ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE  
GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION  
 
 Gibraltar-Caddell Joint Venture (Gibraltar) has appealed a final decision by the 
Army Corps of Engineers (government) denying a termination for convenience 
damages claim.  Gibraltar submitted the claim after concluding negotiations had 
reached an impasse.  The government moves to dismiss the appeal for lack of 
jurisdiction, saying there is no impasse.  Alternatively, the government maintains we 
lack jurisdiction because Gibraltar’s claim did not present a sum certain.  In the event 
we retain jurisdiction, the government requests an indefinite stay to complete the 
termination settlement process.  We deny the motion, concluding there is an impasse 
and that Gibraltar’s claim satisfies the requirements of our jurisdiction.  We also deny 
the stay. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
 The government’s motion assumes all the facts alleged by Gibraltar are true 
(gov’t mot. at 9).  On February 1, 2022, the Army Corps of Engineers partially 
terminated this task order for design and construction by Gibraltar of border structures 
(compl. ¶¶ 1-2, 16; gov’t mot. ex. 3).  After substantial completion of the unterminated 
work, Gibraltar submitted a termination settlement proposal (TSP or proposal) to the 
contracting officer (CO) on October 17, 2023, which it revised in response to 
Appeal of - )  
 )  
Gibraltar-Caddell, a Joint Venture ) ASBCA No. 64379 
 )  
Under Contract No. W9126G-19-D-0022 )  
   
APPEARANCES FOR THE APPELLANT: Jonathan R. Mayo, Esq. 
Hunter C. Reynolds, Esq. 
    Smith Currie Oles LLP 
  Atlanta, GA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 R. Stephen Cheak, Esq. 
Noah H. Herrick, Esq. 
Dalton B. Hammond, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Fort Worth 

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government claims of inadequacy in January 2024 (compl. ¶¶ 37, 44).  On 
February 21, 2024, the government submitted the TSP to its auditors (compl. ¶ 46). 
 
Generally predating the submission of Gibraltar’s TSP, it submitted TSPs for 
four of its subcontractors.  In March 2023, Gibraltar submitted a TSP for International 
Towers LLC (ITL).  On June 6, 2024, Gibraltar submitted a ratification package.  
(Compl. ¶ 56)  Since then, Gibraltar and ITL have attempted to advance the settlement 
process with the government, but the Terminating Contracting Officer (TCO) 
continues to review the TSP (compl. ¶ 57).  In December 2025, ITL indicated it would 
be adjusting for additional incurred costs (gov’t mot. ex. 13 at 2). 
 
In January 2023, Gibraltar submitted the TSP for another subcontractor, 
Relyant Global, LLC (Relyant).  The government completed its audit in 
November 2023, and a ratification package was submitted in January 2025.  
(Compl. ¶¶ 58-60)  The government, Gibraltar, and Relyant then agreed in January 
that the government would assist in settling with Relyant and it would be paid through 
Gibraltar as part of the overall settlement with it (compl. ¶ 61; gov’t mot. ex. 9).  
Since then, the government has been reviewing the proposal (compl ¶¶ 62-65). 
 
In April 2023, Gibraltar submitted the TSP for a third subcontractor, Gibraltar 
Fabrications, LLC (GFAB), which it revised in June and then again in January 2024 
(compl. ¶ 66).  Seven months later, on August 30, 2024, the CO announced that 
GFAB’s proposal could not be audited through normal processes and that it would 
perform an alternative “desk audit” (compl. ¶¶ 66-67).  In January 2025, Gibraltar 
submitted GFAB’s ratification package to the government (compl. ¶ 69).  The 
government has communicated nothing more. 
 
It is not clear when a fourth subcontractor, JCF Bridge, submitted its TSP, but it 
had done so by March 2024.  At that time, the government expressed dissatisfaction 
with it.  (Gov’t mot. ex. 15)  The record does not show further progress by the parties.  
Gibraltar says it later incorporated the small amount sought by JCF Bridge into its own 
TSP, which the government does not deny (app. br. ¶ 30). 
 
Returning to Gibraltar’s own TSP submission, in September 2024, the 
government told Gibraltar the audit it had requested in February would be completed 
in April 2025 (compl. ¶ 87).  In March 2025, the government told it the audit had been 
extended to July (compl. ¶ 88). 
 
On June 16, 2025, Gibraltar submitted a certified claim for the costs incurred by 
Gibraltar and its subcontractors.  The revised amount sought was $17,608,875.  
(Compl. ¶ 4; gov’t mot. ex. 10).  After reciting a description of the events, the claim 
observed that over three years had passed since the partial termination and Gibraltar 
had received no payment, suggesting the process had been unreasonably delayed to the 

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point of an impasse.  On August 11, Gibraltar requested a negotiation or mediation.  
The government declined.  (App. mot. ex. 23 at 4-5)  On August 25, the CO denied the 
claim (compl. ¶ 5). 
 
On August 27, 2025, the government issued its audit of Gibraltar.  It did not 
provide it to Gibraltar until October 2 (compl. ¶ 48). 
 
On October 20, 2025, Gibraltar requested another negotiation, which the 
government declined on the grounds that Gibraltar had not appealed its claim denial 
(app. ex. 24 at 5-6).  On October 28, Gibraltar appealed to this Board. 
 
DECISION 
 
The government contends the appeal should be dismissed because Gibraltar’s 
TSP was not a claim and its June 16, 2025, submission was also not a claim because 
the parties’ TSP negotiation had not reached an impasse.  It is true that upon 
submission, a TSP is not a claim.  Only upon the negotiations reaching an impasse can 
the proposal ripen into a claim.  James M. Ellett Constr. Co. v. United States, 93 F.3d 
1537, 1543-44 (Fed. Cir. 1996); Dev. & Evolution Constr. Co., ASBCA No. 58342, 
13 BCA ¶ 35,453 at 173,859.  Likewise, a request for a final decision after submission 
of a TSP can only be so construed if the negotiations are at an impasse.  Rex Sys., Inc. 
v. Cohen, 224 F.3d 1367, 1373 (Fed. Cir. 2000). 
 
“An impasse requires a stalemate or a break-down in negotiations.”  Id.  
The Board has held that it is a deadlock, meaning “the point where an objective, 
reasonable, third-party observer would conclude that resolution through continued 
negotiations is unlikely and continued negotiation is unwarranted.”  Cent. Env’t, Inc., 
ASBCA No. 51086, 98-2 BCA ¶ 29,912 at 148,080.  However, an impasse does not 
mean a dispute.  “Thus, an impasse can exist without either party taking a firm 
position in opposition to the other.”  Id.; see also Aerokool Aviation Corp., ASBCA 
No. 63637, 23-1 BCA ¶ 38,448 at 186,863.  Crucially, “[p]assage of time without 
resolution can constitute an impasse when one party evidences a desire to begin the 
disputes process.”  Also significant is the CO’s refusal to negotiate.  Cent. Env’t,  
98-2 BCA ¶ 29,912 at 148,080, cited with approval in Rex Sys., 224 F.3d at 1372 
(characterizing Central Environmental to hold that a “contractor’s explicit request for 
a final decision, in conjunction with the Contracting Officer’s refusal to meet 
to negotiate, established an impasse.”); see also Aerokool, 23-1 BCA ¶ 38,448 
at 186,863.  These factors can evidence that a party has reasonably lost confidence that 
the process is leading to a resolution.   
 
Here, Gibraltar first submitted its TSP in October 2023. Gibraltar revised it in 
cooperation with the government to address claims of inadequacy so that it could be 
submitted to government auditors in February 2024.  Sixteen months had passed with 

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no audit report about Gibraltar’s proposal and no further outreach from the 
government to negotiate when Gibraltar submitted its certified claim.  It submitted its 
TSPs for at least three of its subcontractors even before its own TSP.  Since Gibraltar 
submitted a ratification package for ITL in June 2024, there have been no further 
discussions about it.  Contrary to the government’s suggestion, the fact that ITL may 
have incurred additional costs with the passage of time does not refute that the parties 
have failed to make progress on the proposal.  After the government agreed to assist 
with negotiating with Relyant in January 2025, nothing more happened.  GFAB’s TSP 
was submitted in April 2023 and then revised through January 2024.  Seven months 
later, the government decided it could not audit it normally and would perform a desk 
audit.  Though Gibraltar submitted a ratification package in January 2025, there have 
been no further communications.  To the extent there remained outstanding concerns 
or issues with the government, the parties made no progress addressing them. 
 
Given these events and the passage of so much time, it was not unreasonable 
for Gibraltar to conclude in June 2025 that the process had stagnated.  There had been 
no negotiations about Gibraltar’s proposal, and whatever discussions transpired 
regarding its subcontractors had led to nothing.  Also, no progress had been made in 
resolving outstanding impediments perceived by the government.  Furthermore, the 
government expressly refused to negotiate with Gibraltar in August and October 2025.  
The government argues that its refusal to negotiate is irrelevant because Gibraltar 
made those requests after declaring an impasse and submitting its claim.  We disagree.  
It is the government’s position that Gibraltar’s certified claim was invalid because 
there was supposedly no impasse.  Yet, it would not negotiate.  Had it done so, that 
might tend to show it was correct.  That it refused is probative of its contention being 
false and of an impasse.  See Cent. Env’t, 98-2 BCA ¶ 29,912 at 148,079-080 (finding 
government refusal to negotiate after contractor’s claim submission relevant to the 
existence of an impasse).  The passage of so much time with so little progress, the 
demand for a final decision, and the government’s refusal to negotiate are enough for a 
reasonable third party to conclude that the parties are not progressing toward 
resolution.
∗  We stress that this conclusion is not an indictment of the government.  
 
∗ The government cites language in Rex Systems saying that lengthy negotiations or 
passage of time do not alone establish an impasse.  There, a contractor who had 
executed a settlement agreement with the government sought to recover 
interest, claiming that an impasse had occurred before the parties reached 
agreement.  The court of appeals held there was no impasse given the 
agreement.  224 F.3d at 1368, 1373.  The court proceeded in dicta to address 
appellant’s argument that the negotiation period had been long, with gaps 
between discussions.  The court observed that the parties had numerous 
meetings to negotiate.  Long gaps in between did not establish an impasse.  
Id. at 1373.  It seems correct that active negotiations are not necessarily at an 

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It may very well have had valid reasons for what it did or did not do.  Gibraltar or 
its subcontractors may also bear responsibility for the lack of progress.  But our task is 
not to assign fault for the impasse; we must only determine whether it exists.  We find 
it does. 
 
Alternatively, the government contends we lack jurisdiction over this appeal 
because Gibraltar’s claim supposedly fails to comply with the Contract Disputes Act’s 
(CDA) “fundamental definition of a ‘claim’” which the government says must 
“request a ‘sum certain.’”  The government contends Gibraltar cannot be “certain” of 
its subcontractor costs until the government has finished auditing them, suggesting that 
if the government decides they are unreasonable or unallocable, then Gibraltar cannot 
seek them or deem them part of a sum certain.  It says Gibraltar has no right to 
payment for subcontractor costs that have not been settled and ratified. 
 
Our CDA jurisdiction is dependent upon a final decision on a valid claim.  
Northrop Grumman Computing Sys., Inc. v. United States, 709 F.3d 1107, 1111-12 
(Fed. Cir. 2013); see 41 U.S.C. § 7103.  The government’s reference to the need for a 
sum certain arises from FAR 52.233-1(c), which, among other things, defines a claim 
to be a written demand for “the payment of money in a sum certain.”  Contrary to the 
government’s suggestion, compliance with this regulatory sum certain requirement is 
no longer a prerequisite to our jurisdiction.  ECC Int’l Constructors, LLC v. Sec. of the 
Army, 79 F.4th 1364, 1371-75 (Fed. Cir. 2023).  Instead, an alleged failure to state a 
sum certain relates to Gibraltar’s legal right to recover, not our jurisdiction to entertain 
its claim. 
 
All the CDA requires of relevance here for us to exercise jurisdiction is that a 
claim for money give notice of its general amount.  Envistacom, LLC, ASBCA 
No. 63796, 25-1 BCA ¶ 38,775 at 188,486.  Gibraltar’s revised claim says it seeks 
$17,608,875.  Also, a claim such as this exceeding $100,000 must be certified in 
accordance with 41 U.S.C. § 7103(b).  Gibraltar has submitted that certification.  We 
are not required to examine the claim, as the government implies, and to judge whether 
Gibraltar possessed sufficient information to pursue it or its legal entitlement to 
recover before we assume jurisdiction over the appeal. 
 
Finally, in the event we deny the motion to dismiss, the government requests 
that we indefinitely stay the appeal until the termination settlement procedure is 
complete.  Gibraltar opposes.  Having reached an impasse, that process transformed 
into a claim and appeal.  We are not inclined to stay the appeal for settlement 
negotiations without the consent of both parties, and we would not do so indefinitely. 
 
 
impasse simply because the rhythm of the interactions is slow and both parties 
are taking their time.  That did not happen here. 

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The request is denied. 
CONCLUSION 
 
 The motions to dismiss and stay are denied 
 
 Dated:  July 13, 2026 
 
 
 
 
 
 
 
 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
J REID PROUTY 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 DAVID D’ALESSANDRIS 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 64379, Appeal of 
Gibraltar-Caddell, a Joint Venture, rendered in conformance with the Board’s Charter. 
 
 Dated:  July 13, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals