ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Anaconda Construction Company ) ) Under ContractNo. W91B4N-12-P-5086 ) APPEARANCE FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 60905

Mr. Shoib Khan

CEO Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ Christopher M. Coy, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE SWEET ONTHE GOVERNMENT'S MOTION TO DISMISS Appellant Anaconda Construction Company (ACC) brings this action challenging the government's decision that it was not entitledto the costs oftwo loaders allegedly destroyed in the course ofperforming the above-captioned contract, and the government's decision to deny ACC's settlementproposal. The government has movedto dismiss this action for failure to timely appeal the relevant contracting officer's final decisions. ACC submitted a short response to the motion. The motion is granted. STATEMENT OF FACTS CSOF) FORPURPOSES OF THE MOTION 1. The Bagram Regional Contracting Center (government) awarded Contract No. W91B4N-12-P-5086 to ACC to operate and maintain a burn pit for solid waste at Bagram Airfield in Afghanistan (R4, tab 1 at 4, 45 1). 2. The government terminatedthe contract for convenience, effective 15 October 2013 (R4, tab 35 at 164). The termination notice directed ACC to submit any settlementproposal by 15 November 2013 (id. at 165). 3. On 24 October2013, ACC submitted a claim (October claim) for the cost to replace two loaders that were destroyed by fire during incineration operations (R4, tab 40 at 185). The October claim was for $160,000 (id.). The October claim also

1All Rule 4 cites are to the consecutively-numberedpages.contained a certification in accordance with the requirements ofthe ContractDisputes Act (41 U.S.C. §§ 7101-7109) (id. at 184). 4. On 28 October 2013, the contracting officer (CO) emailed ACC a final decision on the October claim (October decision) (R4, tab 42). The CO determined that the government did not owe any funds to ACC (id. at 189). He also informed ACC that "[t]his is the final decision ofthe Contracting Officer. You may appeal this decision to the agency board ofcontract appeals. Ifyou decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency." (Id.) 5. On 7 November 2013, ACC apparently submitted a settlementproposal (settlement proposal) to the CO for $451,600, which represented labor and leased equipment expenses (R4, tab 49 at 210). 2 6. On 18 November 2013, the CO sentACC a "Notice ofIntent to Settle by Contracting Officer Determination." The notice stated that the government intended to reject the settlementproposal due to a lack ofsupporting documentation. (R4, tab 49 at 210) The notice also requested that ACC submit supporting documentation within 15 days (id.). 7. Within 15 days, ACC submitted a revised settlementproposal (R4, tab 48). The revised settlementproposal soughtto recover (1) $160,000 for the two loaders thatwere the subject ofthe October claim; and (2) $112,900 in other costs (id.). The revised settlementproposal did not contain a certification3 (id.). 8. On 26 November2013, the CO sentACC a final decision (November decision) onthe revised settlementproposal (R4, tab 53). The November decision stated that, "[s]incethe matter ofthe loaders was addressedbyprevious Contracting OfficerFinal Decision (dated 28 Oct 2013) outside the termination process,...the cost could not be included in the settlement" (id. at 223). The November decision also found that ACC was not entitledto any ofthe claimed $112,900 in costs (id.). As withthe October decision, the November decision stated that "[t]his is the final decision ofthe Contracting Officer. You may appeal this decision to the agency board ofcontract appeals. Ifyou decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency." 

### (Id. at 224)

2 The settlementproposal is notpart ofthe record, but is referenced in the 18 November 2013 notice ofintent to settle (R4, tab 49 at 210; SOF 

## ii 6). 3 Nor was one required as a settlementproposal is typically submitted for negotiation and it becomes a claim after the parties reach an impasse.
29. On 7 November 2016--morethan 90 days after the October decision and the November decision-ACC filed a notice ofappeal with the Board.4 DECISION We do notpossessjurisdiction overthis appeal from either final decision. The Contract Disputes Act (CDA) states that "[t]he contracting officer's decision on a claim is final and conclusive and is not subject to review by any forum, tribunal, or Federal Government agency, unless an appeal or action is timely commenced as authorized by this chapter." 41 U.S.C. § 7103(g). The CDArequires that a contractor certify a claim for more than $100,000. 41 U.S.C. 

### § 7103(b)(l). Indeed, "awritten demand orwritten assertionbythe contractor seekingthe payment ofmoney exceeding $100,000 is not a claim

...until certified as required bythe statute." FAR 2.101. Therefore, we do not possessjurisdictionto hear an appeal when a contractor did not certify a claim for more than $100,000. 

### Sygnetics, Inc., ASBCA No. 56806, 10-2 BCA**~** 34,576 at 170,464-65. The CDA also requires a contractor to appeal a final decision on a claim within 90 days ofreceipt ofthat decision. 41 U.S.C. 

### § 7104(a). Therefore, we do not possess jurisdictionto hear an appeal when a contractor failed to file a notice ofappeal within 90 days ofits receipt ofthe final decision. 

### Cosmic Constr. Co. v. UnitedStates, 697 F.2d 1389, 1390-91 (1982). Here, ACC did not certify the Novemberrevised settlementproposal, despite the fact that it was for more than $100,000 (SOF**~** 7). Therefore, the revised settlement proposal was not a claim, and we do notpossessjurisdiction over any appeal based upon that proposal. FAR2.101; 

### Sygnetics, 10-2 BCA**~** 34,576 at 170,464-65.5 While ACC certified the October claim, 

### it did not file a notice ofappeal within 90 days ofthe October decision on that claim (SOF**~~** 3, 9). Thus, we do not possessjurisdiction over an appeal ofthat decision either. 

### Cosmic Constr., 697 F.2d at 1390-91. ACC does not dispute that it failed to file a notice ofappeal within 90 days ofits receipt ofthe October decision orthe November decision. Rather, in its briefresponse to the government's motion to dismiss, ACC argues that the CO did not inform it that it had

4 ACC is not clearwhether it is appealing the October decision, the November decision, orboth (compl.). Forpurposes ofthis motion, we assume ACC is appealing both decisions. 5 Even ifACC had certified the revised settlementproposal, it did not file a notice of appeal within 90 days ofthe November decision on thatproposal, which would preclude ourjurisdiction over any appeal based upon the revised settlement proposal.
3

### to file an appeal within "30 days." The period for commencing an appeal does not commence ifthe CO inaccurately advises a contractor about its appeal rights, and the contractor detrimentally relies upon that inaccuracy. Decker & 

### Co. v. West, 76 F.3d 1573, 1579 (Fed. Cir. 1996). Here, the CO accurately informed ACC in both the October decision and the November decision that "[i]fyou decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency" (SOF 

## ilil 4, 8). Because the CO accurately notified ACC that it had 90 days6

### -not 30 days-to file an appeal, the 90-dayperiod for filing a notice ofappeal commenced respectively when ACC received the October decision and the November decision. CONCLUSION The government's motion to dismiss is granted. This appeal is dismissed for lack of jurisdiction. Dated: 26 June 2017

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals JAMES R. SWEET Administrative Judge Armed Services Board ofContract Appeals

I concur

6 

### We do not know why ACC referenced 30 days in its response to the government's motion.

4

### I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 60905, Appeal of Anaconda Construction Company, rendered in conformance with the Board's Charter. Dated:

5 

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