Islands Mechanical Contractor, Inc.
Docket: ASBCA 59655
Decision date: 2009-04-03

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Islands Mechanical Contractor, Inc. 
Under Contract No. N69272-06-C-0012 
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ASBCA No. 59655 
APPEARANCE FOR THE APPELLANT: . James E. Krause, Esq. 
Jacksonville, FL 
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Matthew S. Hawkins, Esq. 
Senior Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
This is an appeal of a contracting officer's deemed denial of a claim by Islands 
Mechanical Contractor, Inc. (IMC). The government has moved to dismiss. We grant 
the motion. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1 
1. In 2006, the Department of the Navy awarded IMC Contract 
No. N69272-06-C-0012 (contract 0012), a firm-fixed-price contract to provide 
wastewater treatment system repairs at Naval Station Guantanamo Bay, Cuba (2nd 
amended compl. ilil 1, 18, 34). 
2. IMC began performance in 2006 (2nd amended comp I. ii 34 ). 
3. IMC alleges that it encountered differing and unforeseen site conditions (2nd 
amended compl. ilil 19, 35). In particular, IMC alleges that the Naval Facilities 
Engineering Command (NA VF AC) provided defective plans and specifications, which 
did not contain correct information on existing electrical supply systems, water lines, 
and sewer lines (id. ii 28). 
4. IMC alleges that it submitted requests for information (RFis) to NA VF AC 
seeking guidance regarding how to proceed. IMC alleges that NA VF AC did not 
respond to all of the RFis (2nd· amended compl. ilil 19, 35, 40). Nor has NA VFAC 
issued a suspension or stop work order (id. ilil 22, 40). Therefore, on 3 April 2009, 
1 For purposes of this motion only, we accept the allegations in the second amended 
complaint as true. 

IMC placed all of its equipment on stand-by status. IMC alleges that contract 0012 
remains in stand-by status. (Id. ilil 38, 43) 
5. IMC alleges that the failure to respond to the RFis caused delay and 
damages (2nd amended compl. ifil 25, 29, 41). In particular, IMC alleges that the 
uncertainty of not knowing when NA VF AC was going to respond to the RFis forced 
IMC to maintain equipment on stand-by status (id. if 30). IMC also alleges that, as a 
result of the delay, the warranties or guaranties on the installed equipment have 
expired (id. if 45). Further, IMC alleges that some of the installed equipment will need 
to be replaced, and additional work beyond the scope of work will be required to 
complete the project (id. ilil 45, 51 ). 
6. IMC alleges that NA VF AC provided IMC with a draft modification on 
21 September 2009. IMC alleges that the draft modification would have resolved the 
outstanding RFis. However, IMC refused to sign the draft modification because it 
contained language waiving IMC's right to seek additional compensation for the 
damages it incurred. (2nd amended comp I. if 44) 
7. In response to the draft modification, IMC submitted a proposal to complete 
contract 0012 for $373, 121.72. NA VFAC has not accepted that proposal. (2nd 
amended comp I. if 154) 
8. On 11 July 2014, IMC submitted a request for equitable adjustment (REA) 
(R4, tab 18). 
9. On 29 July 2014, IMC resubmitted the REA as a certified claim. In the 
claim, IMC sought $2, 151,801.86 in direct labor and equipment costs, $2,308,966.96 in 
indirect overhead costs, and "$373,121. 78 pursuant to its proposal...for the completion 
of the Contract and to NA VFAC's Draft Modification dated July 31, 2013, once it 
receives direction from NA VF AC on the outstanding RFI[ s]." (R4, tab 19 at G-662-63) 
10. After a deemed denial, IMC filed an appeal and 
complaint with the Board 
(compl.). 
11. We stayed proceedings, and IMC certified a revised claim with the 
contracting officer on 30 June 2015. The revised claim sought 
$1,736,599.39 in direct 
labor and equipment costs, $1,182,427.45 in indirect overhead costs, and "$373,121.78 
pursuant to its proposal...for the completion of the Contract and to NA VFAC's Draft 
Modification dated July 31, 2013, once it receives direction from NA VF AC on the 
outstanding RFI[s]." (R4, tab 25 at G-716-18) 
12. On 17 May 2016, IMC filed an amended complaint with the Board, and 
certified a second revised claim to the contracting officer. The second revised claim­
which is the operative claim-sought $1,494,996.09 in stand-by equipment costs, 
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$479,382.79 in home office overhead costs, and "$373,121.78 pursuant to its 
proposal...for the completion of the Contract and to NA VFAC's Draft Modification 
elated July 31, 2013, once IMC receives direction from NA VF AC on the outstanding 
RFI[s]." The second revised claim also sought "an extension of time." The second 
revised claim did not request that NA VF AC accept equipment without warranties or 
guaranties or pay replacement costs; provide direction to IMC; or modify the contract 
for IMC to perform additional work. (R4, tab 28 at G-767-68) 
13. On 25 July 2016, IMC filed a second amended complaint-which is the 
operative complaint. The second amended complaint seeks $1,494,996.09 in stand-by 
equipment costs, $479,382.79 in home office overhead costs, and $373,121.78 
"pursuant to its proposal for the completion of the Contract." (2°d amended comp I. 
ilil 26, 62, 153-54) (citation omitted). In the "Relief Requested" section, the second 
amended complaint requests that we: 
A. Determine that the NA VF AC Contracting 
Officer's refusal to notify the Contractor of the date by 
which the decision will be made is a deemed denial; 
B. Determine that IMC's claim is valid pursuant to 
the Contract Disputes Act; 
C. Find that NA VF AC is responsible for damages 
incurred by IMC for the factual and legal reasons outlined 
above; 
D. Direct NA VF AC to make payment to IMC of 
the total of the sum certain amounts under the CLAIMS 
Section above, including standby or idle equipment, and 
office overhead in the amount of $1,974,378.88 during the 
period from April 3, 2009 through 
December 31, 2013; 
E. Direct NA VF AC to accept equipment that has 
remained exposed to the elements, installed by IMC 
pursuant to the plans but left unfinished due to the non­
actions of NA VF AC, without warranties or guaranties, or 
to pay any costs to replace such equipment and the labor 
cost to remove the nonfunctioning equipment and install 
new equipment; 
F. Direct NA VF AC to provide direction to IMC to 
allow completion of the Contract; 
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G. Direct NA VF AC to modify the Contract for 
IMC to perform the additional work outlined in the 
proposal from IMC dated February 15, 2013 in the amount 
of $373,121.78; 
H. Direct NA VF AC to add to the Contract as many 
days as necessary to bring the Contract current plus the 
days needed to complete the original scope of work plus 
the days necessary to complete the additional work 
outlined in the Proposal from IMC in the amount of 
$373, 121.78[.] 
(Id. at 34-35) (Citation omitted) 
14. The government has moved to dismiss, arguing that we do not possess 
jurisdiction because IMC seeks specific performance and injunctive relief, and failed 
to certify a claim seeking a sum certain as a matter of right. 
DECISION 
We do not possess jurisdiction over the appeal because IMC failed to certify a 
claim for a sum certain as a matter of right.2 Under the Contract Disputes Act (CDA), 
41 U.S.C. §§ 7101-7109, we only possess jurisdiction over an appeal if a contractor 
submits a cognizable claim to the contracting officer. Rejlectone, Inc. v. Dalton, 60 F.3d 
2 In particular, we do not possess jurisdiction over IMC's claims for an order directing 
NA VF AC to: ( 1) accept equipment without warranties or guaranties or pay 
replacement costs; (2) provide direction to IMC; (3) modify the contract for 
IMC to perform additional work; or ( 4) add as many days as necessary to 
complete the contract. "Under the CDA, for the Board to possess jurisdiction to 
entertain a claim, the claim must first have been presented to the contracting 
officer." CDM Constructors, Inc., ASBCA No. 59524, 15-1 BCA ii 36,097 
at 176,23 8. Here, the second revised claim did not assert claims that NA VF AC 
should: (1) accept equipment without warranties or guaranties or pay 
replacement costs; (2) provide direction to IMC; or (3) modify the contract for 
IMC to perform additional work (SOF ii 12). Thus, we do not possess 
jurisdiction over those claims in particular. 
While the second revised claim requested an extension of time (SOF 
ii 12 ), the government's arguments regarding our lack of jurisdiction to order a 
contracting officer to modify a contract to extend a period of performance are 
well-taken. Statistica, Inc., ASBCA No. 44116, 92-3 BCA ii 25,095 at 125,126; 
Pemco Aeroplex, Inc., ASBCA No. 47402, 95-2 BCA ii 27,853 at 138,889. 
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1572, 1575 (Fed. Cir. 1995) (en bane); Eaton Contract Services, Inc., ASBCA 
No. 52888 et al., 02-2 BCA if 32,023 at 158,266. A cognizable claim is a written 
demand seeking a sum certain as a matter of right. Reflectone, 60 F.3d at 1576. A 
proposal for work to be performed does not assert anything as a matter of right, and thus 
does not satisfy the sum certain as a matter of right requirement. Id. at 1577 n.7; Essex 
Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1581-82 (Fed. Cir. 1992). 
Here, the second revised claim-like the original and the revised claims­
contains a proposal for work to be performed. It asserts that "IMC requests an 
additional $373,121.78 pursuant to its proposal...for completion of the Contract" (SOF 
iii! 9, 11, 12). Therefore, the second revised claim does not satisfy the sum certain as a 
matter of right requirement, and we do not possess jurisdiction over an appeal based 
upon that claim. 
IMC argues that its second revised claim sought a sum certain as a matter of 
right because it sought $1,974,378.88 in equipment stand-by and home office overhead 
costs. However: 
The failure to meet jurisdictional requirements 
remains even if, as here, the "claims" contain one 
component...which were stated in a sum certain 
but the 
overall "claim" is not. We will not entertain that portion of 
a claim stated in a fixed amount and discard the remainder, 
as an "entire claim is in a sum certain, or it is not." 
Eaton, 02-2 BCA if 32,023 at 158,267 (citation omitted). While the equipment 
stand-by and home office overhead 
components of the second revised claim were 
stated in a sum certain as a matter of right, the overall claim was not because the 
second revised claim also sought $373,121.78 in proposed costs (SOF iii! 9, 11, 12). 
Therefore, we will not entertain the portion of the claim stated in a sum certain­
namely the equipment stand-by and home office overhead costs-and discard the 
remainder-namely the proposed costs. 
IMC also argues that the proposed costs, which purportedly were not part of its 
claim, were inadvertently included in the second amended complaint, and requests that 
it be permitted to amend the second amended complaint to remove those costs. As an 
initial matter, in order to file an amendment to its second amended complaint, IMC 
must file a motion for leave to do so, which attaches its proposed amended complaint. 
MicroTechnologies, LLC, ASBCA Nos. 59911, 59912, 15-1 BCA if 36,125 at 176,348 
n.2. More fundamentally, IMC is incorrect in its assertion that it did not include the 
proposed costs in its claim (SOF iii! 9, 11, 12). Because the defect is a jurisdictional 
defect with the certified claim-and not merely a pleading deficiency-amending the 
second amended complaint would not cure the defect. 
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CONCLUSION 
Because: (1) appellant's second revised claim did not contain a sum certain; 
(2) claims may not be asserted for the first time in the complaint but must be in the 
claim presented to the contracting officer; and (3) claims may not request injunctive 
relief from the Board, the appeal is dismissed without prejudice for lack of 
jurisdiction. 
Dated: 13 April 201 7 
I concur 
·~~~·· 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
JAMES R. SWEET 
Administrative 
Judge 
Armed Services Board 
of Contra~t Appeals 
I concur 
£KLEFORD 
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 No. 59655, Appeal of Islands 
Mechanical Contractor, Inc., rendered in conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals