ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE WILSON ON THE GOVERNMENT’S 

MOTION TO DISMISS FOR LACK OF JURISDICTION 

 The Army Corps of Engineers (Corps or government) moves to dismiss 

ASBCA No. 63674 for lack of subject matter jurisdiction, alleging Gilbane Federal 

(Gilbane or appellant) filed its “deemed denial” appeal prematurely. Gilbane opposes 

the motion. For the reasons stated below, the government’s motion is denied. 

However, because of the subsequent filing of an appeal from the contracting officer’s 

final decision denying the same claim, ASBCA No. 63674 is dismissed as moot. 1

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

 1. On September 5, 2018, Gilbane was awarded Contract No. W912HN-18-C3009 to repair a building on Ft. Gordon, GA (R4, tab 3.03 at 1701-02). 

 

 2. The contract incorporated, by reference, the Disputes clause, FAR 52.233-1 

(R4, tab 3.03 at 1708). In pertinent part, the clause requires “[f]or . . . claims over 

1

 This motion only relates to ASBCA Nos. 63674 and 63702. Gilbane subsequently 

filed a notice of appeal from the government’s final decision to deny 

preparation and execution of modification costs under Contract No. W912HN20-C-3006, which was docketed as ASBCA No. 63717 and was consolidated 

with ASBCA No. 63674. ASBCA No. 63717 is not at issue in this motion. 

Appeals of - )

)

Gilbane Federal ) ASBCA Nos. 63674, 63702, 63717

)

Under Contract No. W912HN-18-C-3009 )

APPEARANCES FOR THE APPELLANT: Tyler P. Scarbrough, Esq. 

Christopher J. Olsen, Esq.

 Henner & Scarbrough LLP 

 Atlanta, GA 

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Allie E. Vandivier, Esq.

Orion D. Ray, Esq.

 Engineer Trial Attorneys

 U.S. Army Engineer District, Savannah
2

$100,000, the Contracting Officer must, within 60 days, decide the claim or notify the 

Contractor of the date by which the decision will be made.” FAR 52.233-1(e). 

3. On September 14, 2021, appellant submitted a request for equitable 

adjustment (REA) in the amount of $3,990,387.49 for additional costs and an 

extension of 282 calendar days (R4, tab 6.01 at 4243). Almost a year later, appellant 

submitted a revised REA on June 15, 2022, which updated the amount in controversy

to $3,641,312.07 and kept the extension request of 282 calendar days (R4, tab 6.02 

at 4588). The parties continued to negotiate for the next several months to no avail.

4. On May 25, 2023, appellant submitted a certified claim to the contracting 

officer requesting $3,649,966.13 in compensation and an extension of 282 calendar 

days (R4, tab 2.01 at 65).

5. Sixty days after appellant submitted its certified claim, on July 24, 2023, the 

government issued a letter, indicating that the claim was “currently under review for 

merit” and the final decision “will be issued January 31, 2024” (R4, tab 2.02 at 1526). 

No other details were given regarding the reason for the more than six-month delay.

6. On August 2, 2023, appellant filed its notice of appeal with the Board on a 

deemed denial basis, and the appeal was docketed as ASBCA No. 63674 on August 3, 

2023. 

7. A week after the appeal was docketed, the government provided appellant 

with a unilateral modification for $830,758 and 230 calendar days of schedule 

extension (R4, tab 6.04 at 4841-42).

8. On August 18, 2023, the contracting officer issued a final decision (COFD)

on appellant’s May 25, 2023 certified claim denying entitlement for the remaining 52 

calendar days of schedule extension and $2,810,554.07 in compensation originally 

requested2 (R4, tab 1.01 16-22).

9. On August 23, 2023, appellant timely filed a second notice of appeal based 

on the contracting officer’s final decision. The notice of appeal acknowledged the 

government’s partial award under the unilateral modification and noted the remaining 

dispute was for $2,819,208.13 and a 52-calendar day extension. This appeal was 

docketed as ASBCA No. 63702.

2 Interestingly enough, despite the government’s protestations that the original 

decision date of January 31, 2024, met the CDA reasonableness standard, the 

contracting officer was able to “for the sake of expediency” issue her decision 

earlier than anticipated.
3 

PARTIES’ POSITIONS 

 The government moves for dismissal, alleging the Board does not have 

jurisdiction over ASBCA No. 63674 because appellant filed the appeal prematurely in 

advance of a deemed denial or final decision from the contracting officer (gov’t mot. 

at 3-5). Additionally, the government states that even if appellant can show the 

contracting officer’s proposed decision due date was unreasonable, the appeal is moot 

because ASBCA No. 63702, which arises from the same certified claim and 

subsequent COFD, is now pending before the Board (gov’t reply at 11). 

 Appellant opposed the motion, stating the Board has jurisdiction over the 

appeal because it filed the notice of appeal after the contracting officer notified 

Gilbane that a decision would not be forthcoming for an additional six months, which 

it deemed unreasonable and not within the timeframe required by the Contract 

Disputes Act (CDA) (app. opp’n at 7-12). Further, in response to the allegations the 

appeal is moot, appellant offered to dismiss the appeal without prejudice, stating that 

doing so with prejudice “could operate as an adjudication on the merits of [the] 

[c]ertified [c]laim . . .” (id. at 13). 

DECISION 

Jurisdiction over ASBCA No. 63674 

 Under the CDA, within 60 days from receipt of a claim exceeding $100,000, 

the contracting officer must issue a final decision or “notify the contractor of the time 

within which a decision will be issued.” 41 U.S.C. § 7103(f)(2). Decisions must be 

issued within a “reasonable time” of receipt, “taking into account such factors as the 

size and complexity of the claim and the adequacy of information in support of the 

claim provided by the contractor.” 41 U.S.C. § 7103(f)(3). If the contracting officer 

fails to issue a decision within the time permitted by law, the claim may be deemed to 

have been denied, and the contractor may pursue an appeal, notwithstanding the 

absence of a final decision. 41 U.S.C. § 7103(f)(5); FAR 33.211(g). Additionally, if a 

COFD is issued, “[a] contractor, within 90 days from the date of receipt of a 

contracting officer’s decision . . . may appeal the decision to an agency board . . . .” 

41 U.S.C. § 7104(a). 

 The parties’ arguments focus on whether the contracting officer had appropriate 

cause to extend the deadline for providing the COFD (size and complexity of the 

claim, number of total pages of documents submitted, etc.). Even so, 15 days after 

ASBCA No. 63674 was docketed, the government provided the COFD, which 

appellant timely appealed (SOF ¶ 9). Based on the facts presented here, without 

opining in the abstract whether six months is a reasonable time to wait for a COFD, we 

conclude that we have jurisdiction over ASBCA No. 63674. 
4 

 The record here shows that this dispute arose as far back as September of 2021 

with the filing of the initial REA, subsequently revised in June of 2022 (SOF ¶ 3). By 

the date of the May 25, 2023 claim submittal, the government was aware of the issues 

involved (including the amount at issue as well as schedule extension days); and 60 

days later the contracting officer informed appellant, with no further explanation, that 

a decision would be issued six months later (SOF ¶ 5). Thus, we are unpersuaded, 

based on these facts, that the contracting officer reasonably needed an additional six 

months to issue a final decision. The fact that the contracting officer was able to issue 

a decision by August 2023 (SOF ¶ 8) bolsters this conclusion. Accordingly, the 

government’s motion to dismiss for lack of jurisdiction must fail. 

ASBCA No. 63674 is Moot 

 The Board reviews a claim de novo and is not bound by the contracting 

officer’s determinations. Harry Pepper and Assoc., Inc., ASBCA No. 62038 et al., 

21-1 BCA ¶ 37,961 at 184,351 (citing Wilner v. United States, 24 F.3d 1397, 1401 

(Fed. Cir. 1994) (en banc)). If the appeal is upheld, “[i]nterest on an amount found 

due a contractor on a claim shall be paid to the contractor for the period beginning 

with the date the contracting officer receives the contractor's claim,” not the day the 

appeal was docketed or the COFD was issued. 41 U.S.C. § 7109(a)(1). 

 Because the Board’s review of the claim is de novo and both ASBCA 

Nos. 63674 and 63702 arise from the same May 25, 2023 claim (SOF ¶ 4), the accrual 

of interest is not at issue. ASBCA No. 63674 is now moot, given the fact that the 

COFD on the subject claim was issued nearly two weeks after Gilbane’s first notice of 

appeal, and was subsequently timely appealed to the Board and docketed as ASBCA 

No. 63702 (SOF ¶¶ 8-9). Accordingly, we need not address the other issues raised by 

the parties in their briefs. 
5 

CONCLUSION 

 The government’s motion to dismiss for lack of jurisdiction is denied. ASBCA 

No. 63674 is dismissed as moot. The dismissal does not operate as an adjudication on 

the merits of the claim. Appellant may file an amended complaint in ASBCA 

No. 63702, as outlined in its opposition to the government’s motion, within 30 days of 

receipt of this decision. ASBCA Nos. 63702 and 63717 remain consolidated. 

 Dated: March 4. 2024 

OWEN C. WILSON

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

MICHAEL N. O’CONNELL

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals

I concur

THOMAS P. MCLISH

Administrative Judge 

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 Nos. 63674, 63702, 63717,

Appeals of Gilbane Federal, rendered in conformance with the Board’s Charter. 

 Dated: March 4, 2024 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals