ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                    )
                                                )
Equine Architectural Products, Inc.             )      ASBCA No. 59743
                                                )
Under Contract No. W91ZLK-12-P-0037             )

APPEARANCE FOR THE APPELLANT:                          Donald J. Walsh, Esq.
                                                        Offit Kurman, P.A.
                                                        Owings Mills, MD

APPEARANCES FOR THE GOVERNMENT:                        Raymond M. Saunders, Esq.
                                                        Army Chief Trial Attorney
                                                       MAJ Cameron R. Edlefsen, JA
                                                        Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE DELMAN ON THE GOVERNMENT'S
          MOTION TO DISMISS FOR LACK OF JURISDICTION

       The Department of the Army (government) has moved to dismiss this appeal for
lack of jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109,
contending that Equine Architectural Products, Inc. (EAP or appellant) has failed to
submit a claim in a sum certain to the contracting officer (CO). EAP has filed in
opposition to the motion.

          STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

      1. In February 2012, the government awarded Contract No. W91ZLK-12-P-0037
to EAP for the demolition and removal of railroad and related facilities at Aberdeen
Proving Ground (APG), Maryland (comp I., ex A).

       2. By Modification No. P00002 dated 25 July 2012, the government issued a
Stop-Work Order to appellant in accordance with FAR 52.242-15 (AUG 1989) (compl.,
ex. A). According to appellant, approximately 51 days later the government notified
appellant that the contract was being terminated for convenience (compl. ~ 15). 1
By cover letter dated 21December2012, appellant submitted a termination proposal to
the government (compl., ex. B). The record is unclear as to the disposition of this
termination proposal.


1
    The Board is unable to locate the contract modification that terminated the contract
         for convenience in the government's Rule 4 file.
       3. By letter to the government dated 7 January 2014, appellant stated as
follows:

              Please accept this letter as an official claim under the
              above contract pursuant to the [CDA].



              This claim is for return to Equine of all property which
              existed within that 15 foot area, including the 14 miles of
              rail, at the time of that mobilization. Much of this
              equipment is noted per drawings titled APG: North Rail
              Lines dated March 27, 2012. By the direct language of the
              contract, title to this property passed to Equine at the time
              of contracting. This claim is for possession and return of
              all such property which now belongs to Equine and which
              it has been prevented from removing by the government.

Appellant's claim letter concluded as follows:

              I certify that I have reviewed this claim and that it is made
              in good faith, the supporting data is accurate and complete
              to the best of my knowledge and belief, that the property
              requested is accurately reflected in the contract under
              which Equine believes the Government is liable; and that I
              am duly authorized to certify this claim on behalf of
              Equine.

(Compl., ex. C at 1-2) Appellant did not provide any "sum certain" in its claim letter,
nor did it reference any other document that contained a "sum certain."

      4. In the ensuing weeks, the parties discussed the quantum of appellant's
"claim." By email to the government dated 28 January 2014, appellant's counsel
advised as follows:

                     Thanks for the update. I also had my client put
             together ~ list of what he knew was on the tracks based on
             his observations and conversations. Attached is a listing of
             materials and equipment within the 15' footprint that my
             client pieced together based on those observations and
             conversations. It does not currently include buildings or
             structures within that footprint nor does it include property
             on the rails in the Edgewood Arsenal Area since Equine


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              was not given any maps and or the opportunity to do a
              detailed site survey. Based on this limited area, we believe
              the scrap in this area totals approximately $6,986,832.00.

(Gov't reply, ex. 1) Appellant did not certify this amount.

     5. By letter to the government dated 7 May 2014, captioned "FOR
SETTLEMENT PURPOSES ONLY," appellant's counsel stated:

             [I]f the Garrison is not willing to release the property to
             Equine as contracted, we feel that the total claims
             presented by Equine consist of the following costs and
             expenses:

             -   Value of the rail, ties and ballasts - $2,220,000;
             -   Value of the equipment within the 15 foot radius to
                 the rail - $4,400,000;
             -   The carrying cost of equipment Equine purchased for
                 this project which has been sitting idle since the stop
                 work notice was issued but had to remain ready and
                 available to remove Equine's equipment from the base
                 once released - $1,300,000;
                 If the above values are not computed at 2012 prices, the
                 damages will also include the decreased value of the
                 scrap because of the Government's delay - $1,300,000;
                 and
             -   the legal costs in preparing and resolving the claims - $50,000.

             We estimate that the total value of these costs and impacts
             is $9,250,000.00.

(Compl., ex. D) Appellant did not certify this amount.

       6. Having failed to receive a CO's decision, appellant, on or about
12 December 2014, filed a notice of appeal to this Board on a "deemed denial" basis,
stating that its total losses exceeded $10,000,000.00.

       7. By letter to EAP dated 15 December 2014, the CO denied appellant's claim
dated 7 January 2014, referencing a property list provided by appellant with an
estimated total scrap value of $6,986,832.00 (comp I., ex. E).




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                                       DECISION

      Under the CDA, a prerequisite to our jurisdiction over a contractor claim is the
submission of the claim for decision to the CO and either the issuance of a decision
denying the claim in whole or in part, or the failure to issue a decision within a
reasonable time as defined by the CDA, 41 U.S.C. § 7103(t).

       The CDA does not define "claim", but the FAR does. Insofar as is pertinent
here, FAR 2.101 provides as follows:

                      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.

        In accordance with this definition, it is well settled that for purposes of our
jurisdiction a contractor's monetary claim must be submitted to the CO in a "sum
certain." Northrop Grumman Computing Systems, Inc. v. United States, 709 F .3d
 1107, 1112 (Fed. Cir. 2013). We believe that appellant's claim is essentially a
monetary claim. Therefore, appellant was required to submit its claim to the CO in a
sum certain.

       Appellant's letter of 7 January 2014, which it expressly identified as its "claim,"
did not contain a "sum certain," nor did it refer to any document asserting a sum
certain, nor did it describe its monetary claim with such particularity as to enable the
CO to easily compute a sum certain (SOF ir 3). We believe that appellant failed to
submit its claim letter dated 7 January 2014 in a sum certain as required by law, and
hence we have no jurisdiction over this appeal based on this submission alone.

       Appellant suggests that we go beyond the confines of the 7 January 2014 letter
and view other communications to the government to determine whether appellant
submitted a proper claim under the CDA. Appellant's subsequent email to the
government, dated 28 January 2014, asserted a value of the scrap in a limited area in
the approximate amount of $6,986,832.00 (SOF ir 4). Appellant's letter to the
government dated 7 May 2014, which appellant states represents the total value of its
claim, was in the amount of $9,250,000.00 (SOF ir 5).



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        Assuming, arguendo, that EAP's subsequent quantification of7 May 2014
constitutes a legally sufficient "sum certain," it nevertheless runs afoul of the CDA's
certification requirement. Under the CDA, a monetary claim in excess of $100,000
must be certified, 41 U.S.C. § 7103(b)(l). Appellant's monetary claim of7 May 2014,
based on appellant's later submissions, is in excess of $100,000. However, appellant
failed to provide any certification of the monetary amount it requested. 2 We are
without jurisdiction over the appeal for this reason.

                                          CONCLUSION

       For reasons stated, we conclude that we are without jurisdiction over this
appeal. We dismiss ASBCA No. 59743 without prejudice to appellant's submission of
a properly certified claim to the CO.

         Dated: 4 June 2015




                                                    Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals

I concur                                            I concur




MARK N. STEMPLER                /     /             RICHARD SHACKLEFORD
Administrative Judge                                Administrative Judge
Acting Chairman                                     Vice Chairman
Armed Services Board                                Armed Services Board
of Contract Appeals                                 of Contract Appeals




2
    See 41 U.S.C. § 7103(b)(l)(C), requiring that a contractor's certification provide that
         "the amount requested accurately reflects the contract adjustment for which
         the contractor believes the Federal Government is liable" (emphasis added).

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       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. 59743, Appeal of Equine
Architectural Products, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREYD. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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