Transdev Services, Inc.
Docket: ASBCA 62654, ASBCA 62655
Decision date: 2021-01-25

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of -- ) 
 ) 
Transdev Services, Inc. ) 
 ) 
   ) 
 
APPEARANCES FOR THE APPELLANT: Dawn E. Stern, Esq.  
Brett Ingerman, Esq.  
Harry P. Rudo, Esq. 
  DLA PIPER LLP 
  Baltimore, MD 
  
APPEARANCES FOR THE AUTHORITY: Jon B. Crocker, Esq. 
  Chief Counsel 
  Washington Metropolitan Area 
    Transit Authority 
  Washington, DC 
 
Attison L. Barnes, III, Esq. 
Samantha S. Lee, Esq. 
Moshe B. Broder, Esq. 
  Wiley Rein LLP 
  Washington, DC 
   
OPINION BY ADMINISTRATIVE JUDGE STINSON 
ON RESPONDENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
 Pending before the Board is a motion to dismiss for lack of subject matter 
jurisdiction filed by respondent, the Washington Metropolitan Area Transit Authority 
(WMATA).  Appellant, Transdev Services, Inc. (Transdev), submitted two claims to 
WMATA in April 2020, pursuant to the Disputes clause of its contract.  At the time 
Transdev filed its appeals seeking review of its two claims, WMATA had yet to issue 
a final decision on either claim.  WMATA contends that the Board is without 
jurisdiction to entertain these consolidated appeals on the theory that the Board has 
jurisdiction to review only written final decisions.  For the reasons stated below, we 
deny WMATA’s motion to dismiss. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 1.  On January 10, 2001, WMATA and the ASBCA entered into a 
Memorandum of Understanding (MOU) pursuant to which “[t]he ASBCA shall 
ASBCA Nos.   62654, 62655 
Under Contract No. CQ18068 

2 
provide a forum . . . for administrative resolution under Authority contracts containing 
a ‘Disputes’ article for all appeals from final decisions of contracting officers issued 
under such contracts” (MOU between the ASBCA and the WMATA (January 10, 
2001, extended in October 2007) at 1).  The MOU provides that “[o]pinions rendered 
by the ASBCA involving appeals under Authority contracts shall be accepted by the 
Authority as final and conclusive” unless overturned by “a court of competent 
jurisdiction” (MOU at 2).   
 
 2.  On August 2, 2018, WMATA awarded Transdev Contract No. CQ18068 
(the Contract) in the amount of $53,197,947.21 (mobilization and three-year base 
period) for operation and maintenance of Metrobus service operating from WMATA’s 
Cinder Bed Road Facility, located in Lorton, Virginia (R4, tab 58 at WT2055, 
WT2101).  
 
 3.  Paragraph B of Article 32 of the Contract contains procedures governing a 
termination for convenience (R4, tab 58 at WT2254).  Included within that paragraph 
are the following references to the Federal Acquisition Regulation (FAR): 
 
(f) If the parties disagree on the whole amount to be paid 
because of the termination, the Contracting Officer shall 
pay the Contractor the amounts that he or she determines 
as follows . . . 
 
 . . . . 
 
(iii) A sum, representing profit on the items 
described in subparagraph (f)(2)(i) that the 
Contracting Officer determines to be fair and 
reasonable pursuant to Section 49.202 of the 
Federal Acquisition Regulation (FAR), in effect on 
the date of this Contract.  
 
 . . . . 
 
(h) The cost principles and procedures of FAR Part 31 in 
effect on the date of this Contract, shall govern all costs 
claimed, agreed to, or determined under this article, except 
that the Authority shall not be obligated to pay interest, 
however represented, on any claimed costs. 
 
(R4, tab 58 at WT2256-57) 
 

3 
 4.  Article 35 of the Contract contains a Disputes clause, which provides: 
 
Any dispute concerning a question of fact arising under or 
related to this Contract that is not disposed of by 
agreement, shall be decided by the Contracting Officer, 
who shall reduce his/her decision to writing and mail or 
otherwise furnish a copy thereof to the Contractor.  The 
Contracting Officer’s decision shall be final and conclusive 
unless, within thirty (30) calendar days from the date of its 
receipt, the Contractor mails or otherwise furnishes to the 
Contracting Officer, a written notice of appeal addressed to 
the Authority Board of Directors.  Such notice must 
indicate that an appeal is intended and must reference the 
decision and Contract number.  The decision of the Board 
of Directors or its duly authorized representative for the 
determination of such appeals shall be final and 
conclusive, unless in proceedings initiated by either party 
for review of such decision in a court or board of 
competent jurisdiction, it determines that the decision was 
fraudulent, or capricious, or arbitrary, or so grossly 
erroneous as necessarily to imply bad faith, or not 
supported by substantial evidence.  In any appeal under 
this article, the appellant shall be afforded an opportunity 
to be heard and offer evidence in support of its appeal.  
Pending final decision of a dispute hereunder, the 
Contractor shall proceed diligently with the performance of 
this Contract in accordance with the Contracting Officer’s 
decision.  The Armed Services Board of Contract Appeals 
(ASBCA) is the Board of Directors’ authorized 
representative for final decisions on an appeal. 
 
(a) This “Disputes” article does not preclude 
consideration of questions of law in connection with 
decisions provided for in paragraph (a) above.  
Nothing in the Contract, however, shall be 
construed as making final, the decisions of the 
Board of Directors or its representative on questions 
of law. 
 
(R4, tab 58 at WT2258-59)1 
                                              
1 The Contract’s Disputes clause contains a section “(a)” but no section “(b)” (R4, 
tab 58 at WT2259).  It appears that the Disputes clause, as formatted in the 

4 
 
 5.  WMATA’s Procurement Procedures Manual, Section 19, entitled “Claims 
and Litigation Actions,” “establishes the Authority procedures for processing and 
resolving contractor claims and disputes.”  Section 19-2, entitled “General,” provides, 
in part: 
 
(a) The Authority shall promptly review and evaluate all 
contractor claims, and shall provide an objective appeals 
process to hear and render decisions on appeals taken from 
Final Decisions by the Contracting Officer.  
 
 . . . . 
 
(b) Responsibility.  The Contracting Officer is responsible 
for the review, evaluation, and determination of the merit 
of contractor claims.  In making merit determinations, the 
Contracting Officer should obtain the advice from 
Authority technical and subject matter experts in the areas 
including, but not limited to:  contracting, finance, law, 
contract audit, and engineering and construction.  
Determinations of Merit may be reviewed by the Office of 
General Counsel (“COUN”) for legal sufficiency 
depending on the complexity and/or dollar amount of the 
claim as determined by the Contracting Officer and/or the 
Chief Procurement Officer.  
 
(R4, tab 107 at WT5861 (Version 7.4, dated August 2017), tab 110 at WT6914 
(Version 7.9, dated January 2020)) 
 
 6.  Appellant’s complaint addresses two claims:  (1) the alleged amount owed 
and invoiced “for the hours operated under the Contract and the method for calculating 
that amount” (the Invoicing Claim); and (2) alleged “misrepresentations made by 
WMATA during the procurement regarding the maintenance status of the bus fleet” 
(the Bus Maintenance Claim) (compl. ¶ 2).  The complaint also includes two breach of 
contract counts, Count I, Breach of Contract - Pricing Dispute, and Count V, Breach of 
Contract - Maintenance Dispute (compl. ¶¶ 60-64, 82-86). 
                                              
Contract, should have included a section “(a)” at the beginning of the first 
paragraph of the clause, and the second paragraph of the clause should have 
been identified as section “(b)” and not section “(a).”  See Delta Engineering, 
Inc., ASBCA No. 58063, 14-1 BCA ¶ 35,553 at 174,219-20 (containing 
Disputes clause with same language, but both a paragraph section (a) and 
section (b)). 

5 
 
The Invoicing Claim 
 
 7.  By letter dated October 29, 2019, to Mr. Daniel Smith, WMATA 
Contracting Officer, Mr. Michael Setzer, President Transit Division, Transdev North 
America, discussed “the methodology by which Transdev invoices WMATA for 
Transdev’s fixed-route service.”  Mr. Setzer stated “[b]ecause Transdev and WMATA 
have engaged in this discussion without resolution for a matter of months, we seek a 
decision from you pursuant to Article 35 of the legal terms governing Cinder Bed 
Road Bus Operations and Maintenance RFP CQ18068 . . . .”  (R4, tab 97 at WT5537)  
Mr. Setzer’s letter did not specify the amount of the claim, stating instead that 
“WMATA has withheld approximately 20% of each invoice issued to it on the basis 
that Transdev should simply be invoicing only a fixed fee, not both the fixed and 
variable fees instructed during the procurement process.”  Mr. Setzer requested that 
WMATA “make payment of the outstanding amounts owed for each invoice issued 
since the inception of the fixed-route service . . . .”  (R4, tab 97 at WT5538) 
 
 8.  By email dated October 29, 2019, Mr. Ted Koerth, Associate General 
Counsel, Transdev North America, provided Mr. Jon B. Crocker, Senior Counsel, 
WMATA Office of General Counsel, a copy of Mr. Setzer’s October 29, 2019, letter 
(app. supp. R4, tab 2 at TDEV6-7).  Mr. Crocker responded to Mr. Koerth via email 
that same day, stating, “Ted, thank you for copying me.  I acknowledge receipt.  You 
should expect a formal decision on the claim within 60 days.”  (App. supp. R4, tab 2 
at TDEV6)  By email dated January 6, 2020, Mr. Koerth responded to Mr. Crocker’s 
email stating, “Happy new year.  More than 60 days since our letter have now passed.  
Did I miss WMATA’s response?  Please advise.”  (Id.)  
 
 9.  By letter dated February 6, 2020, to Mr. John King, Regional Vice President 
of Transdev North America, Mr. Smith addressed the Invoicing Claim, stating: 
 
As you know the dispute over the proper invoice format 
has been affecting the WMATA payment to Transdev 
since December 30, 2018.  WMATA has decided to 
institute the terms of the contract (CQ18068) in processing 
all payments for the period December 30, 2018 through 
September 30, 2019.  Please refer to Schedule C of 
CQ18068, price schedule instructions.  The amount owed 
Transdev for the period December 30, 2018 through 
September 2019 is $997,194.79. 
 
(R4, tab 98) 
 

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 10.  By letter dated April 22, 2020, to Mr. Smith, Mr. Setzer again addressed 
the Invoicing Claim, stating, “as of February 29, 2020, WMATA has withheld and 
owes Transdev a sum of $1,520,432 in fees withheld by WMATA without justification 
based apparently on WMATA’s mistaken understanding of the invoicing requirements 
under the Agreement” (app. supp. R4, tab 4 at TDEV102).  In closing, Mr. Setzer 
stated, “[w]e hereby request payment of this amount within 15 days of this letter.  
Please advise me if WMATA does not intend to comply with this request” (app. supp. 
R4, tab 4 at TDEV103). 
 
 11.  By letter dated June 2, 2020, to Mr. Smith, Mr. Setzer stated: 
 
I write today on behalf of Transdev . . . to follow-up on my 
prior claim demanding payment of $1,520,432 under the 
terms of the Cinder Bed Road Bus Operations and 
Maintenance RFP CQ18068 . . . .  As explained in that 
letter, Transdev disputes WMATA’s refusal to pay the full 
fixed and variable costs contained in our invoices.  Those 
costs are expressly provided for by the Agreement. 
 
Pursuant to the Disputes article of the Agreement, 
Article 35, the Contracting Officer is required to issue a 
written decision on the claim.  To date, however, we have 
not received a response.  Thus, unless we receive a written 
response from you by June 5, 2020, we will deem the 
claim denied and seek appropriate relief from the Armed 
Services Board of Contract Appeals (“ASBCA”).  We 
sincerely value our ongoing relationship with WMATA 
and welcome the opportunity to amicably resolve this issue 
without the need to involve the ASBCA. 
 
(R4, tab 104) 
 
The Bus Maintenance Claim 
 
 12.  By letter dated March 12, 2020, to Ms. Yvonne Manfra, WMATA Project 
Manager, Mr. Branden Matthews, Transdev Area Vice President, submitted 
documents requested by WMATA to substantiate alleged premature major system 
failures of the Cinder Bed fleet for which appellant claimed WMATA was responsible 
(app. supp. R4, tab 6; R4, tab 101).  Mr. Matthews’ letter stated, in part: 
 
Attached please find the master control spreadsheet and 
vendor invoicing associated with all of the major system 
failures and repairs listed on the control spreadsheet.  The 

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documentation is divided into three groups; Major Engine 
Work, Hybrid Drive /DPIM and Wiring Repairs activities. 
 
The Transdev team is available to answer any question on 
the documentation if further explanation or discussion on 
any individual failure or repair activity is needed. 
 
(App. supp. R4, tab 6) 
 
 13.  By letter dated March 17, 2020, to Mr. Matthews, Ms. Manfra, responded 
to Transdev’s March 12, 2020 letter, stating that WMATA could not continue its 
review of the material submitted until appellant submitted additional information.  
Ms. Manfra stated that WMATA would “begin a thorough review of the data 
provided” once the deficiencies were corrected.  (App. supp. R4, tab 3) 
 
 14.  By letter dated March 30, 2020, Mr. Matthews responded to Ms. Manfra’s 
March 17, 2020 letter, providing “additional documentation to substantiate major 
system failures” (app. supp. R4, tab 4a). 
 
 15.  By letter dated April 28, 2020, Mr. Smith responded to Mr. Matthews’s 
March 30, 2020 letter, stating: 
 
The Washington Area Metropolitan Transit Agency 
(WMATA) has received and preliminarily reviewed the 
materials submitted by Transdev alleging premature 
mechanical major systems failures on buses assigned to the 
Cinder Bed Road Project.  In order to consider any 
reimbursement for the allegations of mechanical major 
systems failures, WMATA is requiring that Transdev 
submit a formal claim against the contract (CQ18068). 
 
(R4, tab 101) 
 
 16.  By letter dated April 30, 2020, Mr. Matthews responded to Mr. Smith’s 
April 28, 2020 letter, summarizing appellant’s previous submissions and stating, in 
part: 
 
While WMATA has not, to date, substantively disputed 
Transdev’s position on these repairs, WMATA has 
requested in your letter dated April 28, 2020, that we 
submit this information and a corresponding request for 
reimbursement for these expenses to you subject to 

8 
Article 35 (Disputes) of Contract 18068.  Please consider 
this correspondence as such a request. 
 
We ask that you advise us within 30 days of this letter of 
your decision on the matter.  If we do not receive a 
response within that timeframe, we will understand 
WMATA’s silence to constitute a denial of this request for 
reimbursement subject to Transdev’s right to file an appeal 
to the WMATA Board of Directors consistent with 
Article 35 of the Contract. 
 
(R4, tab 102) 
 
 17.  By letter dated May 15, 2020, Mr. Smith responded to Mr. Matthews’s 
April 30, 2020 letter, stating, in part: 
 
A claim must be supported by substantial evidence.  To 
assist you with collecting the necessary information to 
evaluate your position, WMATA has prepared a 
spreadsheet to identify areas where supporting 
documentation is required.  Please complete the attached 
spreadsheet with as much information as is reasonably 
available and return it within thirty (30) days.  This 
spreadsheet will form both the basis of your claim as well 
as supply the required diligence to enable an amicable 
resolution. 
 
Alternatively, you may proceed from the bare allegations 
in your letter.  The letter suggests but does not present a 
formal claim against the contract.  For any claim in excess 
of $100,000, WMATA requires the vendor to submit a 
formal certification in accord with 41 USC 7103 and 
FAR 33.207.  If you wish to proceed with a claim and 
without substantial evidence, then please simply complete 
the certification and resubmit. 
 
Kindly return the requested evidence and/or a certified 
claim.  Upon receipt, you are entitled to receive a 
Contracting Officers’ Final Decision within sixty (60) days 
pursuant to the Disputes Clause of Contract CQ18068. 
 
(R4, tab 103A) 
 

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 18.  By letter dated June 12, 2020, Mr. Matthews responded to Mr. Smith’s 
May 15, 2020 letter, stating, in part: 
 
In response to your letter of May 15, 2020 asking for 
additional evidence, Transdev has completed the 
WMATA-prepared spreadsheet with as much information 
as is available.  Some of the earliest repairs are 
documented with receipts but do not have a Maximo work 
order because Transdev maintenance staff access to 
Maximo was not provided by WMATA until well after 
commencement of operations by Transdev.  The attached 
WMATA-created spreadsheet, in conjunction with the 
information already provided by Transdev, form the basis 
for our claim for reimbursement of $749,201.77 in 
maintenance costs associated with premature failures of 
major components on the fleet assigned to Contract 
CQ18068. 
 
We look forward to receiving Contacting Officers Final 
Decision as outlined in Disputes Clauses of Contract 
CQ18068 within sixty (60) days. 
 
(R4, tab 105A) 
 
Transdev’s August 7, 2020 Submission Regarding Both Claims 
 
 19.  By letter dated August 7, 2020, to Mr. Smith, Mr. Justin T. Augustine, III, 
North East Regional Vice President, Transdev North America, provided a detailed 
summary of both claims pending with WMATA (R4, tab 106A at WT5551, WT5559).  
In concluding his letter, Mr. Augustine stated, in part: 
 
. . . Transdev is entitled to a total payment of 
$2,475,900.80, for its above two claims.  Pursuant to the 
Disputes article of the Contract, Article 35, the Contracting 
Officer is required to issue a written decision on the above 
claims.  To date, however, we have not received a response 
to our previously-submitted claims on these issues.  See 
Exhibits A, B, E, and F.  Thus, unless we receive a written 
response from you by August 21, 2020, we will deem the  
  

10 
claim denied and seek appropriate relief from the Armed 
Services Board of Contract Appeals (“ASBCA”).  
 
(R4, tab 106A at WT5556)2   
 
 20.  Mr. Augustine’s August 7th letter included the claim certification 
previously requested by WMATA in its May 15th letter, although Mr. Augustine noted 
that the Contract Disputes Act (CDA), 41 U.S.C. § 7103, does not apply to the 
Contract and the Contract did not incorporate the certification requirement set forth in 
FAR 33.207 (id.).  Mr. Augustine stated: 
 
Because the Contract Disputes Act does not apply to the 
Contract, nor does the Contract incorporate FAR 33.207, 
there is no basis for the 60-day period set forth in the 
Contract Disputes Act to begin upon the submission of the 
certification included with this letter.  To the extent 
WMATA disagrees, please inform us by August 14, 2020, 
of the basis for that disagreement so that we may evaluate 
WMATA’s position prior to filing an appeal with the 
ASBCA.   
 
(Id. at n.4) 
 
 21.  WMATA has not issued a final decision on appellant’s claims (WMATA 
mot. at 2).  WMATA states in its motion that “the Contracting Officer for this Contract 
continues to assess Transdev’s August 7 claim and intends to issue a written decision 
in response” (WMATA mot. at 4 n.3).  Transdev states that it was informed by 
WMATA that it “did not intend to issue a written decision on either claim and told 
Transdev that the only way to have the claim reviewed would be to file an appeal with 
the ASBCA” (app resp. at 2 (citing compl. ¶ 18)). 
 
 22.  By letter dated August 26, 2020, appellant filed its notice of appeal with the 
Board, based upon the “Contracting Officer’s Deemed Denial of Transdev’s Claims.”  
The Board docketed the Invoicing Claim as ASBCA No. 62654 and the Bus 
Maintenance Claim as ASBCA No. 62655. 
 
                                              
2 Appellant characterizes its August 7th submission as “another follow-up letter to the 
WMATA Contracting Officer . . . incorporating its prior letters and, once again, 
requesting a Contracting Officer decision” (app. resp. at 3). 

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DECISION 
 
I. Burden of Proof 
 
 Transdev, as the proponent of our jurisdiction, bears the burden of establishing the 
Board’s subject matter jurisdiction by a preponderance of the evidence.  Reynolds v. 
Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); Cedars-Sinai 
Medical Center v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993).  Pursuant to the Board’s 
agreement with WMATA, we have “authority to resolve appeals from the decisions of 
WMATA contracting officers pursuant to the provisions of the Disputes clause of 
WMATA contracts.”  Delta Engineering, 14-1 BCA ¶ 35,553 at 174,222.  Our 
jurisdiction to entertain Transdev’s appeals does not arise pursuant to the CDA, 
41 U.S.C. §§ 7103-7109.  Cubic Transportation Sys., ASBCA No. 57770, 12-2 BCA 
¶ 35,063 at 172,233.   
 
II. The Contract’s Disputes Clause Permits Us To Consider Breaches of Contract 
  
 The Contract’s Disputes clause grants the WMATA contracting officer 
authority to decide “(a)ny dispute concerning a question of fact arising under or related 
to this Contract” (SOF ¶ 4).  Likewise, the Disputes clause grants the ASBCA, as the 
WMATA Board of Directors’ authorized representative for final decisions on an 
appeal, the authority to decide “(a)ny dispute concerning a question of fact arising 
under or related to this Contract” (id.).3   
 
 The Board has interpreted the WMATA Disputes clause as authorizing the 
ASBCA to assert jurisdiction to consider claims alleging breach of contract.  Cubic 
Transportation Sys., 12-2 BCA ¶ 35,063 at 172,234.  Specifically, we held: 
 
WMATA’s Disputes clause is now an “all disputes” clause 
that provides new authority for the Board to consider 
breach of contract claims in WMATA contracts.  This does 
not mean that the CDA applies to WMATA’s contracts, it 
does not.  It simply means that WMATA’s revised 
Disputes clause confers authority on the Board to consider 
“all disputes” including breach of contract. 
 
Id.  Appellant’s complaint here seeks relief for breach of contract (SOF ¶ 6).   
                                              
3 A previous version of the Disputes clause set forth in earlier WMATA contracts 
granted authority to decide only disputes concerning questions of fact arising 
under the contract.  Cubic Transportation Sys., 12-2 BCA ¶ 35,063 at 172,233 
(discussing previous version of disputes clause and the subsequent addition to 
Disputes clause of the phase “or related to”).   

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III. The Contracting Officer’s Failure To Issue a Decision in a Reasonable Time 
Violates the Disputes Clause 
 
A. The Disputes Clause Requires a Timely Decision By the Contracting Officer 
 
 The disputes clause states that disputes “shall be decided by the Contracting 
Officer, who shall reduce his/her decision to writing” (SOF ¶ 4).  Accordingly, 
pursuant to the Disputes clause, issuance of a written decision on a claim is not 
discretionary with WMATA, rather, the contracting officer “shall” decide and “shall” 
issue a written decision (id.).  A contracting officer who fails to decide the claim and 
issue a written decision breaches WMATA’s contractual duty as specified in the 
Disputes clause and creates a breach of contract over which we have jurisdiction.  
Cubic Transportation Sys., 12-2 BCA ¶ 35,063 at 172,234 (ASBCA has jurisdiction to 
consider breach of contract claims).  Of course, the Disputes clause here fails to 
provide a specific time frame in which the contracting officer “shall” issue the 
decision, and it is that failure which has led to the current dispute.   
 
 Inherent in the contractual obligation to issue a written decision, as set forth in 
the Disputes clause, is the notion that the decision will be issued within a reasonable 
time after submission of the claim.4  We have found jurisdiction in appeals not 
involving the CDA where the contracting officer failed to issue a decision within a 
reasonable time.  Keith L. Williams, ASBCA No. 46068, 94-3 BCA ¶ 27,196 
at 135,551 (jurisdiction to consider appeal based upon Disputes clause and pre-CDA 
authority to entertain appeal from contracting officer’s constructive denial after more 
than two months inaction on contractor’s claim).   
 
 In Mid-America Officials Ass’n, ASBCA No. 38678, 89-3 BCA ¶ 22,231, the 
contracting officer failed to issue a decision on appellant’s claim and appellant 
requested the Board take jurisdiction pursuant to the CDA as a deemed denial.  
Because the CDA did not apply to that contract, we declined to grant appellant’s 
request based upon the statute.  Instead, we held that: 
 
Such relief, however, is available for appeals under the 
Disputes clause.  The contracting officer had the claim for 
two months without issuing a decision.  There is nothing in 
the record to explain or account for such neglect.  In these 
circumstances, the failure to render the decision amounted 
                                              
4 WMATA’s Procurement Procedures Manual requires WMATA to “promptly review 
and evaluate all contractor claims” and places responsibility on the contracting 
officer “for the review, evaluation, and determination of the merit of contractor 
claims” (SOF ¶ 5). 

13 
to a denial of the claim, thereby affording us jurisdiction 
over this appeal.   
 
Mid-America Officials Ass’n, 89-3 BCA ¶ 22,231 at 111,775 (citing Titan Midwest 
Constr., ASBCA No. 24754, 80-2 BCA ¶ 14,622).   
 
 Professional Mgmt. Consulting Servs., ASBCA No. 61861, 20-1 BCA ¶ 37,638, 
cited by appellant (app. resp. at 6), also provides support for requiring a timely 
decision by the contracting officer under the Disputes Clause.  Professional 
Management concerned an appeal of an unsigned final decision.  Appellant filed its 
notice “outside the 30-day appeal period specified in the WMATA disputes clause,” 
yet, as the Board noted, WMATA did not seek dismissal upon that basis.  We held that 
the unsigned contracting officer’s final decision was “not final and does not start the 
appeal period.”  Professional Mgmt., 20-1 BCA ¶ 37,638 at 182,752 n.9 (citing E-Sys., 
Inc., ASBCA No. 32033, 87-1 BCA ¶ 19,417 at 98,181; J.J. Bonavire Co., ASBCA 
No. 32733, 87-2 BCA ¶ 19,908 at 100,715).  Instead, we found jurisdiction to consider 
the appeal based upon the contracting officer’s deemed denial, citing by comparison 
41 U.S.C. § 7103(f)(5)).  Id. 
 
B. The Contracting Officer Has Failed To Act in a Timely Manner 
 
 Appellant submitted documentation regarding its Invoicing Claim by letter 
dated October 29, 2019, and requested payment pursuant to the Contract’s Disputes 
clause (SOF ¶ 7).5  By letter dated February 6, 2020, Mr. Smith addressed “the dispute 
over the proper invoice format,” stating that “WMATA has decided to institute the 
terms of the contract (CQ18068) in processing all payments for the period 
December 30, 2018 through September 30, 2019.  Please refer to Schedule C of 
CQ18068, price schedule instructions.  The amount owed Transdev for the period 
December 30, 2018 through September 2019 is $997,194.79.”  (SOF ¶ 9)   
 
                                              
5 Appellant’s October 29, 2019, letter, did not include, what is called in CDA parlance, 
a “sum certain.”  However, in non-CDA appeals, such as here, a contractor’s 
claim is not required to state a sum certain for the Board to have jurisdiction to 
entertain the appeal.  48 C.F.R. § 2.101 (defining claim as “a written demand or 
written assertion by one of the contracting parties seeking, as a matter of right, 
the payment of money in a sum certain, the adjustment or interpretation of 
contract terms, or other relief arising under or relating to the contract”); SUFI 
Network Servs., Appeal No. 55306, 07-1 BCA ¶ 33,535 at 166,122 
(“[r]espondent cites no non-CDA or pre-CDA authority that this Board lacks 
jurisdiction to entertain a contractor claim that does not set forth an amount in a 
‘sum certain,’ and none is known to the Board”). 

14 
 Appellant’s opposition brief states that “Transdev first submitted its Invoicing 
Claim in writing on April 22, 2020,” and in that claim “asserted that WMATA had 
wrongly withheld $1,520,432 owed to Transdev as of February 29, 2020” (app. resp. 
at 2 (citing compl. ¶ 37)).  Arguably, appellant’s October 29th letter could be 
considered a claim, inasmuch as it sought relief pursuant to the Disputes clause.  
Indeed, the Disputes clause here does not set forth any specific requirements for 
submission a claim (SOF ¶ 4).6  However, neither party takes that position.  Neither 
party likewise takes the position that Mr. Smith’s letter dated February 6, 2020, was a 
final decision in response to appellant’s October 29th letter, nor does the February 6th 
letter purport to be a final decision issued pursuant to the Disputes clause.  (SOF ¶ 9) 
 
 Appellant submitted documentation regarding its Bus Maintenance Claim as 
early as March 12, 2020 (SOF ¶ 12).  Appellant’s subsequent letter dated April 30, 
2020, specifically sought relief for its Bus Maintenance Claim pursuant to the Disputes 
clause (SOF ¶ 16).  In response to appellant’s April 30, 2020, Bus Maintenance Claim, 
WMATA stated that appellant’s “claim must be supported by substantial evidence.”  
WMATA provided appellant a spreadsheet seeking additional information, stating, 
“[t]his spreadsheet will form both the basis of your claim as well as supply the 
required diligence to enable an amicable resolution.”  WMATA informed appellant, 
“[a]lternatively, you may proceed from the bare allegations in your letter.”  WMATA 
asserted that the April 30th submission “suggests but does not present a formal claim 
against the contract” and that “any claim in excess of $100,000, WMATA requires the 
vendor to submit a formal certification in accord with 41 USC 7103 and FAR 33.207.”  
WMATA instructed, “[i]f you wish to proceed with a claim and without substantial 
evidence, then please simply complete the certification and resubmit.”  (SOF ¶ 17) 
 
 The parties exchanged several pieces of correspondence subsequent to 
submission of appellant’s claims, with appellant providing additional information and 
documentation as requested by WMATA (SOF ¶¶ 9-11, 13-18).  Hoping to avoid 
further delay in the processing of its claims, appellant provided the requested 
certification, correctly noting, however, that it was not a contractual obligation 
(SOF ¶¶ 19-20).  As of the filing of appellant’s notice of appeal in August 2020, 
WMATA still had not issued a written decision on either claim (SOF ¶ 21). 
 
 WMATA argues that the Board lacks jurisdiction to consider appellant’s 
appeals “[b]ecause Transdev has not exhausted the dispute resolution provisions 
prerequisite to the Board’s jurisdiction under the Contract” (WMATA mot. at 3).  We 
                                              
6 The Contract sets forth requirements for submission of termination for convenience 
claims, including citation to the FAR (SOF ¶ 3).  However, the Contract 
contains no such reference to the FAR or specific claim requirements for other 
“dispute[s] concerning a question of fact arising under or related to this 
Contract” (SOF ¶ 4).   

15 
disagree.  In its recitation of the facts, WMATA recognizes that “Transdev and 
WMATA exchanged correspondence regarding many issues, including (1) Transdev’s 
invoices under the Contract and (2) Transdev’s request for reimbursement of 
$749,701.77 in maintenance expenses” (WMATA mot. at 2).  However, WMATA 
then asserts that “[o]n August 7, 2020, Transdev submitted a claim seeking a COFD on 
these issues, which are the subject of Transdev’s Complaint” (id.).   
 
 As discussed above, the correspondence exchanged between WMATA and 
Transdev includes earlier versions of its claims, submitted several months before 
appellant’s August 7, 2020, submission.  The August 7, 2020, letter was simply 
appellant’s latest attempt to convince WMATA to issue a decision on its claims.  The 
fact that its August 7, 2020, submission also included a CDA certification (as 
requested by WMATA) does not somehow void or otherwise allow WMATA to 
ignore Transdev’s earlier claims.  As both parties agree, the CDA does not apply to 
this Contract (WMATA mot. at 4; compl. ¶ 18), and the Disputes clause contains no 
requirement for a CDA-type certification of appellant’s claims (SOF ¶ 4).   
 
 In support of its argument that “Transdev has not exhausted the dispute resolution 
provisions prerequisite to the Board’s jurisdiction,” WMATA cites Larry D. Paine, 
ASBCA No. 41273, 93-2 BCA ¶ 25,702, which WMATA states was “vacated on 
reconsideration based on new evidence” (WMATA mot. at 3 (citing Paine, ASBCA 
No. 41273, 93-3 BCA ¶ 26,161)).  Our decision in Paine does not support WMATA’s 
position.  In that appeal, the Board initially dismissed appellant’s “money claim for lost 
earnings and other damages as the result of the suspension” of its contract, because the 
Board determined that the claim had not been submitted to the contracting officer for a 
decision.  Paine, 93-2 BCA ¶ 25,702 at 127,862.  That is not the situation here - indeed, 
both of Transdev’s claims were submitted to the contracting officer for a decision prior 
to the filing of its appeals (SOF ¶¶ 7, 16).  On reconsideration, the Board in Paine 
considered additional evidence, and, citing our inherent authority to modify our 
decisions to rectify obvious errors and prevent manifest injustice, determined that a 
claim had been submitted to the contracting officer, such that jurisdiction was proper.  
Paine, 93-3 BCA ¶ 26,161 at 130,044.   
 
 Appellant cites our decisions in Mite Corp., ASBCA No. 18534, 73-2 BCA 
¶ 10,312 and Atlantis Constr. Corp., ASBCA No. 44044, 96-1 BCA ¶ 28,045, as 
jurisdictional support for its appeals here, wherein we found jurisdiction to consider 
non-CDA appeals in which the contracting officer had yet to issue a final decision 
(app. resp. at 5).  WMATA’s reply brief argues that “[t]he circumstances here are not 
at all analogous to those in Transdev’s cited authorities,” noting that those appeals 
involved a longer length of time between submission of the contractors’ claims, and 
the date appeals were filed.  (WMATA reply at 3)  Notwithstanding WMATA’s 
argument, what Mite Corporation and Atlantis Construction teach, is that, in a 
non-CDA appeal, the length of time that must past between submission of a claim and 

16 
the filing of an appeal in which we have jurisdiction, is a factual determination to be 
made on a case-by-case basis.  Where a reasonable time has passed between 
submission of the claim and the subsequent appeal, the Board has jurisdiction to 
consider the appeal. 
 
 Although not expressly applicable to this Contract, the CDA specifies a period 
of 60 days for the contracting officer to issue a final decision, or inform the contractor 
of a specific time within which a decision will be issued 41 U.S.C. § 7103(f)(2).  
Section 7103(f)(3) provides that: 
 
The decision of a contracting officer on submitted claims 
shall be issued within a reasonable time, in accordance 
with regulations prescribed by the agency, taking into 
account such factors as the size and complexity of the 
claim and the adequacy of information in support of the 
claim provided by the contractor. 
 
41 U.S.C. § 7103(f)(3).  This approach, set forth in the CDA, represents a reasonable 
period of time for purposes of assessing WMATA’s actions here, with regard to 
appellant’s claims.  Of note, WMATA’s own counsel, Mr. Crocker, originally 
responded to submission of the invoice claim by stating that the contracting officer’s 
decision would be issued in 60 days, indicating that to be a reasonable period of time 
(SOF ¶ 8). 
 
 We find that the length of time between claims-submission and filing of the 
appeals, April 22, 2020, to August 26, 2020 (Invoicing Claim) and April 30, 2020, to 
August 26, 2020 (Bus Maintenance Claim), is sufficient to authorize jurisdiction 
pursuant to the Disputes clause.  Indeed both claims have been percolating between the 
parties much longer - since at least October 29, 2019, and March 12, 2020, 
respectively.  A reasonable time having passed since submission to WMATA of 
appellant’s claims, the Board has jurisdiction to consider Transdev’s appeals of its two 
claims.7 
 
 WMATA’s additional arguments are equally unavailing.  In its reply brief, 
WMATA cites Reese Industries, ASBCA No. 29594-91, 84-3 BCA ¶ 17,628 
at 87,860, wherein, according to WMATA, “the Board declined to take jurisdiction, 
even though a year had passed since the appellant submitted its claim and the 
                                              
7 Because we have jurisdiction to consider these consolidated appeals, we do not reach 
appellant’s alternative request that the Board issue a stay of proceedings 
pending issuance of a final decision by WMATA, nor do we consider whether 
we have the authority to issue an order directing WMATA to issue a final 
decision (app. resp. at 6-7). 

17 
contracting officer had only requested additional information” (WMATA reply at 4).  
However, in that appeal, we concluded that the government’s failure to issue a written 
decision was not unreasonable, stating “[w]e think it is entitled to be told something of 
cause and effect for the major categories of damage.  We do not find that appellant has 
attempted to do that here but has lumped all into one substantial claim which, in its 
manner of presentation, borders on the frivolous.”  Reese Industries, 84-3 BCA 
¶ 17,628 at 87,860.  Our review of the correspondence submitted by the parties to-date 
suggests that appellant has provided sufficient information to WMATA to analyze the 
two claims and issue a decision.  Moreover, we note that appellant’s claims appear to 
be anything but “frivolous.” 
 
 WMATA also argues that “Transdev cannot seek to impose a ‘deemed denial’ 
concept as if this were an appeal governed by the Contract Disputes Act because the 
Contract Disputes Act does not apply to WMATA or its contracts” (WMATA mot. 
at 4).  However, we do not read appellant’s complaint as basing our jurisdiction upon 
the CDA’s statutory right to appeal a contracting officer’s deemed denial of its claims.  
Rather, appellant’s complaint identifies the Contract’s Disputes clause and the MOU 
between WMATA and the ASBCA as the jurisdictional basis for the Board’s 
jurisdiction (compl. ¶¶ 15-16).  Although appellant’s complaint recites several 
instances wherein it informed WMATA that it would deem its claims denied if 
Transdev did not receive a written response from the contracting officer by a certain 
date (compl. ¶¶ 18, 38-39, 55), appellant’s complaint expressly recognizes that the 
CDA “does not apply to this dispute” (compl. ¶ 18).  Rather, appellant’s complaint is 
based upon a breach of contract (SOF ¶ 6).8   
 
 Even WMATA recognizes that the time to issue a final decision is not 
indefinite, stating as “not true” the idea that “there is absolutely no deadline for when 
that decision must be issued” (WMATA reply at 2).  In its reply brief “WMATA 
simply argues that the plain terms of the Contract provide for a contracting officer’s 
final decision before any appeal and do not impose a deadline for the issuance of that 
decision” (id.).  However, WMATA’s stating what is, in essence, a truism (that the 
Disputes clause contains no set deadline for issuance of a decision) does not address or 
excuse what happens when, as here, WMATA fails to issue a final decision on claims 
pending for several months, and there exists no specific date by which the contracting 
officer has agreed to perform the contractual duty to issue a final decision.  WMATA’s 
                                              
8 WMATA argues that, assuming “Transdev could rewrite the Contract to include a 
‘deemed denial’ concept under the Contract Disputes Act, Transdev fails the 
test for a deemed denial” because “only nineteen days passed between 
Transdev’s submission of its August 7 claim and its Notice of Appeal and 
Complaint” (WMATA mot. at 4 (citing compl. ¶¶ 17-18)).  As we have held, 
however, both of appellant’s claims were submitted to WMATA long before 
August 7, 2020 (SOF ¶¶ 7, 10-11, 16, 18).   

18 
failure to issue a decision within a reasonable time authorizes Transdev to seek review 
of its claims in this forum.    
   
CONCLUSION 
 
 We have jurisdiction to consider Transdev’s consolidated appeals.  WMATA’s 
motion to dismiss for lack of jurisdiction is denied.  WMATA is ORDERED to file its 
answer to appellant’s complaint within 30 days of receipt of this decision.  In addition, 
the parties are ORDERED to confer and file a joint report with the Board within 
30 days of receipt of this decision, setting forth the status of this appeal, including a 
proposed schedule for discovery and a statement whether they wish to resolve these 
appeals though (1) an oral hearing (Board Rule 10); (2) submission on the record 
(Board rule 11); or Alternative Disputes Resolution (ADR) (Board Rule Addendum II).   
 
 Dated:  January 25, 2021 
 
 
 
 
 
 
 
 
 
DAVID B. STINSON 
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 


19 
 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. 62654, 62655, Appeals of 
Transdev Services, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  January 25, 2021 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals