 
that “the government’s failure to properly maintain the [heating hot water] system with 
an adequate supply of glycol” was responsible for damage to AHU #8 (R4, tab 18 
at 475).  According to PWB, the government understood and “acknowledged” as early 
as December 11, 2014, that insufficient glycol was the cause of the AHU #2 and #8 
failures by communicating about and executing bilateral Modification No. 8, which 
required installation of a glycol feeder system and glycol (R4, tab 18 at 412).  In 
discovery, PWB admitted that it had contended by no later than February 11, 2015, 
that the government was responsible for the damage to AHU #2 and #8 (gov’t mot., 
ex. 4, responses to interrog. nos. 13-14). 
 
PWB had also incurred costs toward the diagnosis and repair of the AHU 
failures by February 2015.  PWB’s subcontractor invoiced it for repair work on AHU 
#2 on June 1, 2014.  (Gov’t mot., ex. 3 at GOV_MSJ_0060 (subcontractor invoice); 
ex. 5 at GOV_MSJ_0078-79 (resp. to interrog. no. 6); ex. 6 at GOV_MSJ_0094-95 (2d 
resp. to interrog. no. 6))  And by no later than December 11, 2014, PWB had 
undertaken steps to repair AHU #8, including having its subcontractor investigate the 
cause of the failure, which led to the issuance of Modification No. 8 on December 11, 
2014 (gov’t mot., ex. 5 at GOV_MSJ_0082 (resp. to interrogatory no. 12); R4, tab 12 
at 373-77)).   
  

9 
 
 
VI.   The Affidavit of Patricia Romero 
 
Appellant’s response to Respondent’s summary judgment motion relies upon an 
affidavit of Patricia I. Romero, PWB’s owner and principal (app. resp., ex. 1).7  
Ms. Romero executed each of the bilateral contract modifications on PWB’s behalf 
(R4, tabs 5-7, 9-12).  
 
In her affidavit, Ms. Romero testifies that PWB was under economic duress 
when she executed Modification No. 7, in that she was told by the contracting officer 
that the task order would be terminated for default if she did not execute Modification 
No. 7 at no cost (app. resp., ex. 1, ¶ 3).  A termination for default would have 
devastated the company and most likely bankrupted it (id. ¶ 4).  Ms. Romero felt she 
also had no choice but to execute Modification No. 8 if it wished to remain in business 
(id. ¶ 6). 
 
Ms. Romero further testifies that “the climate . . . under which we were 
performing during all this was extremely hostile towards our small economically 
disadvantaged business” (id. ¶ 9).  NAVFAC employees yelled at her loudly and 
called her “ignorant,” and her “perception of all this was it was quite abusive and 
derisive” (id. ¶ 10).  “The whole atmosphere was one of fear of losing everything if we 
did not strictly comply with all demands despite their being in or out of scope.  We 
were literally at their mercy” (id. ¶ 12).  She states that “[w]e simply signed whatever 
we were provided to avoid termination” (id. ¶ 13).  
 
Ms. Romero’s affidavit also states that, before PWB submitted its claim, a 
NAVFAC contracting officer twice asked her to hold PWB’s claim “in abeyance” (id. 
¶ 14).  Although not specific as to dates, Ms. Romero testifies that the first such 
occasion was “immediately after the government re-posted the original performance 
evaluation and I responded, telling them that I had sent a lengthy response to the 
original evaluation to the Contracting Officer along with numerous back up documents 
and that I intended to file a claim” (id.).  As to the second occasion, Ms. Romero 
states, again without reference to a particular date, that the contracting officer “called 
me and said the matter had been referred to her and asking me to hold everything in 
abeyance” (id.).  She states that “[w]e were acting in good faith on her requests to stay 
 
7 Appellant’s response to the government’s motion cited to Ms. Romero’s affidavit as 
Exhibit 1 to the response, but no Exhibit 1 was included.  Government counsel 
obtained the affidavit from PWB’s counsel and provided it to the Board when it 
filed its reply brief (Bd. corr. email dtd. December 21, 2022).  We refer to it as 
Exhibit 1 to appellant’s response.  

10 
 
our filing” (id. ¶ 15).8  
 
 DECISION 
 
 The government moves for summary judgment, contending that (1) PWB’s 
claims were not submitted to the contracting officer within six years of when they 
accrued, as required by 41 U.S.C. § 7103(a)(4)(A) (“[e]ach claim by a contractor 
against the Federal Government relating to a contract . . . shall be submitted within 
6 years after the accrual of the claim”), (2) PWB’s claim relating to the DDC Controls 
and additional engineering and TAB and commissioning is barred by accord and 
satisfaction, and (3) PWB’s claim for Prompt Payment Act interest fails as a matter of 
law.  Although the government’s motion did not question the Board’s jurisdiction to 
entertain PWB’s claims, the Board must satisfy itself that it possesses jurisdiction 
before it may adjudicate the claims.
9 
 
I.  Jurisdiction 
 Under the Contract Disputes Act (CDA), we lack jurisdiction to entertain a 
claim that has not previously been the subject of a written claim to the contracting 
officer.  Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc); 
Madison Lawrence, Inc., ASBCA No. 56551, 09-2 BCA ¶ 34,235 at 169,206.  The 
proponent of the Board’s jurisdiction bears the burden to establish that this 
jurisdictional prerequisite is satisfied as to all elements of its claim.  Walsky Constr. 
 
8 In an email exchange with the contracting officer on May 20, 2021 (i.e., after PWB 
had submitted its claim on March 23, 2021), Ms. Romero stated “[i]t has been 
close to two years since you last asked me to hold the claim in abeyance while 
you reviewed the matter to see if it could be resolved at this level” (app. resp., 
ex. 2 at 1).  The contracting officer’s response did not take issue with that 
statement (id.).  We infer that at some point in 2019 the contracting officer 
asked PWB to hold its claim in abeyance.  
9 By Order dated January 30, 2023, the Board raised with the parties whether it may 
lack jurisdiction over the claims asserted in paragraphs 47-98 of PWB’s 
complaint because they did not appear to have been asserted in PWB’s certified 
claim and subsequently directed the parties to brief the issue (Bd. Order dtd. 
February. 16, 2023).  PWB submitted a brief on March 9, 2023, that did not 
address the jurisdictional issue but instead was an unauthorized sur-reply on the 
merits of the government’s summary judgment motion.  The government 
responded with a brief on March 23, 2023, which contended that we lack 
jurisdiction over the claims for “Additional Delay” asserted in PWB’s 
complaint and requested that we disregard PWB’s submission.  Because our 
rules do not permit sur-replies without permission, we have not considered 
PWB’s March 9, 2023, brief in our resolution of this motion.    

11 
 
Co., ASBCA No. 52772, 01-2 BCA ¶ 31,557 at 155,856.  A valid claim must contain 
“a clear and unequivocal statement that gives the contracting officer adequate notice of 
the basis and amount of the claim.”  Northrop Grumman Computing Sys. v. United 
States, 709 F.3d 1107, 1112 (Fed. Cir. 2013).  We are required to examine whether a 
claim submitted to us “is the ‘same claim’ as the one presented to the contracting 
officer.”  Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 (Fed. Cir. 2021).  “The 
focus is on whether the contracting officer was given ‘an ample pre-suit opportunity to 
rule on a request, knowing at least the relief sought and what substantive issues are 
raised by the request.’”  Id. 
 
 Here, the Board lacks jurisdiction over the claims asserted in paragraphs 47-98 
of PWB’s complaint because PWB’s certified claim to the contracting officer did not 
give the contracting officer adequate notice of the basis of those claims.  The certified 
claim did not notify the contracting officer of PWB’s contention that it suffered 
compensable or excusable delays because of the events described in those paragraphs 
of its complaint.  The same is true of paragraphs 99-100 of the complaint, which 
appear to assert a cumulative impact or disruption claim arising from the delays 
alleged in the preceding paragraphs but were not addressed in PWB’s claim to the 
contracting officer.  The omission of these allegations from the certified claim 
deprived the contracting officer of any meaningful opportunity to address them, 
defeating a key purpose of the CDA’s requirement that claims first be submitted to the 
contracting officer before the Board may adjudicate them. 
 
Accordingly, the claims asserted in paragraphs 47-100 of PWB’s complaint are 
dismissed for lack of jurisdiction.  
 
II.  Standard of Review for Summary Judgment 
 
We next address the government’s motion for summary judgment as to the 
claims asserted by PWB over which the Board does possess jurisdiction. 
 
“Board Rule 7(c) permits summary judgment motions and ‘looks to Rule 56 of 
the Federal Rules of Civil Procedure for guidance.’”  Fluor Intercontinental, Inc., 
ASBCA Nos. 62550, 62672, 22-1 BCA ¶ 38,105 at 185,099 (quoting Board 
Rule 7(c)(2)).  Summary judgment is appropriate when the moving party demonstrates 
that there is no genuine issue as to any material fact and that the moving party is 
entitled to a judgment as a matter of law.  Crown Operations Int’l, Ltd. v. Solutia Inc., 
289 F.3d 1367, 1375 (Fed. Cir. 2002).  The applicable substantive law identifies which 
facts are material and might affect the outcome of the appeal, thus precluding the entry 
of summary judgment.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  
Once the moving party has satisfied its initial burden, the opposing party “‘must set 
forth specific facts showing that there is a genuine issue for trial.’”  Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v. 

12 
 
Cities Serv. Co., 391 U.S. 253, 288 (1968)).  Our job is not “to weigh the evidence and 
determine the truth of the matter, but rather to ascertain whether material facts are 
disputed and whether there exists any genuine issue for trial.”  Holmes & Narver 
Constructors, Inc., ASBCA Nos. 52429, 52551, 02-1 BCA ¶ 31,849 at 157,393 
(quoting Liberty Lobby, 477 U.S. at 249).  A dispute is genuine only if, on the entirety 
of the record, a reasonable factfinder could resolve a factual matter in favor of the 
nonmovant.  Liberty Lobby, 477 U.S. at 248.  On summary judgment, the evidence 
must be viewed in the light most favorable to the party opposing the motion.  Crown 
Operations, 289 F.3d at 1375.  
 
III.  The CDA’s Statute of Limitations 
 
The government contends that all of PWB’s claims are time-barred.  The 
Contract Disputes Act requires in pertinent part that “each claim by the Federal 
Government against a contractor relating to a contract shall be submitted within 
6 years after the accrual of the claim.”  41 U.S.C. §7103(a)(4)(A).  While the CDA 
does not define the term “accrual,” the Federal Acquisition Regulation (FAR) defines 
“accrual of a claim” as “the date when all events, that fix the alleged liability of either 
the Government or the contractor and permit assertion of the claim, were known or 
should have been known.”  FAR 33.201.  A party’s failure to submit a claim within six 
years of accrual is an affirmative defense to the claim, for which the party invoking the 
defense bears the burden of proof.  Kellogg Brown & Root Services, Inc., ASBCA 
No. 58175, 15-1 BCA ¶ 35,988 at 175,823. 
 
“[W]hen a claim accrued is determined in accordance with the FAR, the 
conditions of the contract, and the facts of the particular case.”  Triple Canopy, Inc. v. 
Sec’y of the Air Force, 14 F.4th 1332, 1339 (Fed. Cir. 2021) (quoting Kellogg Brown 
& Root Servs., Inc. v. Murphy, 823 F.3d 622, 626 (Fed. Cir. 2016)); Elec. Boat Corp. 
v. Sec’y of the Navy, 958 F.3d 1372, 1375 (Fed. Cir. 2020).  “The issue of ‘whether the 
pertinent events have occurred is determined under an objective standard; a plaintiff 
does not have to possess actual knowledge of all the relevant facts in order for the 
cause of action to accrue.’”  FloorPro, Inc. v. United States, 680 F.3d 1377, 1381 
(Fed. Cir. 2012) (quoting Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 
1995)).  The events fixing liability should have been known when they occurred unless 
it is reasonable to find they have been either concealed or were “inherently 
unknowable” at that time.  Raytheon Missile Systems, ASBCA No. 58011, 13 BCA 
¶ 35,241 at 173,017.   
 
IV.  The Claims Accrued More Than Six Years Before PWB Submitted them to 
 the Contracting Officer 
 
PWB submitted its certified claim to the contracting officer no earlier than 
March 23, 2021.  To fall within the six-year statute of limitations, therefore, PWB’s 

13 
 
claims must have accrued no earlier than March 23, 2015. 
 
As discussed in more detail below, the government’s motion points to record 
evidence establishing that the alleged events underlying all but two of PWB’s claims 
occurred before March 23, 2015, that PWB was or should have been aware of those 
events at or around the time they occurred, and that PWB incurred at least some cost 
from each alleged event prior to that date.  PWB has not come forward with evidence 
to the contrary.   
 
Instead, PWB makes two general arguments going to the accrual date of its 
claims.  First, PWB argues that its claims accrued after March 23, 2015, because it did 
not know the “sum certain” of its claims until after that date (app. resp. at ¶¶ 26-27, 
46).  PWB emphasizes in particular that it could not submit a claim relating to the 
DDC system until litigation with its subcontractor over that issue had been resolved 
(id. at ¶ 46).  This argument is without merit.  We have consistently held that “[w]hen 
monetary damages are alleged, some extra costs must have been incurred before 
liability can be fixed and a claim accrued, but there is no requirement that a sum 
certain be established.”  Macro-Z Tech., ASBCA No. 60592, 19-1 BCA ¶ 37,358 
at 181,657 (quoting The Boeing Company, ASBCA No. 58660, 15-1 BCA ¶ 35,828 
at 175,190); Kellogg Brown & Root Servs., ASBCA No. 58175, 15-1 BCA ¶ 35,988, 
175,824 McDonnell Douglas Services, Inc., ASBCA No. 56568, 10-1 BCA ¶ 34,325 
at 169,528; Robinson Quality Constructors, ASBCA No. 55784, 09-1 BCA ¶ 34,048, 
168,396; Gray Personnel, ASBCA No. 54652, 06-2 BCA ¶ 33,378 at 165,476.  It is 
enough that some dollar figure can be placed on the claim, even if the total amount 
that will eventually be claimed cannot yet be determined.  Macro-Z Tech. at 181,657-
58.  The amount of the claim can be adjusted as further information is developed, as 
“[c]ourts and boards have readily adjudicated properly certified claims that were later 
modified in the amount sought, as additional cost information became available.”  Id. 
at 181,658 (quoting J.S. Alberici Construction Co. & Martin K. Eby Construction Co. 
(JV), ENG BCA No. 6179, 97-1 BCA ¶ 28,639 at 143,008).  It follows that PWB’s 
litigation with its subcontractor, even if it may have eventually affected the final 
amount of PWB’s claim, did not delay its accrual.  
 
Second, PWB argues that a single task order cannot give rise to multiple claims, 
each separately subject to the CDA statute of limitations (app. resp. at ¶ 48).  
Otherwise, PWB contends, a single task order could lead to hundreds of claims, 
undermining “judicial economy” and opening the door to “abuse of the system” (id.).  
PWB cites no authority for this novel argument.  To the contrary, the statute of 
limitations runs against each “distinct liability-creating event having its own associated 
damages.”  Certified Constr. Co. of Ky., LLC, ASBCA No. 58712, 14-1 BCA ¶ 35,662 
at 174,571 (quoting Fluor Corporation, ASBCA No. 57852, 14-1 BCA ¶ 35,472 
at 173,930).  PWB having alleged independent and distinct wrongs arising under 
different legal theories, each having its own associated damages, the statute of 

14 
 
limitations runs against each of them separately.  
 
Aside from these arguments, PWB has generally not contested the government’s 
analysis of when PWB’s claims accrued.  We have reviewed the record and conclude 
that, with two exceptions explained below, there is no genuine issue of fact that 
PWB’s claims accrued before March 23, 2015 and are therefore time-barred.   
 
  a.  Modifications  
 
PWB’s claims that NAVFAC issued modifications to the Contract that did not 
provide for sufficient time extensions to the contract completion date and did not 
adequately compensate PWB for its extended overhead costs accrued at the time each 
modification was issued.  On the date of issuance, PWB knew or should have known 
the facts upon which it bases its claim that the modification provided inadequate time 
or money.  PWB also knew or should have known that it had suffered some injury by 
not being adequately compensated, and therefore could have asserted the claim at that 
time.  While PWB does not make clear which of Modifications Nos. 1-8 are the 
subject of this claim, that is of no moment because all of those modifications were 
issued before 2015.  Therefore, any claims arising from the terms of these 
modifications accrued before March 23, 2015. 
 
 b.  DDC System 
 
PWB contends that NAVFAC failed to disclose that the existing DDC system 
was proprietary to a single source and could be worked on by only a single local 
distributor.  PWB subcontracted with that local distributor, but found its work 
unsatisfactory (R4, tab 18 at 406).  As a result, PWB alleges, it was forced to replace 
the proprietary system with a different system, which caused extensive delay to 
completion of the performance verification testing (PVT); test, adjust and balance 
(TAB); and commissioning of the HVAC systems (compl. ¶ 29).  PWB also asserts 
that the alleged failure to disclose resulted in extensive litigation between PWB and a 
subcontractor (compl. ¶¶ 27-35). 
 
This claim is in the nature of a “superior knowledge” claim.  To prevail on such 
a claim, PWB must show by specific evidence that:  (1) the contractor undertook to 
perform without vital knowledge of a fact that affects performance costs or duration 
(sometimes stated as “direction”); (2) the government was aware the contractor had no 
knowledge of and had no reason to obtain such information; (3) any contract 
specification supplied misled the contractor, or did not put it on notice to inquire; and 
(4) the government failed to provide the relevant information.  Todd Pac. Shipyards 
Corp., ASBCA No. 55126, 08-2 BCA ¶ 33,891 at 167,756. 
 

15 
 
In PWB’s claim, the “vital information” allegedly not disclosed by the 
government was that “there was a single source available to work on the Solidyne 
proprietary DDC controls” (compl. ¶ 28).  PWB discovered this fact when it attempted 
to obtain a replacement DDC controls subcontractor to complete the work but could 
find no other firm with the license training and certification necessary (R4, tab 18 
at 407).  That discovery “forced PWB to seek government permission to replace the 
Solidyne proprietary system with a Honeywell open license system” (id.).  The 
government gave PWB permission to replace the Solidyne system with a Honeywell 
system in Modification No. 7, which was executed bilaterally on September 8, 2014 
(R4, tab 11).  Thus, by no later than September 8, 2014, PWB had actual knowledge of 
the facts underlying its superior knowledge claim.  It is also undisputed that PWB 
suffered at least some injury no later than December 11, 2014, when PWB paid its 
replacement subcontractor $44,800 (gov’t mot., ex. 3 at GOV_MSJ_0064-65; ex. 6 
at GOV_MSJ_0094-95 (2d resp. to interrog. no. 6)).  Accordingly, there is no genuine 
issue as to the fact that PWB’s DDC system claims accrued before March 23, 2015.
10  
 
 c.  Failure to Disclose Actual Construction Requirements of SCIF Room 
 
 PWB’s claim that NAVFAC verbally changed the location of the Computer 
Room Air Conditioning (CRAC) units that were to be installed in the SCIF, and then 
failed to compensate PWB for the resulting extra work or extend the contract 
completion date, also accrued before March 23, 2015.  PWB’s own allegations 
establish that NAVFAC’s design comments that made the alleged change were 
provided on July 24, 2013 (compl. at ¶ 43).  At that time, PWB knew or should have 
known of the facts giving rise to its claim for changed work and that it would incur 
additional costs as a result.   
 
 d.  Claims for Additional Delays  
PWB’s December 15, 2015, letter to the contracting officer articulated nine 
additional alleged causes of delay.  PWB’s own allegations show that the events giving 
rise to seven of the nine delay claims occurred well before March 23, 2015 (see chart 
in Section IV above).  The allegations also make clear that PWB was aware of each of 
these seven alleged causes of delay at the time they occurred and that PWB would 
suffer some injury as a result (id.).  Accordingly, these claims accrued more than six 
years before PWB submitted its claim to the contracting officer.  
 
For the remaining two alleged delay events ((1) unavailability of escorts into 
Enclave and (2) direction to re-locate ADA/ABA compliant restroom to different 
 
10 Because we find that this claim is precluded by the statute of limitations, we need 
not address the government’s alternative argument that Modification No. 7 bars 
the claim under the doctrine of accord and satisfaction.  

16 
 
location at no cost), the dates of the events in question are not clear from the record.  
While it appears quite likely that these claims also accrued long before March 23, 
2015 (and we note that PWB has made no argument that the events in question 
occurred after March 23, 2015), we are unable to discern from the current record that 
they definitely did.  As a result, the government has failed to meet its burden to 
establish that there is no genuine issue of fact as to when these two claims accrued and 
is not entitled to summary judgment as to those claims.  
   
 e.  Repair of AHU #2 and AHU #8  
 
 PWB contends that the government was at fault for the failure of AHU #2 and 
AHU #8.  PWB was aware of the events fixing the government’s alleged liability for 
this claim by no later than February 11, 2015, when PWB stated its position that 
NAVFAC, rather than PWB, was responsible for the failure of the units and the 
resulting additional costs and delays (R4, tab 18 at 475).  PWB also incurred expenses 
toward the diagnosis and repair of the two AHU failures by February 2015.  There is 
no genuine dispute, therefore, that PWB’s claim accrued before March 23, 2015.  
 
V.  PWB’s Equitable Tolling Argument Lacks Merit 
 
For the reasons explained above, there is no genuine issue of fact that PWB’s 
claims (with two exceptions as noted above) accrued more than six years before PWB 
submitted its claim to the contracting officer.  PWB argues that its claims are 
nevertheless not time-barred because it is entitled to equitable tolling of the statute of 
limitations.  We disagree.  
 
The CDA’s statute of limitations is not jurisdictional and is subject to equitable 
tolling.  Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315, 1322 (Fed. Cir. 
2014); Beechcraft Def. Co., LLC; Textron Aviation Inc.; & Textron Aviation Def., 
LLC, ASBCA No. 61743, 23-1 BCA ¶ 38,283 at 185,884.  “[E]quitable tolling against 
the federal government is a narrow doctrine.”  Martinez v. United States, 333 F.3d 
1295, 1318 (Fed. Cir. 2003).  Equitable tolling is appropriate “when a litigant has (1) 
been pursuing his rights diligently, and (2) some extraordinary circumstance ‘stood in 
his way and prevented timely filing.’”  Afghan Premier Logistics, ASBCA No. 62938 
et al., 22-1 BCA ¶ 38,074 at 184,906 (quoting The Adamant Grp. for Contracting and 
Gen. Trading, ASBCA No. 60316, 16-1 BCA ¶ 36,577 at 178,136); see also 
Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016)); 
Kamaludin Slyman CSC, ASBCA No. 62006 et al., 21-1 BCA ¶ 37,849 at 183,794.  
“[M]ere excusable neglect is not enough to establish a basis for equitable tolling; there 
must be a compelling justification for delay, such as ‘where the complainant has been 
induced or tricked by his adversary's misconduct into allowing the filing deadline to 
pass.’”  Martinez v. United States, 333 F.3d at 1318 (quoting Irwin v. Department of 
Veterans Affairs, 498 U.S. 89, 96 (1990)).   

17 
 
 
PWB seeks equitable tolling because, at some point in 2019, a NAVFAC 
contracting officer requested that PWB hold its claim in abeyance pending efforts to 
resolve the issues.  Ms. Romero states that PWB was “acting in good faith on her 
requests to stay our filing.”  (App. resp., ex. 1 ¶ 27) 
 
Under our precedents, PWB cannot prevail on its equitable tolling theory on 
these facts.  In Globe Trailer Mfg., ASBCA No. 62514, 21-1 BCA ¶ 37,973, the 
appellant similarly alleged that the government “employed ‘misleading tactics’ to 
extend the parties' settlement negotiations beyond expiration of the statute of 
limitations.”  Id. at 184,420.  We held that Globe had failed to assert facts sufficient to 
establish that an extraordinary circumstance prevented it from filing its claim: 
 
“[I]n the absence of trickery, once a claim has accrued and 
the statute of limitations begins to run, ‘subsequent 
communications between [the contractor] and the 
government about the claim's merits and magnitude [do] 
nothing to toll it.’”  Ford Lumber & Bldg. Supply, Inc., 
ASBCA No. 61617 et al., 19-1 BCA ¶ 37,407 at 181,847 
(quoting Raytheon Missile Sys., ASBCA No. 58011, 
13 BCA ¶ 35,241 at 173,018).  Globe’s allegations of 
‘misleading tactics’ pertain to the government's actions in 
continuing to negotiate with Globe; however, Globe does 
not assert that the government made false statements or 
engaged in “trickery[.]” 
 
Id. at 184,420-21.  In Kamaludin Slyman, the appellant argued that the government 
had failed “to respond to its inquiries over a number of years” and given “assurances 
that Kamaludin would be paid.”  21-1 BCA ¶ 37,849 at 183,795.  We held that this 
was insufficient to establish a fact dispute sufficient to deny summary judgment.  
“What Kamaludin has explained here is why it might have thought it did not need to 
present a claim, not why something stood in the way, preventing it from doing so, as is 
required.”  Id.  
 
Likewise here, PWB has not shown that some “extraordinary circumstance” 
prevented it from filing a timely claim, nor that it pursued its claim diligently either 
before or after NAVFAC asked it to hold its claim in abeyance.  PWB argues that we 
should infer from the government’s request that PWB hold off on the claim that the 
government was attempting “to bait Appellant into losing its substantive right of filing 
its claim” (app. resp. ¶ 45).  PWB, however, offers no evidence that the government 
acted with any duplicitous intent or otherwise engaged in any misconduct that would 
justify equitable tolling.  While Ms. Romero generally alleges abusive behavior on the 
part of the government during the project, that alone does not give rise to an inference 

18 
 
that the government engaged in misconduct merely by asking Ms. Romero to forestall 
submitting the claim.  Even if PWB had evidence that the government intended to trick 
PWB into delaying its claim until it was too late, PWB has failed to explain why it 
waited more than a year after the request to submit its claim.  In short, PWB has 
presented no evidence to show that its delay in submitting the claim was anything 
other than “‘a garden variety claim of excusable neglect’ for which equitable tolling 
provides no relief.”  Khenj Logistics Grp. ASBCA, No. 61178, 18-1 BCA ¶ 36,982, 
at 180,140 (quoting Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 
750, 755 (2016)). 
 
VI.  Prompt Payment Act Claim 
 
 The government is entitled to summary judgment on PWB’s claim for Prompt 
Payment Act (PPA) interest.  The PPA provides in relevant part, “the head of an 
agency acquiring property or service from a business concern, who does not pay the 
concern for each complete delivered item of property or service by the required 
payment date, shall pay an interest penalty to the concern on the amount of the 
payment due.”  31 U.S.C. § 3902(a).  The PPA further provides that it “does not 
require an interest penalty on a payment that is not made because of a dispute between 
the head of an agency and a business concern over the amount of payment or 
compliance with the contract.”  31 U.S.C. § 3907(c).  PWB’s task order incorporated 
FAR 52.232-27, PROMPT PAYMENT FOR CONSTRUCTION CONTRACTS (SEP 
2005), which further defines the requirements for entitlement to Prompt Payment Act 
interest (R4, tab 1 at 48). 
 
 The government argues that PWB is not entitled to PPA interest for two 
reasons:  (1) PWB never submitted an invoice for the amounts on which it seeks 
interest, and (2) PPA interest is not owed on disputed amounts.  PWB’s opposition to 
the government’s summary judgment motion offered no response to these arguments. 
 
 In Dick Pac./ghemm, Jv, ASBCA No. 55829, 08-2 BCA ¶ 33,937, the Board 
explained: 
 
Under the contract’s Prompt Payment clause, PPA interest 
is to be paid automatically if a proper invoice was 
received; payment was not made by the due date; 
government documentation authorizing payment was 
processed; there was no disagreement over quantity, 
quality, contractor compliance with the contract, or the 
requested progress payment amount; or, in the case of a 
final invoice, the amount was not subject to further 
contract settlement actions.  FAR 52.232-27(a)(3).  Interest 
is not required on payment delays due to disagreement 

19 
 
between the government and the contractor over the 
payment amount or other issues involving contract 
compliance, or on amounts temporarily withheld or 
retained in accordance with the contract. 
 
Id. at 167,942.  It is undisputed that PWB did not submit a proper invoice for the 
amounts on which it seeks interest and that those amounts are in dispute.  Accordingly, 
the claim for PPA interest is without merit.  See Amaratek, ASBCA No. 59149, 15-1 
BCA ¶ 35,808 at 175,125 n.4; Dillingham Const. Pac. Basin, Ltd., ASBCA No. 53284, 
03-1 BCA ¶ 32,098 at 158,664. 
 
CONCLUSION 
 
 The claims asserted in paragraphs 47-100 of PWB’s complaint are dismissed 
for lack of jurisdiction.  The government’s motion for summary judgment is granted as 
to all other claims asserted by PWB, except for its delay claims based on the alleged 
unavailability of escorts into the SCIF and the government’s direction to re-locate an 
ADA/ABA compliant restroom to a different location.  The government’s motion for 
summary judgment is also granted as to PWB’s claim for interest pursuant to the 
Prompt Payment Act.  
 
 Dated:  May 12, 2023 
 
 
 
 
 
 
 
 
 
 
 
THOMAS P. MCLISH 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  

20 
 
 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. 63093, Appeal of Patricia 
I. Romero, Inc. d/b/a Pacific West Builders, rendered in conformance with the Board’s 
Charter. 
 
 Dated:  May 16, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals