ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of

--

Greenland Contractors I/S

Under ContractNo. FA2523-15-C-0002

APPEARA.tl\JCES FOR THE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 61113, 61248

James J. McCullough, Esq. Michael J. Anstett Esq. Anayansi Rodriguez, Esq.

Fried, Frank Harris, Shriver 

### &

Jacobson LLP Washington, DC

Jeffrey P. Hildebrant, Esq.

Air Force Deputy ChiefTrial Attorney Kyle E. Gilbertson, Esq.

Trial Attorney

OPINION BYADMINISTRATIVE JUDGE D'ALESSANDRIS ON THE GOVERN:r-v1ENT'S SECOND MOTION TO DISMISS

Pendingbefore the Board is the four-page motion to dismiss filed byrespondent, the Department ofthe Air Force (Air Force or government). As the procedural posture ofthese appeals is complex, it is explained in detail below.

Greenland Contractors I/S (Greenland) filed its first appeal, ASBCA No. 61113, in April 2017, from what Greenland contended was a government claim for contract interpretation regarding maintenance ofelectrical generation equipment, referred to as engines #1 through #5, at Thule Air Force Base in Greenland. The Air Force filed its first motion to dismiss before a complaintwas filed. While that motion to dismiss was pending, Greenland filed its second appeal, ASBCANo. 61248, from what it contends is

a government claim in the nature ofa unilateral deductive modification inthe amount of $3.2 million, pursuant to the inspection clause, for workpurportedly required by the contract, butnot perf 01med by Greenland.

On December 8, 2017, the Board denied the Air Force's first motion to dismiss. 

### GreenlandContractors IS, ASBCA Nos. 61113, 61248, 18-1 BCA

## ,r 36,942. Based upon the limited record before us at that time, we held that the Air Force had asserted a non-monetary government claim for otherrelief. Subsequentto that opinion, the Board denied Greenland's motions to require the government to file the complaint 

### in the then consolidated appeals (ASBCA Nos. 61113 and 61248). Greenland filed its


# 'complaint on February 12, 2018. Relevant to the pending motion, Greenland included in its prayer for reliefa request that the Board "[d]etermine that the Air Force's unilateral contractmodification was factually and legally in error, entitling Greenland Contractors to return ofthe Air Force's claimed $3.2 million in withheld amounts" (compl. at 24).

The government then filed the instant motion to dismiss asserting two jurisdictional challenges: first, because Greenland had notpresented its purported monetary claims to the contracting officer; and second, because ASBCA No. 61113

was nottimely filed. Greenland opposed the government's motion. Although not addressed by the Air Force in its motion to dismiss, Greenland's complaint also indicated that it had "pe1formed the directed repairs [to engine #1] by September 30, 2017 at a cost of$422,086" (compl. at 21, 

## ,r 100).

The Board raised the issue ofGreenland's performance ofpurportedly additional work with the parties in a telephonic status conference on May 30, 2018. Greenland subsequently indicatedthat it would present a claim for its additional costs ofperformance which it did. 

### An Air Force contracting officer denied Greenland's claim on October 2, 2018 (R4, tab 17). Greenland appealed this denial to the Board and the appeal was docketed as ASBCA No. 61834, 1 and consolidated with ASBCA Nos. 61113 and 61248. Greenland filed its consolidated complaint on November 13, 2018 (consol. comp

### 1.). By order dated October 17, 2018, the Board invited the government to file a supplemental briefaddressing any new information relevant to its pending motion. On December 13, 2018, the government provided notice that it would not file a supplemental brief.

Not addressed by the government, butrelevant to our dete1mination of jurisdiction, Greenland asserts in its consolidated complaint three instances where it

was directed to pe1form work on engines #1 and #3 that Greenland contends was beyondthe scope ofits contract or was additional work caused by the Air Force's failure to perform work that Greenland contends the Air Force was required to perf 01m under the contract (R4, tab 16 at 3). Specifically, Greenland asserts that its subcontractor repaired the master and articulating rod on engine # l at a cost of $237,941.02 (consol. compl. at 20, 

## ,r,r 90-91). This work was invoiced on February 28, 2017, and Greenland paidthe invoice on Aptil 12, 2017 (R4, tab 16 at 22-25). Greenland asserts that its subcontractorrepaired the left camshaft on engine #3 at a cost of$257,803.64 (consol. compl. at 28, 

## ,r,r 135-36). This work was invoiced

on May 31, 2017, and paid on August 30, 2017 (R4, tab 16 at 48-54). In addition, Greenland contends that its subcontractorperformed additional repairs to engine # 1at

1The government's motion to dismiss only pertains to ASBCA Nos. 61113 and 61248 which are consolidated with ASBCA No. 61834.



### 2a cost of$422,085.99 (consol. comp

### I. at 29,

## ,r,r 142-43). These costs were invoiced on September 12, 2017, and paid on November 3, 2017 (R4, tab 16 at 34-41).

The government's pending motion to dismiss asserts that ASBCA Nos. 61113 and 61248 must be dismissed because Greenland seeks ·'return ofthe Air Force's claimed $3.2 million in withheld amounts'' (gov't mot. at 1 (quoting compl. at 24)). According to the Air Force, the quoted language means that Greenland is asserting a money claim that was not certified and was notpresented to the contracting officer, and thus that we are withoutjmisdiction to entertain the claim. The Air Force relies

on the Court ofAppeals for the Federal Circuit's holding in 

### Securtforce International America, LLC v. UnitedStates, 879 F.3d 1354, 1360 (Fed. Cir. 2018), for the proposition that Greenland's claim is, in essence, a monetary claim, and thus, Greenland was required to presentthe claim to the contracting officer for a final decision (gov't mot. at 1-2). In opposition, Greenland asserts that its future entitlementto repayment offunds withheld bythe Air Force does not convert its nonmonetary claims into prematm·e claims for money damages, andpoints out that certification is notrequired for a gove1nment claim (app. opp'n at 9-13). In its reply brief, the Air Force doubles-down on its argument asserting that Greenland was required to present a claim requesting a sum certain to the contracting officer asserting that 

### Securiforce makes no distinction between government and contractor claims, and thatthe "onlypractical result" ofgranting Greenland's requested reliefwould be money damages against the government (gov't reply at 1-6). The Air Force additionally cites to the Civilian Board ofContract Appeals' decision in

### Duke University v. Dept. ofHealthandHuman Services, CBCANo. 5992, 18-1 BCA 

## ,r 37,023.2 The AirForce "disputes" that its contract modification, deleting $3.2 million from the contract for work it contends was required bythe contractbutnot performed, was a government claim (gov'treply at 5).

In our opinion denying the government's first motion to dismiss, we heldthat ASBCANo. 61113 was a government claim. 

### Greenland, 18-1 BCA

## ,r 36,942
at 179,972-73. It is beyond dispute that a contractor is notrequired to certify a government claim. 

### See, e.g., Placeway Construction Corp. v. UnitedStates, 920 F.2d 903,906 (Fed. Cir. 1990)~ 41 U.S.C. 

### § 7103(a). In fact, 

### Securiforce itselfrecognizes that a termination for default, one type ofgovernment claim, is not subject to the presentment requirement. 

### Securiforce, 879 F.3d at 1363. In our opinion we noted that ASBCANo. 61248 hadbeenfiled, but did notmake any findings offact or law regarding the appeal. 

### Greenland, 18-1 BCA

## ,r 36,942 at 179,974 & n.4. We now hold that ASBCA No. 61248 is also an appeal ofa government claim, and we reject the government's argumentthat the Board lacksjurisdictionbecause Greenland failed to submit a claim.

2 While 

### Duke University is not binding on us, we find its reasoning to be persuasive as discussed further herein.

3A claim is a "written demand or written asse1tion by one ofthe contracting parties seeking, as a matter ofright, the payment ofmoney in a sum certain, the adjustment orinterpretation ofcontractterms, or otherreliefarising under orrelating to this contract" (R4, tab 1at 145 (incorporating byreference Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES (MAY 2014))); 

### see also FAR 2.101. Here, the Air Force's July 11, 2017 unilateral contractmodification and finding of nonconformance, pursuantto the inspection clause FAR52.246-4(e)(2) andreduction in contractprice of$3.2 million (R4, tab 15), satisfies the definition ofa claim. It is obviously a written demand, and as a unilateral modification, it seeks, as a matter of right the adjustment ofcontract terms byreducing the contract amountby a sum certain amount of$3.2 million. In 

### Garrett v. GeneralElec. Co., 987 F.2d 747 (Fed. Cir. 1993), the Federal Circuit held thatpursuant to that contract's inspection clause, the governmenthadthree options when it found that the contractorhadnot fulfilled the contract's requirements; it could have: 1) reduced the contract price by an equitable portion ofthe contractprice; 2) demandedthatthe contractorrepay an equitable portion ofthe contractprice; or 3) directed the contractor to correct orreplace the defective product. 

### GeneralElectric, 987 F.2d at 749. Having already ordered Greenland to perform work that Greenland contends was notrequired by the contract, the governmentissued a unilateral contract modification to reduce the contract amount by, what itbelieves to be an equitable portion, ofthe contractprice. This is also a government claim. 

### See DynPort Vaccine Co. LLC, ASBCA No. 59298, 15-1 BCA 135,860 (holding thatunilateral contract modification directingperformance of corrective work at no costto the governmentto be a government claim); 

### LTV Aerospace & 

### Defense Co., VoughtMissiles & 

### AdvancedPrograms Div., ASBCA No. 35674, 89-2 BCA 121,858 at 109,950-51 (government reduction ofcontractprice

a government claim). Moreover, an interpretation ofthe contractinfavor of Greenland inASBCANo. 61248 would simply return moneyto the contract and would not constitute a money claimby Greenland. However, any amount soughtby Greenland beyond reversal ofthe deductive modification, such as for additional work

or Contract Disputes Act (CDA) interest would constitute a contractor claim. 

### See, e.g., MartinMarietta Corp., ASBCA No. 25828, 84-1BCA117,119 at 85,256-58 (contractor claimrequired to recover CDA interest on amounts withheld).

The Federal Circuit's recentholding in

### Securiforce does not change the definition ofa government claim. Instead, 

### Securiforce, and the Civilian Board's holding in

### Duke, clarifywhen a purported non-monetary CDA claim actually seeks monetaryrelief. As the government notes, the holding in

### Securiforce states that "[i]f 'the only significant consequence' ofthe declaratoryreliefsought 'wouldbe that [the plaintiff] would obtain monetary damages from the federal government,' the claim is in essence a monetary one." 

### Securiforce, 879 F.3d at 1360 (quoting

### Brazos Elec. Pmver Coop., Inc. v. UnitedStates, 144 F.3d 784, 787 (Fed. Cir. 1998)).

4Based upon the record before us when we issued our earlier opinion, it appeared that Greenland was appealing from a valid government claim for otherrelief. Unlike in 

### Securiforce, resolution ofthe contract interpretation issue could have determined whether Greenland was required to perform maintenance on the generators pursuant to the contract. As in 

### General Electric, this otherrelief, relieving Greenland ofan obligation to perform, would have been a "significant consequence" ofthe declaratory reliefsought that was notmonetary in nature.

In 

### Securifhrce, the government issued a partial termination for convenience and then tenninated the contractor for default. The contractor filed its initial complaint in the Court ofFederal Claims to challenge the tennination for default and then filed a claim with the contracting officer challenging the termination for convenience. 

### Securiforce, 879 F.3d at 1359-60. Thus, at the time 

### Securijorce filed its claim, ithad already been terminated for default and it could not obtain any reliefotherthan money damages because it was no longer performing on the contract. Similarly, the Civilian Board held in

### Duke, thatthe contractorhad "already incurred costs associated with its contract interpretation dispute, and it couldhave quantified those costs and stated them in a sum certain in a claimto the contracting officer.'' 

### Duke, 18-1 BCA

## ,r 37,023 at 180,290. The Civilian Board explainedthat a "ruling in Duke's favor would not result in Duke avoiding costs, but instead wouldbe used only to entitle Duke to monetaryreliefin a separate proceeding. In such circumstances, it is clearthat Duke has an uncertified and unquantified monetary claim." 

### Id

We detenninejurisdiction at the time the appellant filed its notice ofappeal. 

### See, e.g., Keene Corp. v. UnitedStates, 508 U.S. 200,207 (1993) 

### (quotingMollan v. Torrance, 9 Wheat. 537, 539 (1824)) ("thejurisdiction ofthe Court depends upon the state ofthings at the time ofthe action brought"). Thus, the fact that Greenland might have subsequently incuITed costs performing the tasks that it contends were not required pursuant to the contract would not necessarily deprive us of jurisdiction. However, we nowknow from Greenland's consolidated complaintthat ithad performed work that it contends was beyond the scope ofthe contract 

### before itfiled its notice ofappeal.3 Specifically, Greenland attached to its claim documents showing that its subcontractor invoiced Greenland for suchrepairs in Februa1y 2017 (R4, tab 16 at 22), which was before Greenland's April 10, 2017 notice ofappeal in ASBCA No. 61113. This fact contradicts Greenland's argument that "itwould have been impossible for Greenland Contractors to have submitted a certified claim for a sum certain prior to or at the time it filed its appeal in No. 61113" (app. resp. at 12). Thus, Greenland's situation is similarto that in 

### Duke in that a holding in Greenland's favor would not allow Greenlandto avoid performing, butwould only be used to entitle Greenland to monetaryreliefin a separate proceeding

- one that Greenland has

3 Although the government does notraise this argument, we must guard the Board's jurisdiction and considerthese facts 

### suasponte. ·

5 

# i

Ialready filed and that is now consolidated with these appeals. Thus, we find that Greenland's appeal in ASBCA No. 61113 is in reality a claim for money damages that

was not submitted to a contracting officerfor a final decision. Accordingly, we dismiss ASBCA No. 61113. We find that ASBCA No. 61248 is a government claim that was notrequired to be submitted to a contracting officer and is properlybefore the Board. As we find that we lackjurisdiction to entertain ASBCA No. 61113, we need not reach the Air Force's second argument that the appeal is untimely.

Dated: January 29, 2019

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals DAYID D'ALESSANDRIS Administrative Judge Armed Services Board ofContract Appeals

I concur



### ~y Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I ce1tify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANos. 61113, 61248, Appeals of Greenland Contractors I/S, rendered in conformance with the Board's Charter.

Dated:

6 JEFFREY D. GARDIN Recorder, Aimed Services Board ofContract Appeals