ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- Suh'dutsing Technologies, LLC Under ContractNo. HC1028-10-D-2003 APPEARANCES FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 58760

Thomas 0. Mason, Esq. Francis E. Purcell, Jr., Esq. ChristopherJ. Kimball, Esq.

Cooley LLP Washington, DC Robert Gorman, Esq.

DISA General Counsel Stephanie A. Kreis, Esq. Mark B. Grebel, Esq.

Trial Attorneys Defense Information Systems Agency ScottAirForce Base, IL OPINION BYADMINISTRATIVE JUDGE DELMAN ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION The Defense Information Systems Agency (DISA or government) moves to dismiss the appeal ofSuh'dutsing Technologies, LLC (appellant) for lack of jurisdiction as premature under the ContractDisputes Act (CDA), 41 U.S.C. 

### §§ 7101-7109. Appellant opposes the motion. Forreasons stated below, we deny the government's motion. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. On 26 March 2010, DISA, through the Defense Information Technology Contracting Organization, awarded ContractNo. HC1028-10-D-2003 (the contract) to appellant for the upgrade ofthe DISA Computing Services (CS) system from the IBM Tivoli Enterprise Console to the IBMNetcool system and migrationto the IBM Tivoli Business Services Manager (R4, tab 1).2. The contract was structured as an indefinite-delivery/indefinite-quantity commercial services contract using firm-fixed price orders. According to Section B-2 ''MINIMUMANDMAXIMUMAMOUNT'': The minimum contract amount for a single award will be $2.3 Million for the entire 3 yearbase period and two one year options. The maximum contract ceiling amount is $2S.2 Million overthe 3 yearbase period and two one-year options. There shall be no minimum guarantee for any option years. (R4, tab 1at 2) The contract envisioned implementation and sustainment services (id. at 13-lS). 3. The contract incorporated by reference the standard FAR S2.212-4, CONTRACT TERMS ANDCONDITIONS

- COMMERCIAL ITEMS (MAR 2009) clause (R4, tab 1 at 41). Paragraph (d) ofthis clause, effective at the time ofcontract, incorporated by reference the standard FAR S2.233-l, DISPUTES (JUL 2002) clause. 4. Appellant subcontractedwithESCgov, Inc. (ESC) (R4, tab SD at 1, tab 39 at 4). ESC, in tum, subcontractedwith SMS DataProducts Group, Inc. (SMS) (R4, tab SD at 1, tab 39 at 44). S. DISA issued two fixed-price task orders to appellant for the implementation phase ofthe CS system upgrade. The first task order, issuedthe same day the contract was awarded, was valued at $2.63 million with a performance period ending on 24 September2010 (R4, tab 2 at 1-2). The record does not indicate thatthe first task order'speriod ofperformance was extended beyond 24 September2010; nonetheless, the parties agreed on 24 February 2011 to modify the first task order by reducing its entire remaining value of$1.9 million (R4, tab 2B). On the same day, 24 February 2011, DISA issued the second task order for $1.9 million with a performance period ending on 2S April 2011 (R4, tab 3 at 1-2). On 24 May 2011, the period ofperformance for the second task orderwas extended through 10 June 2011 (R4, tab 3C). 6. By letter dated 27 June 2011, DISA informed appellant that it was reevaluating its "acquisition strategy based on several tum[s] ofevents[,] to include funding constraints," and that it had "elected notto proceed to the Sustainment Phase for the Utility Services" (R4, tab 4). 7. By letter dated 21 December2012, appellant submitted a claim for $4,2S4,430.61 to the contracting officer (CO) (R4, tabs 38A, 39 at 4). Appellant's claim consisted entirely ofa pass-through claim ofits subcontractor ESC, which incorporated the claim ofthe second-tier subcontractor, SMS (R4, tab 38A). Appellant's claim was

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### submitted in the form ofa single-page cover letter, with attached certification,1

### enclosed within a box containing the claim and its supporting documentation (R4, tab 38C). 8. The governmentreceived the box containing appellant's claim on 9 January 2013. However, the CO did not see appellant's one-page claim letterwhen she opened the box. (R4, tab 38D) Believing that appellant had submitted only the pass-through subcontractor claim without asserting a claim ofits own, the CO issued a letter dated 29 January 2013 informing appellant that she had no authority to entertain claims from parties with whom the governmenthad no privity ofcontract. Therefore, she could not issue a final decision. (R4, tab 38B) 9. Appellant responded, by email on 13 February 2013, that appellant's certified claim had been included with its submission. Appellant attached an electronic copy ofits single-page, certified claim. Appellant also requested that the CO "rescind"her 29 January 2013 letter and considerthe merits ofappellant's claim. (R4, tab 38C) 10. Upon receiving appellant's 13 February 2013 email, the CO examined the box in which appellant's claim had been submitted and discovered appellant's single-page claim "wedged against the side ofthe box." By letter dated 28 February 2013, the CO acknowledged that she had, in fact, received appellant's certified claim on 9 January 2013. (R4, tab 38D) 11. The CO also noted in her 28 February 2013 letter that she had notyet reviewed the claim in any detail, and stated that it would be "at least another sixty days from the date ofreceipt ofthe claims [sic] (January 9, 2013) before I will be able to issue a decision" (R4, tab 38D). The 60th calendar day following the CO'sreceipt ofthe certified claim was Sunday, 10 March 2013. The nextbusiness day was Monday, 11March2013. 12. By letter dated 6 March 2013, the CO informed appellant that "giventhe volume ofdocumentation, you will not receive a contracting officer's decision by March 9, 2013. It

### will be at least another sixty days from March 9, 2013 before I am able to issue a decision." (R4, tab 38E) 13. On 15 March 2013, appellantresponded to the CO's letter: "Given [the CO's] mostrecent statementthat [she did] not anticipate issuing a final decision on the certified claim[] until approximately May 9, 2013," appellant again requested that she formally rescind her 29 January 2013 letter, and that she clarify that the letter did not constitute her final decision on the merits ofthe claim (R4, tab 38F).

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### By Order dated 31 March 2014, the Board determined that appellant's claim certification was defective, and ordered correction in accordance with 41 U.S.C. §7103(b)(3).
314. The CO responded to appellant's request on 17 April 2013 by formally rescinding her 29 January 2013 letter. Additionally, she stated that "[a]s set forth in my February 28, 2013 letter[,] a contracting officer's decision will notbe rendered until May 9, 2013. Ifit is necessary to extend the review time, you will be informed." In this letter, the CO provided no explanation why her decision would "notberendered until May 9, 2013." (R4, tab 380) 15. By letter dated 8 May 2013, the CO again informed appellant that she required additional time to respond to the claim, statingthat "[a] contracting officer's decision will notberendered until July 9, 2013" (R4, tab 38H). Again, the CO provided no explanation for extending the decision date. 16. Appellant responded on 17 May 2013, stating that despite the repeated extensions, the government had not requested any additional information or attempted to discuss the claim, and appellant asked whetherthe government intendedthe additional time to facilitate resolution ofthe claim by mutual agreement. Appellant stated that, if not, it "reserve[d] the right to treat the failure to issue a decision withinthe specifiedtime period as a deemed denial ofthe claim and seek appropriate review." (R4, tab 38I) 17. By letter dated 28 June 2013, appellant appealed to the Board from the deemed denial ofits claim. DECISION The government moves to dismiss this appeal for lack of jurisdiction onthe ground that the appeal is premature, asserting that the CO, by letterto appellant dated 8 May 2013, fixed a reasonable date by which she would issue her decision

- 9 July 2013

- and appellant filed this appeal priorto that date. Underthe CDA, a CO's decision on a claim or a CO's failure to timely issue a decision on a claim is a prerequisite to the Board'sjurisdiction. Metag lnsaat TicaretA.S., ASBCA No. 58616, 13 BCA

### ii 35,454 at 173,862. Within 60 days ofreceiving a certified claim for an amount in excess of$100,000, the CO must either issue a decision, or else "notify the contractor ofthe time within which a decision will be issued." 41 U.S.C. § 7103(f)(2)(B); Public Warehousing Co., K.S.C., ASBCANo. 56888, 09-2 BCA

### ii 34,265 at 169,306 (CO mustprovide a fixed date or date certain); CubicDefenseApplications, Inc., ASBCANo. 56097, 07-2 BCA

### ii 33,695 at 166,790 (CO's use of"approximately" did notprovide a fixed or specific date). Regardless ofthe value ofthe claim, the CO must issue a decision within a reasonable amount oftime from receipt ofthe claim, "taking into account such factors as the size and complexity ofthe claim and the adequacy of information in support ofthe claim providedby the contractor." 41 U.S.C. § 7103(f)(3).

4A CO's failure to issue a decision withinthe requiredtime period is deemed a decision of the CO denying the claim, from which the contractormay appeal. 41 U.S.C. 

### § 7103(f)(5). Here, the governmentreceived appellant's certified claim on 9 January 2013 (SOF 

### ii 8). In accordance with 41 U.S.C. 

### § 7103(f)(2), the governmentwas required to issue a decision or fix a reasonable date for doing so within 60 days ofreceipt ofthe claim, orby 11March2013. On 6 March 2013, the CO informed appellantthat it wouldbe "at least another sixty days from March 9, 2013 before I am able to issue a decision" (SOF 

### ii 12). We believe thatthe statement "at least another sixty days

...before I am able to issue a decision" is insufficiently definite to comply with section 7103(f)(2)(B). Given the government's failure to comply with this CDAprovision, appellant was authorized to file an appeal to this Board after 11 March 2013, baseduponthe deemed denial ofits claim. 41 U.S.C. 

### § 7103(f)(5). Since appellant's right ofappeal had already attached, the CO's subsequent letters extendingthe date for the issuance ofa decision are immaterial to appellant's right to appeal from a deemed denial ofits claim. We conclude that appellant's notice ofappeal of28 June 2013 was notpremature, and weretain jurisdictionoverthe appeal. CONCLUSION Forreasons stated, we denythe government's motionto dismiss this appeal for lack of jurisdiction onthe groundthatthe appeal is premature. Dated: 28 April 2014

I concur

# £~~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

5 A ministrative Judge Armed Services Board ofContractAppeals I concur

RICHARD SHACKLEFORD AdministrativeJudge Vice Chairman Armed Services Board ofContract AppealsI certifythat the foregoing is a true copy ofthe Opinion andDecision ofthe Armed Services Board ofContractAppeals in ASBCANo. 58760, Appeal of Suh'dutsingTechnologies, LLC, rendered in conformance with the Board's Charter. Dated:

6 JEFFREYD. GARDIN Recorder, Armed Services BoardofContract Appeals