ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- Shavers-Whittle Construction, LLC Under ContractNo. 000000-00-0-0000 APPEARANCE FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 60025

Richard B. Ehret, Esq.

Boykin & Utley New Orleans, LA Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney J. Emmanuel I. SantaTeresa, Esq. David R. Dyer, Esq. Stephan C. Roth, Esq. William G. Meiners, Esq.

Engineer Trial Attorneys U.S. Army Engineer District, New Orleans OPINIONBYADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION INTRODUCTION Appellant, Shavers-Whittle Construction, LLC, requests that the Board "void" certain government contracts, and claims entitlementtopayment for workthat it performed as a subcontractoron those contracts. The government requests that the Board dismiss the appeal for lack of jurisdiction. We grant the motion. STATEMENT OF FACTS FORPURPOSES OF THE MOTION On 29 July 2008, the U.S. Army Corps ofEngineers (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 riskprotection 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 herthat DQSI, LLC, owed appellant $499,753.60 under those task orders (app. supp. R4, tab 10). The letter did not demand that the governmentpay appellant, or state any particular dollar amount thatthe government wouldpay (id.). Nor was it accompanied by the certification required by the ContractDisputes Act (CDA), 41 U.S.C. §7103(b)(l), for monetary claims ofmore than $100,000 (id.). Rather, the purpose ofthe letter appears to have been to ask the governmentto preventDSQI, 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 ofthe remaining contract dollars" (R4, tab 6). The letter also asserted that DQSI, LLC, had obtained its prime contractby 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 statedthat "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 governmentpay appellant any money, or state any particularpayment amount; nor did it include the certification required for monetary claims over $100,000 (id.). In a 20 April 2015 letterto appellant, the contracting officer stated that "the contractproject has beenphysically completed," and that "[t]oterminate at this time is not in the Government'sbest interest" (R4, tab 7). The contracting officer encouraged appellant "to continue topursue yourremedies through the Federal and State Courts enforcing the terms and conditions ofyour subcontracts" (id.). Appellant filed this appeal on 1June2015, requesting "the voiding ofthe

...contract and payment ofall monies due" (R4, tab 2 at 5, 

### ii 21). 1 The government moved for dismissal for lack of jurisdiction, and the Boardheld an evidentiary hearing on the issue of jurisdiction.

1 Although appellant's notice ofappeal requests "thevoiding ofthe

...contract" (R4, tab 2 at 5, 

### ii 21), appellant's briefin response to the motion to dismiss refers to termination ofthe task orders (app. br. at 5). For simplicity, we interpret appellant's appeal to request the "voiding," ortermination, ofContract No. W912P8-08-D-0047, Task Order 9, and Task Order 10.

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# i iDECISION We grantthe government's motion and dismiss the appeal for lack of jurisdiction.2 Forthe Boardto exercisejurisdiction over an appeal under the CDA, the appeal must be filed by a contractor, SKE TechnicalServices GmbH, ASBCA No. 59711, 15-1BCA,-r35,941 at 175,662; that is, a non-governmental partyto 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, UnitedStates v. Johnson Controls, Inc., 713 F.2d 1541, 1551 (Fed. Cir. 1983), that a subcontractor cannotbring a direct appeal againstthe government. Rather, appellant contends thatprovisions such as FAR49.108-8(b), which allows the government "to settle and pay any settlementproposal arising out ofthe termination ofsubcontracts," 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 notpossessjurisdictionto entertain any implied-in-law contract claims that appellant might be asserting in this appeal. ASF A Construction Industry andTrade, Inc., ASBCA No. 57269, 15-1BCA,-r36,034 at 176,005. The Board, also, does notpossessjurisdictionto order injunctive reliefsuch as appellant's request for the ''voiding," ortermination, ofcontracts. See CDM Constructors, Inc., ASBCANo. 59524, 15-1BCA,-i36,097 at 176,240. In addition, for the Boardto possessjurisdictionto 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. AlBahar 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 letterto the contracting officer, which appellant contends is its claim, "does not seek a sum certain." Even consideringthe 24 October 2013 letter as part ofappellant's claim, and the reference to $499,753.60 in that letter as a request for payment ofthat amount, appellant neverprovided a CDA certification ofthat amount, which is aprerequisite for Board jurisdictionto entertain a claim for more than $100,000. GSC Construction, Inc., ASBCA No. 59401, 15-1BCA,-r35,887 at 175,445. Forthese reasons, we do not possessjurisdictionto 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.
3CONCLUSION Forthese reasons, the appeal is dismissed for lack of jurisdiction. Dated: 9 February 2016

I concur

# ~~~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals Administrat ve Judge Armed Services Board ofContractAppeals

I concur

RICHARD SHACKLEFORD 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. 60025, Appeal of Shavers-Whittle Construction, LLC, rendered in conformance with the Board's Charter. Dated:

4 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals