ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of --

Greenland Contractors I/S 

Under Contract No. F A2523-15-C-0002 

APPEARA.tl\JCES FOR THE APPELLANT: 

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APPEARANCES FOR THE 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 Chief Trial Attorney 

Kyle E. Gilbertson, Esq. 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE D'ALESSANDRIS 

ON THE GOVERN:r-v1ENT'S SECOND MOTION TO DISMISS 

Pending before the Board is the four-page motion to dismiss filed by respondent, 

the Department of the Air Force (Air Force or government). As the procedural posture 

of these 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 of electrical 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 complaint was filed. While that motion to dismiss was 

pending, Greenland filed its second appeal, ASBCA No. 61248, from what it contends is 

a government claim in the nature of a unilateral deductive modification in the amount of 

$3.2 million, pursuant to the inspection clause, for work purportedly required by the 

contract, but not perf 01med by Greenland. 

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

Greenland Contractors 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 other relief. Subsequent to 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 relief a request that the Board "[ d]etermine that the Air Force's 

unilateral contract modification was factually and legally in error, entitling Greenland 

Contractors to return of the 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 not presented its purported 

monetary claims to the contracting officer; and second, because ASBCA No. 61113 

was not timely 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 of Greenland's performance of purportedly 

additional work with the parties in a telephonic status conference on May 30, 2018. 

Greenland subsequently indicated that it would present a claim for its additional costs 

of performance 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 brief addressing 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, but relevant 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 

beyond the scope of its 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 paid the invoice on Aptil 12, 2017 (R4, tab 16 

at 22-25). Greenland asserts that its subcontractor repaired 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 subcontractor performed additional repairs to engine # 1 at 

1 The government's motion to dismiss only pertains to ASBCA Nos. 61113 and 61248 

which are consolidated with ASBCA No. 61834. 

2 
a 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 of the 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 not presented to the contracting officer, 

and thus that we are without jmisdiction to entertain the claim. The Air Force relies 

on the Court of Appeals for the Federal Circuit's holding in Securtforce International 

America, LLC v. United States, 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 present the claim to the contracting officer for a final 

decision (gov't mot. at 1-2). In opposition, Greenland asserts that its future 

entitlement to repayment of funds withheld by the Air Force does not convert its 

nonmonetary claims into prematm·e claims for money damages, and points out that 

certification is not required 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 

that the "only practical result" of granting Greenland's requested relief would be 

money damages against the government (gov't reply at 1-6). The Air Force 

additionally cites to the Civilian Board of Contract Appeals' decision in Duke 

University v. Dept. ofHealth and Human Services, CBCA No. 5992, 18-1 BCA 

,r 37,023.2 The Air Force "disputes" that its contract modification, deleting $3.2 

million from the contract for work it contends was required by the contract but not 

performed, was a government claim (gov't reply at 5). 

In our opinion denying the government's first motion to dismiss, we held that 

ASBCA No. 61113 was a government claim. Greenland, 18-1 BCA ,r 36,942 

at 179,972-73. It is beyond dispute that a contractor is not required to certify a 

government claim. See, e.g., Placeway Construction Corp. v. United States, 920 F.2d 

903,906 (Fed. Cir. 1990)~ 41 U.S.C. § 7103(a). In fact, Securiforce itself recognizes 

that a termination for default, one type of government claim, is not subject to the 

presentment requirement. Securiforce, 879 F.3d at 1363. In our opinion we noted that 

ASBCA No. 61248 had been filed, but did not make any findings of fact 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 of a government claim, and we reject the 

government's argument that the Board lacks jurisdiction because 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. 

3 
A claim is a "written demand or written asse1tion 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" (R4, tab 1 at 145 (incorporating by reference Federal Acquisition 

Regulation (FAR) 52.233-1, DISPUTES (MAY 2014))); see also FAR 2.101. Here, the 

Air Force's July 11, 2017 unilateral contract modification and finding of 

nonconformance, pursuant to the inspection clause FAR 52.246-4(e)(2) and reduction 

in contract price of $3.2 million (R4, tab 15), satisfies the definition of a claim. It is 

obviously a written demand, and as a unilateral modification, it seeks, as a matter of 

right the adjustment of contract terms by reducing the contract amount by a sum 

certain amount of $3.2 million. In Garrett v. General Elec. Co., 987 F.2d 747 (Fed. 

Cir. 1993 ), the Federal Circuit held that pursuant to that contract's inspection clause, 

the government had three options when it found that the contractor had not fulfilled the 

contract's requirements; it could have: 1) reduced the contract price by an equitable 

portion of the contract price; 2) demanded that the contractor repay an equitable 

portion of the contract price; or 3) directed the contractor to correct or replace the 

defective product. General Electric, 987 F.2d at 749. Having already ordered 

Greenland to perform work that Greenland contends was not required by the contract, 

the government issued a unilateral contract modification to reduce the contract amount 

by, what it believes to be an equitable portion, of the contract price. This is also a 

government claim. See DynPort Vaccine Co. LLC, ASBCA No. 59298, 15-1 BCA 

135,860 (holding that unilateral contract modification directing performance of 

corrective work at no cost to the government to be a government claim); LTV 

Aerospace & Defense Co., Vought Missiles & Advanced Programs Div., ASBCA 

No. 35674, 89-2 BCA 121,858 at 109,950-51 (government reduction of contract price 

a government claim). Moreover, an interpretation of the contract in favor of 

Greenland in ASBCA No. 61248 would simply return money to the contract and 

would not constitute a money claim by Greenland. However, any amount sought by 

Greenland beyond reversal of the deductive modification, such as for additional work 

or Contract Disputes Act (CDA) interest would constitute a contractor claim. See, e.g., 

Martin Marietta Corp., ASBCA No. 25828, 84-1BCA117, 119 at 85,256-58 

( contractor claim required to recover CDA interest on amounts withheld). 

The Federal Circuit's recent holding in Securiforce does not change the 

definition of a government claim. Instead, Securiforce, and the Civilian Board's 

holding in Duke, clarify when a purported non-monetary CDA claim actually seeks 

monetary relief. As the government notes, the holding in Securiforce states that "[i]f 

'the only significant consequence' of the declaratory relief sought 'would be 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. United States, 144 F.3d 784, 787 (Fed. Cir. 1998)). 

4 
Based upon the record before us when we issued our earlier opinion, it appeared 

that Greenland was appealing from a valid government claim for other relief. Unlike 

in Securiforce, resolution of the 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 other relief, relieving Greenland of an 

obligation to perform, would have been a "significant consequence" of the declaratory 

relief sought that was not monetary 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 of Federal 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, it had 

already been terminated for default and it could not obtain any relief other than money 

damages because it was no longer performing on the contract. Similarly, the Civilian 

Board held in Duke, that the contractor had "already incurred costs associated with its 

contract interpretation dispute, and it could have quantified those costs and stated them 

in a sum certain in a claim to the contracting officer.'' Duke, 18-1 BCA ,r 37,023 

at 180,290. The Civilian Board explained that a "ruling in Duke's favor would not 

result in Duke avoiding costs, but instead would be used only to entitle Duke to 

monetary relief in a separate proceeding. In such circumstances, it is clear that Duke 

has an uncertified and unquantified monetary claim." Id 

We detennine jurisdiction at the time the appellant filed its notice of appeal. 

See, e.g., Keene Corp. v. United States, 508 U.S. 200,207 (1993) (quotingMollan v. 

Torrance, 9 Wheat. 537, 539 (1824)) ("the jurisdiction of the Court depends upon the 

state of things at the time of the 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 now know from Greenland's consolidated complaint that it had 

performed work that it contends was beyond the scope of the contract before it filed its 

notice of appeal.3 Specifically, Greenland attached to its claim documents showing 

that its subcontractor invoiced Greenland for such repairs in Februa1y 2017 (R4, tab 16 

at 22), which was before Greenland's April 10, 2017 notice of appeal in ASBCA 

No. 61113. This fact contradicts Greenland's argument that "it would 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 similar to that in Duke in that a holding in Greenland's favor 

would not allow Greenland to avoid performing, but would only be used to entitle 

Greenland to monetary relief in a separate proceeding - one that Greenland has 

3 Although the government does not raise this argument, we must guard the Board's 

jurisdiction and consider these facts sua sponte. · 

5 
already 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 officer for a final decision. Accordingly, we 

dismiss ASBCA No. 61113. We find that ASBCA No. 61248 is a government claim 

that was not required to be submitted to a contracting officer and is properly before the 

Board. As we find that we lack jurisdiction 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 

of Contract Appeals 

DA YID D' ALESSANDRIS 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

~y 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I ce1tify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 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 of Contract Appeals