ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of

-- ) ) Alfajer, Ltd. ) )

Under Contract No. W91B4N

- 18

- A

- 5006 )

APPEARANCE FOR THE APPELLANT: Walt Pennington

, Esq. Pennington Law Firm San Diego, CA

APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney MAJ Nicholas Lucchetti, JA

Trial Attorney

OPINION BY ADMINISTRATIVE JUD GE OSTERHOUT

ON THE GOVERNMENT’S MOTION TO DISMISS

This dispute concerns the loss of equipment connected to the performance of call number W91B4N19F5034 (the call or the contract ) under blanket purchase agreement (BPA) N o. W91B4N

- 18

- A

- 5006 (the BPA ) for the United States Army (Army or the

governmen t) to lease equipment from Alfajer, Ltd. (Alfaj er or appellant). Appellant’s complaint contains four counts concerning the government’ s failure to ensure Alfaj er could safely transport required equipment or refusal to pay for damaged equipment : I) breach of contract; II) breach of good faith and fair dealing; III) sup erior knowledge; and IV) quantum valebant

. T he government filed a motion to dismiss for lack of jurisdiction

and a motion to s trike. The government requests we dismiss C ounts I through III as lacking jurisdiction because the claims have not yet been befo re the contracting officer (CO) and to strike C ount IV as either an equitable remedy under an implied

- in

- law theory that we do not have jurisdiction to hear or, in the alternative that it was not submitted to the CO. Appellant responded that the governmen t did not cite a particular rule from the

Federal Rules of Civil Procedure for its motion to dismiss C ounts I through III and that the facts were asserted in the claim to the CO, just not the legal theo ries. Further, appellant states that we are not permi tted to strike C ount IV and requests additional time to respond if we converted the motion to strike

, to a motion for summary judgment. The government replied, disputing appellant’s arguments for C ounts I through III and also standing by its theory that w e strike C ount IV. We deny the government’s motion, in part, and grant it, in part. ASBCA No. 621252 STATEMENT OF FACTS (SOF) FOR THE PURPOSES

OF THE GOVERNMENT’S MOTION S

1. On August 8, 2018, the government issued a BPA with a BPA dollar limit of $93,000,000 and order limit of $1,500,000

. The period of performance was August 8, 2018 through August 7, 2023. (R4, tab 2)

2. Among other clauses, t he BPA included Defense Federal Acquisition Regulation Supplement ( DFARS ) 252.225

- 7995, CONTRACTOR PERSONNEL PERFORMING IN

THE UN ITED STATES CENTRAL COMMAND AREA OF RESP ONSIBILITY (Deviation 2017

- O0004) (SEP 2017) (R4, tab 2 at 000 124

- 31 ). The clause generally placed the risk of working in dangerous conditions on appellant in paragraph (b)(2): “Contract performance in USCENTCOM AO R may require work in dangerous or austere conditions. Except as otherwise provided in the contract, the Contractor accepts the risks associated with required contract performance in such operations” (R4, tab 2

at 000 125). Paragraph (b)(3) allowed contr actor personnel to carry weapons for

self

- defense: “When authorized in accordance with paragraph (j) of this clause to carry arms for personal protection, contractor personnel are only authorized to use force for

individual self

- defense” (R4, tab 2 at 00 0 125). Paragraph (j) explained procedures to allow contractors to carry weapons for self

- defense (R4, tab 2 at 000 130).

3. On December 3, 2018, the parties entered into the call in question in this dispute

under the BPA

. The call required six

- month leases for ten different categories of equipment and a Defense Base Act insurance contract line item number (CLIN). The call did not include purchasing any equipment. (R4, tab 4 at 000160

- 65 )

4. The call included a performance work statement (PWS) that included security requirements for getting equipment to and from the military installation. Specifically

, Section 1.6.8. Security Requirements added : “ The Contractor is required to provide his own security to escort all the MHE upon the initial del ivery to MSS Thompson, and the final retrieval of the MHE from MSS Thompson upon contract completion/expiration [

. ] ” (R4, tab 4A at 000 171)

5. On February 12, 2019, appellant filed a certified claim with the CO. Appellant claimed $355,000. Appellant stated that the costs arose from alleged hijacked equipment. First, on the way to providing the equipment, appellant alleged that one of its forklifts was hijacked. Then, the contract was supposed to be for six months but was cut short to

less than two months in duration. While demobilizing, more equipment was allegedly hijacked. Further, although appellant asked for 20

- 25 days to demobilize, the government required demobilization promptly

. (R4, tab 13 at 000222 )3 6. The CO issued a final decision, dated April 8, 2019 den ying the claim, stating that

the risk was on the contractor in a firm

- fixed price contract. Appellant acknowledged receipt on May 30, 2019. (R4, tab 19)

7. On July 5, 2019, appellant timely appealed , which was docketed as ASBCA

No. 62125.

8. Appellant filed its complaint with its appeal. In its complaint, appellant focused on its assertions that the government failed to provide safe transport or protect Alfajer’s equipment and the government’s prior knowledge of such attacks (compl. ¶¶ 7, 10

- 12, 26)

. Appellant listed four counts in its complaint. Count I was a breach of contract for the Army’s refusal to pay for seized equipment and other amounts allegedly due ( id. ¶ 25) . Count II was a breach of implied covenant of good faith and fair deal ing because the government received a benefit of the equipment without providing sufficient security for the equipment ( id. ¶¶ 39

- 42) . Count III was for breach of contract based upon the government’s superior knowledge of the enemy controlled area and failure to provide safe passage plus the requirement for immediate removal of the equipment ( id. ¶¶ 44

- 45)

. Count IV was for quantum v alebant , specifically

, that the government received a benefit in the form of equipme nt that was hijacked and seized so th e government is respon sible for the cost of the equip ment regardless of the fact that no contract for purchasing the equipment existed ( id

. ¶ 48)

.

DECISION

“To determine whether a claim is new we examine whether it derives from the

same set of common or related operative facts as the claim presented to the contracting

officer and seeks the same or similar relief.” Parwan Group Co. , ASBCA No. 60657,

18

- 1 BCA ¶ 37,082 at 180,495 (citing Scott Timber Co. v. United States , 333 F.3d 1358

, 1365 (Fed. Cir. 200 3); The Public Warehousing Co. , ASBCA No. 56022, 11

- 2 BCA ¶ 34,788 at 171,227). If the set of common or operative facts are essentially the same as the ones presented in the claim, then they are considered to be within the scope of the appeal. Parwan Gro up Co. , 18

- 1 BCA ¶ 37,082 at 180,495 (citing MACH II

, ASBCA No. 56630, 10

- 1 BCA ¶ 34,357 at 169,673). A new legal theory that is based on the same operative facts does not constitute a new claim , nor do additional facts that do not alter

the nature of the original claim

. Parwan Group Co. , 18

- 1 BCA ¶ 37,082 at 180,495 (citing Trepte Const r. Co. , ASBCA No. 38555, 90

- 1 BCA ¶ 22,595 at 113,385

- 86). Put simply, the claim must give the CO adequate notice of appellant’s claim, clearly and unequivocally. Parwan Group Co. , 18

- 1 BCA ¶ 37,082 at 180,495 (citing K

- Con Bldg

. Sys

., Inc

. v. United States , 778 F.3d 1000, 1005 (Fed. Cir. 2015)); see also Scott Timber

Co. , 333 F

. 3d at 1365 ( quoting Contract Cleaning Maint

., Inc

. v. United States , 811 F.2d 586, 592 (Fed. C ir. 1987) (This court “ know[s] of no requirement in the [CDA] that a claim must be submitted in any particular form or use any particular wording. All that is required is that the contractor submit in writing to the contracting officer a clear an4 unequivo cal statement that gives the contracting officer adequate notice of the basis and

amount of the claim.” ).

Government’s Motion to Dismiss Counts I, II, and III

Here, the government moved to dismiss C ounts I, II, and II I for lack of jurisdiction

because t hey were not included in the certified claim ( g ov ’t mot

. at 1

- 2 ) . However, the certified claim was for $355,000 for lost equipment during delivery to and from the military installation ( SOF ¶ 5). Counts I, II, and III are all merely differently stated legal

theories based on the same common and operative facts: equipment was lost during transfer to and from the base and the government should pay for those losses. Thus, the government’s motion to dismiss C ounts I, II, and III is den ied.

Government’s Motion to Strike Count IV

The government also moves to strike C ount IV because it is an implied

- in

- law contractual theory of relief (gov ’t mot. at 2) . Appellant argues that the government has not met its burden under Rule 12(f) of the Federal Rules of Civil Procedure (app. opp’n

at 4

- 6)

.

A ppellant alleges , in C ount IV, a quantum meruit theory * that the government is required to purchase the equipment, which was not part of the lease contract ( SOF ¶¶ 3

, 8)

. We do not have jurisdiction to grant relief in quantum meruit situations, unless the government refuses payment due to the contract being illegal or void. See PROTEC

Gmb H , AS BCA No. 61161 et al

. , 18

- 1 BCA ¶ 37,064 at 180,4 20

. Here, a ppellant has

not cla imed that the government refused to pay due to the contract being illegal or void. Instead, appellant claimed that the governm ent was required to pay for the cost of purchasing the equipment, even with out a valid supply contract, because it derived a benefit from using the equipment during the contract to lease the equipment and is

, thus

, required to essentially buy equipment damaged during arrival and after termination of the

contract. (SOF ¶ 8) Therefore, we do not possess jurisdiction to hear C ount IV. Thus

, the g overnment’s motion to strike C ount IV is granted.

* Quantum meruit refers to services provided while quantum valebant refers to goods. There is no significance to the difference. Honeywell International

, Inc. , ASBCA No. 57779, 15

- 1 BCA ¶ 36,121 at 176,341 n.4, citing Barrett Refining Corp. v.

United States , 242 F.3d 1055, 1059 n.1 (Fed. Cir. 2001).5 CONCLUSION

We deny the government’s motion to dismiss C ounts I, II, and III.

We grant the government’s motion to strike C ount IV.

Dated: July 2 3 , 2020

HEIDI L. OSTERHOUT Administrative Judge

Armed Services Board of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman

Armed Services Board

of Contract Appeals 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. 62125

, Appeal of Alfajer,

Ltd. , rendered in conformance with the Board’s Charter.

Dated : July 23, 2020

PAULLA K. GATES

- LEWIS Recorder, Armed Services Board of Contract Appeals