ARMED SERVICES BOARD OF CONTRACTAPPEALS
Appeal of--

Horton Construction Co., Inc.

Under Contract No. W9124E-11-C-0021

APPEARANCE FORTHEAPPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61085

Gregory D. Coleman, Esq.

Johnson Hopewell Coleman, LLC Decatur, GA Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPIJohn M. McAdams III, JA MAJ Bruce 

### L. Mayeaux, JA

Trial Attorneys

OPINION BYADMINISTRATIVE JUDGE OSTERHOUT ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION

This is an appeal ofa contracting officer's denial ofa claimby Horton Construction Co., Inc. (Horton orappellant), alleging that it is owed $274,599.00 because the contract required, in part, crushing and removal ofapproximately 69,000 tons ofconcrete butthe actual amountwas closer to 29,000 tons and, alternatively, $244,282.00 underthe "Variation in Estimated Quantity clause," which was not in the contract (R4, tab 27 at 25). In its complaint, Horton alleges that one ofthree clauses should have been used to grant its relief: Federal Acquisition Regulation (FAR) 52.243-4, CHANGES (JUN 2007); FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); orFAR 52.211-18, VARIATION IN ESTIMATED QUANTITY (APR 1984). The government moves to dismiss because it alleges that Ms. Dominique Horton Washington was not a vice president ofthe company. Further, the government moves to dismiss because Horton was administratively terminated by the Louisiana Secretary ofState on 19 January 2017. In response, Horton filed copies of documentation from government officials in Louisiana, including: 1) Ms. Washington's appointment as the executrix of

### Mr. Johnny Lee Horton, Sr., whowas the president of Horton; 2) Horton's certification ofincorporation, dated 27 October 2017, which demonstrates thatthe company has been reinstated; and 3) Horton's certificate of reinstatement, dated 23 October2017. The government further contends, as raised in its reply brief, that any action to ratify the notice ofappeal post-reinstatement is beyondthe 90-day statutory time limit for filing an appeal with the Board. As such, the government contends, the Board lacksjurisdictionto decide the appeal. We deny the government's motion to dismiss.STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION

1. In September2011, a contracting officerfrom the Directorate of Contracting, Mission and Installation Contracting Command, FortPolk, Louisiana, awarded ContractNo. W9124E-11-C-0021, a firm-fixed-price contract in the amount of$1,943,148.51, to Horton. The workto be performed included crushing a concrete stockpile and work associatedwith erosion control atFortPolk, Louisiana (R4, tab 1at 3, 7, 9). The contract was awarded as a non-competitive Small Business Section 8(A) Set-Aside, or direct award (R4, tab 1at49).

2. The contract contained FAR 52.243-1, CHANGES-FIXED-PRICE (AUG 1987), which stated in relevantpart: "(e) Failure to agree to any adjustment shall be a dispute underthe Disputes clause" (R4, tab 1at 48). The Disputes clause is at FAR 52.233-1 and is substantively the sametoday as it was whenthe contractwas executed. 1

3. On 12 November 2012, Mr. Chauncy Horton signed FPForm 1186, Certification ofFinal Payment, Contractors Release ofClaims (final payment and final release) (R4, tab 16).

4. On 6 March 2014, the parties executed a bilateral modification to de-obligate funds, signed for appellantby Mr. Chauncy Horton (R4, tab 18).

5. Between 23 October2014 and 17 July 2015, Mr. Johnny L. Horton, Sr., signed several letters requesting an equitable adjustment due to the difference between the estimated 69,000 tons ofcrushed concrete andthe lower actual amount ofcrushed concrete (R4, tabs 19-24).

6. On 27 May 2016, attorneys for Horton submitted a certified claim for equitable adjustment in the amount of$274,599.00 (R4, tab 27). Ms. Dominque Horton Washington signed the certification and listed hertitle as vice president (id. at 26).

7. On 2 June 2016, Mr. Johnny L. Horton, Sr., passed away (gov't mot. at 2; app. resp. at 2).

8. On 16 December 2016, in a final decision, the contracting officer denied the claim (R4, tab 28). The contracting officer denied the claim because Horton made a business decision to enterinto a subcontract with a differentpricing schemethan the government's contractwith Horton (id. at 3-4). Further, the government contended,

1Changestothe FARwere implemented 29 May 2014, "to conformreferences throughout the FARto the newPositive Law Codification ofTitle 41, United States Code, "Public Contracts" and other conforming changes." 79 Fed. Reg. 24,192 (May 29, 2014) (to be codified at 41 C.F.R.).



### 2Horton signed several releases, including the final release, and final paymentwas made (id. at 4-5). The decision included the following language: "Ifyou decide to appeal, you must, within 90 days from the date youreceive this decision, mail orotherwise furnish written notice to the agency board ofcontract appeals" (id. at 7). The 90-day appeal period is a Contract Disputes Act, 41 U.S.C. §§ 7101-7109 (CDA) requirement.

9. On 19 January 2017, the Louisiana Secretary ofState administratively terminated Horton (gov't mot. at 3; app. resp. at 2).

10. On 8 March 2017, Horton, within the 90-day period, appealed the contracting officer's final decision to this Board. The appeal was docketed as ASBCA No. 61085.

11. On 13 March 2017, the First Judicial Circuit ofCaddo Parish, Louisiana, issued Ms. Dominique Horton Washington letters ofadministration to serve as executrix ofthe estate ofMr. Johnny Lee Horton, Sr. (app. resp. at 2, ex. A).

12. On 11 April 2017, the government filed a motion for summaryjudgment, stating that there was no genuine dispute that the request for equitable adjustmentwas submitted after Horton had executed a final release and accepted final payment. In response, Horton contendedthat the individual who signedthe release, Mr. Chauncy Horton, was not authorized to do so. On 1 September 2017, the Board denied the government's motion for summaryjudgment. 

### Horton Construction Co., ASBCANo. 61085, 17-1 BCA, 36,844 at 179,528.

13. On 29 September 2017, the government filed a motion to dismiss for lack of jurisdiction andmovedto stay the appeal until its motion was decided. The government assertedthat the Board lackedjurisdictionbecause Ms. Dominique Horton Washington, vice presidentofHorton, "lack[ed] standing" to assert a claim for Horton and that Horton lacked the capacity to file and maintain an appeal. (Gov'tmot. at 1) Specifically, the government claimedthat Ms. Washington was never a vice president ofHorton (id. at 6). Further, the government claimedthat the Louisiana Secretary ofState administratively terminated Horton on 19 January 2017 and thus had lost its "juridical existence." The government argued that under Louisiana law, Horton lacked the legal capacity to file a lawsuit because it failed to exist after Louisiana administratively terminatedthe corporation. Thus, Horton could not maintain legal proceedings beforethe Board. (Id. at 8)

14. On 3 October 2017, the Board stayed the case and established a schedule for briefing ofthe motion to dismiss.

15. On 27 October 2017, the Louisiana Secretary ofStatereinstated Horton Construction Co., Inc., 

### ab initio (app. resp. at 2, ex. B). UnderLouisiana law, this reinstatement applies retroactively to the date the administrative termination began "and

3the corporation continues to exist as ifthe termination had never occurred." 

### See LA. REV. STAT.§ 12:l-1444H.

16. On 2 November 2017, Horton responded tothe government's motion to dismiss. Horton provided general statements surrounding Ms. Washington's appointment as vice president in the fall of2015. (App. resp. at 2-3) Further, Hortonprovidedthree documents as exhibits to its response: 1) a notarized letter appointing Ms. Washington as executrix for the estate ofMr. Johnny Lee Horton, Sr., dated 13 March 2017; 2) a certificate from the Louisiana Secretary ofStatethat states that the Articles ofIncorporation and Certificate ofIncorporation
were reinstated, dated 27 October 2017; and 3) a notarized document demonstrating that the reinstatementwas approved on 23 October 2017 (app. resp., exs. A, B).

17. On 1December 2017, the government replied. The government claimed that Horton still failed to demonstrate that Ms. Washington was ever appointed as a vice president and a new argumentthat Horton appealed late because Ms. Washingtonhadto have ratified the notice ofappeal within 90 days. The government also restatedthat Horton lost its 'juridicalpersonality." (Gov'treply)

DECISION

The government contends that the Board should grant its motion to dismiss due to the Board lackingjurisdictionbecause Horton has not proventhat it possesses the legal capacityto initiate orcontinue the appeal and that the State ofLouisiana administratively terminated Horton (gov't mot. at 1). Horton argues that Ms. Washington was both appointed as a vice president and the executrix ofthe estate ofMr. Johnny Lee Horton, Sr. (app. resp. at 1). Further, Horton demonstrated that it was reincorporated in October2017 (SOF 

### ,i 15). The government counters that Horton still failed toprove itsjurisdiction, other than with self-serving statements and that any attemptto ratify the appeal is late (gov'tresp. at 3, 5). We disagree with the government and deny its motion.

Pursuantto the CDA, the Board "hasjurisdictionto decide any appeal from a decision ofa contracting officer ofthe Department ofDefense, the Department ofthe Army, the Department ofthe Navy, the Department oftheAirForce, orthe National Aeronautics and SpaceAdministration relative to a contract madebythat department or agency." 41 U.S.C. §7105(e)( 1) "Appellant, as the proponent ofthe Board'sjurisdiction, bears the burden of establishingjurisdictionby a preponderance ofthe evidence." 

### CCJE & 

### Co., ASBCA Nos. 58355, 59008, 14-1 BCA 

### ,i 35,700 at 174,816 (citations omitted). "Whenthe government challenges the factual basis for ourjurisdiction, as it does here, the allegations in the complaint are not controlling." 

### Green Dream Group, ASBCANo. 57413 

### etal., 12-2 BCA 

### ,i 35,145 at 172,520; 

### see also Cedars-SinaiMedical Center v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993), 

### cert. denied, 512 U.S. 1235 (1994). "We accept as true only uncontroverted factual allegations; disputedjurisdictional facts are subject to fact-finding by the Board." 

### Lobar, Inc., ASBCANo. 59178, 14-1 BCA 

### ,i 35,584 at 174,366 (citations omitted).

4First, we disagree with the government that Horton does not have the 'juridical personality" orthe legal capacity to file suit or continue the appeal. While the governmentwas correctthatthe Louisiana Secretary ofState administratively terminated Horton, the Secretary also reinstated the corporation, which essentially erased the administrative termination (SOF 

### ,i,i 9, 15). Had Horton not requested or the State not granted reinstatement, we might be in a different situation. However, contrary to the government's argument, the Board finds that Horton does possess the legal capacity to continue with this appeal becausethe corporation has been retroactively reinstated (SOF 

### ,i 15).
Second, we also disagree with the governmentthat Ms. Washington was not authorized to certify the claim. A certified claim "maybe executed by an individual authorized to bind the contractor with respect to the claim." 41 U.S.C. § 7I03(b)(2);

see also FAR 33.207(e). The government argues that Ms. Washington is required to be a vice president ofHorton but appears to be applying outdated law. The Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 

### §907(a)(l), amendedthe CDAto permit certification "by 'anyperson duly authorized to bind the contractor with respect to the claim."' Metric Constructors, Inc., ASBCA No. 50843, 98-2 BCA 

### ,i 30,088 at 148,940. Indeed, we have found that different individuals maypossess this authority andthat the test, instead, is whether the individual has authority. See, e.g., id. (holding that the seniorproject manager was authorizedto sign the certification); Home Entertainment, Inc., ASBCANo. 50791, 98-1 BCA

### ,i 29,641 at 146,877 (finding thatthe company's attorney was an individual authorized to bind the contractorregarding the claim).
Here, appellant has demonstrated that Ms. Dominique Horton Washingtonhas been appointed as executrixto the estate ofMr. Johnny Lee Horton, Sr. (SOF 

### ,i 15), and has asserted that Ms. Washington is authorized to execute the claim both as executrix and as vice president ofHorton (app. resp. at 3-5). While Horton has notprovided evidence outside ofits assertions in its filings that Ms. Washington is a vice president, Horton has demonstrated that Ms. Washington is the executrix to the estate and permitted, or even required, to continue the litigation as part ofher fiduciary duties (SOF 

### ,i 15). Thus, we concludethat Ms. Washington has authority to bind Horton with respect to the claim.

We do not find the government's reliance on its recitation ofLouisiana law to be compelling (gov't mot. at 5-6). While the government argues that Ms. Washington must demonstrate that she is an officer ofHorton under Louisiana law, Louisiana law also states "A succession representative is a fiduciary with respectto the succession, and shall have the duty ofcollecting, preserving, and managingtheproperty ofthe succession in accordance with law." LA. CODE CIV. PROC. art., 319l(A) (2011). Ms. Washington has been appointed as the executrix, as recognized by the officials in Louisiana (SOF 

### ,i 15). Thus, she is permitted to continue the claim until resolution (see id.).



### 5Even ifMs. Washington must demonstrate that she is one ofHorton's vice presidents, it is unclear what more the government believes is necessary to demonstrate this. Horton is a small business that received the subject contractunderthe Small Business Section 8(A) Set-Aside program (SOF 1 1). Ms. Washington signed the certified claim with her title ofvice president (SOF 

### 16). Ms. Washington also signed an affidavit that was attached to Horton'sresponse to the government's motion for summaryjudgment where she stated that her position was that ofvice president (SOF 112). Finally, even ifMs. Washington did not have the authority to certify the claim
or iffurther evidence is presented that leads us to believe Ms. Washington does not have authority to act, this would not remove the appeal from the Board'sjurisdiction. Even ifwe found that Ms. Washington did not have authority, the certification in Horton's claim would be characterized as a defective certification. FAR 33.201 defines a defective certification as "acertificate which alters or otherwise deviates from the language in 33.207(c) or which is not executed by a person duly authorized to bind the contractorwith respect to the claim." The CDA further defines what happens in a situation with a defective certification and the FAR adopts that direction. "A defect in the certification ofa claim does not deprive a court or an agency board of jurisdiction over the claim. Priorto the entry ofa finaljudgmentby a court or a decision by an agency board, the court or agency board shall require a defective certificationto be corrected." 41 U.S.C. § 7103(b)(3); see also FAR 33.207(f); Bell Helicopter Textron Inc. and The Boeing Co., ASBCANo. 59561, 15-1BCA136,111 at 176,291-92. Although we conclude that Ms. Washington had authority to bind Horton with respect tothe claim based on her status as executrix, even ifwe found that she did not, the certification would simply be defective and the Boardwould still possessjurisdictionto hearthe appeal.

Baseduponthe above decision, and our finding that the appeal was filed within the 90-day time limit (SOF 1 10), we reject the timeliness argumentthatthe government raised for the first time in its reply brief.2

2 Moreover, we find the government's reliance on RMS Technologies, ASBCA No. 50954, 00-1 BCA 130,763, inapposite to the instant appeal as Horton, unlike the entity in the cited appeal, timely appealed the contracting officer's final decision within the prescribed 90-dayperiod (SOF 1 10) and was subsequently reinstated under state law as ifthe termination ofits corporate status had never occurred (SOF 1 15).

6CONCLUSION

The government's motionto dismiss is denied.

Dated: 14 February 2018

I concur 

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# n,

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals Administrative Judge Armed Services Board ofContract Appeals

I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 61085, Appeal ofHorton Construction Co., Inc., rendered in conformance with the Board's Charter.

Dated:

7 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals