ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) American Boys Construction Company ) ) Under ContractNo. W91B4N-13-C-8028 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61163

Mr. Shams, Esq.

Counsel Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ ChristopherM. Coy, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE OSTERHOUT ON THE GOVERNMENT'S MOTION FOR SUMMARYJUDGMENT This is an appeal ofa contracting officer's denial ofa claimby 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 ofconstruction ContractNo. W91B4N-13-C-8028 (the contract) to construct a primepower overhead cover issued bythe Regional Contracting CenterEast, BagramAirfield, Afghanistan (the government). The government filed a motion for summaryjudgmentrequesting that we deny the appeal because American Boys waited more than oneyearto file its settlementproposal as required by the contract. We agree. STATEMENT OF FACTS (SOF) FORPURPOSES 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 settlementproposals: (e) Aftertermination, the Contractor shall submit a final termination settlementproposal to the Contracting Officerin the form and with the certificationprescribedby the Contracting Officer. The Contractor shall submitthe proposal promptly, but no laterthan 1year from theeffective date oftermination, unless extended in writing by the Contracting Officer upon written request ofthe Contractor within this 1-yearperiod. However, ifthe Contracting Officer determines thatthe factsjustify it, a termination settlement proposal may be received and acted on after 1year or any extension. Ifthe Contractor fails to submitthe proposal within the time allowed, the Contracting Officer may determine, on the basis of information available, the amount, ifany, due the Contractor because ofthe termination and shall pay the amount determined.


## G) The Contractor shall have the right ofappeal, underthe Disputes clause, from any determination made by the Contracting Officerunderparagraph ( e), (g), or (1) ofthis clause, except that ifthe Contractor failed to submit the termination settlementproposal orrequest for equitable adjustment within the time provided in paragraph (e) or (1), respectively, and failed to request a time extension, there is no right ofappeal. 3. On 13 April 2013, the contracting officer (CO) sent American Boys aNotice of Termination for Convenience. Itincluded a stop work order and notificationto submit a settlement proposal within one year from the effective date ofthe termination. (R4, tab 6) 4. On 13 April 2013, American Boys sent a signed acknowledgement ofthe notice oftermination. Itwas signed by someone who listed the name and title as "Nadeem, CEO President ofA.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. Itwas 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 DFAS that it had received reimbursement for the $500.00 DBA insurance.

28. On 14 January 2017, American Boys filed an appeal with the Boardthat 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. AmericanBoys Constr. Co., ASBCA No. 60996, 2017 WL 1957300. 9. On 9February 2017, more than 3.5 years after the notice oftermination, 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 ofthe 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 5May 2017, American Boys filed the instant appeal with the Board, which we docketed as ASBCA No. 61163. DECISION Jurisdiction As an initial matter, "wemust satisfy ourselves that we havejurisdictionto 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 havejurisdiction. See BlackBear Construction Co., ASBCA No. 61181,**17-1BCA~36,914** at 179,847. SummaryJudgment 

### It is well settled that summaryjudgment is appropriate where the moving party establishes that there are no disputed material facts, and the movingparty is entitled to judgment as a matter oflaw. Riley & Ephriam Constr. Co. v. UnitedStates, 408 F.3d

1369, 1371-72 (Fed. Cir. 2005); Mingus Constructors, Inc. v. UnitedStates, 812 F.2d 1387, 1390 (Fed. Cir. 1987). When considering summaryjudgment motions, "the evidence ofthe non-moving party is to be believed, and alljustifiable 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. LibertyLobby, Inc., 477 U.S. 242, 247 (1986)). The parties do not genuinely dispute any ofthe material facts set forth in our SOF. The parties do not dispute that the governmentterminated the contract on 13 April 2013 (app.**resp.~** 4; gov't**mot.~** 7). The parties also do not dispute that American Boys

3did not file its termination settlement claim until 9 February 2017 (app. resp. 

### ii5; gov't mot. 

### ii 14). Further, the parties do not dispute that the contract was issued and do not dispute the terms and conditions ofthe contract (app. resp. 

## ii 1; gov't mot. 

## ii 1 ). As a result, the inclusion ofFAR 52.249-2, Alt I, is not contested. Thus, American Boys was required to submit its termination settlement proposal within one year ofthe effective date ofthe termination, which would have occurred by 12 April 2013. However, American Boys waited until 9 February 2017, overthree additional years, before submitting its claimto 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 summaryjudgment is granted. The appeal is denied. Dated: 9 January 2018

(Signatures continued) HEIDI

### L~TERHOUT Administrative Judge Armed Services Board ofContractAppeals

*Appellant was allowed "1 year from the effective date oftermination, unless extended in writing by the Contracting Officerupon written request ofthe Contractor within this I-yearperiod" to file its claim pursuant to FAR 52.249-2(e), Termination for Convenience ofthe Government. Further, FAR 52.249-20) states "that ifthe 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 ofappeal" (see SOF 

### ii2). American Boys does not contestthat 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 claimwas late and simply states that the government is liable for the costs it incurred. (Compl.; app. resp.)

4I concur**--'~--**

_ ___, RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 61163, Appeal ofAmerican Boys Construction Company, rendered in conformance with the Board's Charter. Dated:



### 5 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals