ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Matcon Diamond, Inc. ) 

) 

Under Contract No. W912KC-12-C-0002 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59637 

David A. Levine, Esq .. 

Haig M. Sakoian, Esq. 

Blumling & Gusky, LLP 

Pittsburgh, PA 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Harry M. Parent, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE YOUNGER 

ON THE GOVERNMENT'S MOTION TO DISMISS FOR FAIL URE TO STATE A 

CLAIM UPON WHICH RELIEF CAN BE GRANTED 

Appellant, Matcon Diamond, Inc., appeals from the contracting officer's 30 July 

2014 final decision denying its 29 April 2014 certified claim seeking to recover extended 

home office overhead costs in the amount of $360,742.92 under the captioned contract 

for the repair of the Pennsylvania National Guard's aircraft apron at the Pittsburgh 

International Airport. We have jurisdiction pursuant to the Contract Disputes Act, 

41 u.s.c. §§ 7101-7109. 

The government moves to dismiss this appeal for failure to state a claim upon 

which relief can be granted. The government argues that appellant's claim is barred 

because appellant failed to assert its claim prior to final payment (gov't mot. at 4). 

Appellant contends that the government's motion should be denied because it 

impermissibly relies on evidence outside of appellant's complaint (app. opp'n at 4-6). 

Appellant further maintains that the evidence presented by the government is insufficient 

to establish that final payment was made under the contract (id. at 6-8). 

A motion to dismiss for failure to state a claim upon which relief can be granted is 

appropriate where the facts asserted in the complaint do not entitle the claimant to a legal 

remedy. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). In deciding a 

motion to dismiss for failure to state a claim, we "must accept well-pleaded factual 

allegations as true and must draw all reasonable inferences in favor of the claimant." 

Kellogg Brown & Root Services, Inc. v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 
2013). We decide only whether the claimant is entitled to offer evidence in support of its 

claims, not whether the claimant will ultimately prevail. Chapman Law Firm Co. v. 

Greenleaf Construction Co., 490 F.3d 934, 938 (Fed. Cir. 2007). The scope of our 

review is limited to considering the sufficiency of the allegations set forth in the 

complaint, "matters incorporated by reference or integral to the claim, items subject to 

judicial notice, [and] matters of public record." A&D Auto Sales, Inc. v. United States, 

748 F.3d 1142, 1147 (Fed. Cir. 2014) (alteration in original) (citation omitted); see also 

Zakv. Chelsea Therapeutics Int'!, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (On a motion 

to dismiss for failure to state a claim, "courts are limited to considering the sufficiency of 

allegations set forth in the complaint and the documents attached or incorporated into the 

complaint.") (internal quotation marks and citation omitted). 

A party is not required to negate an affirmative defense in its complaint. ABB 

Turbo Sys. AG v. TurboUSA, Inc., 774 F.3d 979, 985 (Fed. Cir. 2014); Flying Food 

Group, Inc. v. NLRB, 471F.3d178, 183 (D.C. Cir. 2006). Dismissal for failure to state a 

claim on the basis of an affirmative defense is proper only where the defense clearly 

appears on the face of the complaint. ASARCO, LLC v. Union Pacific R.R., 765 F.3d 

999, 1004 (9th Cir. 2014); Kelly-Brown v. Winfrey, 717 F.3d 295, 308 (2nd Cir. 2013); 

Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993); see also Ruiz-Sanchez v. 

Goodyear Tire & Rubber Co., 717 F.3d 249, 252 (1st Cir. 2013) (Dismissal for failure to 

state a claim "on the basis of an affirmative defense requires that (i) the facts establishing 

the defense are definitively ascertainable from the complaint and other allowable sources 

of information, and (ii) those facts suffice to establish the affirmative defense with 

certitude."). 

The government's final payment defense is an affirmative defense on which it bears 

the burden of proof. See Electro-Technology Corp., ASBCA No. 42495, 93-2 BCA 

~ 25,750 at 128,133. Final payment to the contractor bars claims which are submitted 

subsequent to the final payment. Mingus Constructors, Inc. v. United States, 812 F.2d 

1387, 1391 (Fed. Cir. 1987). However, final payment does not bar a claim where the 

contracting officer knows that the contractor is asserting a right to additional compensation, 

even though a formal claim has not been filed. JT Construction Co., ASBCA No. 54352, 

06-1BCA~33,182 at 164,464; Nava/es Enterprises, Inc., ASBCA No. 52202, 99-2 BCA 

~ 30,528 at 150,757. 

The government does not cite any allegations in appellant's complaint to establish 

that the claim for extended home office overhead costs was asserted subsequent to final 

payment under the contract. Rather, the government solely relies upon two documents 

attached to its motion that appear to be printouts from the government's computer records 

(gov't mot., exs. 1-2). These documents were not attached to the complaint. Nor does 

the government argue, much less establish, that the documents are integral to appellant's 

claim. Accordingly, we may not consider the government's exhibits in deciding its 

motion to dismiss. The government has therefore failed to establish from the allegations 

2 
in the complaint or other permissible documents that final payment occurred prior to the 

submission of appellant's claim. Moreover, appellant contends that the contracting 

officer was on notice of appellant's claim prior to the alleged final payment (app. opp'n 

at 6-7), and the government has failed to show that the allegations in appellant's 

complaint foreclose that contention. 

The government has failed to establish its final payment defense from the face of 

appellant's complaint or other permissible sources. The government's motion to dismiss 

for failure to state a claim upon which relief can be granted is denied. 

Dated: 21 October 2015 

I concur 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur $/J: 1,/.,LL____ -M7MARK N. STEMPL~ -RI-CHARD ___ S_HA_C_KL_E_F_O_RD ___ _ 

Administrative Judge Administrative Judge 

Acting Chairman Vice Chairman 

Armed Services Board Armed Services Board 

of Contract Appeals 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. 59637, Appeal ofMatcon 

Diamond, Inc., rendered in conformance with the Board's Charter. 

Dated: 

3 

JEFFREY D. GARDIN 

llecorder, Armed Services 

Board of Contract Appeals