In the United States Court of Federal Claims

NOT FOR PUBLICATION

No. 21-1532C

(Filed: February 13, 2023)

MELTECH CORPORATION, INC.,

Plaintiff,

 v.

UNITED STATES,

Defendant.

Leonard A. Sacks, Leonard A. Sacks & Associates, P.C., Rockville, MD, for plaintiff. 

Fred A. Mendicino, Faughnan Mendicino PLLC, Dulles, VA, Of Counsel.

Matthew J. Carhart, Trial Attorney, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice, Washington DC, for defendant, with whom on the 

briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, 

Patricia M. McCarthy, Director, Deborah A. Bynum, Assistant Director, Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice, Washington DC. 

Adam J. Kwiatkowski, Assistant District Counsel, U.S. Army Corps of Engineers, 

Baltimore, MD, Of Counsel. 

TRANSFER ORDER

On or about September 29, 2014, the United States Army Corps of Engineers 

(USACE) awarded plaintiff Meltech Corporation, Inc. a $10.5 million design-build 

contract to renovate military barracks located in Fort Meade, Maryland. In the 

course of contract performance, Meltech submitted three certified claims dated 

August 31, 2017, April 9, 2020, and June 9, 2021. The contracting officer denied 

the certified claims on July 6, 2018, July 2, 2020, and July 12, 2021, respectively. 

Meltech appealed the denials of the first and third certified claims to the Armed 

Services Board of Contract Appeals (ASBCA or Board). Meltech appealed the

denial of the second certified claim to this Court. On January 27, 2023, the Court 

directed the parties to show cause why this case should not be transferred to the 

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ASBCA pursuant to 41 U.S.C. § 7107(d).1 See ECF No. 17. Both parties timely 

responded on February 9, 2023. See ECF Nos. 17–18. For the reasons set forth 

below, transfer of this action is in the interest of justice.

Relevant here, the first certified claim seeks reimbursement of $350,978 

and a 150-day contract extension for an alleged differing site condition involving 

the structural integrity of the military barracks’ existing concrete. Through

discovery in the ASBCA proceedings, Meltech claims to have uncovered evidence 

demonstrating the USACE possessed–but failed to disclose–superior knowledge 

regarding the structural condition of the subject site. Accordingly, on January 10, 

2020, Meltech sought to amend its ASBCA complaint to add claims of superior 

knowledge and breach of good faith and fair dealing. On June 11, 2020, the Board 

denied Meltech’s motion to pursue the additional causes of action citing Meltech’s 

failure to present them in the August 31, 2017 certified claim to the contracting 

officer. 

In the interim, on April 9, 2020, Meltech filed the second certified claim 

with the contracting officer based on the USACE’s alleged withholding of superior 

knowledge. Although the phrase “good faith and fair dealing” does not appear in 

Meltech’s second certified claim, in describing its “simple claim” (notably singular), 

Meltech explains the contractor “suffered damages based on the USACE[’s] failure 

to disclose its superior knowledge or to allow Meltech to perform destructive testing 

for many months without good cause.” See ECF No. 1-2 at 1 (emphasis added). In 

the April 9, 2020 certified claim, Meltech claimed entitlement to the same amount

of increased costs included in the first certified claim (i.e., $350,978), but extended

the claimed government-caused delay from 150 days to 283 days. See id. As noted 

above, the contracting officer denied the second certified claim on July 2, 2020.

Rather than appeal the contracting officer’s July 2, 2020 decision to the

ASBCA within the agency board’s 90-day statutory deadline, see 41 U.S.C. 

§ 7104(a), Meltech filed the instant suit on July 1, 2021, i.e., one day shy of the

Court’s one-year statutory deadline. See id. § 7104(b)(3). In the complaint filed 

in this Court, Meltech asserts alternative theories of recovery based on USACE’s 

alleged withholding superior knowledge and the agency’s alleged breach of 

good faith and fair dealing. Meltech seeks $2.4 million in damages–an amount 

not included in either of Meltech’s certified claims. 

Shortly after the complaint was filed in this Court, the parties jointly 

requested a nearly year-long stay to allow the ASBCA to resolve Meltech’s appeals, 

representing: “In light of the factual overlap between the case before the [ASBCA] 

and the case before this Court, the parties expect that the board’s decision will 

likely narrow the factual issues that this Court must decide, if the board’s decision 

does not dispose of the case entirely.” See ECF No. 5 at 3; accord ECF No. 7 at 1 

(“As the parties previously explained, Meltech is currently pursuing claims before 

1 This case was transferred to the undersigned for adjudication on January 4, 2023, pursuant to 

Rule 40.1(b) of the Rules of the United States Court of Federal Claims. See ECF Nos. 14–15.
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the Armed Services Board of Contract Appeals that overlap with the claims it 

brought before this Court.”). The stay remained in effect until June 14, 2022; the

following day, the Court granted the parties’ joint request for a briefing schedule 

on defendant’s motion to dismiss. See ECF Nos. 9–10.

On September 15, 2022, defendant moved to dismiss Meltech’s complaint or, 

in the alternative, to stay this case pending final disposition of the ASBCA appeals. 

See ECF No. 11. Defendant argues Meltech’s allegations constitute impermissible 

claim splitting. At a minimum, defendant seeks to dismiss Meltech’s claims insofar 

as they allege a breach of good faith and fair dealing and request damages in excess 

of $350,978 due to Meltech’s failure to present the issues to the contracting officer. 

Defendant alternatively requests that the Court stay this matter until the Board 

proceedings conclude and then dismiss the complaint based on issue preclusion. 

See id. at 46 (“It is unnecessary to expend resources litigating this case when the 

case may be substantially narrowed, if not entirely dispose of, by the board’s final 

judgment.”). Although disagreeing with defendant’s position regarding issue 

preclusion, Meltech does not oppose a stay and “agrees that a final decision by the 

Board would limit the scope of disputed facts and shorten the overall duration of 

any future proceedings before this Court.” See ECF No. 12 at 36. 

Title 41, United States Code, Section 7107(d) provides:

If 2 or more actions arising from one contract are filed in the 

United States Court of Federal Claims and one or more agency boards, 

for the convenience of parties or witnesses or in the interest of justice, 

the United States Court of Federal Claims may order the consolidation 

of the actions in that court or transfer any actions to or among the 

agency boards involved.

41 U.S.C. § 7107(d). Although not conclusively decided, the weight of authority 

strongly suggests Meltech’s timely appeal to this Court vests derivative jurisdiction 

in the ASBCA to adjudicate the merits of Meltech’s April 9, 2020 certified claim 

following a § 7107(d) transfer. See Glenn v. United States, 858 F.2d 1577, 1580–81

(Fed. Cir. 1988); Southwest Marine, Inc. v. United States, 680 F. Supp. 327, 329–30

(N.D. Ca. 1988); see, e.g., also Suffolk Constr. Co., Inc. v. Gen. Servs. Admin., 

CBCA 4377, 16-1 BCA ¶ 36,476; but see Nova Grp./Tutor-Saliba v. United States, 

127 Fed. Cl. 591, 595–96 (2016). Nothing in § 7107(d) limits this Court’s transfer 

authority to complaints filed within 90 days of the contracting officer’s decision. 

See Glenn, 858 F.3d at 1581 (predecessor statute did not limit Court of Federal 

Claims’ transfers to complaints filed within 90 days of contracting officer’s decision). 

In assessing whether the transfer of this action to the ASBCA under

§ 7107(d) would facilitate the just and efficient resolution of the underlying 

disputes, the Court traditionally considers the following factors:
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(1) Whether the dispute before the board and the court concern the 

same contract; (2) whether the claims before the court and the board 

duplicate claims or have overlapping and related issues; (3) whether 

plaintiff initially chose to appeal its claims before a court or a board; 

(4) whether one forum or the other has already made significant 

progress on the claims; (5) whether concurrent resolution would result 

in an inefficient allocation of the court’s, board’s, or party’s resources; 

(6) whether separate forums would reach inconsistent results.

Avant Assessment, LLC v. United States, 134 Fed. Cl. 323, 332–33 (2017) 

(quoting Morse Diesel Int’l, Inc. v. United States, 66 Fed. Cl. 801, 804 (2005) 

(citing Giuliani Contracting Co. v. United States, 21 Cl. Ct. 81, 83 (1990))). 

There is no serious debate that these factors support transferring this action 

to the ASBCA.

Meltech’s appeals to the ASBCA and the complaint filed in this Court 

concern the same contract. As outlined above, the claims before the Court 

overlap with and relate to the issues pending before the Board (i.e., USACE’s

representations regarding the structural integrity of the military barracks’ 

existing concrete). Regarding the initial choice of forum, prior to commencing 

this action, Meltech sought to litigate its superior knowledge and breach of 

good faith and fair dealing claims in the ASBCA by amending its complaint. 

It was during the pendency of that motion, opposed by the government, that 

Meltech filed the April 9, 2020 certified claim at issue in this case. 

Turning to comparative progress, the Board has devoted substantial 

resources and made significant progress in the related appeals, including 

overseeing extensive discovery and conducting hearings, with post-hearing 

briefing presently underway. A search of the ASBCA website reveals fifteen 

(15) consolidated appeals filed by Meltech under the same USACE contract 

at issue here. See Meltech Corp., ASBCA Nos. 61706 & 61768, at *1 & n.1 

(Dec. 17, 2021). In contrast, at the parties’ joint request, the proceeding 

before this Court has been effectively stayed since its filing to allow the 

related Board proceedings to conclude. Indeed, defendant’s pending motion 

to dismiss or continue to stay these proceedings is also predicated on the 

parallel ASBCA proceedings. To allow concurrent or consecutive adjudication 

of intricately related claims before the Board and the Court would constitute 

an inefficient use of judicial resources and risk inconsistent results. Transfer 

of this case to the ASBCA alleviates these concerns.

In arguing against transfer, defendant cites Meltech’s failure to 

include its good faith and fair dealing contention and request for damages 

in excess of $350,978 in its April 9, 2020 certified claim. Upon this premise, 

defendant maintains that the Court and the Board similarly lack jurisdiction 

over these claims and, as such, a transfer would be futile. Without endorsing 

the argument or deciding the issue, it remains to be determined whether 
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Meltech’s April 9, 2020 certified claim sufficiently noticed a good faith and 

fair dealing assertion. As for the potential limitation on damages, the issue is 

secondary to a liability finding. On both counts, the ASBCA stands in a 

better position to assess Meltech’s claims given the extensive proceedings 

already conducted before the Board. 

In turn, Meltech argues that the proceedings before the ASBCA have

progressed too far for the issues raised in this action to effectively catch up. 

Meltech’s contention highlights the institutional knowledge advantage the 

Board possesses over the Court regarding the USACE contract at issue 

and the arguments presented by the parties. Finally, citing Nova Grp./

Tutor-Saliba, Meltech avers that a § 7107(d) transfer risks forfeiting the 

claims included in the contractor’s April 9, 2020 certified claim. The Court 

finds the argument unpersuasive. As noted above, in Glenn, the Federal 

Circuit sanctioned the transfer of actions filed in this Court between 91 days 

and one year of the contracting officer’s decision under the predecessor 

statute to § 7107(d), vesting the Board with derivative jurisdiction. See 858 

F.2d at 1580–81. Moreover, as in Glenn, the issues pending before the Court 

and the Board are interrelated, meriting transfer and consolidation. 

For the foregoing reasons,

(1) Defendant’s Motion to Dismiss (ECF No. 11) is DENIED as Moot; 

(2) This matter is TRANSFERRED to the Armed Services Board of Contract 

Appeals pursuant to 41 U.S.C. § 7107(d); and

(3) The Clerk of Court is directed to TRANSFER this case to the Armed Services 

Board of Contract Appeals by mailing a certified copy of this order and a copy of 

the docket sheet in this matter to:

Armed Services Board of Contract Appeals 

Skyline 6 – Room 703

5109 Leesburg Pike 

Falls Church, VA 22041-3208

 It is so ORDERED.

s/ Armando O. Bonilla

Armando O. Bonilla 

Judge