ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

S&L Enterprise, Inc. ) 

) 

Under Contract No. W912Rl-12-C-0002 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 58792, 58793 

Lawrence J. Sklute, Esq. 

Sklute & Associates 

Potomac, MD 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

Robert B. Neill, Esq. 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE MELNICK 

ON APPELLANT'S MOTION TO DISMISS 

Appellant, S&L Enterprise, Inc. (S&L), appeals two final decisions arising from 

its contract to provide security guard services, but immediately moves to dismiss the 

appeals without prejudice for lack of jurisdiction. The government consents to the 

requests. Appellant's motion to dismiss is granted. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 26 October 2011, the government awarded Contract No. W912Rl-12-C-0002 

to S&L for security guard services for the District of Columbia Army National Guard 

(R4, tab 1). On 11 September 2012, S&L submitted to the contracting officer a Request 

for Equitable Adjustment (REA) of the contract for $522,003.44 (R4, tab 9). On 

25 September 2012, the government terminated the contract for its convenience (R4, tab 11). 

On 2 November 2012, S&L resubmitted the REA to the contracting officer, reducing the 

amount sought to $507,003.40. The revised REA included a certification from S&L's Chief 

Executive Officer (CEO) that the request was made in good faith and that the supporting data 

provided was accurate and complete to the best of her knowledge and belief. (R4, tab 15) 

On 28 January 2013, the government denied the REA (R4, tab 21). 

2. On 9 February 2013, S&L submitted a termination settlement proposal to the 

supervisory contract specialist in response to the government's termination for 

convenience, seeking $179,256.80 in settlement costs. The proposal included a 

certification from S&L' s CEO that the claim was made in good faith, the supporting data 
was accurate and complete to the best of her knowledge and belief, that the amount 

requested accurately reflected the contract adjustment for which S&L believed the 

government was liable, and that she was authorized to certify the claim. (R4, tab 26) 

3. On 28 February 2013, S&L's attorney submitted a letter to the contracting 

officer referring to its 2 November 2012 REA that had been denied on 28 January 2013. 

The letter notified the contracting officer that he should consider it to be S&L's "claim 

for the amount requested in the REA Letter, as adjusted below." It sought $508,778.40. 

There is no certification accompanying the letter. (R4, tab 33) 

4. On 5 March 2013, the contracting officer responded to S&L's 9 February 2013 

termination settlement proposal, seeking information relating to six identified subjects, 

plus an explanation supporting its calculations. The letter also sought clarification as to 

whether the 9 February submittal was a claim or a settlement proposal. (R4, tab 34) 

5. On 29 April 2013, the contracting officer issued a final decision regarding 

S&L' s termination settlement proposal. The decision indicated that no response had been 

received to the contracting officer's 5 March request for information. The decision 

deemed S&L unwilling to negotiate and declared an impasse. S&L's settlement proposal 

was denied except for $4, 73 8. 80. That sum was withheld as a result of a Department of 

Labor (DOL) request. (R4, tab 35) 

6. On 30 April 2013, the contracting officer also denied S&L's 28 February 2013 

claim for $508, 778.40, arising from the previous denial of its REA (R4, tab 36). 

7. On 24 July 2013, the Board received S&L's notice of appeal from both the 

29 and 30 April 2013 final decisions. The appeal from each decision was assigned a 

separate docket number, which were then consolidated. S&L' s notice of appeal sought 

the immediate dismissal of both appeals for lack of jurisdiction. S&L contended that its 

termination settlement proposal never ripened into a claim that could become the subject 

of a final decision. However, it excluded from its request for dismissal its appeal from 

the contracting officer's withholding of funds in response to the DOL request. S&L 

sought the dismissal of its appeal from the denial of its claim stemming from its REA 

because it was never certified. The government's response represented that it concurred 

with S&L's request to dismiss. Specifically, the government did not dispute S&L's 

contention that its termination settlement proposal had not ripened into a claim. The 

government also concurred with S&L that its purported claim stemming from the denial 

of its REA was not certified. 

2 
DECISION 

Under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, to pursue an 

appeal to this Board a contractor must submit a claim to the contracting officer for a 

decision or a deemed denial. To the extent the claim exceeds $100,000, it must be 

accompanied by a certification that it is made in good faith, the supporting data is 

accurate and complete to the best of the contractor's knowledge and belief, the amount 

requested accurately reflects the contract adjustment for which it believes the government 

is liable, and the certifier is authorized. 41 U.S.C. §§ 7103-7105. 

I. Termination Settlement Proposal (ASBCA No. 58792) 

Within one year after the government terminates a contract for convenience, the 

contractor is required to submit a termination settlement proposal to the contracting 

officer. FAR 52.249-2(e). Upon its initial submission, that proposal is for the purpose of 

negotiation; it is not a CDA claim. Only ifthe negotiation reaches an impasse can the 

proposal ripen into a claim. At that point, the contracting officer must issue a unilateral 

determination that constitutes a final decision appealable to this Board. Dev. & Evolution 

Constr. Co., ASBCA No. 58342, 13 BCA ii 35,453 at 173,860. Although the contracting 

officer's final decision regarding S&L's termination settlement proposal declared that the 

parties had reached an impasse (SOF ii 5), the parties now agree that no impasse 

occurred. We accept what is essentially a stipulation of fact between the parties, and 

accordingly conclude that S&L' s termination settlement proposal did not ripen into a 

claim. Because no claim exists yet for termination costs, the decision purporting to rule 

upon those costs is a nullity and we dismiss the entire appeal from it. 

II. Claim Arising From REA (ASBCA No. 58793) 

S&L's purported claim arising from the denial of its REA was for $508,778.40 

(SOF ii 3). Because the amount exceeded $100,000, S&L was required to certify it under 

41 U.S.C. § 7103(b). The parties agree that the claim was not certified, and our review 

reveals no certification accompanying the claim (SOF ii 3). 1 Accordingly, the appeal 

respecting that purported claim is also dismissed. 

1 S&L's revised REA contained a certification that included some of the elements of a 

CDA certification (SOF ii 1 ). The Board may exercise jurisdiction over an appeal 

from a claim that was the subject of a defective, but correctible, certification. 

41 U.S.C. § 7103(b)(3). S&L does not contend that its REA certification applied 

to the purported claim it submitted after the REA was denied. 

3 
CONCLUSION 

The appeals are dismissed for lack of jurisdiction. 

Dated: 24 April 2014 

I concur 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

MARK A. MELNICK 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 58792, 58793, Appeals of 

S&L Enterprise, Inc., rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals