ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Coastal Environmental Group, Inc.             )      ASBCA No. 61276
                                              )
Under Contract No. N40085-13-C-6541           )

APPEARANCE FOR THE APPELLANT:                        John M. Manfredonia, Esq.
                                                      Manfredonia Law Offices, LLC
                                                      Cresskill, NJ

APPEARANCES FOR THE GOVERNMENT:                      Craig D. Jensen, Esq.
                                                      Navy Chief Trial Attorney
                                                     Matthew D. Bordelon, Esq.
                                                     Robert R. Kiepura, Esq.
                                                      Trial Attorneys

               OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
                ON THE GOVERNMENT'S MOTION TO DISMISS

        Appellant appeals from the contracting officer's deemed denial of its June 2, 2017
certified claim seeking to recover $577,437.15 in what appellant says, in its notice of
appeal (which we have deemed its complaint), are monetary damages that "reflect the
monies paid by Appellant's surety to have another contractor complete the work, and for
which Appellant remains liable," the government having terminated appellant's
construction contract for default. Attached to the notice of appeal is a tender agreement
between appellant's surety and the government (an agreement to which appellant is not a
party), in which in paragraph 3 the surety agrees, once the government enters into a new
contract with a completion contractor, to pay the government $577,437.15 "in order to
provide [the government] sufficient funds to complete the terminated contract." In
appellant's separate appeal from the default termination, we found that termination valid
and denied the appeal. Coastal Environmental Group, Inc., ASBCA No. 60410, slip op.
(July 17, 2018).

       We invited the parties to address whether we possess jurisdiction to entertain the
appeal. Appellant relies upon L&M Thomas Concrete Co., ASBCA Nos. 49198, 49615,
98-1 BCA 129,560 at 146,538, but we find that Engineering Technology Consultants,
SA, ASBCA No. 47867, 96-2 BCA 128,442, is a closer analogue. In Engineering
Technology, we concluded that a surety, by virtue of a post-termination takeover
agreement with the government, became the contractor in privity of contract with the
government, and that after that agreement the appellant in that appeal (who had been the
original contractor) (I) was no longer in privity of contract with the government; (2) was




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not a contractor within the meaning of the Contract Disputes Act, 41 U.S.C. § 7101(7),
for post-agreement events; and (3) could not appeal post-termination repair or
replacement costs agreed to by the surety. 

We find no reason to depart
from that approach in this appeal, which concerns a contractor who challenges its
surety's post-termination payment to the government pursuant to a post-termination
tender agreement to which it is not a party. Consequently, for purposes of this appeal,
which does not involve a government assessment of excess reprocurement costs against
an appellant, appellant is not a contractor within the meaning of 41 U .S.C. § 7101 (7).
Because our jurisdiction extends only to appeals brought by a "contractor" within the
meaning of that section, see Cooper/Ports America, LLC, ASBCA No. 61461, 18-1
BCA ,r 37,045 at 180,331-32, we do not possess jurisdiction to entertain this appeal.*

         For these reasons, the appeal is dismissed for lack of jurisdiction.

         Dated: July 19, 2018




                                                    ~~
                                                     T~cILMA
                                                     Administrative Judge
                                                     Armed Services Board
                                                     of Contract Appeals


    I concur                                         I concur



    RJ~HACKLEFORD
    Administrative Judge
                                                     O'"N    C. WILSON
                                                     Administrative Judge
    Acting Chairman                                  Vice Chairman
    Armed Services Board                             Armed Services Board
    of Contract Appeals                              of Contract Appeals

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*   Prior to the Board raising the issue of jurisdiction, the government filed a motion to
         dismiss for failure to state a claim. However, this decision obviates the need to
         rule on the government's motion. It is dismissed as moot.
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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. 61276, Appeal of Coastal
Environmental Group, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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