ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Shavers-Whittle Construction, LLC 

Under Contract No. 000000-00-0-0000 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60025 

Richard B. Ehret, Esq. 

Boykin & Utley 

New Orleans, LA 

Thomas H. Gourlay, Jr., Esq. 

Engineer Chief Trial Attorney 

J. Emmanuel I. Santa Teresa, Esq. 

David R. Dyer, Esq. 

Stephan C. Roth, Esq. 

William G. Meiners, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, New Orleans 

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE 

GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

INTRODUCTION 

Appellant, Shavers-Whittle Construction, LLC, requests that the Board "void" 

certain government contracts, and claims entitlement to payment for work that it 

performed as a subcontractor on those contracts. The government requests that the 

Board dismiss the appeal for lack of jurisdiction. We grant the motion. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

On 29 July 2008, the U.S. Army Corps of Engineers (government) awarded 

Contract No. W912P8-08-D-0047, a section 8(a) Multiple Award Task Order Contract 

(MATOC), to DQSI Corporation (R4, tab 3). On 30 September 2010, the government 

awarded Task Orders 9 and 10 under Contract No. W912P8-08-D-0047 (R4, tabs 4, 5). 

Task Order 9 was awarded to "DQSI, LLC" (R4, tab 4), and Task Order 10 was 

awarded to DQSI Corporation (R4, tab 5). In general, the task orders were for work 

on hurricane storm damage risk protection systems in New Orleans, Louisiana (R4, 

tab 4 at 1, tab 5 at 2-11). 
In October 2010, DQSI, LLC, subcontracted with appellant for appellant to 

perform work required by Task Orders 9 and 10 (R4, tab 8 at 1). On 24 October 2013, 

appellant wrote to the contracting officer informing her that DQSI, LLC, owed 

appellant $499,753.60 under those task orders (app. supp. R4, tab 10). The letter did 

not demand that the government pay appellant, or state any particular dollar amount 

that the government would pay (id.). Nor was it accompanied by the certification 

required by the Contract Disputes Act (CDA), 41 U.S.C. § 7103(b)(l), for monetary 

claims of more than $100,000 (id.). Rather, the purpose of the letter appears to have 

been to ask the government to prevent DSQI, LLC, from assessing liquidated damages 

against appellant (id. at 2). 

On 26 March 2015, appellant's counsel wrote to the government's contracting 

officer asserting that appellant and DQSI, LLC, were in litigation involving "division 

of the remaining contract dollars" (R4, tab 6). The letter also asserted that DQSI, 

LLC, had obtained its prime contract by fraud (because, according to the letter, DQSI, 

LLC, was not a certified 8(a) contractor and, therefore, had not been qualified to have 

been awarded the contract) (id.). The letter further stated that "under [Federal 

Acquisition Regulation (FAR)] 49.108.8 [sic], the Corps has the authority to terminate 

the prime contract, which is probably void ab initio, and settle with the subcontractors 

which for these Task Orders is only [appellant]" (id.). However, like the 24 October 

2013 letter, the 26 March 2015 letter did not demand that the government pay 

appellant any money, or state any particular payment amount; nor did it include the 

certification required for monetary claims over $100,000 (id.). 

In a 20 April 2015 letter to appellant, the contracting officer stated that "the 

contract project has been physically completed," and that "[t]o terminate at this time is 

not in the Government's best interest" (R4, tab 7). The contracting officer encouraged 

appellant "to continue to pursue your remedies through the Federal and State Courts 

enforcing the terms and conditions of your subcontracts" (id.). Appellant filed this 

appeal on 1June2015, requesting "the voiding ofthe ... contract and payment of all 

monies due" (R4, tab 2 at 5, ii 21). 1 The government moved for dismissal for lack of 

jurisdiction, and the Board held an evidentiary hearing on the issue of jurisdiction. 

1 Although appellant's notice of appeal requests "the voiding ofthe ... contract" (R4, 

tab 2 at 5, ii 21), appellant's brief in response to the motion to dismiss refers to 

termination of the task orders (app. br. at 5). For simplicity, we interpret 

appellant's appeal to request the "voiding," or termination, of Contract 

No. W912P8-08-D-0047, Task Order 9, and Task Order 10. 

2 
DECISION 

We grant the government's motion and dismiss the appeal for lack of 

jurisdiction.2 For the Board to exercise jurisdiction over an appeal under the CDA, the 

appeal must be filed by a contractor, SKE Technical Services GmbH, ASBCA 

No. 59711, 15-1BCA,-r35,941 at 175,662; that is, a non-governmental party to a 

government contract. Winter v. FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 2009); 

41 U.S.C. §§ 7101(7), 7104(a). Appellant admits that it did not have a contract with 

the government (tr. 1/14), and invokes no recognized exception to the general rule, 

United States v. Johnson Controls, Inc., 713 F.2d 1541, 1551 (Fed. Cir. 1983), that a 

subcontractor cannot bring a direct appeal against the government. Rather, appellant 

contends that provisions such as FAR 49 .108-8(b ), which allows the government "to 

settle and pay any settlement proposal arising out of the termination of subcontracts," 

imply a contract in law between appellant and the government (app. br. at 6-7). 

However, whatever authority the government may have to settle directly with 

appellant, the Board does not possess jurisdiction to entertain any implied-in-law 

contract claims that appellant might be asserting in this appeal. ASF A Construction 

Industry and Trade, Inc., ASBCA No. 57269, 15-1BCA,-r36,034 at 176,005. 

The Board, also, does not possess jurisdiction to order injunctive relief such as 

appellant's request for the ''voiding," or termination, of contracts. See CDM 

Constructors, Inc., ASBCA No. 59524, 15-1BCA,-i36,097 at 176,240. In addition, for 

the Board to possess jurisdiction to entertain appellant's request for the payment of 

money, appellant must first have presented a monetary claim to the contracting officer in 

a sum certain. Al Bahar Co., ASBCA No. 58416, 14-1BCA,-r35,691 at 174,689 (citing 

41 U.S.C. § 7103). As appellant concedes (app. hr. at 5), its 26 March 2015 letter to the 

contracting officer, which appellant contends is its claim, "does not seek a sum certain." 

Even considering the 24 October 2013 letter as part of appellant's claim, and the 

reference to $499,753.60 in that letter as a request for payment of that amount, appellant 

never provided a CDA certification of that amount, which is a prerequisite for Board 

jurisdiction to entertain a claim for more than $100,000. GSC Construction, Inc., 

ASBCA No. 59401, 15-1BCA,-r35,887 at 175,445. For these reasons, we do not 

possess jurisdiction to entertain any monetary claim that appellant presents in this appeal. 

2 We find it unnecessary to decide whether, as the parties address, DSQI Corporation 

and DSQI, LLC, are the same entity. 

3 
CONCLUSION 

For these reasons, the appeal is dismissed for lack of jurisdiction. 

Dated: 9 February 2016 

I concur 

~~~ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrat ve Judge 

Armed Services Board 

of Contract Appeals 

I concur 

RICHARD SHACKLEFORD 

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. 60025, Appeal of 

Shavers-Whittle Construction, LLC, rendered in conformance with the Board's 

Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals