ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- Environmental Safety Consultants, Inc.
Under ContractNo. N62470-95-C-2399 ) ) ) ) ) ASBCA No. 58343

APPEARANCE FORTHE APPELLANT: Peter C. Nwogu, Ph.D. President/CEO

APPEARANCES FORTHE GOVERNMENT: Ronald J. Borro, Esq. Navy ChiefTrial Attorney Ellen M. Evans, Esq.

Senior Trial Attorney

OPINION BYADMINISTRATIVE JUDGE FREEMAN ON THE GOVERNMENT'S MOTIONFORRECONSIDERATION OF THE PARTIAL DISMISSAL FORLACK OF JURISDICTION

In our decision dated 25 July 2014, the Board granted in partthe government's motion to dismiss the appeal for lack of jurisdiction. We granted the motion to the extent ofthe contractor's claimed amount of$897,082.62 in costs incurred in performance ofthe contract that exceededthe contractprice of$561,873.25 at the time the contract was terminated. 

### See EnvironmentalSafety Consultants, Inc., ASBCA No. 58343, 14-1 BCA

### ii 35,681. Familiarity with that decision is assumed.
The government moves for reconsideration oftwo alleged "mistakes" in the Statement ofFacts (SOFs) ofthe 25 July 2014 opinion. The "Board's First Mistake" alleged by the government is that:

(Mot. at 2) The first sentence in [SOF] 

### ii 11 ofthe decision states, "

...the termination settlement exclusive ofthe termination settlement expenses, cannot exceed the total contractprice 

### as reducedby

...the amount of'payments previously made'

..." (emphasis added). Butthe last sentence in [SOF] 

### ii 11 indicates the board did not reduce the total contract price by any amount before subtracting it from the total claim amount.The last sentence in SOF ,-i 11 determined that the total amount ofthe termination settlement claim (excluding the settlement expenses) exceeded the total contractprice at termination by $897,082.62. The government contends that for purposes ofcalculating the claimed costs exceeding the contract price, the contract price at termination ($561,873.25) should be reduced by the priorpayments by the government ($465,919.67). As so reduced, the contract price at termination wouldbe $95,953.58 and the excess ofthe claimed costs overthe contract price would be $1,363,002.29. (Mot. at 3)

At this stage ofthe appeal, we are not determining the net termination settlement due ESCI, ifany, but thejurisdictional limit on the maximum amount it can claim. The last sentence in SOF ,-i 11 was not a mistake. When and ifappellantproves its incurred costs, a reasonable profit on those costs and its termination expenses, we will then apply the reduction for payments previously made by the government, in determining the net settlement amount due ESCI.
The "Board's Second Mistake" alleged by the government is the sentence in SOF ,-i 15 stating that "all ofthe events fixing the liability ofthe government...were known or should have been known by ESCI no later than the date the contract was terminated for default on 12 June 1998." The government contends that: "This finding is not supported by the facts and it directly conflicts with specific findings in prior published decisions in which this board and the Court ofFederal Claims fixed the point in time at which all events giving rise to claims under this contract for alleged increased costs accrued no later thanthe Summer of 1997." (Mot. at 1)
The prior decisions referred to by the government in its motion are EnvironmentalSafety Consultants, Inc., ASBCANo. 54615, 07-1 BCA,-i 33,483, issued by the Board on 31 January 2007, andEnvironmental Safety Consultants, Inc.
v. UnitedStates, 97 Fed. Cl. 190 (2011), issued by the Court ofFederal Claims (COFC) on 11 February 2011. Both decisions dealt with CDA claims by ESCI submitted to the contracting officer on 22 October 2003. The total amounts of those claims were $457,000 for additional work and $1,000,000 for "injuries to appellant's business reputation, credit damages and conspiracy to injure appellant and its owner, negligence

...in the administration ofthe contract, and bad faith of the part ofthe ROICC against appellant and its owner." 07-1 BCA,-i 33,483 at 165,967-68; 97 Fed. Cl. at 194 ($457,011.02 as final amount due as ofJune, 1998). Boththe Board decision and the COFC decision held that the 22 October 2003 claims accrued prior to 22 October 1997, outside the CDA statute oflimitations and accordingly outside thejurisdiction ofthe forum. 07-1BCA,-i33,483 at 165,983-86; 97 Fed. Cl. at 200.
The termination settlement claim now before the Board is in the total amount of $1,458,955.87 (exclusive ofsettlement expenses) for alleged total incurred costs, profit

2on those costs and settlements with subcontractors. The alleged amount for total incurred costs includes among other items an amount of$123,000 under the heading "ESCI Incurred Costs from July 1997 thru June 12, 1998" (app. supp. R4, tab 1, vol. 1, Table 1at 3). For purposes ofdetermining thejurisdictional limit ofthe 5 July 2012 termination settlement claim, the "no laterthan" accrual date of 12 June 1998 for the latest claimed amount in the termination settlement claim was not a mistake, and does not change the earlier accrual date found by the Board and COFC for the 22 October 2003 claim that was before those forums in the cited decisions. The government has not cited any authority, and we are not aware ofany, that requires all claims orparts thereofto have identical accrual dates.

On reconsideration, we find no error in the SOFs cited by the government. Our decision of25 July 2014 is affirmed.

Dated: 22 October 2014

I concur

# «~~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals I concur

# ·(\~~----...**~N** Administrative Judge Acting Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 58343, Appeal of Environmental Safety Consultants, Inc., rendered in conformance with the Board's Charter.
Dated:

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