ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Melwood Horticultural Training Center, Inc.) 

) 

Under Contract No. W911S0-11-F-0040 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60666 

Larysa Kautz, Esq. 

General Counsel 

Christie Roberts, Esq. 

Assistant General Counsel 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

MAJ David H. Stem, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE WOODROW 

ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

This appeal arises out of a contract between the United States Army (Army) 

and Melwood Horticultural Training Center, Inc. (Melwood or appellant) for base 

operations facility maintenance services at Fort George G. Meade (Fort Meade or 

FGGM) in Maryland. 

Appellant's request for additional funds in ASBCA No. 60666 seeks to recover 

costs for three separate matters: (1) reimbursement for retention bonuses; (2) 

reimbursement for subcontractor payments associated with alleged breaches of the 

contract; and (3) an amount "TBD" (to be determined) for lost profits associated with 

services procured from vendors other than appellant, allegedly in violation of the terms of 

the contract. The Board consolidated this appeal with ASBCA No. 60323* and appellant 

subsequently filed a consolidated complaint. 

The Army moves to dismiss ASBCA No. 60666 for lack of jurisdiction. The 

government challenges the Board's jurisdiction on three grounds: (1) that the 

contracting officer (CO) never issued a final decision as to appellant's claim; (2) that 

appellant's claim fails to state a sum certain; and (3) that appellant's claim fails to state a 

claim on which relief may be granted. Although appellant's request for additional relief 

*While ASBCA No. 60666 is consolidated with ASBCA No. 60323, this decision 

pertains only to the government's motion to dismiss in ASBCA No. 60666. 

However, the Rule 4 and supplemental Rule 4 references in this decision pertain 

to the submittal filed under ASBCA No. 60323. 
contains specific dollar amounts for some elements, the total amount of the request is an 

unspecified amount "to be determined" and a total amount cannot readily be calculated 

by simple arithmetic. Accordingly, we hold that we lack jurisdiction to entertain 

appellant's request in ASBCA No. 60666, because it fails to state a sum certain. 

STATEMENT OF FACTS CSOF) FOR PURPOSES OF THE MOTION 

1. On 1 July 2011, the Mission & Installation Contracting Command, Fort Eustis, 

Virginia (MICC or Army) awarded Contract No. W911S0-11-F-0040 to Melwood for 

facilities maintenance and repair, sustainment, restoration, and modernization at 

Fort Meade (supp. R4, tab 5 at 1). 

2. The contract incorporated by reference FAR 52.212-4, CONTRACT TERMS AND 

CONDITIONS - COMMERCIAL ITEMS (JUN 2010), which reads in pertinent part: 

(d) Disputes. This contract is subject to 41 U.S.C. 

chapter 71, Contract Disputes. Failure of the parties to this 

contract to reach agreement on any request for equitable 

adjustment, claim, appeal or action arising under or relating to 

this contract shall be a dispute to be resolved in accordance 

with the clause at FAR 52.233-1, Disputes, which is 

incorporated herein by reference. The Contractor shall 

proceed diligently with performance of this contract, pending 

final resolution of any dispute arising under the contract. 

(Supp. R4, tab 5 at 46) 

3. The contract also incorporated by reference FAR 52.233-1, DISPUTES (MAY 

2014 ), which reads in pertinent part: 

( c) Claim, as used in this clause, means a written 

demand or written assertion by one of the contracting parties 

seeking, as a matter of right, the payment of money in a sum 

certain, the adjustment or interpretation of contract terms, or 

other relief arising under or relating to this contract. 

However, a written demand or written assertion by the 

Contractor seeking the payment of money exceeding 

$100,000 is not a claim under 41 U.S.C. chapter 71 until 

certified. A voucher, invoice, or other routine request for 

payment that is not in dispute when submitted is not a claim 

under 41 U.S.C. chapter 71. The submission may be 

converted to a claim under 41 U.S.C. chapter 71, by 

complying with the submission and certification requirements 

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of this clause, if it is disputed either as to liability or amount 

or is not acted upon in a reasonable time. 

(Supp. R4, tab 5 at 46) (Emphasis added) 

4. By letter dated 11April2016, appellant mailed (via FedEx) a package with a 

completed version of its "Claim: Request for Contracting Officer's Final Decision" to 

the CO on 14 April 2016 (supp. R4, tab 54). Also included in the letter was a signed 

certification in accordance with FAR 33.207 (id. at 9). 

5. In its submittal to the CO, appellant sought the following relief: 

[R]eimbursement for $114,000.00 for Retention Bonuses paid 

to Melwood's key project personnel and $130,985.00 for 

Melwood's GFEBS subcontractor, Thompson Gray, and 

Melwood's IT subcontractor, Corsica. Additionally, 

Melwood seeks the anticipatory margin and profit associated 

with Fort Meade and MICC subcontracting and purchasing 

made outside of the designated BASOPS Procurement List 

provider, Melwood. 

(Supp. R4, tab 54 at 1) 

6. Specifically, appellant sought to recover costs for three items. First, appellant 

sought reimbursement for retention bonuses paid to Melwood's key project personnel in 

the amount of$114,000.00 plus a markup of20.87%. Second, appellant sought 

reimbursement for two ofMelwood's subcontractors, Thompson Gray and Corsica, in the 

amount of $130,985.00 plus a markup of20.87%. The total amount for these two elements 

not including mark-up is $244,985.00. Third, appellant sought "anticipatory lost profits" 

for alleged breaches of the contract associated with subcontracting and purchasing made 

outside of the designated BASOPS Procurement List provider, Melwood, in an amount 

"TBD." (See supp. R4, tab 54 at 1, 354) 

7. Melwood subcontracted with Thompson Gray for General Fund Enterprise 

Business System support (supp. R4, tab 54 at 6). Contract section C.1.9. l explains that the 

General Fund Enterprise Business System (GFEBS) is the Army's automated financial 

management system, which replaced the Integrated Facilities System-Maintenance (IFS-M) 

real property management recordkeeping system in fiscal year 2011 (supp. R4, tab 5 at 130). 

8. Melwood subcontracted with Corsica to provide additional Information 

Technology (IT) support (supp. R4, tab 54 at 6). 

9. "BASOPS" stands for Base Operations Support Plan (supp. R4, tab 5). The 

BASOPS Procurement List, in turn, refers to the AbilityOne Procurement List (PL), a list 

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maintained by United States AbilityOne Commission of products and services designed 

to create work opportunities for people who are blind or who have significant disabilities. 

See FAR Subpart 8.703, Procurement List. 

10. Attachment 60 to appellant's 11 April 2016 letter states that it seeks total 

reimbursement in the amount: "$295,892.88 + TBD" (supp. R4, tab 54 at 354): 

Retention Bonuses $114,000 

IT Subcontractors (Thompson Gray & Corsica) $130,985 

PL Violations $TBD 

Subtotal $244,985 + TBD 

Markup at 20.78% $50,907 .88 + TBD 

Total $295,892.88 + TBD 

11. Appellant mentions seven contracts, discussed in the chronology set forth in 

Attachment 1 to the letter, as among the contracts that the Army awarded outside the 

designated BASOPS procurement list, allegedly in violation of FAR 8. 704, Purchase Priorities 

and FAR 8.706, Purchase Exceptions (PL Violations) (supp. R4, tab 54 at 8, 13, 71-72). 

Appellant does not set forth the dollar amount of any of these contracts (id. at 71-72). 

12. Appellant also states that the Army awarded an additional eight contracts 

during 2011through2014 which were worth "over $28,431,350." Accordingly, it "seeks 

the anticipatory profit from these 15 procurement actions described above as well as any 

other similar inappropriate actions not fully disclosed by FGGM MICC at this time." 

(Supp. R4, tab 54 at 8) 

13. In a letter dated 13 June 2016, the CO responded to appellant's submittal, 

stating that: 

Based on a review of the claim, as well as the accompanying 

supporting documentation, the Government cannot make a 

Determination regarding Mel wood's claim at this time, and 

the purpose of this correspondence is to request specific 

information in order for the Government to properly address 

Melwood's concerns. 

This is not a final decision of the contracting officer, but 

rather a request for more information which, hopefully, will 

allow me to render an informed decision on your claim. 

(Supp. R4, tab 55 at 1, 4) 

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14. The CO's 13 June 2016 response did not notify Melwood of the time within 

which the CO would issue a final decision (supp. R4, tab 55). 

15. Melwood did not respond to the CO's request for information (gov't mot. to 

dismiss at 3 ). 

16. On 16 June 2016, appellant filed a notice of appeal with the Board. 

Appellant's notice of appeal stated that the "inability of the Contracting Officer to issue a 

decision, in accordance with FAR 33.21, Contracting officer's decision, (g) is deemed to 

be a denial of the claim thereby authorizing Melwood to file this appeal." 

17. On 13 July 2016, the Board notified the parties that appellant's 16 June 2016 notice 

of appeal was docketed as ASBCA No. 60666 and consolidated with ASBCA No. 60323. 

18. On 28 July 2016, the government filed a motion to dismiss ASBCA No. 60666. 

19. On 12 August 2016, appellant filed an amended complaint. In its amended 

complaint, appellant stated that it "is entitled to the anticipatory margin and profit 

associated with the aggregate amount of contracts and purchases made outside of the 

designated PL [Procurement List], which amount is $28,431,350." (Am. compl. iii! 65-67) 

20. On 29 August 2016, appellant filed its response to the government's motion to 

dismiss. 

21. On 21 October 2016, the government filed its reply brief in support of its 

motion to dismiss. 

DISCUSSION 

The government challenges the Board's jurisdiction to entertain ASBCA No. 60666 

on three grounds: (1) that the CO never issued a final decision as to appellant's claim; 

(2) that appellant's claim fails to state a sum certain; and (3) that appellant's claim fails to 

state a claim on which relief may be granted. Because the threshold issue regarding our 

jurisdiction begins with the filing of a claim with the CO, we will first address whether 

appellant's 11April2016 submittal constituted a claim as defined by the contract, 

applicable regulations, and case law. 

Appellant's Claim Fails to State a Sum Certain 

Our jurisdiction under the CDA is predicated upon the filing of a claim by one of 

the contracting parties, 41 U.S.C. § 7103(a). The CDA does not define "claim," but the 

Federal Acquisition Regulation (FAR) does so. FAR 2.101 states in pertinent part as 

follows: 

5 
Claim means a written demand or written assertion by 

one of the contracting parties seeking, as a matter of right, the 

payment of money in a sum certain, the adjustment or 

interpretation of contract terms, or other relief arising under 

or relating to the contract. However, a written demand or 

written assertion by the contractor seeking the payment of 

money exceeding $100,000 is not a claim under the Contract 

Disputes Act of 1978 until certified as required by the Act. 

[Emphasis added] 

This definition of "claim" also is incorporated into appellant's contract as a part of the 

Disputes clause, set forth at FAR 52.233-1, Disputes (SOF ~ 3). The specific issue before 

us is whether appellant's letter to the CO, dated 11 April 2016, asserts a claim in a "sum 

certain" in accordance with this definition. If it does not, appellant has not asserted a 

proper claim, and we do not possess jurisdiction. 

Attachment 60 to appellant's submittal states that appellant seeks total 

reimbursement in the amount of $295,892.88 plus an amount "TBD" (SOF ~ 10). The 

specific dollar figure of $295,892.88 is the sum of the amounts for retention bonuses for 

Melwood employees ($114,000), IT subcontracts with Thompson Gray & Corsica 

($130,985), plus a markup of20.78 percent on both of those amounts ($50,907.88) (id.). 

In contrast, the component of appellant's request for lost profits associated with services 

procured from vendors other than appellant does not set forth a specific dollar amount. 

Instead, it states that the amount is TBD. Appellant admits as much in its response brief: 

"[t]he only request that does not specify the precise final monetary amount due to 

Appellant is for the lost profits" (app. resp. at 5). 

While it is true that portions of appellant's submittal contain specific dollar 

amounts, the overall claim fails to state a sum certain. We decline to sever portions of 

the claim in order to maintain jurisdiction over the portions containing specific dollar 

amounts. Specifically, in Islands Mechanical Contractor, Inc., ASBCA No. 59655, 17-1 

BCA ~ 36,721 at 178,809 (citing Eaton Contract Services, Inc., ASBCA No. 52888 et al., 

02-2 BCA ~ 32,023, aff'd on recon., 03-1 BCA ~ 32,239), we held: 

The failure to meet jurisdictional requirements remains even 

if, as here, the "claims" contain one component...which were 

stated in a sum certain but the overall "claim" is not. We will 

not entertain that portion of a claim stated in a fixed amount 

and discard the remainder, as an "entire claim is in a sum 

certain, or it is not." 

Thus, if a portion of a claim does not contain a sum certain, the submittal to the CO does 

not meet the definition of a claim as set forth in the contract (SOF ~ 3) and in FAR 2.101. 

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Appellant's argument that the amount of lost profits readily is calculable is 

unavailing. While a claim may be sufficient if the amount in dispute can be determined 

by simple mathematical calculation, this is not such a case. See, e.g., PHI Applied 

Physical Sciences, Inc., ASBCA Nos. 56581, 58038, 13 BCA ~ 35,308 at 173,337 

("Although the amount sought was not expressly totaled by appellant, a sum certain total 

is readily calculable by simple arithmetic."). 

According to appellant, the amount of appellant's lost profits can be calculated 

with "pertinent contractual details, including cost" from the contracts the government 

entered into with other vendors allegedly in violation of appellant's contract (app. resp. 

at 5). Although appellant filed a Freedom of Information Act (FOIA) request for these 

contracts, it states that it "has not been successful in obtaining them" (id. at 6). Instead, 

appellant contends that the government has information in its possession and, therefore, 

has adequate notice of the monetary amount of appellant's "claim for anticipatory lost 

profits." 

Appellant's argument that its anticipated lost profits can be calculated from 

information in the government's possession is flawed for several reasons. First, appellant 

has not explained - in its 11 April 2016 submittal to the CO or its brief - how the 

government would make such a calculation. Appellant asserts in its brief that the 

government is "familiar with Appellant's pricing model, including the agreed-upon mark-up 

for Appellant's services." (App. resp. at 7) According to appellant's argument, the 

government should infer that it could multiply appellant's mark-up percentage by the 

aggregate value of the contracts that allegedly were diverted from appellant in order to 

calculate appellant's anticipated lost profits. Not only must this calculation be inferred, the 

inputs to the calculation also must be inferred. 

Second, appellant's request does not identify the specific contracts that it alleges 

were diverted from appellant, nor does the request set forth specific dollar amounts for 

the allegedly diverted contracts. In its submittal, appellant mentions seven contracts, 

discussed in the chronology set forth in Attachment 1 and also mentions an additional 

eight contracts revealed from FOIA requests. (SOF ~ 11) Appellant states that FGGM 

MICC awarded these eight contracts during 2011 through 2014 and were worth "over 

$28,431,350.00" (SOF ~ 12). Appellant then states that it "seeks the anticipatory profit 

from these 15 procurement actions described above as well as any other similar 

inappropriate actions not fully disclosed by FGGM MICC at this time" (id.). These 

statements demonstrate that the amount of anticipatory lost profits is a moving target and 

is based on appellant's allegations of what constitutes "inappropriate" procurement 

actions. It would be impossible for the government to speculate as to what contracts 

appellant considers to be "inappropriate." 

Moreover, appellant's statements in its brief acknowledge the ambiguity in the 

calculation of its lost profits. Specifically, appellant states that its request is based on the 

amount of diverted contracts "in excess of $28,431,350.00," leaving open the possibility 

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that there is some other undisclosed amount that would serve as the basis of appellant's 

lost profits claim. (App. resp. at 6) Indeed, if the calculation were as straightforward as 

appellant claims, it could have made the calculation in its request to the CO. 

Finally, appellant cannot rehabilitate its submittal to the CO by relying on 

information obtained during discovery (app. resp. at 5-6). While a contractor may 

properly amend its claim upon learning additional facts pertaining to a valid claim, 

Tecom, Inc. v. United States, 732 F.2d 935, 938 (Fed. Cir. 1984), it cannot later furnish a 

sum certain to "rehabilitate" an invalid claim or portion thereof. Northrop "Grumman, 

10-2 BCA ii 34,517 at 170,233 (citing Eaton, 02-2 BCA ii 32,023 at 158,266-67). The 

sufficiency of a claim is determined at the time it is submitted to the CO; if it was 

improperly made, the Board lacks jurisdiction. Id. 

In summary, because Melwood's submittal to the CO in ASBCA No. 60666 is not 

stated as a sum certain, it does not meet the definition of a claim and, as such, we lack 

jurisdiction to entertain the appeal. 

CONCLUSION 

For these reasons, we grant the government's motion to dismiss. 

Dated: 7 June 2017 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

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I concur 

OWEN C. WILSON 

Administrative Judge 

Acting 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. 60666, Appeal ofMelwood 

Horticultural Training Center, Inc., rendered in conformance with the Board's Charter. 

Dated: 

9 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals