ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

American Boys Construction Company ) 

) 

Under Contract No. W91B4N-13-C-8028 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61163 

Mr. Shams, Esq. 

Counsel 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

MAJ Christopher M. Coy, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT 

ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 

This is an appeal of a contracting officer's denial of a claim by American Boys 

Construction Company (American Boys or appellant), alleging that it is owed 

$107,280.00 for settlement costs due to a termination for convenience of construction 

Contract No. W91B4N-13-C-8028 (the contract) to construct a prime power overhead 

cover issued by the Regional Contracting Center East, Bagram Airfield, Afghanistan 

(the government). The government filed a motion for summary judgment requesting 

that we deny the appeal because American Boys waited more than one year to file its 

settlement proposal as required by the contract. We agree. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 24 January 2013, the government awarded Contract No. W91B4N-13-C-8028 

to American Boys Construction Company in the amount of $117 ,687.30 (R4, tab I). 

2. The contract incorporated Federal Acquisition Regulation (FAR) clause 

52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) 

(APR 2012)-ALTERNATE I, by reference. Specific to this appeal, the clause included 

language about termination settlement proposals: 

( e) After termination, the Contractor shall submit a 

final termination settlement proposal to the Contracting 

Officer in the form and with the certification prescribed by 

the Contracting Officer. The Contractor shall submit the 

proposal promptly, but no later than 1 year from the 
effective date of termination, unless extended in writing by 

the Contracting Officer upon written request of the 

Contractor within this 1-year period. However, ifthe 

Contracting Officer determines that the facts justify it, a 

termination settlement proposal may be received and acted 

on after 1 year or any extension. If the Contractor fails to 

submit the proposal within the time allowed, the 

Contracting Officer may determine, on the basis of 

information available, the amount, if any, due the 

Contractor because of the termination and shall pay the 

amount determined. 

G) The Contractor shall have the right of appeal, 

under the Disputes clause, from any determination made 

by the Contracting Officer under paragraph ( e ), (g), or (1) 

of this clause, except that ifthe Contractor failed to submit 

the termination settlement proposal or request for equitable 

adjustment within the time provided in paragraph (e) or (1), 

respectively, and failed to request a time extension, there is 

no right of appeal. 

3. On 13 April 2013, the contracting officer (CO) sent American Boys a Notice of 

Termination for Convenience. It included a stop work order and notification to submit a 

settlement proposal within one year from the effective date of the termination. (R4, tab 6) 

4. On 13 April 2013, American Boys sent a signed acknowledgement of the 

notice of termination. It was signed by someone who listed the name and title as 

"Nadeem, CEO President of A.B.C.C." (R4, tab 8) 

5. On 28 July 2013, the government issued Modification No. POOOOl to 

deobligate all but $500.00 from the contract. That amount was left on the contract 

because American Boys had not yet been reimbursed for its DBA insurance it had 

purchased. American Boys signed the modification on 8 September 2013. It was again 

signed by someone with the name and title, "Nadeem, CEO President." (R4, tab 13) 

6. On 16 August 2013, the government completed a DD Form 1594, Contract 

Completion Statement, which annotated that final payment had been processed (R4, tab 14). 

7. On 17 November 2015, the government received a notice from DF AS that it 

had received reimbursement for the $500.00 DBA insurance. 

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8. On 14 January 2017, American Boys filed an appeal with the Board that was 

assigned ASBCA No. 60996. On 16 February 2017, the government filed a motion to 

dismiss for lack of jurisdiction because American Boys had never submitted a certified 

claim to the CO. On 25 April 2017, the Board dismissed the appeal. American Boys 

Constr. Co., ASBCA No. 60996, 2017 WL 1957300. 

9. On 9 February 2017, more than 3.5 years after the notice of termination, 

American Boys submitted a termination settlement proposal as a certified claim to the 

CO (gov't mot.~ 14; app. resp. at 2). On 12 April 2017, the CO issued its contracting 

officer's final decision, denying the claim in full because American Boys did not file a 

settlement proposal within one year of the termination (R4, tab 16). The record does 

not contain any evidence regarding a request for a time extension by appellant between 

13 April 2013 and 9 February 2017. 

10. On 5 May 2017, American Boys filed the instant appeal with the Board, 

which we docketed as ASBCA No. 61163. 

DECISION 

Jurisdiction 

As an initial matter, "we must satisfy ourselves that we have jurisdiction to 

entertain the appeal." Ryste & Ricas, Inc., ASBCA No. 54514, 06-1BCA~33,124 at 

164,146, aff'd, Ryste & Ricas, Inc. v. Harvey, 477 F.3d 1337 (Fed. Cir. 2007). In 

Ryste & Ricas, appellant certified its proposal as a claim. American Boys did the same 

in this case. As a result, we conclude that we have jurisdiction. See Black Bear 

Construction Co., ASBCA No. 61181, 17-1BCA~36,914 at 179,847. 

Summary Judgment 

It is well settled that summary judgment is appropriate where the moving party 

establishes that there are no disputed material facts, and the moving party is entitled to 

judgment as a matter oflaw. Riley & Ephriam Constr. Co. v. United States, 408 F.3d 

1369, 1371-72 (Fed. Cir. 2005); Mingus Constructors, Inc. v. United States, 812 F.2d 

1387, 1390 (Fed. Cir. 1987). When considering summary judgment motions, "the 

evidence of the non-moving party is to be believed, and all justifiable inferences are to 

be drawn in his favor." Tri-County Contractors, Inc., ASBCA No. 58167, 13 BCA 

~ 35,310 at 173,346 (citing FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 247 (1986)). The parties do not genuinely dispute any of the material 

facts set forth in our SOF. 

The parties do not dispute that the government terminated the contract on 13 April 

2013 (app. resp.~ 4; gov't mot.~ 7). The parties also do not dispute that American Boys 

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did not file its termination settlement claim until 9 February 2017 (app. resp. ii 5; gov't mot. 

ii 14 ). Further, the parties do not dispute that the contract was issued and do not dispute the 

terms and conditions of the contract (app. resp. ii 1; gov't mot. ii 1 ). As a result, the 

inclusion of FAR 52.249-2, Alt I, is not contested. Thus, American Boys was required to 

submit its termination settlement proposal within one year of the effective date of the 

termination, which would have occurred by 12 April 2013. However, American Boys 

waited until 9 February 2017, over three additional years, before submitting its claim to the 

CO. Appellant has not provided any evidence that it requested a time extension pursuant to 

the contract.* (See SOF iii! 2, 9) Thus, because American Boys' termination settlement 

claim was late and no extension was granted by the CO, we must deny the appeal. 

CONCLUSION 

The government's motion for summary judgment is granted. The appeal is denied. 

Dated: 9 January 2018 

(Signatures continued) 

HEIDI L~TERHOUT 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

*Appellant was allowed "1 year from the effective date of termination, unless extended 

in writing by the Contracting Officer upon written request of the Contractor 

within this I-year period" to file its claim pursuant to FAR 52.249-2( e ), 

Termination for Convenience of the Government. Further, FAR 52.249-20) 

states "that if the Contractor failed to submit the termination settlement 

proposal or request for equitable adjustment within the time provided in 

paragraph ( e) or (I), respectively, and failed to request a time extension, there is 

no right of appeal" (see SOF ii 2). American Boys does not contest that the 

claim was not filed until 9 February 2017 (SOF ii 9). American Boys also does 

not claim that it submitted any requests for extension. American Boys does not 

provide any rationale for why its claim was late and simply states that the 

government is liable for the costs it incurred. (Compl.; app. resp.) 

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I concur 

--'~--

_ ___, 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

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. 61163, Appeal of American 

Boys Construction Company, rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals