### ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) 

### H2Ll-CSC, JV ) ) 

### Under Contract No. W912QR-14-D-0012 ) APPEARANCE FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61404

Bernard Mandel, Esq.

Cleveland, OH Michael B. Goodman, Esq.

Engineer ChiefTrial Attorney Jennifer M. Payton, Esq.

Engineer Trial Attorney U.S. Army Engineer District, Louisville OPINION BYADMINISTRATIVE JUDGE PAUL ONJURISDICTION This is an appeal ofa contracting officer's (CO's) decision denying appellant H2Ll-CSC, JV's (HCJ's)purported claim. On 1February 2018, the Board'srecorder, 

### sua sponte, directed the parties to briefthe issue ofthe Board'sjurisdiction. Specifically, he noted that appellant had requested telephonically-but not in writing-that its request for an equitable adjustment (REA) be treated as a claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Theparties subsequently briefed the issue. Because the Board lacksjurisdiction we dismiss the appeal. FINDINGS OF FACTS* On 15 April 2014, the U.S. Army Corps ofEngineers (Corps) entered into ContractNo. W912QR-14-D-0012 with HCJ. This was an indefinite-delivery, indefinite-quantity type contract utilizing firm-fixed-price task orders for design/build construction, and incidental service projects within the Louisville District. (R4, tab 1 at 2, 5) Appellant was awarded a task order under the contract on 30 September 2014 for construction services required to repair the roofs oftwo buildings at Westover Air Reserve Base, Massachusetts (R4, tab 

### 3,passim). On 28 March 2017, appellant filed an REA, denominated as such, for removal, disposal, and replacement ofexisting gutters at the building. The amount ofthe request was $225,472.01. (R4, tab 16 at 1) On 3 April 2017, Mr. Wesley Barber, the * We cite these facts solely for purposes ofresolving thejurisdictional issue.administrative contracting officer (ACO), issued a decision denying appellant's request in its entirety. He concluded by stating: "Youhave the right to submit a claimrequesting Contracting OfficerFinal Decisionperthe Disputes Clause at FAR 52.233-1." (R4, tab 17 at 1, 4) Instead offiling a claim withthe requisite language, Mr. Latham Gray, appellant's director, forwarded a response to the ACO's decision on 4 May 2017, in which he concluded: "The REA isjustified, the directive to install new gutters and downspouts was not in the scope ofwork" (R4, tab 18 at 7). Appellant did not submit any additional, written materials to the CO to support its REA; however, it apparently did state telephonically that it "wish[ed] the REA to be treated as a claim (R4, tab 1 at 1). On 16 August 2017, the CO, Mr. Chris Brackett, issued a final decision in which he stated initially: "Your attention is directed to your March 28, 2017 request for an equitable adjustment for removing andreplacing existing gutters. Yourrequest, which does not explicitly seek a Contracting Officer's Decision was initially treated as an REA, as peryour letter." Citing appellant's telephonic request that its REA be treated as a cognizable claim under the CDA, Mr. Brackett proceeded to deny the "claim" and to inform appellant ofits appeal rights. 

### (Id. at 1, 4) This appeal followed. DECISION The CDAprovides that each "claimby a contractor against the Federal Governmentrelating to a contract shall be submitted to the contracting officer for a decision." 41 U.S.C. § 7103(a)(l ). The linchpin ofthe Board'sjurisdiction over a contractor claim is the contractor's submission ofa properclaimto the CO for a decision. 

### AirServices, Inc., ASBCA No. 59843, 15-1 BCA

## ,r 36,146 at 176,424 (citing

### PugetSoundEnvironmental Corp., ASBCA Nos. 58827, 58828, 14-1 BCA 

## ,r 35,585 at 174,371;

### MACHII, ASBCA No. 56630, 10-1 BCA

## ,r 34,357 at 169,673). Although the CDA does not define the term "claim," the FARdefines a "claim" as "awritten demand orwritten assertion by one ofthe contracting parties seeking, as a matter ofright, the payment ofmoney in a sum certain, the adjustment or interpretation ofcontractterms, or otherreliefarising under orrelating to the contract." FAR 2.101. A claim exceeding $100,000 mustbe certified in accordance with 41 U.S.C. § 7103(b). We determine whether a contractor's submission is a CDA claim on a case-by-case basis, applying a common sense analysis. 

### CCIE & 

### Co., ASBCANos. 58355, 59008, 14-1 BCA

## ,r 35,700 at 174,816; 

### Precision Standard, Inc., ASBCA No. 55865, 11-1 BCA

## ,r 34,669 at 170,787. Forthe Board to have jurisdiction underthe CDA, the contractor must submit a proper claim, an element of which is a request for a CO's final decision. 

### See M Maropakis Carpentry, Inc. v. UnitedStates, 609 F.3d 1323, 1328 (Fed. Cir. 2010); 

### Zafer TaahhutInsaat ve Ticaret A.S., ASBCANo. 56770, 11-2 BCA

## ,r 34,841 at 171,392, 

### aff'don recon., 12-1 BCA 

## ,r 34,951. 2 

# I
i 

# l lHowever, that request for a final decision, like the totality ofa claim submission, must be in writing and the CO cannot waive thisrequirement by issuing a final decision. 

### Checker Moving, ASBCANo. 32654, 87-1BCA119,357. Here, the CO's decision of 16 August 2017 was not issued in response to a written claim by appellant and thus there is no CO decision from which an appeal could be taken to the Board. Without such decision, we have nojurisdiction. 

### Checker, 87-1 BCA 1 19,357 at 97, 905-06.

The appeal is dismissed. Dated: June 14, 2018

I concur

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

3 MICHAEL T. PAUL Administrative Judge Armed Services Board ofContract Appeals

I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContractAppeals 

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f l 

# lI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 61404, Appeal of H2Ll-CSC, JV, rendered in conformance with the Board's Charter. Dated:

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