ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Environmental Safety Consultants, Inc. 

Under Contract No. N62470-95-C-2399 

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ASBCA No. 58343 

APPEARANCE FOR THE APPELLANT: Peter C. Nwogu, Ph.D. 

President/CEO 

APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. 

Navy Chief Trial Attorney 

Ellen M. Evans, Esq. 

Senior Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE FREEMAN ON THE 

GOVERNMENT'S MOTION FOR RECONSIDERATION OF THE 

PARTIAL DISMISSAL FOR LACK OF JURISDICTION 

In our decision dated 25 July 2014, the Board granted in part the government's 

motion to dismiss the appeal for lack of jurisdiction. We granted the motion to the 

extent of the contractor's claimed amount of $897,082.62 in costs incurred in 

performance of the contract that exceeded the contract price of $561, 873 .25 at the time 

the contract was terminated. See Environmental Safety Consultants, Inc., ASBCA 

No. 58343, 14-1 BCA ii 35,681. Familiarity with that decision is assumed. 

The government moves for reconsideration of two alleged "mistakes" in the 

Statement of Facts (SOFs) of the 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 of the decision 

states, " ... the termination settlement exclusive of the 

termination settlement expenses, cannot exceed the total 

contract price as reduced by ... the amount of 'payments 

previously made' ... " (emphasis added). But the 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 of the 

termination settlement claim (excluding the settlement expenses) exceeded the total 

contract price at termination by $897,082.62. The government contends that for 

purposes of calculating the claimed costs exceeding the contract price, the contract 

price at termination ($561,873.25) should be reduced by the prior payments by the 

government ($465,919.67). As so reduced, the contract price at termination would be 

$95,953.58 and the excess of the claimed costs over the contract price would be 

$1,363,002.29. (Mot. at 3) 

At this stage of the appeal, we are not determining the net termination 

settlement due ESCI, if any, but the jurisdictional limit on the maximum amount it can 

claim. The last sentence in SOF ,-i 11 was not a mistake. When and if appellant proves 

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 of the events fixing the liability of the 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 of Federal Claims fixed the 

point in time at which all events giving rise to claims under this contract for alleged 

increased costs accrued no later than the Summer of 1997." (Mot. at 1) 

The prior decisions referred to by the government in its motion are 

Environmental Safety Consultants, Inc., ASBCA No. 54615, 07-1 BCA ,-i 33,483, 

issued by the Board on 31 January 2007, and Environmental Safety Consultants, Inc. 

v. United States, 97 Fed. Cl. 190 (2011), issued by the Court of Federal 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 of the contract, and bad faith of 

the part of the 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 of June, 1998). 

Both the Board decision and the COFC decision held that the 22 October 2003 claims 

accrued prior to 22 October 1997, outside the CDA statute of limitations and 

accordingly outside the jurisdiction of the 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 of settlement expenses) for alleged total incurred costs, profit 

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on 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 1 at 3). For purposes of determining the jurisdictional limit of the 5 July 2012 

termination settlement claim, the "no later than" 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 of any, that requires all claims or parts 

thereof to have identical accrual dates. 

On reconsideration, we find no error in the SOFs cited by the government. Our 

decision of 25 July 2014 is affirmed. 

Dated: 22 October 2014 

I concur 

Administrative 

«~~ Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

·(\~~----... ~N 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. 58343, Appeal of 

Environmental Safety Consultants, Inc., rendered in conformance with the Board's 

Charter. 

Dated: 

3 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals