ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Islands Mechanical Contractor, Inc. 

Under Contract No. N69272-06-C-0012 

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ASBCA No. 59655 

APPEARANCE FOR THE APPELLANT: . James E. Krause, Esq. 

Jacksonville, FL 

APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. 

Navy Chief Trial Attorney 

Matthew S. Hawkins, Esq. 

Senior Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE SWEET 

This is an appeal of a contracting officer's deemed denial of a claim by Islands 

Mechanical Contractor, Inc. (IMC). The government has moved to dismiss. We grant 

the motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION1 

1. In 2006, the Department of the Navy awarded IMC Contract 

No. N69272-06-C-0012 (contract 0012), a firm-fixed-price contract to provide 

wastewater treatment system repairs at Naval Station Guantanamo Bay, Cuba (2nd 

amended compl. ilil 1, 18, 34). 

2. IMC began performance in 2006 (2nd amended comp I. ii 34 ). 

3. IMC alleges that it encountered differing and unforeseen site conditions (2nd 

amended compl. ilil 19, 35). In particular, IMC alleges that the Naval Facilities 

Engineering Command (NA VF AC) provided defective plans and specifications, which 

did not contain correct information on existing electrical supply systems, water lines, 

and sewer lines (id. ii 28). 

4. IMC alleges that it submitted requests for information (RFis) to NA VF AC 

seeking guidance regarding how to proceed. IMC alleges that NA VF AC did not 

respond to all of the RFis (2nd· amended compl. ilil 19, 35, 40). Nor has NA VFAC 

issued a suspension or stop work order (id. ilil 22, 40). Therefore, on 3 April 2009, 

1 For purposes of this motion only, we accept the allegations in the second amended 

complaint as true. 
IMC placed all of its equipment on stand-by status. IMC alleges that contract 0012 

remains in stand-by status. (Id. ilil 38, 43) 

5. IMC alleges that the failure to respond to the RFis caused delay and 

damages (2nd amended compl. ifil 25, 29, 41). In particular, IMC alleges that the 

uncertainty of not knowing when NA VF AC was going to respond to the RFis forced 

IMC to maintain equipment on stand-by status (id. if 30). IMC also alleges that, as a 

result of the delay, the warranties or guaranties on the installed equipment have 

expired (id. if 45). Further, IMC alleges that some of the installed equipment will need 

to be replaced, and additional work beyond the scope of work will be required to 

complete the project (id. ilil 45, 51 ). 

6. IMC alleges that NA VF AC provided IMC with a draft modification on 

21 September 2009. IMC alleges that the draft modification would have resolved the 

outstanding RFis. However, IMC refused to sign the draft modification because it 

contained language waiving IMC's right to seek additional compensation for the 

damages it incurred. (2nd amended comp I. if 44) 

7. In response to the draft modification, IMC submitted a proposal to complete 

contract 0012 for $373, 121.72. NA VFAC has not accepted that proposal. (2nd 

amended comp I. if 154) 

8. On 11 July 2014, IMC submitted a request for equitable adjustment (REA) 

(R4, tab 18). 

9. On 29 July 2014, IMC resubmitted the REA as a certified claim. In the 

claim, IMC sought $2, 151,801.86 in direct labor and equipment costs, $2,308,966.96 in 

indirect overhead costs, and "$373,121. 78 pursuant to its proposal...for the completion 

of the Contract and to NA VFAC's Draft Modification dated July 31, 2013, once it 

receives direction from NA VF AC on the outstanding RFI[ s]." (R4, tab 19 at G-662-63) 

10. After a deemed denial, IMC filed an appeal and complaint with the Board 

(compl.). 

11. We stayed proceedings, and IMC certified a revised claim with the 

contracting officer on 30 June 2015. The revised claim sought $1,736,599.39 in direct 

labor and equipment costs, $1,182,427.45 in indirect overhead costs, and "$373,121.78 

pursuant to its proposal...for the completion of the Contract and to NA VFAC's Draft 

Modification dated July 31, 2013, once it receives direction from NA VF AC on the 

outstanding RFI[s]." (R4, tab 25 at G-716-18) 

12. On 17 May 2016, IMC filed an amended complaint with the Board, and 

certified a second revised claim to the contracting officer. The second revised claimwhich is the operative claim-sought $1,494,996.09 in stand-by equipment costs, 

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$479,382.79 in home office overhead costs, and "$373,121.78 pursuant to its 

proposal...for the completion of the Contract and to NA VFAC's Draft Modification 

elated July 31, 2013, once IMC receives direction from NA VF AC on the outstanding 

RFI[s]." The second revised claim also sought "an extension of time." The second 

revised claim did not request that NA VF AC accept equipment without warranties or 

guaranties or pay replacement costs; provide direction to IMC; or modify the contract 

for IMC to perform additional work. (R4, tab 28 at G-767-68) 

13. On 25 July 2016, IMC filed a second amended complaint-which is the 

operative complaint. The second amended complaint seeks $1,494,996.09 in stand-by 

equipment costs, $479,382.79 in home office overhead costs, and $373,121.78 

"pursuant to its proposal for the completion of the Contract." (2°d amended comp I. 

ilil 26, 62, 153-54) (citation omitted). In the "Relief Requested" section, the second 

amended complaint requests that we: 

A. Determine that the NA VF AC Contracting 

Officer's refusal to notify the Contractor of the date by 

which the decision will be made is a deemed denial; 

B. Determine that IMC's claim is valid pursuant to 

the Contract Disputes Act; 

C. Find that NA VF AC is responsible for damages 

incurred by IMC for the factual and legal reasons outlined 

above; 

D. Direct NA VF AC to make payment to IMC of 

the total of the sum certain amounts under the CLAIMS 

Section above, including standby or idle equipment, and 

office overhead in the amount of $1,974,378.88 during the 

period from April 3, 2009 through December 31, 2013; 

E. Direct NA VF AC to accept equipment that has 

remained exposed to the elements, installed by IMC 

pursuant to the plans but left unfinished due to the nonactions of NA VF AC, without warranties or guaranties, or 

to pay any costs to replace such equipment and the labor 

cost to remove the nonfunctioning equipment and install 

new equipment; 

F. Direct NA VF AC to provide direction to IMC to 

allow completion of the Contract; 

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G. Direct NA VF AC to modify the Contract for 

IMC to perform the additional work outlined in the 

proposal from IMC dated February 15, 2013 in the amount 

of $373,121.78; 

H. Direct NA VF AC to add to the Contract as many 

days as necessary to bring the Contract current plus the 

days needed to complete the original scope of work plus 

the days necessary to complete the additional work 

outlined in the Proposal from IMC in the amount of 

$373, 121.78[.] 

(Id. at 34-35) (Citation omitted) 

14. The government has moved to dismiss, arguing that we do not possess 

jurisdiction because IMC seeks specific performance and injunctive relief, and failed 

to certify a claim seeking a sum certain as a matter of right. 

DECISION 

We do not possess jurisdiction over the appeal because IMC failed to certify a 

claim for a sum certain as a matter of right. 2 Under the Contract Disputes Act (CDA), 

41 U.S.C. §§ 7101-7109, we only possess jurisdiction over an appeal if a contractor 

submits a cognizable claim to the contracting officer. Rejlectone, Inc. v. Dalton, 60 F.3d 

2 In particular, we do not possess jurisdiction over IMC's claims for an order directing 

NA VF AC to: ( 1) accept equipment without warranties or guaranties or pay 

replacement costs; (2) provide direction to IMC; (3) modify the contract for 

IMC to perform additional work; or ( 4) add as many days as necessary to 

complete the contract. "Under the CDA, for the Board to possess jurisdiction to 

entertain a claim, the claim must first have been presented to the contracting 

officer." CDM Constructors, Inc., ASBCA No. 59524, 15-1 BCA ii 36,097 

at 176,23 8. Here, the second revised claim did not assert claims that NA VF AC 

should: (1) accept equipment without warranties or guaranties or pay 

replacement costs; (2) provide direction to IMC; or (3) modify the contract for 

IMC to perform additional work (SOF ii 12). Thus, we do not possess 

jurisdiction over those claims in particular. 

While the second revised claim requested an extension of time (SOF 

ii 12 ), the government's arguments regarding our lack of jurisdiction to order a 

contracting officer to modify a contract to extend a period of performance are 

well-taken. Statistica, Inc., ASBCA No. 44116, 92-3 BCA ii 25,095 at 125,126; 

Pemco Aeroplex, Inc., ASBCA No. 47402, 95-2 BCA ii 27,853 at 138,889. 

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1572, 1575 (Fed. Cir. 1995) (en bane); Eaton Contract Services, Inc., ASBCA 

No. 52888 et al., 02-2 BCA if 32,023 at 158,266. A cognizable claim is a written 

demand seeking a sum certain as a matter of right. Reflectone, 60 F.3d at 1576. A 

proposal for work to be performed does not assert anything as a matter of right, and thus 

does not satisfy the sum certain as a matter of right requirement. Id. at 1577 n.7; Essex 

Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1581-82 (Fed. Cir. 1992). 

Here, the second revised claim-like the original and the revised claimscontains a proposal for work to be performed. It asserts that "IMC requests an 

additional $373,121.78 pursuant to its proposal...for completion of the Contract" (SOF 

iii! 9, 11, 12). Therefore, the second revised claim does not satisfy the sum certain as a 

matter of right requirement, and we do not possess jurisdiction over an appeal based 

upon that claim. 

IMC argues that its second revised claim sought a sum certain as a matter of 

right because it sought $1,974,378.88 in equipment stand-by and home office overhead 

costs. However: 

The failure to meet jurisdictional requirements 

remains even if, as here, the "claims" contain one 

component...which were stated in a sum certain but the 

overall "claim" is not. We will not entertain that portion of 

a claim stated in a fixed amount and discard the remainder, 

as an "entire claim is in a sum certain, or it is not." 

Eaton, 02-2 BCA if 32,023 at 158,267 (citation omitted). While the equipment 

stand-by and home office overhead components of the second revised claim were 

stated in a sum certain as a matter of right, the overall claim was not because the 

second revised claim also sought $373,121.78 in proposed costs (SOF iii! 9, 11, 12). 

Therefore, we will not entertain the portion of the claim stated in a sum certainnamely the equipment stand-by and home office overhead costs-and discard the 

remainder-namely the proposed costs. 

IMC also argues that the proposed costs, which purportedly were not part of its 

claim, were inadvertently included in the second amended complaint, and requests that 

it be permitted to amend the second amended complaint to remove those costs. As an 

initial matter, in order to file an amendment to its second amended complaint, IMC 

must file a motion for leave to do so, which attaches its proposed amended complaint. 

MicroTechnologies, LLC, ASBCA Nos. 59911, 59912, 15-1 BCA if 36,125 at 176,348 

n.2. More fundamentally, IMC is incorrect in its assertion that it did not include the 

proposed costs in its claim (SOF iii! 9, 11, 12). Because the defect is a jurisdictional 

defect with the certified claim-and not merely a pleading deficiency-amending the 

second amended complaint would not cure the defect. 

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CONCLUSION 

Because: (1) appellant's second revised claim did not contain a sum certain; 

(2) claims may not be asserted for the first time in the complaint but must be in the 

claim presented to the contracting officer; and (3) claims may not request injunctive 

relief from the Board, the appeal is dismissed without prejudice for lack of 

jurisdiction. 

Dated: 13 April 201 7 

I concur 

·~~~·· 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

JAMES R. SWEET 

Administrative Judge 

Armed Services Board 

of Contra~t Appeals 

I concur 

£KLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 59655, Appeal of Islands 

Mechanical Contractor, Inc., rendered in conformance with the Board's Charter. 

Dated: 

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JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals