ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- Sauer Incorporated ) ) ) ) ) ASBCA No. 60366 UnderContractNo. N69450-09-D-1274 APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: Kevin J. Kelly, Esq. General Counsel Ronald J. Borro, Esq.

Navy ChiefTrial Attorney Richard A. Gallivan, Esq.

Trial Attorney OPINION BYADMINISTRATIVE JUDGE CLARKE ONTHE GOVERNMENT'S MOTIONTO DISMISS The United States Navy (government) moves to partially dismiss this appeal allegingthat SauerIncorporated (Sauer) raised a new claim for the first time in its complaint. We treat this as a motion to strike part ofthe complaint and grantthe motion.STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. The government and Sauer entered into IDIQ Contract No. N69450-09-D-1274 (contract) on 3 June 2009 (R4, tab 1). Task Order4 was awarded to Sauer on 18 November2009 for design and repairs to Hangar 1552 at Naval Station Mayport, Florida (R4, tab 3). The contract incorporates by reference FAR52.233-1, DISPUTES (JUL 2002),ALTERNATE I (DEC 1991) (R4, tab 1at9). 2. By letter1dated 18 June 2013, Sauer stated to the contracting officer (CO) that during earlier negotiations regarding compensation for a government suspension ofwork, Sauer's home office overhead at 6.22% was "inadvertently left out ofthe settlement" and requested an additional $57,535 be added onto the settlement. The contractor further stated: Sauer'sposition is that there is entitlementto the standard home office overhead and feels the bestway to proceed is to include the [$57,535] overhead intothe pending mod.

1 The Board expresses no opinion as to whetherthis letter is a claim.(R4, tab 8) By doing so, the Eichleay total [for unabsorbed overhead] will bereduced accordingly and Eichleay negotiations can still proceed at a latertime.

3. By letter2 dated 20 June 2013, the COrejected Sauer's request to add home office overhead to the settlement stating among otherthings, that "because a fair and reasonable bottom line price was negotiated

...there is no meritto Sauer's request for 'standard overhead rate"' (R4, tab 10 at 1001). 4. The government and Sauer entered into Modification No. 17 (Mod 17) of Task Order4 on 26 September2013. The statedpurpose ofthe modification was to adjust the task order for time and money due tothe government's suspension ofwork for overa year as referenced in Sauer's 18 June 2013 letter. The settlement in Mod 17 was for a lump sum of$925,000 and a time extension of437 days. The modification provides, in relevant part: The negotiated amount incorporates extention [sic] of warranties and escalation ofprice for labor and material. All changes associated with the susupension [sic] are included in this amount with the exception ofconsideration for unabsorbed overhead, to which Sauerwishes to reserve therighttorequest further consideration ifthey choose. "CONTRACTOR'S STATEMENT OF RELEASE" Acceptance ofthis modification by the contractor constitutes an accord and satisfaction and represents payment in full for both time and money for any and all costs, impact effect, and for delays and disturptions [sic] arising out of, orincidental to, the work as herein revised. (R4, tab 4 at 140) 5. By letter dated 18 November 2014, Sauer submitted a certified claim to the CO in the amount of$130,899 for unabsorbed home office overhead for the government suspension covered in Mod 17. The certified claim did not mention Sauer's earlierrequest, dated 18 June 2013, to add $57,535 in home office overhead for the cost increases related to the government suspension ofwork. (R4, tab 11)

2 TheBoard expresses no opinion as to whetherthis letter is a contracting officer's final decision (COFD).

26. The government denied Sauer's certified claim by a contracting officer's final decision (COFD), dated 16 September 2015. The COFD did not mention Sauer's earlierrequest, dated 18 June 2013, to add $57,535 in home office overhead for the cost increases related to the government suspension ofwork. (R4, tab 15) Sauer timely appealed to this Board on 11 December 2015. 7. Sauer's complaint, dated 13 January 2016, alleges that it is entitled to $130,899 for unabsorbed home office overhead due to the government suspension covered in Mod 17 and $57,535 for home office overhead associated with the cost increases ofMod 17 (compl.**~** 48). 8. By motion dated 13 May 2016, the government moved to dismiss the $57,535 home office overhead portion ofthe complaint. DECISION The government argues that Sauer's request for relieffor home office overhead should be dismissed for lack of jurisdiction because it was not first presentedto the CO and Mod 1 7precluded Sauer from submitting any claims otherthan for unabsorbed home office overhead during the government suspension ofwork. Sauer argues in reply that both requests for reliefin its complaint arise from the same set ofoperative facts and whetherMod 17 precludes Sauer's request for home office overhead is a government affirmative defense and is not relevantto determining whetherboth requests for reliefarise from the same set ofoperative facts. Underthe CDA, the Boardhasjurisdiction overdisputes based upon claims that a contractorhas first submitted to the CO for decision. 41 U.S.C. §§ 7103-7105. We lackjurisdiction overclaims raised for the first time on appeal, in a complaint or otherwise. Whether a claim before the Board is new or essentially the same as presented to the CO depends upon whetherthe matters derive from common operative facts. Dawkins General Contractors & Supply, Inc., ASBCA No. 48535, 03-2 BCA**~** 32,305 at 159,844. As we stated in Shams Engineering & Contracting Co. & Ramli Co., ASBCANos. 50618, 50619, 98-2 BCA**~** 30,019 at 148,524-25: The mere introduction ofadditional facts or the assertion ofa new legal theory ofrecovery, when based upon the same operative facts as included in the original claim, do not constitute a new claim. However, where the proofof the new legal theory ofrecovery contains operative facts which differ from those asserted in the original claim, the essential nature ofthe claim has been changed and we do not havejurisdiction overthe new claim until it is

3presentedto the contracting officer for decision. Trepte Construction Company, Inc., ASBCA No. 38555, 90-1 BCA

### ii 22,595; Service Engineering Company, ASBCA No. 42137, 94-3 BCA

### ii 27,064. In determining a claim's scope, we are not limited to the claim document but can examine the totality ofthe circumstances. No particularwording is necessary to express it, but the CO must have "adequate notice" ofthe basis and amount ofthe claim. Versar, Inc., ASBCA No. 56857, 10-1 BCA

### ii 34,437 at 169,957. Sauer'srequest for relieffor home office overhead in its complaint was not mentioned in its certified claim thatwas presented to the CO (SOF 

### ii 5). While both requests for reliefin Sauer's complaint derive from the government suspension, the prooffor $57,535 the home office overhead contains different operative facts from those for the $130,899 unabsorbed home office overhead. Sauer's request for unabsorbed home office overhead is for overhead related to the original contract amount that was unabsorbed, whereas home office overhead is for overhead related to the increased contract amount from Mod 17 (SOF 

### ii 7). Thus, the request for home office overhead has operative facts different from those for unabsorbed home office overhead. Sauer even recognizes this in its complaint as it states "[t]he inclusion ofa home office overhead rate applied to additional contract costs is standard in the industry and is distinct from and additional to any claim for unabsorbed home office overhead" (compl. 

### ii 44). When looking at the totality ofthe circumstances, it is clearthat the CO did not have adequate notice that Sauer's request for home office overheadwas part ofits claim submitted for a COFD. The COFD itselfmade no mention ofthe home office overhead associated with the cost increases ofMod 17 (SOF

### ii 6). While the basis and amount for the home office overhead was discussed in Sauer's letter, dated 18 June 2013, there is nothing in Sauer's claimto put the CO on notice that Sauerwas requesting a decision on the home office overhead (SOF 

### ii 5).

4CONCLUSION Accordingly, we find that the request for relieffor home office overhead derives from different operative facts than the claim for unabsorbed home office overhead. The government's motion is granted and the request for $57,535 in home office overhead is stricken from the complaint. Dated: 17 November 2016

I concur

# ~~A4(_ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals Administrative Judge Armed Services Board ofContractAppeals I concur

# ~ RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is atrue copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 60366, Appeal ofSauer Incorporated, rendered in conformance with the Board's Charter. Dated:

5 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals