ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of--
Subsurface Technologies
Under Contract No. W9124M-07-D-0006
APPEARANCE FORTHE APPELLANT:

APPEARANCES FOR THE GOVERNMENT: ) ) ) ) ) ASBCA No. 59775

Mr. Larrye Ch eaves Owner Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ James P. Leary, JA

Trial Attorney
OPINION BYADMINISTRATIVE JUDGE MELNICK ONTHE GOVERNMENT'S MOTION TO DISMISS FORLACK 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 ofthe 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 ofFederal Claims, where it was rejected, the Board lacksjurisdictionto entertain it.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION
InApril 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 HunterArmy Airfield, Georgia (gov't mot., ex. 1 at 3 of40). The contract provided for a unitprice of$125 per "[l]ocate" 

### (id. at 6 of40). On 18 August 2010, Subsurface submitted a certified claim to the contracting officer seeking, among otherthings, an additional $3,902,000 (gov't mot., ex. 4). Subsurface alleged thatthe government had underpaid itby 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 unitprice once for each site containing utilities. 

### (Id. at 4-5) Because gas, electric, water, and two kinds ofsewer 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 hadpreviously beenpaid 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). 

# I f fOn 10 April 2012, Subsurface filed suit upon its denied claim in the United States Court ofFederal Claims (gov't mot., ex. 8). Like its claim, Subsurface's complaint alleged that "[t]he contract...contemplated payment of$125.00 per locate, orper location ofeach individual utility" 

### (id.**~** 10). It maintained that "[e]achphysical location actually comprised 4 or more separate utilities which Plaintiffwas required to locate and mark" and that "[a]s a result, Plaintiffwas paid for only 114 ofthe work lawfully performed under [the contract]"**(id.~~** 12-13). The complaint stated that "Defendanthas refused to pay Plaintifffor each utility Plaintifflocated

...and instead has only paid Plaintiff$125.00 perphysical location at which Plaintifflocated utilities" 

### (id.**~** 16). The complaint concluded that Subsurface was entitled to compensation for each offour 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 ofFederal Claims recognized that the question before it was whether "the 'unit' referenced [inthe 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. UnitedStates, 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 summaryjudgment for the government (gov't mot., ex. 13). Finding that the terms "permit," "locate," "locaterequest," and "ticket" were all interchangeable, the courtheld: (1) [T]he contract called for payment for eachpermit processed; (2) according to [Subsurface], a permit is also called a "locate request"; (3) perthe DigLaw 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 ofthe contract when itpaid [Subsurface] for eachpermit (or completed locate request) performed" 

### (id. at 5). By letter dated 6 November 2014, Mr. Cheaves submitted another certified claim to the contracting officer onbehalfofSubsurface (gov't mot., ex. 16). Recognizing that the Court ofFederal Claims held that the unit ofpayment underthe contract was not each utility, but instead "eachpermit 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

2fourth ofthe total effort expended" 

### (id. at 2). Accordingly, he recharacterized the 31,216 utilities for which Subsurface sought payment in the Court ofFederal 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 jurisdictionbased upon the Election Doctrine. "[P]ursuantto 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 ofcontract appeals or may contest the contracting officer's decision directly to the [Court ofFederal Claims]." This choice forms the basis ofthe "Election Doctrine." 

### NationalNeighbors, Inc. v. UnitedStates, 839 F.2d 1539, 1541 (Fed. Cir. 1988). Underthat doctrine, once a contractorhas availed itselfofone forum over another, and that forum can exercisejurisdiction, the contractor is bound to that decision and cannot laterpursue 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. 

### BonnevilleAssocs. v. UnitedStates, 43 F.3d 649, 653-55 (Fed. Cir. 1994);

### NationalNeighbors, 839 F.2d at 1542.
Beforethe Court ofFederal 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 ofthe work lawfully performed," leading it to contend that "[d]efendant...refused to pay Plaintifffor each utility Plaintifflocatedpursuanttothe contract, and instead only paid Plaintiff$125.00 perphysical location"**(id.~~** 13, 16). The Court ofFederal Claims exercisedjurisdiction overthis suit and rejected it on its merits. The court disagreed with Subsurface's contention that it had only received one fourth ofthe paymentto which it was entitled per location, ruling "the contract contemplatedpayment on a per-permit basis." 

### Cheaves, 108 Fed. Cl. at 410. The court found thatthe terms "permit " "locate " "locate request " and ''ticket" were all ' ' ' interchangeable (gov't mot., ex. 13 at 4).
Mr. Cheaves' current claim on behalfofSubsurface is the same as what he pursued before the Court ofFederal Claims. Though he has substituted terminology, now alleging that Subsurface seeks payment for eachpermit or completed locate request, instead offor each utility, the underlying nature ofboth claims is the same (gov't mot., ex. 16). Each one contends thatthe government only paid Subsurface one fourth ofwhat it was entitled to receive underthe 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 whetherthey "derive from common orrelated operative facts"). Because Subsurface already elected to pursue

3

### this claim in the Court ofFederal Claims, which exercisedjurisdiction over it, this Board lacksjurisdiction 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 ofContract Appeals 

# ;:;2Li.£L!
MARK A. MELNICK Administrative Judge Armed Services Board ofContract Appeals
I concur

RICHARD SHACKLEFORD 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 ofContract Appeals in ASBCA No. 59775, Appeal ofSubsurface Technologies, rendered in conformance with the Board's Charter. Dated:

JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals

1 

### Given this ruling dismissing for lack of jurisdiction, we do not considerthe government's additional argument that the claim is barred by 28 U.S.C. § 2519.
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