ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) Green Valley Company ) ) Under ContractNo. W912Dl-05-A-0063 ) APPEARANCE FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61275

Salma William Saikaly, Esq.

Willoughby Hills, OH Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT William T. Wicks, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE MELNICK ONTHE GOVERNMENT'S MOTION FOR SUMMARYJUDGMENT GreenValley Company (Green Valley) seeks the payment ofinvoices it presented in 2006 under a Blanket Purchase Agreement (BPA) withthe United States Army. The government correctly responds that Green Valley's 2017 certified claim that it submitted to the contracting officerwas time-barred. Accordingly, summary judgment is grantedto the government. Green Valley's appeal is denied. STATEMENT OF FACTS FORPURPOSES OF THEMOTION OnApril 26, 2005, the United States Army Regional Contracting Command SWA-Kuwait (the government) executedthe BPA identified above with Green Valley. The BPA was for the supply oflife support services, including water supply and removal, portable latrines and toiletry for United States military forces in Kuwait. (R4, tab 9) Between January 2 and October2, 2006, Green Valley invoicedthe government for services performed under the BPA (compl. 12; gov't mot. at 2). On May 18, 2007, the United States Army debarred Green Valley until December 1, 2009 (R4, tab 419; compl. 15; gov'tmot. at 2). OnMarch 9, 2017, Green Valley submitted a certified claim to the contracting officer for payment ofits unpaid invoices in the amount of427,822.96 Kuwaiti Dinars (R4, tabs 484-85; compl. 1 10; gov'tmot. at 3). The unpaid invoices were for aperiod ranging from December!, 2005 to September 23, 2006 (id. at 4). The claim was denied by contracting officer decision datedJune 7, 2017 (R4, tab 485). This appeal followed.DECISION The government seeks summaryjudgment on the ground that Green Valley's claim is time-barred. Underthe Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, atimely claim must be submitted to the contracting officer within six years after accrual. 41 U.S.C. § 7103(a)(4). Summaryjudgmentwill be granted to the government on this issue ifthere are no genuine issues ofmaterial fact and the government is entitled to judgment as a matter oflaw. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adamant Grp.for Contracting andGen. Trading, ASBCA No. 60316, 16-1 BCA 

## ,r 36,577 at 178,134. A claim accrues when "all events, that fix the alleged liability of

...the Government...andpermit assertion ofthe claim, were known or should have been known." FAR 33.201. Although an invoice that is not in dispute when submitted is not a claim, it may be converted to one by a written notice to the contracting officer "ifnot acted upon in a reasonable time." FAR 2.101; seeAdamant Grp., 16-1 BCA

## ,r 36,577 at 178,134. It is undisputed that Green Valley submitted the invoices that are the subject of the claim to the governmentbetween January and October of2006. Green Valley knew or should have known it could convertthem to a claim within a reasonable time afterthat. However, Green Valley waited over a decade, until 2017, to do so. That is well more than six years after it became reasonable to convert the invoices to a claim. Green Valley maintains that the six-year limitation period to submit its claim should be equitably tolled. Equitable tolling mightbe appropriate when "a litigant has (1) been pursuing [its] rights diligently, and (2) some extraordinary circumstance 'stood in [its] way and prevented timely filing."' Adamant Grp., 16-1 BCA

## ,r 36,577 at 178,136 (quoting Menominee Indian Tribe ofWis. v. UnitedStates, 136 S. Ct. 750, 755 (2016)). Green Valley argues that from November 5, 2009, until December 16, 2016, it was a defendant in a government lawsuit filed in the United States District Court for the Western District ofTexas. Itcontends that it could not submit its claim for the invoices while that matterwas pending, and that ifit had the government would have pursued fraud based defenses and causes ofaction against it, exposing it to harsh legal consequences. Itargues that it was therefore required to forego the submittal ofits claim while it diligently worked to relieve itselffrom debarment and the government suit. Green Valley has not demonstrated the elements ofequitable tolling. Ithas not shown that the pendency ofa government suit against it in district court, or its debarment, prevented it from submitting a CDA claim. Nor does it explain why the possibility that the government might respond to its claim with fraud based defenses or causes ofaction would block it from submitting a claim. The mere fact that such a response from the government might be undesirable to Green Valley is irrelevant. Thus, there is no basis for concluding Green Valley diligently pursued its rights and that some extraordinary circumstance prevented it from advancing its claim.

2Accordingly, equitable tolling is inapplicable and Green Valley's claim is time-barred underthe CDA. CONCLUSION The government's motion for summaryjudgment is granted. The appeal is denied. Dated: 13 February 2018

I concur

# ~ RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals MARK A. MELNICK Administrative Judge Armed Services Board ofContractAppeals

I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify thatthe foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No.61275 Appeal ofGreen Valley Companyrendered in conformance withthe Board's Charter. Dated:

3 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals