ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of

-- ) ) KBAJ Enterprises, LLC t/d/b/a Home Again)

Under ContractNos. SPE5E2-15-V-3380 SPE5E7-15-V-2679 SPE5E8-15-V-3907 SPE5E4-l5-V-473l
APPEARANCE FORTHE APPELLANT: ) ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCANos. 59932, 59933 59934,59935

Mr. Joseph Dente

General Manager, Member and

Corporate Officer
Daniel K. Poling, Esq.

DLA ChiefTrial Attorney John F. Basiak, Jr., Esq. Steven C. Herrera, Esq. J. Maxwell Carrion, Esq.

Trial Attorneys DLATroop Support Philadelphia, PA
OPINION BYADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S MOTION TODISMISS FORLACK OF JURISDICTION
The government moves to dismiss these appeals for lack of jurisdiction, arguing, among otherthings, that appellant failed to submit a proper claimpursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7019. Since the Board determines that appellant failed to submit a claim in a sum certain to the contracting officer (CO) for a decision, the government's motion is granted.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION
1. In February and March 2015, the Defense Logistics Agency Troop Support (DLA or government) issued unilateral Purchase Order (PO) Nos. SPE5E2-15-V-3380 (PO 3380), SPE5E7-15-V-2679 (PO 2679), SPE5E8-15-V-3907 (PO 3907), and SPE5E4-l5-V-4731 (PO 4731) to KBAJ Enterprises, LLC t/d/b/a Home Again 1(KBAJ or

1 Each ofthe POs that is the subject ofthese appeals was issued to "KBAJ Enterprises DBA." These appeals were filed by appellant's representative in the name of KBAJ Enterprises LLC. Atthe Board's direction, the parties clarified that theappellant) for the delivery ofvarious supplies. Each PO identified a specific source and part number for the supply and provided a delivery date. (R4, tabs 3, 10, 22, 29)
2. The POs incorporated DLA Directive clause 52.211-9014, CONTRACTOR RETENTION OF TRACEABILITY DOCUMENTATION (AUG 2012) (R4, tab 36 at 1492

, tab 37 at 172). This clause generally provides that a contractor shall maintain traceability documentation when the contractor is not the manufacturer ofthe item being furnished to the government (R4, tab 35).
3. Subsequentto the issuance ofthe POs, the CO directed KBAJ to stop work and requested traceability documentation from KBAJ demonstrating that the items being furnished would be supplied by the source identified in the POs. The CO communicatedto KBAJ that the POs may be cancelled ifno documentation was received. (R4, tab 5 at 21-23, tab 19 at 87-89, tab 24 at 106-07, tab 31 at 127-29)
4. KBAJ requested additional information concerningthe agency level protests in connection with the issued POs that promptedthe CO's stop work directives (R4, tab 5 at 20, tab 19 at 84-87, tab 24 at 104-05, tab 31 at 127). KBAJ laterrequested an independentreview ofthe protest matters pursuant to Federal Acquisition Regulation (FAR) 3 3.103 and the name and contact information ofthe person whowould conduct the review (R4, tab 5 at 19, tab 17 at 58-59, tab 24 at 104, tab 31 at 127).
5. In emails dated 3 April 2015, the CO notifled KBAJ that its previously supplied traceability documentation for POs 3380 and 2679 was insufficient and stated her intention to fully cancel the two POs at no cost to eitherparty. The CO also denied KBAJ's priorrequests for an independent review, deeming the matters at hand a contract administration issue. (R4, tab 12 at 39, tab 24 at 103) Unilateral modifications cancellingthe two POs in their entirety were issued on the same date (R4, tabs 11, 23).

6. In emails dated 7 April 2015, the CO also determined thattraceability documentation supplied by KBAJ in connection with POs 3907 and 4731 was insufficient and stated her intention to cancel the POs at no cost to eitherparty. The CO also denied KBAJ's priorrequests for an independent review. (R4, tab 5 at 17, tab 31 at 126) Unilateral modifications cancellingthe two POs in their entirety were issued on the same date (R4, tabs 4, 30).

proper name ofappellant in these appeals is "KBAJEnterprises, LLC t/d/b/a Home Again." (See Bd. corr., gov'tltr. dtd. 9 June 2016, ex. A) The caption in these appeals is modified accordingly. 2 Citations to the Rule 4 file are to the consecutively-numberedpages unless otherwise indicated. 27. In emails dated 7 April 2015, KBAJ requested the CO to reconsider and
reversethe cancellation ofthe POs. 

### It asserted, among otherthings, that the provided documentation met and exceeded requirements. (R4, tab 5 at 15-17, tab 19 at 81-82, tab 31 at 125-26; compl. (ASBCA No. 59933), ex. G). Ifthe CO refused to rescind the cancellations, KBAJ reiterated that it "will take this matter as far as necessary to prove ourposition is correct" (id.).

8. The record includes a 9 April 2015 email from the CO in which she communicatedherrefusal to rescind the cancellation ofPO 3907 (R4, tab 5 at 15). No response to KBAJ's 7 April 2015 emails with respect to the other three POs is included in the record.

9. In emails dated 10 April 2015, KBAJ appealed to the Board from the CO's 3 April and 7 April 2015 emails (see SOF**,-r~** 5-6). TheBoard docketed ASBCA No. 59932 in connection with PO 3380, ASBCANo. 59933 in connection with PO 2679, ASBCANo. 59934 in connection with PO 3907, and ASBCA No. 59935 in connection with PO4731. All four appeals were consolidated.

DECISION Among the arguments raised in its motion, DLA contends that KBAJ failed to submit a proper claim underthe CDA in these appeals. Specifically, DLA argues that KBAJ has not submitted a claim in a sum certain for damages. KBAJ counters that it has appealed from written decisions that cancelled each ofthe POs that are the subject ofthese appeals. Alternatively, it contends that DLAhas otherwise issued decisions
on its "several written demands and written assertions to the contracting officers seeking interpretation ofcontractterms and issues arising out oforrelating to the contract itself' (app. opp'n at 4). With regard to DLA's contention that KBAJ has not asserted a sum certain amount, KBAJ argues that it is prematuretoplead a sum certain for monetary damages because "ifthis Board finds in [its] favor and the cost ofgoods has risen sincethe award date, then [its] damage claim may increase accordingly" and "DLA is aware ofthe amount in dispute in that, [its] claims are based upon the [value] ofthe contracts at issue" (id. at 5). Moreover, KBAJ asserts that it attempted to discuss damages withthe CObut its attempts were ignored (id. at 6).

A prerequisite for the Boardto exercisejurisdiction over an appeal underthe CDA is the submittal ofa claim by eitherthe contractororthe governmentthat is the subject of
a CO's decision. 41 U.S.C. 

### § 7103(a). The CDA does not define the term "claim"; however, the FAR defines a claim as "awritten demand orwritten assertion by one ofthe contracting parties seeking, as a matter ofright, the payment ofmoney in a sum certain, the adjustment orinterpretation ofcontract terms, orotherreliefarising under orrelating to the contract." FAR2.101. KBAJ contends that the CO's cancellation ofthe POs constitutes government claims. However, the cancellation ofa unilateral PO is not a

3government claim. 

### Connectec Co., ASBCA No. 57546, 11-2 BCA ,-i 34,797 at 171,259; 

### C&MMachine Products, Inc., ASBCA No. 39635, 90-2 BCAi-122,787 at 114,446.

KBAJ next contends that the Board hasjurisdiction overthese appeals because it has submitted several non-monetary claims to the COrequesting, among other things, reconsideration ofthe cancelled POs, protest information, and an independent reviewthatthe CO has either denied in writing oreffectively "deem denied" by failing to provide an adequate response (app. opp'n at 3-4). As the proponent ofthe Board's jurisdiction, KBAJ bears the burden ofproofto establish the Board'sjurisdictionby a preponderance ofthe evidence. CC/£ & 

### Co., ASBCANos. 58355, 59008, 14-1 BCA i-135,700 at 174,816. A claim is not required to be in any particular form or use any particularwording so long as it contains "aclear and unequivocal statementthat gives the contracting officer adequate notice ofthe basis and amount ofthe claim." 

### Contract CleaningMaintenance, Inc. v. UnitedStates, 811 F.2d 586, 592 (Fed. Cir. 1987). Additionally, the claim must explicitly or implicitly request a CO's final decision. 

### M Maropakis Carpentry, Inc. v. UnitedStates, 609 F.3d 1323, 1327-28 (Fed. Cir. 2010). When determining whether the requirements ofa claim are met, we may examine the totality ofthe circumstances. CC/£, 14-1 BCA ,-i 35,700 at 174,816. Upon the Board's examination ofthe record, the only correspondence that might
serve as non-monetary claims is KBAJ's 7 April 2015 emails which expressly requested reconsideration and rescission ofthe cancelled POs and further communicatedto the CO that it wouldtake appropriate actions ifits request was denied (SOF ,-i 7). Additionally, with respect to PO 3907, the CO's 9 April 2015 email communicatedherrefusal to rescind the cancellation (SOF ,-i 8). Assuming 

### arguendo thatthe 7 April emails are non-monetary claims, KBAJ's statements subsequent to the filing ofthese appeals reveal that the essence ofthe present dispute is monetary. The complaint filed in each ofthese appeals alleges that DLA's actions inflicted financial harm on KBAJ and prays for relief in the form ofmonetary damages. KBAJ's opposition to the motion asserts that the cancellations were, in effect, breaches ofenforceable contracts and that the extent ofthe damages amount wouldbe determined at trial (app. opp'n at 4-5). Based on these statements, it is apparentthat KBAJ believes it is entitled to recover monetary damages
once it prevails and has fragmented its monetary reliefcomponent in these appeals. Therefore, the Board lacksjurisdictionbecause the circumstances here involve "amoney claim clothed as a request for contract interpretation." 

### CommissioningSolutions Global, LLC, ASBCA No. 59007-945, 14-1BCA,-i35,523 at 174,107 (quoting

### International Creative and Training, Ltd., ASBCA No. 42833, 93-3 BCAi-126,009 at 129,310).
KBAJ argues thatthe POs contain a specific dollar amount, and thus, the sum certainrequirement is met (app. opp'n at 5). However, the definition ofa claim requires KBAJ to seek such an amount as a matter ofright and KBAJ concedes that it did not submit a monetary claimto the CO. KBAJ also argues that it is premature to quantify a sum certain because its entitlementto any damages is dependent upon a favorable ruling by the Board on its breach ofcontract allegations. A claim can
4include estimated costs so long as the demanded amount is expressly stated in a sum certain. 

### JP. Donovan Construction, Inc., ASBCA No. 55335, 10-2 BCA**~** 34,509 at 170,171. KBAJ has already alleged that the monetary value ofthe POs are at issue and that it has previously attempted to discuss damages with DLA (app. opp'n at 6). There is no compelling reason for KBAJ to delay the submission ofa monetary claim for breach damages to the CO.

In the absence ofa claim presented to the CO in a sum certain, the Board lacks jurisdiction over these appeals. In view ofthis disposition, the Board need not address alternative arguments for dismissal raised by the government in its motion.
CONCLUSION
The government's motion is granted. These appeals are dismissed for lack of jurisdiction.
Dated: 9 September 2016

I concur

Administrative Judge Acting Chairman Armed Services Board ofContract Appeals



### 5 MARK A. MELNICK Administrative Judge Armed Services Board ofContract Appeals

I concur 

# 1! f**\~** 

### \\/ RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract AppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANos. 59932, 59933, 59934, 59935, Appeals ofKBAJEnterprises LLC t/d/b/a Home Again, rendered in conformance with the Board's Charter.

Dated:

6 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals