Sungwoo E&C., Ltd.
Docket: ASBCA 61144, ASBCA 61219
Decision date: 2019-10-08

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Sungwoo E&C Co., Ltd. ) 
) 
Under Contract Nos. W91QVN-14-D-0034 ) 
W91QVN-12-D-0114 ) 
W91QVN-I2-D-Ol l9 ) 
W91QVN-l2-D-OI30 ) 
W91QVN-l2-D-OI32 ) 
W91QVN-I3-D-0064 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 61144, 61219 
Song Yong Eui., Esq. 
Central IP & Law 
Seoul, Korea 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
Dana J. Chase, Esq. 
MAJ Bruce H. Robinson, JA 
MAJ Stephen P. Smith, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCNULTY 
Before us are the government's motions to strike and a motion to partially 
dismiss for lack of jurisdiction in the above referenced appeals. 1 The government 
moves to strike portions of appellant's complaints, contending we lack jurisdiction 
1 The government has filed four motions to strike. The first, filed in ASBCA 
No. 61144 on June 12, 2017, related to appellant's initial complaint in that 
appeal. The second, also filed in ASBCA No. 61144 on August 25, 2017, 
relates to appellant's amended complaint in that appeal. It reiterated the 
arguments made in the first motion and does not differ materially from the first 
motion. We view it as superseding the original motion. The third motion was 
filed in ASBCA No. 61219, on August 29, 2017. The final motion to strike was 
filed as part of the government's briefing, requested by the Board to address a 
jurisdictional issue. This final motion also includes a motion to partially 
dismiss for lack of jurisdiction. Although not currently consolidated, the 
appeals are interrelated, sharing common or overlapping factual assertions and 
arguments, and the motions are best decided in a single decision. 
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over some of the causes of action, one cause of action is duplicative and another is 
moot. 
FINDINGS OF FACT FOR PURPOSES OF THE MOTIONS 
1. The appeals arise from several task orders awarded to appellant for work 
performed in the Republic of Korea (ROK). The initial task orders were issued pursuant to 
a general construction, multiple award, indefinite delivery/indefinite quantity (IDIQ) task 
order contract appellant received, Contract No. W91QVN-14-D-0034 (MATOC). (ASBCA 
No. 61219 (61219) R4, tab 17 at 1, 10) The Multiple Award Task Order Contract 
(MATOC) was signed by a U.S. contracting officer (CO) (id. at 1). The MATOC 
performance period was 12 month_s from August 14, 2014 through August 13, 2015, 
renewable at the option of the government for two additional 12-month periods (id. at 10). 
The awardees were promised they would be given fair opportunity to compete for additional 
awards in accordance with Federal Acquisition Regulation (FAR) 16.505, ORDERS 
UNDER MULTIPLE AW ARD CONTRACTS FAIR OPPORTUNITY (id. at 27). 
2. Appellant, a Korean company, was awarded eleven task orders under the 
MATOC (61219 app. supp. R4, tab 39 at 1). Only three of the task orders, 0001, 0002, 
0004 are at issue in the appeals (61219 R4, tab 27 at 17). These orders were signed by 
a CO (61219 app. supp. R4, tabs 29-31 at 1). 
3. Appellant also was awarded other IDIQ contracts: Contract Nos. W91QVN-12-D-0114, 
W91QVN-12-D-0119, W91QVN-12-D-0130, W91QVN-12-D-0132, W91QVN-13-D-0064 
and task orders issued thereunder for paving and other work 2 (ASBCA No. 61219 R4, tabs 11, 
13-16). The paving work contracts also included the promise of fair opportunity to compete for 
additional awards and options to renew the contracts, but for four additional 12-month 
performance periods (61219 R4, tabs 11, 13-16 at 5-8, 16). The paving contracts were signed 
by a U.S. CO (id. at 2). The record does not include the task orders issued under the paving 
contracts. 
4. In addition to the contracts and task orders awarded to appellant, appellant 
asserts it was the lowest offeror on three other solicitations, but was not awarded any 
of them (61219 R4, tab 27 at 1-2). 
2 Also multiple award task order contracts. To reduce potential confusion we will 
refer to the task orders issued under these contracts as the "paving work" 
contracts or task orders. 
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5. The MATOC included the following pertinent contract clauses: 
5152.232-4030 PAYMENTS -ROK MND- FUNDED CONTRACTS: 
(a) Responsibility for Payment: Pursuant to Memorandum 
of Agreement (MOA) between United States Forces Korea 
(USFK) and the Republic of Korea Ministry of National 
Defense (ROK MND) concerning this contract, the ROK 
Government shall make payment directly to the contractor 
for performance rendered and accepted under any contract 
part, or delivery or service order identified as "MOA 
contract, funded by ROK MND." If the contract or any 
part of the contract is identified as obligating U.S. 
appropriated funds, the U.S. Government shall pay for that 
portion, pursuant to and IA W procedures stated by FAR 
52.232-1 PAYMENTS (APR 1984). Payments shall be 
made at the prices specified in the schedule. 
5152.232-4028 FUNDING OF ROK FUNDED CONTRACTS: 
(a) Funding advisement: Except for contractual 
instruments, if any, which specifically obligate U.S. 
appropriated funds for payment by the U.S. Government, 
this contract, any modifications (including exercise of 
option(s)) to it, and any delivery orders under it, shall cite 
"MOA Contract - funded by ROK MND," in lieu of citing 
appropriations and accounting data. 
(b) Limitation of US liability: The U.S. Government shall 
incur no liability, and no appropriated funds of the United 
States shall be obligated, for payment for services, 
supplies, claims, or other costs_ arising out of or under 
contracts, delivery or service orders, or exercises of options 
or other modifications that are designated as "MOA 
Contract- funded by ROK MND." 
5152.233-4008, DISPUTES, MINISTRY OF NATIONAL DEFENSE 
FUNDED CONTRACTS, ROK: 
(This clause applies only to ROK-funded acquisitions or parts of acquisitions.) 
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(a) All disputes arising under, or relating to, this contract 
shall be resolved under this clause. 
(b) "Claim," as used in this clause, 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 or interpretation of 
contract terms, or other relief arising under or relating to 
this contract. A claim arising under a contract, unlike a 
claim relating to that contract, is a claim than can be 
resolved under a contract clause that provides for the relief 
sought by the claimant; however, a written demand or 
written assertion by the Contractor seeking the payment of 
money exceeding $100,000 is not a claim under the clause 
until certified as required by subparagraph (d)(2) below. A 
voucher, invoice, or other routine request for payment that 
is not in dispute when submitted is not a claim under the 
clause. The submission may be converted to a claim under 
the clause, by complying with the submission and 
certification requirements of this clause, if it is disputed 
either as to liability or amount or is not acted upon in a 
reasonable time. 
( c) The contractor shall have the right to submit to the 
Contracting Officer, disputes, demands, and/or claims, 
relating to or arising under this contract, only on the issue 
of whether the Government should and will certify 
performance, for payment by the ROK Government. The 
contractor shall not submit to the U.S. Government, nor 
will the Contracting Officer accept, any disputes, demands, 
or claims for compensation for work, which the U.S. 
Government has certified as completed. 
( d) Procedures 
( 1) A claim by the contractor shall be made in writing 
and submitted to the Contracting Officer for a written 
decision. A claim by the Government against the 
Contractor shall be subject to a decision by the Contracting 
Officer. 
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(2) For contractor's claims exceeding $100,000, the 
contractor shall submit with the claim a certification that -
(i) The claim is made in good faith; 
(ii) Supporting data are accurate and complete to 
the best of the contractor's knowledge and belief; and 
(iii) The amount requested accurately reflects the 
contract adjustment for which the contractor believes the 
Government is liable. 
(3) Individuals 
(i) If the contractor is an individual, the 
certification shall be executed by that individual. 
(ii) If the contractor is not an individual, the 
certification shall be executed by -
(A) A senior company official in charge at the contractor's 
plant or location involved; or 
(B) An officer or general partner of the contractor having overall 
responsibility for the conduct of the contractor's affairs. 
(e) For contractor's claims of $100,000 or less, the Contracting 
Officer will, if requested in writing by the contractor, render a 
decision within 60 days of the request. For contractor-certified 
claims over $100,000, the Contracting Officer will, within 60 days, 
decide the claim or notify the contractor of the date by which the 
decision will be made. 
(f) The Contracting Officer's decision shall be final unless the 
contractor appeals the decision within 30 days of the Contracting 
Officer's decision, to the Principal Assistant Responsible for 
Contracting (PARC). In the event that the contractor does appeal 
the decision of the Contracting Officer, the appeal shall be heard 
by and decided by the PARC and/or a panel of U.S. officials, 
chaired by the PARC. The decision of this panel shall be final. 
(g) The contractor shall proceed diligently with performance 
of this contract, pending final resolution of any request for 
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relief, claim, or action arising under the contract, and comply 
with any decision of the Contracting Officer. 
(h) Regarding "MOA Contract Funded by ROK MND" 
portion or period of this contract, any reference to the Disputes 
clause, FAR 52.233-1, shall be construed to mean this local 
clause 5152.233-4008. 
(61219 R4, tab 17 at 25, 37-40) The paving contracts also included these provisions 
(61219 R4, tab 11 at 27-28, 34, 36; tab 13-16 at 21-23, 27-30). 
6. The MATOC contemplated that task orders awarded to Sungwoo might be 
funded by the ROK MND or by the United States with appropriated funds (61219 R4, 
tab 17 at 26). 
7. The record includes three task orders issued under the MA TOC (ASBCA 
No. 61144 (61144) R4, tabs 3-5). All three indicate payment would be made by the 
ROK MND without appropriated United States funds (61144 R4, tab 3 at 1-2, 12; tab 4 
at 1, 11; tab 5 at 1, 9). Two of the task orders also expressly state that they are "LCS 
projects" 3 funded in accordance with a memorandum of agreement between the 
United States and the ROK (61144 R4, tab 3 at 12; tab 5 at 9).4 The other MATOC 
task order states that it is a ROK MND funded memorandum of agreement contract 
(61144 R4, tab 4 at 11). 
8. The MATOC was issued pursuant to the 1953 Mutual Defense Treaty 
between the United States and ROK and a number of agreements relating thereto (see, 
e.g., 61219 R4, tab 17 at 25; ASBCA Nos. 61144, 61219, gov't mot., ex. GI at 4). In 
1967 the United States and ROK entered into a Status of Forces Agreement (SOFA), 
which includes the following pertinent provisions in Article V: 
Facilities and Areas - Cost and Maintenance 
1. It is agreed that the United States will bear for the 
duration of this Agreement without cost to the Republic 
of Korea all expenditures incident to the maintenance 
of the United States armed forces in the Republic of 
Korea, except those to be borne by the Republic of 
Korea as provided in paragraph 2. 
3 LCS project will be discussed below. 
4 LCS involve cost sharing between the United States and the Republic of Korea. 
They are either Labor Cost Sharing or Logistics Cost Sharing (findings 10-11). 
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2. It is agreed that the Republic of Korea will furnish for 
the duration of this Agreement without cost to the 
United States and make compensation where 
appropriate to the owners and suppliers thereof all 
facilities and areas and rights of way, including 
facilities and areas jointly used, such as those at 
airfields and ports as provided in articles II and III. The 
Government of the Republic of Korea assures the use of 
such facilities and areas to the Government of the 
United States and will hold the Government of the 
United States as well as its agencies and employees 
harmless .from [sic] any third party claims which may 
be advanced in connection with such use. 
(ASBCA Nos. 61144, 61219, gov't mot., ex. G-1 at 7) 
9. The United States and ROK have entered into a number of Special Measures 
Agreements (SMA) to implement Article V of the SOFA. The 9th SMA covers the 
period in which the MA TOC and the paving contracts were awarded and performed. 
(ASBCA Nos. 61144, 61219, gov't mot., ex. G-2 at 1, 3-6) 
IO. Article 1 of the 9th SMA states: 
(Id. at 5) 
The Republic of Korea shall bear, for the duration of this 
Agreement, as a special measure relating to Article V of 
the Status of Forces Agreement, a part of the expenditures 
associated with the stationing of the United States Armed 
Forces in the Republic of Korea. The contribution of the 
Republic of Korea shall be categorized into Labor Cost 
Sharing, Logistics Cost Sharing and Republic of Korea 
Funded Construction (ROKFC). Implementation of this 
Agreement shall be in accordance with a separate 
implementation arrangement between the concerned 
authorities of the Parties. 
The Parties shall put in utmost efforts to enhance 
accountability and transparency for implementation of this 
Agreement. In this regard, the Exchange of Notes on 
System Improvements shall be adopted and enter into force 
at the same date as this agreement. 
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11. The United States and ROK entered into an Implementing Agreement 
concerning Logistics Cost Sharing (LCS) for 2009 through 2013 in October 2009 
(ASBCA Nos. 61144, 61219, gov't mot., ex. G-3 at 1, 9). The purpose of the 
Implementing Agreement was stated to be; '"[t]o define the responsibilities of the 
parties in the execution of the LCS program" (id. at 2). These responsibilities are set 
forth in Article III-Mutual Responsibilities Of The Parties, which states in pertinent 
part: 
2. ROK MND delegates to USFK the authority to solicit 
for its requirements within Categories and Scope of the 
LCS program, negotiate, and prepare the contract 
drafts(s). USFK will submit the contract draft(s) and 
the contractor submitted Local Clause 5152.204-4032 
Representation and Certifications to include the bid 
advertisement to ROK MND for the approval of 
obligating ROK funds. ROK MND also delegates to 
USFK the sole authority to issue delivery orders, to 
inspect and accept equipment, supplies, and services, 
and to determine the contractor's entitlement to 
payment under the contract. ROK MND retains 
authority to review and suggest modifications to 
contract draft(s), and final approval authority for ROK 
funded contract(s) after US obligation of any US funds 
or US government furnished property. USFK retains 
authority to sign and join in award of those contracts 
that obligate US funds or US government furnished 
property. 
3. The parties agree that all contractors shall submit 
billing invoices directly to USFK for certification, 
USFK shall forward the certified billing invoices to 
ROK MND Logistics Management Bureau for 
payment, and ROK MND shall pay the Korean 
contractors directly. 
4. The parties agree that all LCS work must be 
accomplished in the ROK or its territorial waters and 
that all equipment and supplies that are to be acquired 
with ROKG funds shall be manufactured in the ROK, 
and that all LCS service work shall be carried out by 
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(Id. at 2-3) 
Korean contractor(s), Korea Railroad Corporation, or 
the ROK military. 
12. Appellant's performance with respect to schedule on three of the MATOC 
task orders was rated as unsatisfactory in the government's Contractor Performance 
Assessment Reporting System (CPARS) (61219 R4, tabs 3-5). 
13. Appellant disputes the government's evaluation of its performance. (61219 
R4, tab 27 at 4, 14, 19-20; ASBCA No. 61219, compl. 1112-14; ASBCA No. 61144, 
amend. compl. first 111-4). Appellant alleges the government engaged in fraudulent 
acts, including requiring contractors to forge documents and that the government 
retaliated against appellant, when it refused to participate in the alleged scheme, by (1) 
giving it "unsatisfactory" CP ARS ratings and (2) by imposing a defacto suspension or 
debarment when the government refused to exercise options under the MA TOC and 
paving work contracts and award additional work to appellant (ASBCA No. 61114, 
amend. compl. 11129-43; ASBCA No. 61219, compl. 1112, 16, 17). 
14. Appellant's claim asserts the government wrongfully failed to award 
contracts under Solicitation Nos. W91QVN-16-R-0091 and W91QVN-16-R-0119 5, 
and to exercise options under the MATOC and Contract Nos. W91QVN-13-D-0064, 
W91QVN-12-D-0114, W91QVN-12-D-0119, W91QVN-12-D-0130 (61219, R4, tab 27 
at 2). 
15. Appellant seeks relief in ASBCA No. 61144 in the form of an order 
directing the government to change the CP ARS ratings from "unsatisfactory" to 
"satisfactory" and in ASBCA No. 61219, by payment of damages in the amount of 
KRW2,050,656, 7636 for the failure to award its contracts and exercise options 
(ASBCA No. 61144, amend. compl. first 12; ASBCA No. 61219, compl. first 11). 
Included in the total amount claimed in ASBCA No. 61219 is KRWl,000,000,000, 
described as "punitive damages" (ASBCA No. 61219, compl. 1 18). 
5 The solicitations indicate that they are for task orders to be issued to awardees under 
many contracts (61219 R4, tabs 6, 9 at 1). Other than the MATOC, these 
contracts are not in the record. 
6 South Korea currency, the Won. 
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16. The specific damages in KRW, other than the "punitive damages," asserted 
in ASBCA No. 61219 are set forth in the table below: 
Contract/Solicitation Complaint Lost Profits Bid Prep. Costs Total Damages 
No. Paragraph Asserted 
W91QVN-16-R-0008 Second 11 90,664,095 5,000,000 95,664,095 
W91 QVN-16-R-0091 Second 12 111,032,048 5,000,000 116,032,048 
W91QVN-16-R-0119 13 93,001,648 5,000,000 98,001,648 
W91QVN-13-D-0064 ,, 4-5 62,517,650 62,517,650 
W91QVN-12-D-0114 ,, 6-8 216,056,967 216,056,967 
W91QVN-12-D-0119 
W91QVN-12-D-0130 
W91QVN-12-D-0132 
W91QVN-14-D-0034 7 ,, 6, 9-10 390,961,678 390,961,678 
W91QVN-14-D-0034 8 ~Wll 33,850,412 33,850,412 
Total 1,013,084,498 9 
Solicitation Nos. W91QVN-16-R-0008, W91QVN-16-R-0091 and W91QVN-16-R-0119 
are the three solicitations for which appellant asserts it was the lowest offeror, but 
received no award (finding 4). 
DECISION 
Parties' Contentions 
The government asserts appellant has raised six distinct causes of action in 
ASBCA No. 61219: one count challenging the June 2, 2016 MATOC CPARS 
evaluation, three counts challenging the failure to award task orders, one count 
challenging a stop work order, two counts alleging the Army committed fraud, one count 
7 The MATOC (finding 1). 
8 The MATOC (finding 1). 
9 The "punitive" damages ofKRWl,000,000 added to this figure is KRW37,572,265 
less than the total amount, KRW2,050,656,763, asserted in the complaint. This 
discrepancy is not explained in either tpe claim or the complaint. 
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alleging the Army suspe11:ded or debarred appellant, and six counts challenging the 
decision to not exercise options. The government moves to strike all but the last of these 
causes of actions. Additionally, the government moves to strike appellant's punitive 
damages claim. (ASBCA No. 61219, gov't mot. at 12) The government asserts we lack 
jurisdiction under the Contract Disputes Act, (CDA) 41 U.S.C. §§ 7101-7109 to 
consider appellant's claims relating to the MATOC, arguing it was not a contract entered 
into by an executive agency of the United States because it was funded by the ROK. 
The government argues we lack subject matter jurisdiction to consider ASBCA 
No. 61144 for the same reason. (ASBCA Nos. 61144, 61219, gov't mot. at 1) The 
government makes additional arguments as will be set forth below. Appellant argues we 
have jurisdiction because the contracts were entered into by the Army, an executive 
agency of the United States, which as discussed below, we find persuasive. Appellant 
makes other arguments, set forth in greater detail below, which we find to be 
non-persuasive. 
Jurisdictional Finding 
The appeals and the government's motions raise several issues. First, we address 
whether any of appellant's contracts are procurements under the CDA, (41 U.S.C. 
§§ 7101-7109), for which we have subject matter jurisdiction. The CDA applies to 
contracts entered into by an executive agency as follows: 
(a) Executive agency contracts.--Unless otherwise specifically 
provided in this chapter, this chapter applies to any express or implied 
contract (including those of the nonappropriated fund activities described 
in sections 1346 and 1491 of title 28) made by an executive agency for-
(1) the procurement of property, other than real property in being; 
(2) the procurement of services; 
(3) the procurement of construction, alteration, repair, or maintenance of 
real property; or 
( 4) the disposal of personal property. 
41 U.S.C. § 7102. 
The CDA establishes our jurisdiction in §7105 as follows: 
( e) Jurisdiction.--
(1) In general.--
(A) Armed Services Board.--The Armed Services Board has 
jurisdiction to decide any appeal from a decision of a contracting officer 
of the Department of Defense, the Department of the Army, the 
Department of the Navy, the Department of the Air Force, or the 
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National Aeronautics and Space Administration relative to a contract 
made by that department or agency. 
Here there is no dispute that all of the contracts involved are for construction 
services, which is a type of contract over which we have subject matter jurisdiction. 
Next, we determine whether the contracts and task orders were entered into by an 
executive agency. Appellant argues jurisdiction exists under the CDA because all of 
the contracts were signed by a United States contracting officer on behalf of the United 
States Army (ASBCA Nos. 61144, 61219, app. resp. at 2-5). The government argues 
that, although executed by an Army contracting officer, because the MATOC task 
orders are funded by the ROK they were not entered into by an executive agency of the 
United States. In support of this argument the government relies on the SOFA 
between the ROK and the United State~ and the SMA entered into thereunder. 
Beginning with the SMA in 1991, the parties revised the SOFA, changing the original 
provision set forth in Article V, which required the United States to bear all 
expenditures incident to the maintenance of United States Armed Forces in the ROK, 
to a cost sharing system, by which the ROK bears some of the costs associated with 
maintaining United States Armed Forces in Korea. (Findings 8-10) The government 
has focused on language in the 9th SMA, the one applicable to the period of contract 
performance, which suggests the Army entered into the task orders as an agent for the 
ROK. In this regard the government has emphasized the language in the SMA and an 
Implementing Agreement delegating the ROK's authority to the Army and the ROK's 
retention of final approval authority for the contracts it funds. (Findings 10-11) It is 
true the ROK could be found to be the contracting authority, or party to the contract, if 
the Army was acting as a mere agent for it. IO The record does not support finding the 
Army was acting as an agent of the ROK. Instead, the record supports finding the 
work was performed to directly benefit the United States Armed Forces' mission in 
Korea and that ROK's involvement was to partially absorb the cost of this mission. 
This is made clear in the record in several ways. In Article I of the SMA, the parties 
agreed "The Republic of Korea shall bear for the duration of this Agreement, as a 
special measure relating to Article V of the SOFA, a part of the expenditures 
associated with the stationing of the United States Armed Forces in the Republic of 
Korea." (ASBCA No. 61144, gov't mot., ex. G-2 at 5) The Implementation 
Agreement and the Notes thereto, implementing the SMA indicate that it is the United 
States government, which selects the projects to be funded by the ROK (id. at 16-18). 
In the case of construction projects, the United States selects and prioritizes the 
IO "When an agent acting with actual or apparent authority makes a contract on behalf 
of a disclosed principal, ( 1) the principal and the third party are parties to the 
contract; and (2) the agent is not a party to the contract unless the agent and the 
third party agree otherwise." RESTATEMENT (THIRD) OF AGENCY§ 6.01 (2006). 
A principal is disclosed when the third party has notice that an agent is acting 
for a principal and has notice of the principal's identity." Id. at§ 1.04 (2). 
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projects based on military needs, is responsible for their design and selects the 
contractors (id. at 30-31, 34-35). In the case of contracts for equipment, supplies and 
services funded by the ROK pursuant to the LCS program, the parties have agreed 
expressly that these are acquired for the official use of United States Forces Korea 
(ASBCA No. 61144, gov't mot., ex. G-3 at 2). The LCS program includes 
construction services needed to maintain facilities on United States installations (id. 
at 8). The MATOC and the LCS task orders issued under it also state that the work 
performed is for the benefit of the United States (61219 R4, tab 17 at 11; app. supp. 
R4, tab 29 at 5 (improvements to Building 2253 at Camp Stanley); tab 30 at 4-5 
(repairs to Buildings 1251 and 1256 (dining facilities) at RLFC (Rodriguez Live Fire 
Complex); tab 31 at 4 (repairs to Building 247 at Camp Red Cloud)). 
As a result of the CDAs use of the term "procurement" in its definition of 
executive agency contract, whether a contract is for something that directly benefits 
the United States is an important factor in determining whether a contract falls within 
the statute. See Wesleyan Co., Inc. v. Harvey, 454 F. 3d 1375, 1378 (Fed. Cir. 2006) 
(defining "procurement," as that term is used in the CDA, as the "acquisition by 
purchase, lease or barter, of property or services for the direct benefit or use of the 
Federal Government)." (Emphasis in original); see also Latifi Shagiwall Constr. Co., 
ASBCA No. 58872, 15-1 BCA ,r 35,937 at 175,633 (agreement by the United States to 
purchase property or services using U.S. appropriated funds, but for the direct benefit 
of a party other than the United States is not a procurement contract). The Latifi 
opinion, together with the Federal Circuit's decision in Wesleyan, makes it clear that it 
is not the source of funding that determines whether a contract falls within the CDA; 
instead the determining factor is whether the United States directly benefits from the 
procurement. See also, Slattery v. United States, 635 F.3d 1298, 1301 (Fed. Cir. 2011) 
(en bane) (involving similar jurisdictional issue under the Tucker Act, 28 U.S.C. 
§ 1491 contract funded with non-appropriated funds found to fit within the Tucker Act 
because the contract directly benefited the United States). 
Similarly, the paving contracts also are for the direct benefit of the United 
States and thus constitute CDA contracts (61219 R4, tab 11 at 10 (repair and upgrade 
of general building USAG-RC, Casey/Area I); tabs 13-16 each at 1 (repair and 
construction of asphalt concrete pavements for Area I, II, IV, Kunsan Air Base (AB), 
Osan AB and Co-located Operating Bases (COBs) (Suwon, Daegu, Gwangju, Gimhae 
AB and Wonju Air Station)); tab 17 at 3 ( contractor to provide all labor, tools, 
equipment, supplies, and any other resources necessary to upgrade USFK facilities 
(Including New Construction Work under $750,000.00) located in the Republic of 
Korea). 11 
11 The record does not include any of the task orders issued to appellant under the 
paving contracts, which presumably, would more specifically describe the work 
that was performed. 
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The presence of a Disputes clause in the contract providing a dispute resolution 
process other than what is provided under the CDA does not divest the Board of its 
jurisdiction. Binladin Organization, Almihdar Binladin Development Co., Ltd. & 
Amoumi Development Co., Ltd. (JV), ENG BCA No. 5304, 89-3 BCA, 22,188 
at 111,639. See also OSHCO-PAE-SOMC v. United States, 16 Cl. Ct. 614 (1989); 
Burnside-Ott Aviation Training Center v. Dalton, 107 F.3d 854 at 858 (Fed. Cir. 
1997); Minesen Co. v. McHugh, 671 F.3d 1332, 1340-41 (Fed. Cir. 2012). 
Accordingly, we have general subject matter jurisdiction to consider the claims. 
The government also argues we lack subject matter jurisdiction over appellant's 
ROK funded contracts under our charter. Having ruled we have jurisdiction under the 
CDA we need not address this issue. 
CP ARS Finding 
The government further argues we lack subject matter jurisdiction to consider 
the claims relating to appellant's performance evaluations and the government's 
decision to not exercise options and award additional work due to appellant's fraud 
assertions (ASBCA No. 61219, gov't mot.). The government is correct when it argues 
that we do not have jurisdiction to consider allegations of fraud and make rulings 
thereon. United Technologies Corp., ASBCA No. 46880 et al., 95-2 BCA, 27,698 
at 138,079, n.1. But we do not agree with the government's characterization of 
appellant's complaints and we do not agree that we are required to strike the portions 
of the complaints that include allegations of fraud. Despite the frequent use of the 
word "fraud" in the complaints, we view appellant's appeals as making one central 
assertion, that the government acted arbitrarily and capriciously, or in bad faith, when 
it evaluated appellant's performance as being "unsatisfactory" and when it refused to 
exercise the options and award appellant additional work under the various contracts. 
We view the allegations regarding the falsification of documents and the other 
allegations of fraud potentially to be supportive of this central claim, should appellant 
be able to substantiate them. The Supreme Court has stated that leniency should be 
associated with notice pleading and that pleadings should be construed to facilitate a 
proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 47-48, (1957). We do 
have jurisdiction to consider and rule on whether the government's performance 
evaluations and decision to not exercise the options were arbitrary and capricious 
actions or undertaken in bad faith. Metag Insaat Ticaret A.S., ASBCA No. 58616, 
13 BCA, 35,454 at 173,862 (performance evaluation system requires fair, accurate 
and objective evaluation); Attenuation Envtl. Co. v. NRC, CBCA Nos 4920, 5093, 16-1 
BCA, 36,521 at 177,916-17 (involving claim that the government refused to exercise 
an option in retaliation, but finding bad faith was not proved). Keeping with Conley, 
we construe appellant's pleadings to allege bad faith and arbitrary and capricious 
actions on the part of the government with respect to the performance evaluations and 
14 
I I 

the refusal to exercise the options and deny the government's motions in this regard. 
Accordingly, we decline to strike appellant's allegations as requested and partially 
deny the government's motion. 
Punitive Damages Finding 
The government also moves to strike appellant's punitive damages claim, 
arguing we lack jurisdiction to award punitive damages (ASBCA No. 61219 gov't 
mot. at 1, 20). We do not have authority to award punitive damages. (Consolidated 
Defense Corp., ASBCA No. 52315, 03-1BCA132,099 at 158,668). Sungwoo's 
"Punitive Damage" claim narrative states specifically in pertinent part: "Sungwoo has 
been incurring loss and damage due to the government's improper actions. Therefore, 
Sungwoo is hereby making a claim for one billion (1,000,000,000) won as a punitive 
damage." (61219 R4, tab 27 at 4) The claim provides no further detail setting forth 
how this figure was derived. This allegation is repeated, essentially verbatim in 
appellant's complaint. (ASBCA No. 61219, complaint 118) In its response to the 
government's motion to strike, appellant argues the motion should be denied and that it 
be permitted to conduct discovery to develop facts needed to prove its allegations the 
government engaged in fraud and forgery (ASBCA No. 61219 app. resp. at 4). 
Appellant made no other effort to address the government's argument against its 
punitive damages claim. Even assuming appellant's allegations are true, they have no 
effect on the Board's ability to award punitive damages. In order to avoid dismissal it 
was incumbent upon appellant to provide evidence the damages it seeks had been 
mis-labeled as "punitive." Appellant has failed to do so. Accordingly, we find the 
government's argument against appellant's "punitive" damages claim in ASBCA 
No. 61219, persuasive and also partially grant the government's motion in this respect. 
Suspension and Debarment Finding 
The government also moves to strike appellant's allegations relating to its 
assertions that it has been suspended or debarred. We view appellant's allegations 
regarding the government's failure to award its contracts as assertions that the 
government breached an implied contract to consider its bids fairly and honestly. 
Appellant argues its allegations do not raise a jurisdictional issue, but provides nothing 
more than this unsupported assertion to bolster its argument. (ASBCA No. 61219, 
app. resp. at 3) These allegations are in the nature of a bid protest, which we have 
previously held we do not have jurisdiction to consider. Ammon Circuits Research, 
ASBCA No. 50885, 97-2 BCA 129,318 at 145,786 (citing RC 27th Avenue Corp., 
ASBCA No. 49176, 97-1BCA128,658 at 143,151. See also Coastal Corp. v. United 
States, 713 F.2d 728, 730 (Fed. Cir. 1983); Dreadnought Marine, Inc., ASBCA 
No. 45055, 95-2 BCA 127,650 at 137,825. Accordingly, we grant the government's 
motion with respect to the suspension and disbarment allegation, and strike these 
15 

assertions; specifically the second set of paragraphs numbered one through three of the 
complaint in ASBCA No. 61219. 
The government is also correct that we do not have jurisdiction to consider 
appeals from suspension or debarment orders, whether actual or de facto. Henry 
Stranahan, ASBCA No. 58392, 13 BCA 135,312 at 173,356 (citing Inter-Continental 
Equip., Inc. ASBCA No. 38444, 90-1BCA122,501 at 112,956); Sermor, Inc., 
ASBCA Nos. 32824 et al., 94-1BCA126,301 at 130,822. Although appellant asserts 
it has been suspended or debarred in its amended complaint in ASBCA No. 61144, 
importantly, it does not seek relief in a form that would require that we make a 
determination that appellant was suspended or debarred, or direct the government to 
rescind any such order. Instead, as was the case with appellant's allegations relating to 
fraud, we view the allegations relating to suspension and debarment to be part of 
appellant's central assertion that the government acted arbitrarily and capriciously, 
circumstances potentially supporting with respect to the CP ARS and failure to exercise 
option claims that we do have jurisdiction to consider. Accordingly, we also deny the 
government's motion with respect to the allegations relating to suspension and 
debarment. 
The government also moves to strike the allegations challenging the 
government's decision to issue a stop work order relating to one of the task orders. 
The government argues the issue is moot, having been settled by the parties as part of 
the negotiations following the filing and dismissal of two earlier appeals by appellant, 
ASBCA Nos. 60855 and 60985. (ASBCA No. 61219, gov't mot. at 15-16) Appellant 
agrees the dispute has been resolved (ASBCA No. 61219, app. resp. at 3). 
Accordingly, we partially grant the government's motion and strike the allegations 
relating to the stop work order because the settlement renders the issue moot. See 
Shiloh Services, Inc., ASBCA No. 61134, 18-1BCA137,117 at 180,662. 
Duplication Finding 
Finally, the government moves to strike the allegations regarding the evaluation 
of appellant's performance in ASBCA No. 61219, arguing they are duplicative of the 
allegations made in ASBCA No. 61144. Appellant argues the allegations are not 
duplicative (ASBCA No. 61219, app. resp. at 2). We agree appellant's allegations in 
the two appeals are duplicative with regard to the government's evaluation of its 
performance and grant the government's motion in this respect. See CCIE & Co., 
ASBCA Nos. 58355, 59008, 14-1BCA135,700 at 174,817. 
16 

CONCLUSION 
For the reasons stated above the government's motions are partially granted and 
partially denied. Although the MA TOC contract and the delivery orders issued 
thereunder do not involve United States appropriated funds, we find we have 
jurisdiction to consider appeals arising therefrom because the contracts were entered 
into by an executive agency of the United States with authority to do so and the work 
performed was for the direct benefit of the United States. 
Dated: October 8, 2019 
IconcAA 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
J. REID PROUTY 
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 Nos. 61144, 61219, Appeals of 
Sungwoo E&C Co., Ltd., rendered in conformance with the Board's Charter. 
Dated: 
17 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals