ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Matcon Diamond, Inc. ) ) Under ContractNo. W912KC-12-C-0002 )

APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59637

David A. Levine, Esq

.. Haig M. Sakoian, Esq.

Blumling & Gusky, LLP Pittsburgh, PA Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT Harry M. Parent, JA

Trial Attorney

OPINION BYADMINISTRATIVE JUDGE YOUNGER ONTHE GOVERNMENT'S MOTION TO DISMISS FORFAILURE TO STATE A CLAIM UPON WHICH RELIEF CANBE 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 ofthe Pennsylvania National Guard's aircraft apron atthe Pittsburgh International Airport. We havejurisdictionpursuant 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 whichreliefcan be granted. The government argues that appellant's claim is barred because appellant failed to assert its claim priorto final payment (gov'tmot. at 4). Appellant contends that the government's motion should be denied because it impermissibly relies on evidence outside ofappellant's complaint (app. opp'n at 4-6). Appellant further maintains that the evidence presentedby the government is insufficient to establish that final payment was made underthe contract (id. at 6-8).

A motion to dismiss for failure to state a claim upon which reliefcan be granted is appropriate where the facts asserted in the complaint do not entitle the claimant to a legal remedy. Lindsayv. UnitedStates, 295 F.3d 1252, 1257 (Fed. Cir. 2002). In deciding a motionto dismiss for failure to state a claim, we "must accept well-pleaded factual allegations as true and must draw all reasonable inferences in favor ofthe claimant." KelloggBrown & RootServices, Inc. v. UnitedStates, 728 F.3d 1348, 1365 (Fed. Cir.2013). We decide only whetherthe claimant is entitledto offer evidence in support ofits claims, not whetherthe claimantwill ultimately prevail. Chapman LawFirm Co. v. Greenleaf Construction Co., 490 F.3d 934, 938 (Fed. Cir. 2007). The scope ofour review is limitedto considering the sufficiency ofthe allegations set forth in the complaint, "matters incorporated byreference or integral to the claim, items subject to judicial notice, [and] matters ofpublic record." A&DAutoSales, Inc. v. UnitedStates, 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 notrequired to negate an affirmative defense in its complaint. ABB Turbo Sys. AGv. TurboUSA, Inc., 774 F.3d 979, 985 (Fed. Cir. 2014); FlyingFood Group, Inc. v. NLRB, 471F.3d178, 183 (D.C. Cir. 2006). Dismissal for failure to state a claim onthe basis ofan affirmative defense is proper only where the defense clearly appears on the face ofthe complaint. ASARCO, LLCv. Union PacificR.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-Sanchezv. Goodyear Tire &Rubber Co., 717 F.3d 249, 252 (1st Cir. 2013) (Dismissal for failure to state a claim "onthe basis ofan affirmative defense requires that (i) the facts establishing the defense are definitively ascertainable from the complaint and other allowable sources ofinformation, 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 ofproof. See Electro-Technology Corp., ASBCANo. 42495, 93-2 BCA**~** 25,750 at 128,133. Finalpaymentto the contractor bars claims which are submitted subsequent to the final payment. Mingus Constructors, Inc. v. UnitedStates, 812 F.2d 1387, 1391 (Fed. Cir. 1987). However, final payment does not bar a claim where the contracting officer knows thatthe contractor is asserting a right to additional compensation,
even though a formal claim has not been filed. JTConstruction Co., ASBCA No. 54352,**06-1BCA~33,182** at 164,464;Nava/es Enterprises, Inc., ASBCANo. 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 underthe 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'tmot., 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

2in the complaint or otherpermissible documents that final payment occurredprior to the submission ofappellant's claim. Moreover, appellant contends that the contracting officer was on notice ofappellant's claim priorto 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 otherpermissible sources. The government's motion to dismiss for failure to state a claim upon which reliefcan be granted is denied.
Dated: 21 October 2015

I concur Administrative Judge Armed Services Board ofContractAppeals

I concur 

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___ _ Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board ofContractAppeals ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract 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 ofContractAppeals