ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- ) ) S&L Enterprise, Inc. ) ) Under ContractNo. W912Rl-12-C-0002 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCANos. 58792, 58793

Lawrence J. Sklute, Esq.

Sklute & Associates Potomac, MD Raymond M. Saunders, Esq.

Army ChiefTrial Attorney Robert B. Neill, Esq.

Trial Attorney OPINIONBYADMINISTRATIVEJUDGE MELNICK ONAPPELLANT'S MOTIONTO 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 withoutprejudice for lack of jurisdiction. The government consents to the requests. Appellant's motion to dismiss is granted. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. On 26 October 2011, the government awarded ContractNo. W912Rl-12-C-0002 to S&L for security guard services for the District ofColumbiaArmy National Guard (R4, tab 1). On 11 September 2012, S&L submitted to the contracting officer a Request for Equitable Adjustment (REA) ofthe contract for $522,003.44 (R4, tab 9). On 25 September2012, the governmentterminatedthe contract for its convenience (R4, tab 11). On 2 November 2012, S&Lresubmitted the REA to the contracting officer, reducing the amount soughtto $507,003.40. The revised REA included a certification from S&L's Chief Executive Officer (CEO) thatthe request was made in good faith and that the supporting data provided was accurate and complete to the best ofherknowledge 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 settlementproposal to the supervisory contract specialist in response to the government's termination for convenience, seeking $179,256.80 in settlement costs. Theproposal 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 ofher knowledge and belief, thatthe 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 letterto the contracting officerreferring to its 2 November 2012 REAthat had been denied on 28 January 2013. The letternotified the contracting officer that he should consider it to be S&L's "claim for the amount requested inthe 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 officerresponded to S&L's 9 February 2013 termination settlementproposal, seeking informationrelating 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 settlementproposal. (R4, tab 34) 5. On 29 April 2013, the contracting officer issued a final decision regarding S&L's termination settlementproposal. 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 settlementproposal was denied except for $4,738.80. That sum was withheld as aresult ofa 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 theprevious denial ofits REA (R4, tab 36). 7. On 24 July 2013, the Boardreceived S&L's notice ofappeal 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 ofappeal sought the immediate dismissal ofboth appeals for lack of jurisdiction. S&L contended that its termination settlementproposal never ripened into a claim that could become the subject ofa final decision. However, it excluded from its request for dismissal its appeal from the contracting officer's withholding offunds in response to the DOL request. S&L soughtthe dismissal ofits appeal from the denial ofits claim stemming from its REA because it was never certified. The government's response represented that it concurred with S&L'srequest to dismiss. Specifically, the government did not dispute S&L's contention that its termination settlementproposal had not ripened into a claim. The government also concurred with S&L that its purported claim stemming from the denial ofits REA was not certified.

2DECISION Underthe 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 extentthe claim exceeds $100,000, it must be accompanied by a certificationthat it is made in good faith, the supporting data is accurate and complete to the best ofthe 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 afterthe governmentterminates a contract for convenience, the contractoris required to submit a termination settlementproposal to the contracting officer. FAR 52.249-2(e). Upon its initial submission, thatproposal is for the purpose of negotiation; it is not a CDA claim. Only ifthenegotiation reaches an impasse can the proposal ripen into a claim. Atthat point, the contracting officermust issue a unilateral determination that constitutes a final decision appealable to this Board. Dev. & Evolution Constr. Co., ASBCANo. 58342, 13 BCA

### ii 35,453 at 173,860. Although the contracting officer's final decision regarding S&L's termination settlementproposal 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 offact between the parties, and accordingly conclude that S&L's termination settlementproposal 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. ClaimArising From REA (ASBCANo. 58793) S&L'spurported claim arising from the denial ofits 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). Theparties agree thatthe claimwas not certified, and ourreview reveals no certification accompanying the claim (SOF 

### ii 3). 1 Accordingly, the appeal respecting thatpurported claim is also dismissed.

1 S&L'srevised REA contained a certification that included some ofthe elements ofa CDA certification (SOF 

### ii 1 ). The Board may exercisejurisdiction over an appeal from a claim thatwas the subject ofa 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 afterthe REA was denied.

3CONCLUSION The appeals are dismissed for lack of jurisdiction. Dated: 24 April 2014

I concur

Administrative Judge Acting Chairman Armed Services Board ofContractAppeals MARK A. MELNICK Administrative Judge Armed Services Board ofContractAppeals
I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANos. 58792, 58793, Appeals of S&L Enterprise, Inc., rendered in conformance with the Board's Charter. Dated:

4 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals