ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Hensel Phelps Construction Co.                )      ASBCA No. 61517
                                              )
Under Contract No. N40080-l 1-C-O 154         )

APPEARANCES FOR THE APPELLANT:                       Todd R. Metz, Esq.
                                                     Brian R. Dugdale, Esq.
                                                      Varela, Lee, Metz & Guarino, LLP
                                                      Tysons Corner, VA

APPEARANCES FOR THE GOVERNMENT:                      Craig D. Jens en, Esq.
                                                      Navy Chief Trial Attorney
                                                     Ellen M. Evans, Esq.
                                                      Trial Attorney

                OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

                                 FINDINGS OF FACT

       In 2011, the government contracted with appellant, Hensel Phelps Construction Co.,
for construction work at a naval air station; the project included an aircraft parking apron
and taxiway access (R4, tab 1 at 1, 4). In 2015, the government revoked its previous
acceptance of those parts of the work, citing what it says are defects (R4, tabs 108, 115).
On November 15, 2017, the contracting officer issued a final decision stating:

               [Appellant] should consider this a [contracting officer's
               final decision] to assert a demand for the cost to replace
               the concrete apron and asphalt taxiway, currently
               estimated at $2,900,000. Ifyou do not replace the
               defective pavement to a fully usable condition by October
               31, 2018, the Government intends to fulfill this demand in
               the form of set-off from future payments under other
               Government contracts with Hensel Phelps.

(R4, tab 131 at 4) (Emphasis added) Previously, appellant had indicated to the
government that it would perform the repairs and claim the costs incurred, including,
specifically, through a request for equitable adjustment of the contract price for the
taxiway (R4, tabs 128-29, 130 at 1-2). On February 6, 2018, appellant appealed from
the contacting officer's final decision, seeking no damages but a judgment that
appellant "has fulfilled its obligations under the Contract" (comp I. at 11-12).
                                       DECISION

        We raised with the parties whether we possess jurisdiction to entertain the appeal,
specifically whether the contracting officer's final decision states a sum certain.
Appellant says it does; the government does not provide a direct answer (app. br. at 4;
gov't br. at 4 ). In view of the contingencies set forth in the contracting officer's
statement, we do not find in the decision the sum certain that is a prerequisite of our
jurisdiction to entertain a monetary claim under the Contract Disputes Act. See
 Wimberly, Allison, Tong & Goo, Inc., ASBCA No. 56432, 09-2 BCA ,i 34,301 at 169,436
(seeking reimbursement for costs "currently estimated as" $5 million), dismissal ajf'd on
recon., 10-1 BCA ,i 34,365 at 169, 703-04 (no jurisdiction where purported government
claim did not demand a sum certain given "host of contingencies"); Eaton Contract
Services, Inc., ASBCA No. 52888 et al., 02-2 BCA ,i 32,023 at 158,267 ("A claim may
contain an estimate of anticipated costs, as long as it includes a sum certain for the
overall demand."). The decision does not demand payment of $2.9 million; it demands
payment of replacement costs, as yet undetermined, that are currently estimated at
$2.9 million, and leaves open that the real figure may end up being something other than
$2.9 million (presumably more), depending upon future events. The decision is an effort
to motivate appellant to get back to work, leaving open that no money will be owed the
government if appellant remedies the alleged defects by October 3 1, 2018. In other,
similar circumstances, contracting officers have rescinded such decisions as premature.
E.g., Wimberly, 09-2 BCA ,i 34,301 at 169,436 ("currently estimated" amount); KBJ
Architects, Inc., ASBCA No. 56434, 09-2 BCA ,i 34,298 at 169,420-21 (same).

        However, we possess jurisdiction to entertain appellant's request for a declaratory
judgment that it has fulfilled its obligations under the contract; that is, a challenge to the
contracting officer's final decision directing appellant to correct work already performed.
See Garrett v. General Electric Co., 

, 752 (Fed. Cir. 1993). The parties say ·
that we should exercise our discretion to grant declaratory relief (app. decl. br. at 1; gov't
decl. br. at 3), and, considering the similarities between the circumstances of this appeal
and those in Garrett, we agree. Cf 

jurisdiction over the contracting
officer's decision regarding the government's directives to correct work during contract
performance was proper).



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                                     CONCLUSION

        We find no jurisdiction over any purported monetary claim. The Board will
 exercise its declaratory judgment jurisdiction.

        Dated: July 17, 2018




                                                   Administrati e Judge
                                                   Armed Services Board
                                                   of Contract Appeals

  I concur                                         I concur


     JrA
  RICHARD SHACKLEFORD
  Administrative Judge
                                                   OWEN C. WILSON
                                                   Administrative Judge
  Acting Chairman                                  Vice Chairman
  Armed Services Board                             Armed Services Board
  of Contract Appeals                              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. 61517, Appeal of Hensel
  Phelps Construction Co., rendered in conformance with the Board's Charter.

        Dated:



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




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