ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Suh'dutsing Technologies, LLC 

Under Contract No. HC1028-10-D-2003 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 58760 

Thomas 0. Mason, Esq. 

Francis E. Purcell, Jr., Esq. 

Christopher J. 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 

Scott Air Force Base, IL 

OPINION BY ADMINISTRATIVE JUDGE DELMAN 

ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

The Defense Information Systems Agency (DISA or government) moves to 

dismiss the appeal of Suh'dutsing Technologies, LLC (appellant) for lack of jurisdiction 

as premature under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. 

Appellant opposes the motion. For reasons stated below, we deny the government's 

motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 26 March 2010, DISA, through the Defense Information Technology 

Contracting Organization, awarded Contract No. HC1028-10-D-2003 (the contract) to 

appellant for the upgrade of the DISA Computing Services (CS) system from the IBM 

Tivoli Enterprise Console to the IBM Netcool system and migration to 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 

''MINIMUM AND MAXIMUM AMOUNT'': 

The minimum contract amount for a single award will be 

$2.3 Million for the entire 3 year base period and two one 

year options. The maximum contract ceiling amount is 

$2S.2 Million over the 3 year base period and two one-year 

options. There shall be no minimum guarantee for any option 

years. 

(R4, tab 1 at 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 AND CONDITIONS - COMMERCIAL ITEMS (MAR 2009) clause (R4, tab 1 at 41 ). 

Paragraph ( d) of this clause, effective at the time of contract, incorporated by reference 

the standard FAR S2.233-l, DISPUTES (JUL 2002) clause. 

4. Appellant subcontracted with ESCgov, Inc. (ESC) (R4, tab SD at 1, tab 39 

at 4 ). ESC, in tum, subcontracted with SMS Data Products 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 of the CS system upgrade. The first task order, issued the same day the contract 

was awarded, was valued at $2.63 million with a performance period ending on 

24 September 2010 (R4, tab 2 at 1-2). The record does not indicate that the first task 

order's period of performance was extended beyond 24 September 2010; 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 of performance for the 

second task order was 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] of events[,] to include funding 

constraints," and that it had "elected not to proceed to the Sustainment Phase for the 

Utility Services" (R4, tab 4). 

7. By letter dated 21 December 2012, 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 of a pass-through claim of its subcontractor ESC, which incorporated 

the claim of the second-tier subcontractor, SMS (R4, tab 38A). Appellant's claim was 

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submitted in the form of a single-page cover letter, with attached certification, 1 enclosed 

within a box containing the claim and its supporting documentation (R4, tab 38C). 

8. The government received the box containing appellant's claim on 9 January 2013. 

However, the CO did not see appellant's one-page claim letter when she opened the box. 

(R4, tab 38D) Believing that appellant had submitted only the pass-through subcontractor 

claim without asserting a claim of its 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 

government had no privity of contract. 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 of its 

single-page, certified claim. Appellant also requested that the CO "rescind" her 

29 January 2013 letter and consider the merits of appellant'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 of the 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 not yet 

reviewed the claim in any detail, and stated that it would be "at least another sixty days 

from the date of receipt of the claims [sic] (January 9, 2013) before I will be able to issue 

a decision" (R4, tab 38D). The 60th calendar day following the CO's receipt of the 

certified claim was Sunday, 10 March 2013. The next business day was Monday, 

11March2013. 

12. By letter dated 6 March 2013, the CO informed appellant that "given the 

volume of documentation, 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, appellant responded to the CO's letter: "Given [the CO's] 

most recent statement that [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 of the claim (R4, tab 38F). 

1 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). 

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14. 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 not be rendered until 

May 9, 2013. If it is necessary to extend the review time, you will be informed." In this 

letter, the CO provided no explanation why her decision would "not be rendered 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, stating that "[a] contracting officer's decision will 

not be rendered 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 whether the government intended the additional 

time to facilitate resolution of the claim by mutual agreement. Appellant stated that, if 

not, it "reserve[ d] the right to treat the failure to issue a decision within the specified time 

period as a deemed denial of the claim and seek appropriate review." (R4, tab 38I) 

17. By letter dated 28 June 2013, appellant appealed to the Board from the 

deemed denial of its claim. 

DECISION 

The government moves to dismiss this appeal for lack of jurisdiction on the ground 

that the appeal is premature, asserting that the CO, by letter to appellant dated 8 May 2013, 

fixed a reasonable date by which she would issue her decision - 9 July 2013 - and 

appellant filed this appeal prior to that date. 

Under the 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's jurisdiction. Metag lnsaat Ticaret A.S., 

ASBCA No. 58616, 13 BCA ii 35,454 at 173,862. Within 60 days of receiving a certified 

claim for an amount in excess of $100,000, the CO must either issue a decision, or else 

"notify the contractor of the time within which a decision will be issued." 41 U.S.C. 

§ 7103(f)(2)(B); Public Warehousing Co., K.S.C., ASBCA No. 56888, 09-2 BCA ii 34,265 

at 169,306 (CO must provide a fixed date or date certain); Cubic Defense Applications, 

Inc., ASBCA No. 56097, 07-2 BCA ii 33,695 at 166,790 (CO's use of "approximately" did 

not provide a fixed or specific date). Regardless of the value of the claim, the CO must 

issue a decision within a reasonable amount of time from receipt of the claim, "taking into 

account such factors as the size and complexity of the claim and the adequacy of 

information in support ofthe claim provided by the contractor." 41 U.S.C. § 7103(f)(3). 

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A CO's failure to issue a decision within the required time period is deemed a decision of 

the CO denying the claim, from which the contractor may appeal. 41 U.S.C. § 7103(f)(5). 

Here, the government received appellant's certified claim on 9 January 2013 (SOF 

ii 8). In accordance with 41 U.S.C. § 7103(f)(2), the government was required to issue a 

decision or fix a reasonable date for doing so within 60 days of receipt of the claim, or by 

11March2013. On 6 March 2013, the CO informed appellant that it would be "at least 

another sixty days from March 9, 2013 before I am able to issue a decision" (SOF ii 12). 

We believe that the 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 CDA provision, appellant was 

authorized to file an appeal to this Board after 11 March 2013, based upon the deemed 

denial of its claim. 41 U.S.C. § 7103(f)(5). Since appellant's right of appeal had already 

attached, the CO's subsequent letters extending the date for the issuance of a decision are 

immaterial to appellant's right to appeal from a deemed denial of its claim. We conclude 

that appellant's notice of appeal of28 June 2013 was not premature, and we retain 

jurisdiction over the appeal. 

CONCLUSION 

For reasons stated, we deny the government's motion to dismiss this appeal for 

lack of jurisdiction on the ground that the appeal is premature. 

Dated: 28 April 2014 

I concur 

£~~ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

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A ministrative 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. 58760, Appeal of 

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

Dated: 

6 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals