ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Subsurface Technologies 

Under Contract No. W9124M-07-D-0006 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

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ASBCA No. 59775 

Mr. Larrye Ch eaves 

Owner 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

MAJ James P. Leary, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S 

MOTION TO DISMISS FOR LACK OF JURISDICTION 

Mr. Larrye Cheaves does business as Subsurface Technologies (Subsurface), a 

firm that locates underground utilities. He claims Subsurface has only received one 

fourth of the payments to which it is entitled under a contract with the Army Contracting 

Agency. The government moves to dismiss the appeal. Because Subsurface previously 

elected to pursue this claim before the United States Court of Federal Claims, where it 

was rejected, the Board lacks jurisdiction to entertain it. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

In April of2007, the Army awarded Contract No. W9124M-07-D-0006 to 

Subsurface to "locate underground utilities and complete/approve excavation permits" at 

Fort Stewart and Hunter Army Airfield, Georgia (gov't mot., ex. 1 at 3 of 40). The 

contract provided for a unit price of $125 per "[l]ocate" (id. at 6 of 40). On 18 August 

2010, Subsurface submitted a certified claim to the contracting officer seeking, among 

other things, an additional $3,902,000 (gov't mot., ex. 4). Subsurface alleged that the 

government had underpaid it by not providing the unit price for each utility line (gas, 

sewer, electric, and water) it had discovered in a particular area. Instead, the government 

had only paid the unit price once for each site containing utilities. (Id. at 4-5) Because 

gas, electric, water, and two kinds of sewer utilities were typically present at each 

"locate," Suburface sought to multiply 7,804 locations for which it was paid by 5 to total 

39,020, which it said should then be multiplied by $125 to total $4,877,500. Subsurface 

subtracted $975,500 that it had previously been paid to reach its $3,902,000 figure. (Id. 

at 5) The contracting officer denied the claim on 6 September 2011 (gov't mot., ex. 7). 
On 10 April 2012, Subsurface filed suit upon its denied claim in the United States 

Court of Federal Claims (gov't mot., ex. 8). Like its claim, Subsurface's complaint 

alleged that "[t]he contract...contemplated payment of $125.00 per locate, or per location 

of each individual utility" (id. ~ 10). It maintained that "[ e ]ach physical location actually 

comprised 4 or more separate utilities which Plaintiff was required to locate and mark" 

and that "[a]s a result, Plaintiff was paid for only 114 of the work lawfully performed 

under [the contract]" (id.~~ 12-13). The complaint stated that "Defendant has refused to 

pay Plaintiff for each utility Plaintiff located ... and instead has only paid Plaintiff $125.00 

per physical location at which Plaintiff located utilities" (id. ~ 16). The complaint 

concluded that Subsurface was entitled to compensation for each of four utilities at the 

7,804 physical locations mentioned in the claim, which would total 31,216 utilities. The 

complaint sought $2,976,500 in damages. (Id. ~if 18-20) 

In a published ruling dated 10 January 2013, excluding Subsurface's expert report, 

the Court of Federal Claims recognized that the question before it was whether "the 'unit' 

referenced [in the contract's] entries is directed at each utility located by [Subsurface] or 

each permit processed after [Subsurface] .. .located all the utilities at a given physical 

location." Cheaves v. United States, 108 Fed. Cl. 406, 408 (2013). The court rejected 

Subsurface's contention that "each 'locate' (i.e., each separate utility he locates) is a 

contractual unit." Id. Rather, the court concluded "the contract contemplated payment 

on a per-permit basis." Id. at 410. Subsequently, on 29 April 2014, the court granted 

summary judgment for the government (gov't mot., ex. 13). Finding that the terms 

"permit," "locate," "locate request," and "ticket" were all interchangeable, the court held: 

( 1) [T]he contract called for payment for each permit 

processed; (2) according to [Subsurface], a permit is also 

called a "locate request"; (3) per the Dig Law and 

[Subsurface's] pre-award letter to the Army, a locate request 

can encompass more than one utility; and ( 4) therefore, under 

the contract, more than one utility may be covered by each 

permit issued. 

(Id. at 4-5) The court ruled that the contract did not require "payment based on each 

separate utility located," and the "Government was merely following the terms of the 

contract when it paid [Subsurface] for each permit (or completed locate request) 

performed" (id. at 5). 

By letter dated 6 November 2014, Mr. Cheaves submitted another certified claim 

to the contracting officer on behalf of Subsurface (gov't mot., ex. 16). Recognizing that 

the Court of Federal Claims held that the unit of payment under the contract was not each 

utility, but instead "each permit or completed locate request performed," Mr. Cheaves 

suggested that had been Subsurface's interpretation from the beginning (id. at 1). 

Mr. Cheaves continued to claim that Subsurface had only been compensated for "one 

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fourth of the total effort expended" (id. at 2). Accordingly, he recharacterized the 31,216 

utilities for which Subsurface sought payment in the Court of Federal Claims as "locate 

request[s]," and sought a total of$2,926,500 in extra compensation for them (id.). The 

claim was denied by final decision dated 4 December 2014 (gov't mot., ex. 17). This 

appeal followed. 

DECISION 

The government seeks dismissal for lack of jurisdiction based upon the Election 

Doctrine. "[P]ursuant to the Contracts Disputes Act, a contractor wishing to contest an 

adverse final decision by the contracting officer either may appeal the contracting 

officer's adverse decision to the appropriate board of contract appeals or may contest the 

contracting officer's decision directly to the [Court of Federal Claims]." This choice 

forms the basis of the "Election Doctrine." National Neighbors, Inc. v. United States, 

839 F.2d 1539, 1541 (Fed. Cir. 1988). Under that doctrine, once a contractor has availed 

itself of one forum over another, and that forum can exercise jurisdiction, the contractor 

is bound to that decision and cannot later pursue its action in another forum. See 41 

U.S.C. § 7104. The contractor is presented "with an either-or choice," and the second 

forum must dismiss for lack of jurisdiction. Bonneville Assocs. v. United States, 43 F.3d 

649, 653-55 (Fed. Cir. 1994); National Neighbors, 839 F.2d at 1542. 

Before the Court of Federal Claims, Subsurface maintained that "[e]ach physical 

location actually comprised 4 or more separate utilities" (gov't mot., ex. 8, ~ 12). 

Subsurface ''was paid for only 1/4 of the work lawfully performed," leading it to contend 

that "[ d]efendant...refused to pay Plaintiff for each utility Plaintiff located pursuant to the 

contract, and instead only paid Plaintiff$125.00 per physical location" (id.~~ 13, 16). 

The Court of Federal Claims exercised jurisdiction over this suit and rejected it on its 

merits. The court disagreed with Subsurface's contention that it had only received one 

fourth of the payment to which it was entitled per location, ruling "the contract 

contemplated payment on a per-permit basis." Cheaves, 108 Fed. Cl. at 410. The court 

found that the terms "permit " "locate " "locate request " and ''ticket" were all ' ' ' 

interchangeable (gov't mot., ex. 13 at 4). 

Mr. Cheaves' current claim on behalf of Subsurface is the same as what he 

pursued before the Court of Federal Claims. Though he has substituted terminology, now 

alleging that Subsurface seeks payment for each permit or completed locate request, 

instead of for each utility, the underlying nature of both claims is the same (gov't mot., 

ex. 16). Each one contends that the government only paid Subsurface one fourth of what 

it was entitled to receive under the contract for the work it performed (gov't mot, ex. 8 

~ 13, ex. 16 at 2). Accordingly, they arise from the same operative facts and constitute 

the same claim. See Dawkins General Contractors & Supply, Inc., ASBCA No. 48535, 

03-2 BCA ~ 32,305 at 159,844 (distinguishing claims based upon whether they "derive 

from common or related operative facts"). Because Subsurface already elected to pursue 

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this claim in the Court of Federal Claims, which exercised jurisdiction over it, this Board 

lacks jurisdiction to entertain an appeal involving it. 1 

CONCLUSION 

The appeal is dismissed for lack of jurisdiction. 

Dated: 1 September 2015 

I concur 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

;:;2Li.£L! 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 No. 59775, Appeal of Subsurface 

Technologies, rendered in conformance with the Board's Charter. 

Dated: 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals 

1 Given this ruling dismissing for lack of jurisdiction, we do not consider the 

government's additional argument that the claim is barred by 28 U.S.C. § 2519. 

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