ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- Islands Mechanical Contractor, Inc. Under ContractNo. N69272-06-C-0012 ) ) ) ) ) ASBCA No. 59655

APPEARANCE FORTHE APPELLANT:

. James E. Krause, Esq. Jacksonville, FL APPEARANCES FORTHE GOVERNMENT: Ronald J. Borro, Esq. Navy ChiefTrial Attorney Matthew S. Hawkins, Esq.

Senior Trial Attorney OPINION BYADMINISTRATIVE JUDGE SWEET This is an appeal ofa contracting officer's deemed denial ofa claim by Islands Mechanical Contractor, Inc. (IMC). The governmenthas movedto dismiss. We grant the motion. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1
1. In 2006, the Department ofthe Navy awarded IMC Contract No. N69272-06-C-0012 (contract 0012), a firm-fixed-price contract to provide wastewatertreatment 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 thatthe Naval Facilities Engineering Command (NA VFAC) 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 VFAC seeking guidance regarding howtoproceed. IMC alleges that NA VFAC did not respond to all ofthe RFis (2nd·amended compl. 

### ilil 19, 35, 40). Nor has NAVFAC issued a suspension or stop work order (id. 

### ilil 22, 40). Therefore, on 3 April 2009,

1For purposes ofthis motion only, we acceptthe allegations in the second amended complaint as true.IMC placed all ofits equipment on stand-by status. IMC alleges that contract 0012 remains in stand-by status. (Id. 

### ilil 38, 43) 5. IMC alleges thatthe failure to respond to the RFis caused delay and damages (2nd amended compl. 

### ifil 25, 29, 41). In particular, IMC alleges that the uncertainty ofnotknowing when NA VFAC 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 ofthe delay, the warranties or guaranties on the installed equipment have expired (id. 

### if 45). Further, IMC alleges that some ofthe installed equipment will need to be replaced, and additional work beyond the scope ofworkwill be required to complete the project (id. 

### ilil 45, 51). 6. IMC alleges thatNA VFAC 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'sright to seek additional compensation for the damages it incurred. (2nd amended compI. 

### 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 thatproposal. (2nd amended compI. 

### 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 pursuantto its proposal...forthe completion ofthe Contract and to NA VFAC's DraftModification dated July 31, 2013, once it receives direction from NAVFAC onthe outstanding RFI[s]." (R4, tab 19 at G-662-63) 10. After a deemed denial, IMC filed an appeal and complaintwith the Board (compl.). 11. We stayedproceedings, and IMC certified a revised claim with the contracting officer on 30June 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 pursuantto its proposal...forthe completion ofthe Contract and to NA VFAC's Draft Modification dated July 31, 2013, once it receives direction from NAVFAC 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, 2$479,382.79 in home office overhead costs, and "$373,121.78 pursuantto its proposal...forthe completion ofthe Contract and to NAVFAC's DraftModification elated July 31, 2013, once IMC receives direction from NA VFAC onthe outstanding RFI[s]." The second revised claim also sought "an extension oftime." The second revised claim did not requestthat NAVFAC accept equipmentwithout warranties or guaranties orpay replacement costs; provide direction to IMC; ormodify 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 "pursuantto its proposal for the completion ofthe Contract." (2°d amended compI. 

### ilil 26, 62, 153-54) (citation omitted). In the "ReliefRequested" section, the second amended complaintrequests that we: A. Determine that the NA VFAC Contracting Officer'srefusal to notify the Contractor ofthe date by which the decision will be made is a deemed denial; B. Determine that IMC's claim is valid pursuantto the Contract Disputes Act; C. Find that NAVFAC is responsible for damages incurred by IMC for the factual and legal reasons outlined above;D. DirectNA VFAC to makepaymentto IMC of the total ofthe sum certain amounts under the CLAIMS Section above, including standby oridle equipment, and office overhead in the amount of$1,974,378.88 during the period from April 3, 2009 through December 31, 2013; E. DirectNA VFAC to accept equipmentthat has remained exposed to the elements, installed by IMC pursuantto the plans but left unfinished due to the nonactions ofNA VFAC, withoutwarranties or guaranties, or to pay any costs to replace such equipment andthe labor costtoremove the nonfunctioning equipment and install new equipment; F. DirectNA VFAC to provide direction to IMC to allow completion ofthe Contract;

3G. Direct NA VFAC 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. DirectNA VFAC to add to the Contract as many days as necessary to bringthe Contract current plus the days needed to complete the original scope ofwork 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 ofright. DECISION We do not possessjurisdiction overthe appeal because IMC failed to certify a claim for a sum certain as a matter ofright. 2 Underthe Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, we only possessjurisdiction over an appeal ifa contractor submits a cognizable claim to the contracting officer. 

### Rejlectone, Inc. v. 

### Dalton, 60 F.3d

2 Inparticular, we do notpossessjurisdiction overIMC's claims for an order directing NA VFAC to: (1) accept equipment without warranties orguaranties orpay 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. "Underthe CDA, for the Board to possessjurisdictionto entertain a claim, the claim must first have been presented to the contracting officer." 

### CDMConstructors, Inc., ASBCA No. 59524, 15-1 BCA

### ii 36,097 at 176,238. Here, the second revised claim did not assert claims that NA VFAC should: (1) accept equipmentwithout warranties or guaranties orpay 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 secondrevised claim requested an extension oftime (SOF 

### ii 12), the government's arguments regarding our lack of jurisdiction to order a contracting officerto modify a contract to extend a period ofperformance are well-taken. 

### Statistica, Inc., ASBCANo. 44116, 92-3 BCA

### ii 25,095 at 125,126; 

### PemcoAeroplex, Inc., ASBCA No. 47402, 95-2 BCA

### ii 27,853 at 138,889. 4

### 1572, 1575 (Fed. Cir. 1995) (en bane);Eaton ContractServices, Inc., ASBCA No. 52888 etal., 02-2 BCA

### if 32,023 at 158,266. A cognizable claim is a written demand seeking a sum certain as a matter ofright. Reflectone, 60 F.3d at 1576. A proposal for work to be performed does not assert anything as a matter ofright, and thus does not satisfy the sum certain as a matter ofright requirement. Id. at 1577 n.7; Essex Electro Engineers, Inc. v. UnitedStates, 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 ofthe Contract" (SOF 

### iii! 9, 11, 12). Therefore, the second revised claim does not satisfy the sum certain as a matter ofright requirement, and we do not possessjurisdiction 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 meetjurisdictional 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 ofthe second revised claim were stated in a sum certain as a matter ofright, 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 ofthe 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 ofits claim, were inadvertently included in the second amended complaint, and requests that it be permitted to amend the second amended complaintto remove those costs. As an initial matter, in orderto file an amendmentto 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 ajurisdictional defect with the certified claim-and not merely a pleading deficiency-amending the second amended complaint would not cure the defect.



### 5CONCLUSION 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 relieffrom the Board, the appeal is dismissed withoutprejudice for lack of jurisdiction. Dated: 13 April 201 7

I concur

# ·~~~·· Administrative Judge Acting Chairman Armed Services Board ofContractAppeals JAMES R. SWEET Administrative Judge Armed Services Board of**Contra~t** Appeals I concur 

# £KLEFORD

Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 59655, Appeal ofIslands Mechanical Contractor, Inc., rendered in conformance with the Board's Charter. Dated:



### 6 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals