ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS  
ON THE GOVERNMENT’S MOTION TO STRIKE COUNTS I, III, AND IV OF 
APPELLANT’S COMPLAINT DUE TO LACK OF JURISDICTION 
 
 Appellant, Research Analysis & Maintenance, Inc. (RAM), appeals from a 
contracting officer’s final decision denying its claim for certain costs it alleges it 
incurred in maintaining financial records for audit, as required pursuant to its contract 
with the Department of the Army (Army or government).  The Army has moved to 
strike Counts I, III, and IV of RAM’s complaint for lack of jurisdiction, alleging that 
the facts underlying those counts were not submitted to the contracting officer for 
decision.  We grant the Army’s motion in part and deny it in part.   
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
1 
 
I.  The Contract 
 
On September 29, 2016, the Army awarded Contract No. W56KGY-16-C-
0022 to RAM for site support services to be performed for the Army 
Communications-Electronics Command (CECOM), Central Technical Support 
 
1 When deciding a motion to dismiss for lack of jurisdiction, the facts supporting 
jurisdiction are subject to fact-finding based upon the Board’s review of the 
record.  See CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 
at 174,816. 
Appeal of - )  
 )  
Research Analysis & Maintenance, Inc. ) ASBCA No. 63259 
 )  
Under Contract No. W56KGY-16-C-0022 )  
   
APPEARANCE FOR THE APPELLANT: Tyler J. Kubinski, Esq. 
    Kubinski & Associates, P.C. 
    El Paso, TX 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 MAJ James S. Kim, JA 
Dana J. Chase, Esq. 
    Trial Attorneys 

2 
 
Facility (CTSF) and Install Yard, located at Fort Hood, Texas2 (R4, tab 1 at 1, 3).3  
The contract was a cost plus fixed-fee (CPFF), term level of effort and/or cost-
reimbursable (CR) type contract for a three-year base period running from the date of 
award, with two option periods of six months each (id. at 3-4).  Pursuant to Federal 
Acquisition Regulation (FAR) 52.217-9, OPTION TO EXTEND THE TERM OF 
THE CONTRACT (MAR 2000) the Army was required to provide the contractor with 
a “preliminary written notice of its intent to extend” 60 days prior to expiration of the 
contract, in order to exercise the option periods (R4, tab 1 at 102).   
 
The contract incorporated by reference FAR 52.215-2, AUDIT AND 
RECORDS – NEGOTIATIONS (OCT 2010) (R4, tab 1 at 96; see also id. at 112 
(FAR 52.252-2, CLAUSES INCORPORATED BY REFERENCE (FEB 1998)).  That 
clause requires a contractor with a cost-reimbursement contract to maintain “all 
records and other evidence sufficient to reflect properly all costs claimed to have been 
incurred or anticipated to be incurred directly or indirectly in performance of this 
contract” to allow the contracting officer or the authorized representative to examine 
and audit them.  FAR 52.215-2(b).  The clause further provides as follows: 
 
Availability.  The Contractor shall make available at its 
office at all reasonable times the records, materials, and 
other evidence described in paragraphs (a), (b), (c), (d), 
and
 (e) of this clause, for examination, audit, or 
reproduction, until 3 years after final payment under this 
contract or for any shorter period specified in [FAR] 
subpart 4.7, Contractor Records Retention . . . or for any 
longer period required by statute or by other clauses of this 
contract. 
 
FAR 52.215-2(f).   
 
The contract also included paragraph H-4, OPTION TO EXTEND SERVICES 
FOR UP TO SIX (6) –MONTHS (R4, tab 1 at 95).4  This provision gave the Army the 
option to require continued performance for up to six months.  Unlike the two option 
 
2 Fort Hood is now known as Fort Cavazos, effective May 9, 2023.   
3 The government numbered its pages in its Rule 4 submission with leading zeros, 
which we omit here.  In addition, where we quote from correspondence 
between the parties we correct minor typographical errors for the sake of 
clarity. 
4 Paragraph H-4 is renumbered as paragraph H-3 in the conformed contract (R4, tab 1 
at 5, 95).  Because RAM refers to it as paragraph H-4 throughout its 
submissions, we do as well. 

3 
 
periods, which required 60 days advance written notice to the contractor, this clause 
only required 30 days written notice prior to its exercise.  (R4, tab 1 at 95, 102)   
 
II. RAM’s Objections to the Army’s Administration of its Contract  
 
The government’s Rule 4 file included dozens of emails between RAM’s vice 
president and chief operating officer, Mr. Bob Waldron, and various government 
representatives sent between January 2020 and December 7, 2021 when RAM filed its 
claim.  We have carefully reviewed this correspondence and note that Mr. Waldron 
was not a man who easily took no for an answer.  Time and time again he would 
request a particular government action, be told his request was not possible or was 
premature, reply with detailed criticisms of various government actions, and re-request 
what had previously been denied (see generally R4, tabs 14-15, 22-23, 26-27, 120-22, 
130-32, 135, 167, 171).  Thus, by the time he filed his claim he had developed a fairly 
discrete and well-defined list of grievances, which for the most part – but not always – 
tracked the prior correspondence.  We discuss the evolution of those grievances in 
more detail below.  
 
A. RAM’s Request that the Army Not Exercise the Contract’s Second Option 
Period  
 
On or about September 30, 2019, the parties executed contract Modification 
No. P00036 (Mod. 36) exercising the first option period, which ran until March 29, 
2020 (R4, tab 1 at 23).  On January 3, 2020, Mr. Waldron verbally informed the Army 
that RAM hoped to complete a sale of the company by the end of January 2020 (R4, 
tab 104 at 1077-78).  He provided written notice of that sale by email dated January 7, 
2020, to Ms. Megan Grigas, the contracting officer.  In that email he indicated he was 
not interested in novating the contract to the purchaser because he believed it would 
extend the audit process.  He stated, “I will be 74 years old during May 2020 and do 
not want to await contract closure and a settlement a minimum of three more years 
down the road.”  (R4, tab 119 at 1156)  He requested that the Army not exercise the 
second option period but instead allow RAM to complete performance of the first 
option period on March 29, 2020, suggesting the Army could make a sole source 
award to RAM’s subcontractor effective March 30, 2020 (id.).  Mr. Waldron 
participated in a telephone conference with Ms. Grigas and various other government 
representatives on January 15, 2020, at which time he again informed them that “RAM 
was in the process of shutting down its operations” and wished to close out the 
contract quickly (R4, tab 108 at 1089).  
 
Nevertheless, the Army elected to exercise the second option period.  However, 
the Army failed to notify RAM of its intention to do so within the contractually 
required period of 60 days, which Mr. Waldron believed was worthy of criticism (R4, 
tab 120 at 1159-62).  The Army instead exercised a six-month extension pursuant to 

4 
 
paragraph H-4, which only required 30 days’ notice.  The parties executed bilateral 
contract Modification No. P00041 (Mod. 41) on March 24, 2020, extending RAM’s 
performance to September 29, 2020.  (R4, tab 1 at 24, tab 72 at 896-97, tab 73 at 
904-05)   
 
B. RAM’s Request for CARES Act Section 3610 Reimbursement  
 
On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and 
Economic Security Act (CARES Act).  See Pub. L. No. 116-136, 134 Stat 281 (2020).  
Section 3610 of the CARES Act (hereinafter Section 3610) permitted federal agencies 
to reimburse contractors for paid leave for employees and subcontractors unable to 
perform their work duties due to the COVID-19 pandemic.  134 Stat. 281, 414.   
 
Mr. Waldron began requesting reimbursement under Section 3610 three days 
after the statute was enacted (R4, tab 121 at 1165).  Although the Army told him his 
request was premature because no guidance had been issued, he continued raising the 
issue during the ensuing days (id. at 1164; see also R4, tab 122 at 1167-70).  On 
April 17, 2020, the Army provided RAM with instructions for how to submit 
documentation to support his request for reimbursement, which RAM provided on 
April 21, 2020 (R4, tabs 74, 76, 123).  RAM also provided an Excel spreadsheet listing 
three cost elements for three blocks of time between March 29 and September 29, 
2020, totaling $411,375.94 (R4, tab 75; see also R4, tabs 77-80 (statements of 
employee earnings)).   
 
The Army prepared a cost and price evaluation of RAM’s submission on 
April 30, 2020 (R4, tab 90 at 1009), but took no further action until September 9, 
2020.  On that date the contract specialist, Mr. Rickey Hampton, informed RAM that 
the Army had recently revised its Section 3610 guidance and that he was forwarding 
new instructions for obtaining reimbursement.  RAM provided the Army with its 
revised Section 3610 request on September 14, 2020.  (R4, tabs 81, 87, 125, 126 
at 1177)  
 
On September 28, 2020, the contracting officer’s representative found RAM’s 
proposal to be acceptable (R4, tabs 94, 127 at 1180).  On November 20, 2020, 
Mr. Hampton found the revised amount of $102,954 to be fair and reasonable (R4, 
tab 92 at 1024-25).  In a memorandum for the record signed on December 16, 2020, 
Ms. Grigas found that granting RAM’s requested Section 3610 reimbursement was in 
the best interest of the government and would be provided via contract Modification 
No. P00045 (Mod. 45) (R4, tab 95 at 1035; see also R4, tab 96 (determination and 
findings)).  Mod. 45, signed by Ms. Grigas on December 16, 2020, with an effective 
date of March 27, 2020, established CLIN 1009, which provided RAM’s requested 
Section 3610 reimbursement in the amount of $102,954 (R4, tab 98 at 1045).   
 

5 
 
C. RAM’s Request that the Army Use Quick-Closeout Procedures  
 
In late summer 2020, Mr. Waldron began to agitate for his contractual 
obligations to cease completely when the second option period expired.  Between 
August 17, 2020 and October 7, 2020, Mr. Waldron emailed various government 
representatives more than a dozen times, pressing them to effect a “quick close out” 5 
of the contract.  (See generally R4, tabs 130-32, 135)  He contacted the administrative 
contracting officer, Mr. Homero Ramos, by email four times (and spoke to him via 
telephone once), each time reminding him that RAM would no longer be in business 
by the end of the second option period and could not afford to maintain staff to support 
the audit process (See R4, tab 130 at 1197-1200, 1202-06).  He requested that 
Mr. Ramos as the administrative contracting officer establish a CLIN that would 
extend the period of performance to pay RAM for its audit support, and eventually 
suggested a dollar figure of $8,610 per month for the proposed “close out CLIN” (R4, 
tab 130 at 1198).   
 
His communications with Ms. Grigas were similarly insistent.  He repeatedly 
remonstrated her for exercising the second option period, stating that but for that 
decision, RAM could have supported contract closeout activities while still earning 
reimbursement via its G&A rate.  (R4, tab 130 at 1191, tab 132 at 1226-27)  One of 
those emails included a lengthy diatribe criticizing her administration of the contract 
(R4, tab 132 at 1224-27).  He also insisted more than once that she did not understand 
FAR 42.708 or the contract closeout process (R4, tab 130 at 1191, tab 132 at 1226).  
At one point, he forwarded some of his correspondence with her to a different 
contracting officer, apparently believing that because the other contracting officer was 
“more experienced” she might “see the value/benefit” of a quick-closeout (R4, tab 130 
at 1192-93). 
 
In various responses at various times, government representatives attempted to 
communicate to Mr. Waldron that his wish to cease all of his obligations at the 
conclusion of the second option period was unrealistic (see R4, tab 130 at 1191-92 
(Ms. Grigas stating that contract closeout could not be completed before final indirect 
rate costs had been determined by DCAA audit and that his request for $8,610 per 
month would not be allowable because RAM had already been reimbursed via its 
G&A rate), tab 1194-95 (Ms. Grigas stating that closing out the contract could take up 
to five years), tab 1196 (Mr. Ramos informing Mr. Waldron that even with quick-
closeout it would still take 8-12 months to close out the contract)).   
 
5 “Quick close out” (or “quick-closeout” as it appears in the FAR) refers to a process 
described in FAR 42.708 allowing for the contracting officer responsible for 
closing out a contract to, in some circumstances, negotiate the settlement of 
direct and indirect costs in advance of determining final direct costs and indirect 
rates.   

6 
 
 
Between October 5 and October 7, 2020, Mr. Waldron and Ms. Grigas 
exchanged four emails, with Ms. Grigas continuing to explain that it would not be 
possible to use quick-closeout procedures or otherwise close out the contract as 
quickly as Mr. Waldron wished, and Mr. Waldron continuing to dispute whether she 
was correct (R4, tab 135 at 1238-42).  The Board was unable to locate any further 
communications in the record about quick-closeout after October 7, 2020.   
 
D.  RAM’s Request that the Army Eliminate the Contract’s Records Retention 
Requirement Contained in FAR 52.215-2  
 
The record contains relatively few pieces of correspondence between the parties 
from December 2020 until April 2021, when Mr. Waldron advised the contract 
specialist, Mr. Hampton, that he had received his final fiscal year (FY) 2017-2019 
“DCAA rate letters” (R4, tab 171 at 1837).  On July 22, 2021, Mr. Waldron advised 
Mr. Hampton that he had received his final FY 2020 indirect cost rate letter from 
DCAA (R4, tab 171 at 1836-37).  On July 29, 2021, Mr. Waldron suggested to 
Mr. Hampton that a pending modification to address realignments of CLINs he 
previously requested include two “claims” he was preparing – the first for costs 
incurred between September 30 to December 30, 2020 for retaining employees in an 
on-call status and the second for costs incurred between January 1 to July 31, 2021 for 
“delaying RAM’s capability to develop and submit its Incurred Cost Report” (R4, 
tab 171 at 1835-36).  Both of these categories of costs Mr. Waldron alleged he 
incurred while awaiting the award of Mod. 45 (id. at 1835).
 6  On August 13, 2021, 
Mr. Hampton advised Mr. Waldron that his email regarding the two claims had been 
forwarded to the “legal office and contracting is waiting on legal to publish its decision 
on the matter” (R4, tab 171 at 1835).   
 
Responding to Mr. Hampton via email later that day, Mr. Waldron indicated an 
apparent belief that the legal department was considering the “feasibility/advisability 
of negotiating a final settlement amount of this contract simultaneously converting . . . 
[it] into a Firm Fixed Price Contract” (R4, tab 171 at 1831).  He then set forth his 
argument on why the government should agree to do so.  Those reasons included the 
fact that RAM’s FY 2017-2018 incurred cost audits found no unallowable costs, and 
that DCAA found RAM’s incurred cost proposals for FY 2019-2020 were adequate 
and low risk and therefore did not require audits.  He then spent the rest of the email 
reprising in detail his many complaints with the Army’s administration of his contract.  
Mr. Hampton replied later that day that he would forward Mr. Waldron’s request to the 
Army’s legal advisor and that the Army would contact Mr. Waldron if it needed any 
other information.  (R4, tab 171 at 1831-35)  
 
6 While the email does not explicitly identify by number which modification 
Mr. Waldron was discussing, from the context, we infer that it was Mod. 45.   

7 
 
 
On September 14, 2021, Mr. Hampton sent Mr. Waldron a draft copy of 
Modification No. P00049 (Mod. 49), to be signed by a new contracting officer, 
Mr. Shawn Jamerson.  The purpose of Mod. 49 was to realign funds and allow RAM 
to submit its FY 2020 settlement invoices for various CLINs.  Mr. Waldron rejected 
the draft because it did not address his wish to eliminate the records retention 
requirement in FAR 52.215-2.  He again suggested the requirement could be waived, 
or alternatively Mr. Jamerson could provide a firm fixed price CLIN to cover the costs 
of complying, proposing a dollar figure of $130,787.04.  If Mr. Jamerson declined to 
adopt his suggestion, he indicated he would file a claim for those costs on a monthly 
basis throughout the full three-year period.  (R4, tab 14 at 384-87) 
 
On September 16, 2021, Mr. Hampton sent Mr. Waldron a new version of 
Mod. 49.  This version added a new paragraph (hereinafter paragraph 5), which stated 
that the Army would not waive the requirement under FAR 52.215-2(f) to make 
records available for three years after final payment for audit purposes, and 2) would 
not provide a firm fixed price CLIN to cover any costs RAM incurred complying with 
FAR 52.215-2(f).  (R4, tab 15 at 399, 402) 
 
On September 17, 2021, Mr. Waldron rejected that draft.  In an email addressed 
to Messrs. Hampton and Jamerson from the Army, Mr. Ramos from DCMA and a 
representative from DCAA, Mr. Waldron requested that DCMA and DCAA “opine on 
whether these costs are allowable” under the contract.  (R4, tab 15 at 396)  He warned 
that he intended to file a claim for his costs each month for the next 36 months, and an 
appeal with the Board on a monthly basis as well, until his costs were reimbursed (id.).  
Mr. Waldron once again recited the “multiple Contracting Office actions and delays” 
he had complained of before, going back to the contract’s award date of September 29, 
2016 (id. at 397-98).
7  He closed by again requesting the negotiation of a firm fixed 
price CLIN to cover the costs of maintaining the office he contended was required by 
FAR 52.215-2(f) (id. at 398-99). 
 
On September 22, 2021, Mr. Jamerson responded to Mr. Waldron’s admonition 
that he intended to file claims for each of the next 36 months, telling him that “[t]he 
Government understands RAM’s choice for course of action” and requesting that he 
sign the modification (R4, tab 16 at 410).  Later that afternoon, Mr. Waldron emailed 
Mr. Ramos and the DCAA representative separately asking their opinion on whether 
the costs associated with maintaining an office to comply with FAR 52.215-2 would 
be allowable and reimbursable.  The DCAA representative told Mr. Waldron DCAA 
 
7 This time he added to his prior list of grievances purported delays in awarding 
several other modifications, including several relating to wage determinations 
from 2015-2016 and the reallocation of labor cost funds from CLIN 0001 to 
CLIN 0004 (R4, tab 15 at 397-98).  

8 
 
had no role in the process unless DCMA affirmatively requested assistance.  (R4, 
tab 167 at 1726-28)  On October 5, 2021, Mr. Ramos informed Mr. Waldron that he 
believed the costs would be unallowable because RAM “was aware of and agreed to” 
the contract’s terms and conditions at award, including FAR 52.215-2.  He further 
stated that if RAM had intended to charge for costs associated with that clause, such 
costs should have been included in RAM’s proposal.  He concluded by advising 
Mr. Waldron that “there is no requirement to maintain an idle facility simply to keep 
records.  That requirement could be met by saving the records to a hard drive or on a 
single laptop.”  (R4, tab 167 at 1725) 
 
Also on October 5, 2021, Mr. Jamerson forwarded to Mr. Waldron a new draft 
Mod. 49 (R4, tab 18 at 429).  That draft eliminated the language from paragraph 5 
described above and replaced it with the following:  “[e]xcept as provided herein, all 
other terms and conditions remain unchanged, and in full force and effect” (id. at 436).  
Mr. Waldron returned a signed copy of Mod. 49 to Mr. Jamerson two days later, but 
again raised the question of whether DCAA might agree with his suggestion that the 
records retention requirement in FAR 52.215-2 be eliminated.  By email dated 
October 13, 2021, Mr. Jamerson returned the fully executed Mod. 49 to Mr. Waldron 
without comment.  (R4, tab 22 at 493) 
 
Between October 22 and November 12, 2021, Mr. Waldron emailed 
Mr. Jamerson three times about his desire that RAM be awarded a modification 
extending performance from September 29, 2020 to September 29, 2024.  
Mr. Waldron contended this was necessary to compensate RAM for the costs of 
maintaining an office, which he insisted was the only way he could comply with 
FAR 52.215-2.  He warned Mr. Jamerson again that if he did not award the requested 
modification, RAM would file claims each month for the next 36 months.  (R4, tab 23 
at 522-23, tab 24 at 529, tab 27 at 561-62)  Mr. Jamerson responded by repeating what 
Mr. Waldron had previously been told – that FAR 52.215-2 did not require him to 
maintain an office, and that scanning to a storage device or maintaining a storage unit 
or home safe would be sufficient (R4, tab 26 at 550).   
 
Between November 12, 2021 and December 7, 2021, Mr. Waldron made a total 
of four attempts to file a claim before the contracting officer recognized the claim and 
endeavored to respond to it (see R4, tabs 25, 28,
 30, 35-38).     
 
III. RAM’s December 7, 2021 Claim 
 
RAM’s claim sought $53,002.19 in other direct costs consisting of the costs of 
providing an office from October 2020 through October 2021 (R4, tab 37 at 666-72).  
The claim identified as “justification for why these other direct costs are allowable and 
reimbursable” (R4, tab 37 at 668) the following actions taken by the contracting 
officer: 

9 
 
 
1.  RAM did not want the contracting officer to exercise 
the second option period and even suggested that an award 
be made to RAM’s Section 8(a) subcontractor pending a 
new competition, or that RAM be allowed to sell the 
business unit to the same subcontractor.  However, after 
RAM participated in a January 15, 2020 conference call 
with DCMA, DCAA and the Army to discuss the issue, “it 
was determined there was not adequate time to allow a sale 
of the business unit and it was not in the governments [sic] 
best interest to award an interim 8(a) sole source award.”  
(R4, tab 37 at 667)  
 
2.  The contracting officer failed to timely exercise the 
second option period, rendering her “unilateral authority to 
award” that option void.  Instead, she “compelled RAM’s 
continued performance” under paragraph H-4, OPTION 
TO EXTEND SERVICES, which the claim described as “a 
second action by the [contracting officer] deemed to be in 
the government’s best interest exercising its privilege by 
forcing RAM to continue supporting this contract through 
September 2020.”  (Id.) 
 
3.  The contracting officer’s decision to exercise the 
second option period denied RAM the ability to declare a 
short fiscal year for FY 2020 which would have allowed it 
to file its incurred cost report in the summer of 2020.  
Instead, RAM had to wait until Mod. 45 was issued in 
December 2020 (the CARES Act Section 3610 
reimbursement) to “begin finalizing its FY 2020 
accounting to begin preparation of its FY 2020 Incurred 
Cost Report.”  (Id.)  
 
4.  The contracting officer “elected not to give priority” to 
awarding Mod. 45 during August and September 2020 
while RAM was still performing under the contract, even 
though she knew RAM would no longer be an operating 
business and could not file its FY 2020 incurred cost report 
until after the modification was awarded.  RAM also could 
not submit an interim cost reimbursement voucher until 
after Mod. 45 was issued, which resulted in unrecoverable 
interest losses.  (Id. at 669) 
 

10 
 
5.  The delay in awarding Mod. 45 violated the Anti-
Deficiency Act in two ways:  First, because “RAM 
incurred . . . costs at the [contracting officer’s] direction for 
more than 8 months before appropriated funding was 
provided” (id. at 668-69), and second, because the 
contracting officer appeared to be “demanding” that RAM 
perform without reimbursement, which “constitute[d] a 
voluntary service that the [contracting officer] is prohibited 
from accepting” (id. at 669).   
 
6.  The contracting officer did not timely act in response to 
RAM’s notices that it had received its indirect rate letters 
for FY 2017-2019.  This led to delays in settlement on 
various portions of the contract and undue delay (until June 
2021) in the award of modification P00047 (Mod 47) 
realigning contract funding to support settlement invoices.  
(Id. at 669)
8 
 
Attached to the claim was a one-page spreadsheet titled “RAM Other Direct 
Costs Incurred to Support Contract W56KGY-16-C-022 Close Out Requirements 
(FAR Clause 52.215-2).”  The spreadsheet listed nine categories of other direct costs 
per month from October 2020 through October 2021 totaling $53,002.19.  (R4, tab 37 
at 672) 
 
In the cover email accompanying the claim, Mr. Waldron described “[p]rior 
contract[ing] officer actions . . . [as not being] in keeping with the standards of fairness 
and equitable treatment” and “tantamount to compelling RAM to provide no interest 
loans to the government” (R4, tab 37 at 664).  He argued that it was “grossly unfair” 
for the Army to have RAM continue incurring costs without reimbursement, and that 
the cumulative impact of the delays he was alleging “adversely impacted the small 
fee” RAM proposed and was paid under the contract (id. at 665).  The email was 
otherwise largely duplicative of the claim itself with the exception of the following 
two issues, which did not appear in the claim: 
 
8 The claim also refers to the fact that the contracting officer delegated responsibility 
to DCAA to determine the final indirect rates pursuant to FAR 42.705-2, and 
then quotes language from the 2021 version of FAR 42.705-2(a)(2)(i)-(iv), 
which addresses discretionary circumstances when “auditor determination” may 
be used.  After the quoted language, the following sentence appears:  “The first 
three of these circumstances [(i)-(iii)] are applicable to this contract” (R4, 
tab 37 at 670).  There is no other discussion of the relevance of this FAR 
provision in the claim.   
 

11 
 
 
1.  When the contracting officer awarded Modification 
No. P00005 (Mod. 5) in April 2017 incorporating revisions 
to two applicable Service Contract Act (SCA) wage 
determinations backdated to September and December 
2016, she failed to compensate RAM for the labor cost 
impact until September 2017 with the award of 
modification P00010 (Mod 10).  This prevented RAM 
from timely submitting a cost reimbursement voucher 
“with the resulting interest losses that were not 
recoverable.”  (Id. at 664) 
 
2.  In August 2017, the contracting officer de-obligated 
$75,000 in labor costs under CLIN 0004 with Modification 
No. P0008 (Mod. 8) but failed to add them back into CLIN 
0001 “where the labor costs were being incurred based 
upon the COR’s assigned priorities” until she awarded 
Modification No. P0025 (Mod. 25) in December 2018.  
This time lag impacted RAM’s ability to submit an interim 
cost reimbursement voucher “with the resulting interest 
losses that were not recoverable.”  (Id.) 
 
Mr. Waldron closed the cover email by suggesting again what he had advocated 
for many times before.  He requested that Mr. Jamerson negotiate a final modification 
converting the contract to firm fixed price, delete FAR 52.215-2 from the contract and 
extend performance under CLIN 1005 through November 2021, which he said would 
allow RAM to recover its other direct costs “consistent with the requirements of this 
contract and this claim.”  (Id. at 665)   
 
By email dated January 28, 2022, Mr. Jamerson forwarded his final decision 
denying RAM’s claim (R4, tab 54).  The contracting officer noted that the solicitation 
put offerors on notice of the type of contract being awarded, and included 
FAR 52.215-2, where the records retention requirement appears.  He quoted from the 
portion of RAM’s proposal that described RAM’s estimating systems and how it 
calculated its G&A rate.  (Id. at 807-08)  He concluded that “RAM was on notice of 
the FAR 52.215-2 requirements at the time it submitted its proposal, included these 
costs in its G&A rate calculation, and is not entitled to additional, separate, 
reimbursement of costs associated with the FAR 52.215-2 requirement after the period 
of performance has lapsed” (id. at 809).  RAM timely filed its notice of appeal with the 
Board on April 22, 2022.   
 

12 
 
DECISION 
 
 RAM bears the burden of establishing the Board’s jurisdiction by a 
preponderance of the evidence.  See Tolliver Grp., Inc. v. United States, 20 F.4th 771, 
775 (Fed. Cir. 2021); Selevive Grp., LC, ASBCA Nos. 63292, 63293, 22-1 BCA 
¶ 38,220 at 185,636.  Under the Contract Disputes Act (CDA), “[e]ach claim by a 
contractor against the Federal Government relating to a contract shall be submitted to 
the contracting officer for a decision.”  41 U.S.C. § 7103(a)(l).  Requiring that the 
claim first be presented to the contracting officer permits “opportunities for informal 
dispute resolution at the contracting officer level . . . .”  Tolliver Grp., 20 F.4th at 776 
(quoting Raytheon Co. v. United States, 747 F.3d 1341, 1354 (Fed. Cir. 2014)).  
Because the contractor’s claim determines the scope of any subsequent appeal, the 
Board does not possess jurisdiction over new claims not previously presented to the 
contracting officer.  See MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 
at 169,673. 
 
A claim presented to the Board will be considered the same as the claim 
presented to the contacting officer if it arises from the same set of common or related 
operative facts and requests the same or similar relief.  Parwan Grp. Co., ASBCA 
No. 60657, 18-1 BCA ¶ 37,082 at 180,495.  Allegations presenting a new legal theory 
of recovery or introducing additional facts not altering the nature of the original claim 
do not constitute a new claim provided they rely upon the same operative facts 
included in the original claim.  Trepte Constr. Co., ASBCA No. 38555, 90-1 BCA 
¶ 22,595 at 113,385-86.  A “claimant is free to change its legal theory as long as it is 
not materially different from what was presented in the claim” to the contracting 
officer.  Wilwood Eng’g Inc., ASBCA Nos. 62773, 62774, 22-1 BCA ¶ 38,116 
at 185,144 (citing Tolliver Grp, Inc., 20 F.4th at 777).  A materially different legal 
theory, on the other hand, requires the decisionmaker to “focus on a different or 
unrelated set of operative facts.”  Lee’s Ford Dock, Inc. v. Dep’t of the Army, 865 F.3d 
1361, 1369 (Fed. Cir. 2017) (internal citation omitted).  In those circumstances, “the 
essential nature of the claim has been changed and we do not have jurisdiction over the 
new claim until it is presented to the contracting officer for decision.”  Parwan, 18-1 
BCA ¶ 37,082 at 180,495 (quoting Shams Eng’g & Contracting Co. & Ramli Co., 
ASBCA Nos. 50618, 50619, 98-2 BCA ¶ 30,019 at 148,525).   
 
The Parties’ Contentions 
 
The Army has moved to strike Counts I, III, and IV of RAM’s complaint, 
asserting that it was “not aware of the operative facts underlying the allegations 
contained [those counts] until the government received the complaint” (gov’t mot. 
at 12).  According to the Army, RAM’s claim did not raise any of the following 
operative facts contained in RAM’s complaint: 
 

13 
 
[T]hat the CO:  (1) extended performance under the 
Contract by delaying processing of the appellant’s CARES 
Act claim; (2) that the CO acted in bad faith; and (3) that 
the CO was incompetent or acting in bad faith by failing to 
process contract modifications in a time frame satisfactory 
to the appellant, and because the appellant had to wait for 
invoice payments until DCAA completed its audit of the 
appellant’s costs[.] 
 
(Gov’t mot. at 10)  In its reply filed in support of its motion, the Army also argues that 
RAM did not provide a sum certain for damages resulting from allegations made under 
Counts I, III, and IV (gov’t reply at 7; see also gov’t sur-reply at 2-3).
 9  In its 
sur-reply, the Army adds to its list of purported new claims RAM’s reference in 
Count I to FAR  52.242-17, GOVERNMENT DELAY OF WORK (APR 1984), 
arguing that RAM “assert[ed] different operative facts than those” asserted under 
Count I and further did not assert “damages associated” with that purported new claim 
(gov’t sur-reply at 3-4 and n.2).   
 
RAM contests the Army’s claim that it was unaware of the operative facts in 
Counts I, III, and IV of RAM’s complaint.  It then quotes verbatim from large portions 
of its December 7, 2021 claim to establish that the Army’s contentions are not correct.  
(See app. resp. at 3-5, 7-10; app reply at 4)
 10 
 
Comparison of RAM’s Complaint to Its Claim 
 
We have reviewed RAM’s 22-page, single-spaced complaint (and its 323 pages 
of exhibits) and compared Counts I, III, and IV with RAM’s December 7, 2021 claim 
and cover email.  For ease of analysis our comparison is organized according to the 
headings and subsections identified in the complaint.  
 
 
9 RAM filed a reply to the Army’s reply in support of its motion to dismiss, something 
our Rules do not contemplate.  We nevertheless accepted that submission 
(designated as app. reply) and provided the Army with an opportunity to 
respond (designated as gov’t sur-reply).   
10 These citations are to pdf page numbers as RAM did not number the pages of these 
two documents. 
 

14 
 
Count I – Contracting Officer Extended the Contract by Delays and Inactions 
 
a. Delayed Award CARES Act Labor CLIN Modification 
 
In Count I.a, RAM alleges that the contracting officer delayed awarding relief 
under Section 3610 of the CARES Act, thereby extending performance beyond 
September 29, 2020, denying RAM timely reimbursement of its properly incurred 
costs, and preventing it from finalizing its FY 2020 incurred cost report to DCAA 
(compl. at 3-5).  Subsection a. concludes with a one-sentence assertion that the 
purported delay in awarding Mod. 45 “represent[ed] an intentional Bad Faith act that 
caused [RAM] to incur additional costs and effectively extended . . . [RAM’s] contract 
performance consistent with the provisions of FAR 52.242-17(a)(2)” (compl. at 5-6).   
 
The allegations contained in this subsection are substantially the same as those 
RAM’s included in its claim.  RAM’s claim specifically alleged that the contracting 
officer “elected not to give priority to” (i.e., “delayed”) awarding Mod. 45 for RAM’s 
Section 3610 request (R4, tab 37 at 669).  RAM’s claim also specifically referenced 
the delay in “finalizing its FY 2020 accounting to begin preparation of its FY 2020 
Incurred Cost Report” as one of the alleged harms caused by the purported delay in 
awarding Mod. 45 (id. at 667).  This subsection does not introduce any new facts 
materially changing the nature of the claim presented to the contracting officer.  Trepte 
Constr. Co., 90-1 BCA ¶ 22,595 at 113,385-86. 
 
The subsection’s one-sentence allegation that this purported delay constituted 
bad faith and extended performance “consistent with FAR 52.242-17(a)(2)” (compl. 
at 2) also does not constitute a new claim.  With this sentence RAM is asserting two 
new legal theories – that the contracting officer’s conduct constituted bad faith, and 
that a particular contract clause supports RAM’s claim to payment – both of which are 
based upon the same operative facts alleged in its claim.  We therefore find that the 
Board possesses jurisdiction over Count I, subsection a of RAM’s complaint.   
 
b. Contracting Officer Declined to Timely Execute Quick-Closeout of 
Contract as Authorized by FAR 42.708 
 
Count I.b, describes Mr. Waldron’s dissatisfaction with the government’s 
decision not to use the quick-closeout procedures under FAR 42.708 (compl. at 6-9).  
Although Mr. Waldron was very vocal between August and October of 2020 about his 
wish to have the quick-closeout procedures used to close out his contract (see R4, 
tabs 130-32, 135), the record does not reflect that he raised the issue again after 
October 7, 2020, a full year before he filed his claim.  The term “quick-closeout” or 
“quick close out” does not appear in either the claim or the cover email.  The relevant 
regulation, FAR 42.708, also does not appear in the claim or cover email, and neither 
contain any generic discussion or reference that could be attributed to the quick-

15 
 
closeout issue.  It is true that “we do not consider claims in a vacuum” and may 
consider outside correspondence to “elaborate on a claim document or to put it into 
context.”  Charles F. Day & Assocs. LLC, ASBCA No. 60211 et al., 19-1 BCA 
¶ 37,215 at 181,173 (citations omitted).  However, that flexibility does not extend to 
using communications to create new claims that were not submitted to the contracting 
officer.  Id.  Accordingly, we do not possess jurisdiction over Count I.b and strike it 
from the complaint. 
 
Count III – Contracting Officer’s Apparent Bad Faith Contract Administration 
Actions 
 
Under Count III, RAM alleges that that the contracting officer engaged in 
purported bad faith actions “in retaliation for RAM’s expressed desire to cease 
business operations and end this contract on 29 March 2020” (compl. at 15).  RAM 
further alleges that at least some of the purportedly delayed contract actions were 
“designed to force RAM to incur costs that the Contracting Officer would 
subsequently consider to be non-reimbursable. . . . [T]his may be a case of 
incompetence but there are firm indications of acting in Bad Faith by this Contracting 
Office” (id.).   
 
Count III includes the following factual allegations:  1) that in January 2020 
RAM told the contracting officer it was discussing sale of the business unit with 
another company and wished to cease performance at the end of the first option period; 
2) that on January 15, 2020 RAM and the government discussed various possibilities 
including novation, award to the current subcontractor or an interim section 8(a) sole 
source award; 3) that the contracting officer later determined it was not in the 
government’s best interest to award an interim section 8(a) sole source award; and 4) 
that the contracting officer failed to timely notify RAM of her intention to exercise the 
second option period which required her to use paragraph H-4 of the contract, 
OPTION TO EXTEND SERVICES (compl. at 15-16).  These allegations also 
appeared in RAM’s claim (see R4, tab 37 at 667).
11  Count III’s characterization of 
these actions as bad faith is not a new claim; it is merely the assertion of a new legal 
theory based upon the same facts previously presented to the contracting officer.  
Accordingly, we possess jurisdiction over Count III.  Trepte Constr. Co., 90-1 BCA 
¶ 22,595 at 113,385-86. 
 
 
11 While the topics discussed in the January 15, 2020 conference call differ slightly in 
description between the claim and complaint, their focus is the same – RAM’s 
wish to cease performance at the end of the first option period and different 
ways in which that wish might be fulfilled.  See Trepte Constr. Co., 90-1 BCA 
¶ 22,595 at 113,385-86. 
 

16 
 
RAM’s complaint also includes facts that do not appear in its claim or cover 
email, including a summary of the Army’s administration of a predecessor contract 
with a different contractor between 2011 and 2016 (including the exercise of option 
periods and a six-month extension of performance) (compl. at 16), and a critique of the 
manner in which the Army conducted the follow-on procurement intended to replace 
RAM at the conclusion of its contract performance (id. at 17).  The complaint alleges 
that this is evidence that the contracting officer “simply did not want to expend the 
effort to accommodate RAM’s request” to cease performance on March 29, 2020 (id. 
at 18).  We interpret RAM’s complaint as asserting these facts as support for its 
contention that the Army, in RAM’s view, was unreasonable in extending the 
performance period of its contract, and that the Army could have negotiated a new 
contract with its subcontractor, and not as elements of a new claim.  Here, RAM is 
alleging additional facts that do not alter the nature of the original claim.  Trepte 
Constr. Co., 90-1 BCA ¶ 22,595 at 113,385-86.   
 
Count IV – Demonstrated Contracting Officer Contract Administration 
Incompetence 
 
a. Delayed Award of Cost Impact for Incorporating Revised [Service 
Contract Act] Wage Determination 
 
Count IV.a arises out of the contracting officer’s award of Mod. 5 in 
April 2017, which incorporated two SCA wage determinations (compl. at 18-19, ex. 
46).  RAM alleges the purported delay in awarding Mod. 5 caused it to incur “costs for 
implementation for almost a full year of performance before being authorized to seek 
reimbursement” under Mod. 10 (compl. at 18).  While this allegation does not appear 
in RAM’s claim itself, it does appear in the cover email that accompanied the claim 
(R4, tab 37 at 664) and we examine the totality of the correspondence. See Pub. 
Warehousing Co., ASBCA No. 56022, 11-2 BCA ¶ 34,788 at 171,228-29.  
Accordingly, we possess jurisdiction over subsection a. of Count IV and decline to 
strike it from the complaint.   
 
b. Delayed Contract Modification to Align Funding of Labor CLINS 
Consistent with COR Work Order Priorities Delaying Interim Cost 
Reimbursement Vouchers 
 
Count IV.b also arises out of the contracting officer’s award of Mod. 5, which 
in addition to the SCA wage increase, obligated funding for carpet installation and 
increased the ceiling for CLIN 0001 (compl. at 19, ex. 46 at 2).  RAM’s complaint 
alleges that the award of Mod 5 and the “COR’s prioritization of work orders were 
impacting labor costs within CLINs 0001 and 0004” (compl. at 19).  RAM requested a 
realignment of those labor costs to reflect the actual work performed, but the 
contracting officer did not properly or timely do so (id.).  Ultimately the Army did not 

17 
 
reimburse RAM for these costs until March 2019, and “interim cost vouchers for all 
costs incurred to support this contract from December 2018 through February 2019 
were further delayed from reimbursements” (id. at 20).   
 
 This narrative does not appear in RAM’s claim but does appear in the cover 
email to RAM’s December 7, 2021 claim, albeit in a much more summary fashion 
(R4, tab 37 at 664).  While the complaint describes some events from 2018 and 2019 
that were not included in the claim or cover email, those additional details flesh out the 
basic allegation contained in the cover email that the contracting officer failed to 
timely address the labor cost shortfall.  As such, they constitute additional operative 
facts that do not alter the nature of the original claim.  See Trepte Constr. Co., 90-1 
BCA ¶ 22,595 at 113,385-86.  Accordingly, we possess jurisdiction over Count IV.b, 
and decline to strike it from the complaint. 
 
c. Delaying Indirect Rate Settlements for DCAA Completed Audit Years 
 
Count IV.c alleges that the contracting officer repeatedly deferred or delayed 
acting on RAM’s indirect rate letters from DCAA for FY 2017-2019, did not agree 
that RAM could submit settlement invoices until May 2021, and did not realign 
funding to support those invoices until it issued Mod. 47 in late June 2021 (compl. at 
20).  We possess jurisdiction over this portion of Count IV.c as RAM’s claim includes 
the basic substance of these allegations (R4, tab 37 at 669-70).   
 
Subsection c. also includes a summary of Mr. Waldron’s attempts in August - 
September 2021 to convince the contracting officer to execute a modification that 
would not require RAM to “retain an office to maintain the contract records for 
another 36 months beyond final reimbursement” (compl. at 21).  After noting that the 
contracting officer “was unwilling to close the contract on a firm fixed price basis” (id. 
at 21), the complaint states that the award of Mod. 49 in October 2021 “allowed RAM 
to submit settlement invoices for all FY 20 performance CLINs during the option 
period 1 and the six month extended periods of performance” (id.), for which RAM 
was reimbursed on November 2, 2021 (id.).   
 
While this narrative does not explicitly allege that the contracting officer’s 
actions in declining to close out the contract in the manner requested by Mr. Waldron 
was improper, for purposes of this motion we will infer that this was the purpose of 
including it in the complaint.  We decline to strike Count IV.c as Mr. Waldron 
discussed his desire for this particular resolution in the cover email to his claim (R4, 
tab 37 at 665).   
 

18 
 
The Sum Certain Requirement 
 
 Finally, we address the Army’s sum certain argument.  According to the Army, 
RAM’s appeal should be dismissed because RAM has failed to identify a sum certain 
for Counts I, III, and IV of its complaint:   
 
The appellant did not provide a sum certain concerning the 
damages alleged to have been caused by the delay in 
processing the appellant’s modifications concerning the 
CARES Act, bad faith on the part of the CO, and 
incompetence in administering the Contract.  Standing 
alone, Counts I, III, and IV are not claims within the 
definition of the FAR as there is no sum certain attached to 
any of them. 
 
(Gov’t reply at 7 (citing ECC Int’l Constructors, LLC, ASBCA No. 59643, 21-1 BCA 
¶ 37,967 at 184,400; rev’d and remanded, ECC Int’l Constructors v. Sec’y of the 
Army, 79 F.4th 1364 (Fed. Cir. Aug. 22, 2023))  The Army then identifies particular 
items that it appears to believe require a “separate claim for damages,”
12 and asserts 
that the “only valid claim before the Board concerns whether [RAM] can be 
reimbursed for its costs for maintaining its records under” FAR 52.215-2 (gov’t sur-
reply at 4-5).  As an initial matter, we normally do not consider arguments raised for 
the first time in a reply brief.  See, e.g., Buck Town Contractors & Co., ASBCA 
No. 60939, 18-1 BCA ¶ 36,951 at 180,059.  Here, RAM filed a sur-reply brief, so we 
would be willing to consider the Army’s argument; however, the Board opinion it 
relies upon has been reversed, and is no longer good law.  See also ECC Int’l 
Constructors, LLC v. Sec’y of the Army, 79 F.4th 1364 (Fed. Cir. Aug. 22, 2023) 
(precedential opinion in the related appeal of ASBCA No. 59586). 
 
We agree with the Army that the only valid claim before the Board is whether 
RAM can be reimbursed for the costs it alleges it has incurred to maintain its records 
under FAR 52.215-2.  That is the gravamen of RAM’s claim – that the contracting 
officer engaged in certain contract administration actions RAM believes were 
improper, and that but for those improper actions, RAM would not have had to incur 
the costs of maintaining an office to comply with FAR 52.215-2.  The portions of 
 
12 These items include the following:  1) RAM’s statement in the claim’s cover email 
that the time to complete Mod. 45 was “tantamount to a no interest loan” (gov’t 
sur-reply at 4); 2) the reference to imposing “unrecoverable costs” in an 
introductory sentence to Count IV of the RAM’s complaint (gov’t sur-reply 
at 5); and 3) the allegations of bad faith conduct in Count III (gov’t sur-reply 
at 4-5).   

19 
 
RAM’s claim and complaint13 that the Army alleges require a sum certain do not 
constitute separate claims.  Instead, they are part and parcel of RAM’s many 
complaints about the manner in which the Army administered the contract.  The claim 
is very clear that RAM only seeks reimbursement for the costs it alleges it has incurred 
as of October 2021 to comply with FAR 52.215-2.  RAM’s claim provided a finite 
dollar figure for those costs – $53,002.19.  (R4, tab 37 at 672)  We therefore deny this 
portion of the government’s motion.  
 
CONCLUSION 
 
The Army’s motion is granted in part and denied in part.  With respect to Count 
I, the Board denies the Army’s motion to strike with respect to Count I.a, but grants 
the motion to strike with respect to Count I.b.  With respect to Counts III and IV, the 
Board denies the motion to strike.   
 
 Dated:  October 18, 2023 
 
 
 
 
 
 
 
 
 
 
 
 
DAVID D’ALESSANDRIS 
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 
 
  
 
13 We note that it is the contents of the claim, not the complaint, that determines the 
Board’s jurisdiction.  See Gov’t Servs. Corp., ASBCA No. 60367, 16-1 BCA 
¶ 36,411 at 177,537.  

20 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 63259, Appeal of Research 
Analysis & Maintenance, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  October 18, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals