ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Anaconda Construction Company                  )      ASBCA No. 60905
                                               )
Under Contract No. W91B4N-12-P-5086            )

APPEARANCE FOR THE APPELLANT:                         Mr. Shoib Khan
                                                       CEO

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      MAJ Christopher M. Coy, JA
                                                       Trial Attorney

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

       Appellant Anaconda Construction Company (ACC) brings this action
challenging the government's decision that it was not entitled to the costs of two
loaders allegedly destroyed in the course of performing the above-captioned contract,
and the government's decision to deny ACC's settlement proposal. The government
has moved to dismiss this action for failure to timely appeal the relevant contracting
officer's final decisions. ACC submitted a short response to the motion. The motion
is granted.

          STATEMENT OF FACTS CSOF) FOR PURPOSES OF THE MOTION

      1. The Bagram Regional Contracting Center (government) awarded Contract
No. W91B4N-12-P-5086 to ACC to operate and maintain a burn pit for solid waste at
Bagram Airfield in Afghanistan (R4, tab 1 at 4, 45 1).

       2. The government terminated the contract for convenience, effective
15 October 2013 (R4, tab 35 at 164). The termination notice directed ACC to submit
any settlement proposal by 15 November 2013 (id. at 165).

       3. On 24 October 2013, ACC submitted a claim (October claim) for the cost to
replace two loaders that were destroyed by fire during incineration operations (R4,
tab 40 at 185). The October claim was for $160,000 (id.). The October claim also


1
    All Rule 4 cites are to the consecutively-numbered pages.
contained a certification in accordance with the requirements of the Contract Disputes
Act (41 U.S.C. §§ 7101-7109) (id. at 184).

        4. On 28 October 2013, the contracting officer (CO) emailed ACC a final
decision on the October claim (October decision) (R4, tab 42). The CO determined
that the government did not owe any funds to ACC (id. at 189). He also informed
ACC that "[t]his is the final decision of the Contracting Officer. You may appeal this
decision to the agency board of contract appeals. If you decide to appeal, you must,
within 90 days from the date you receive this decision, mail or otherwise furnish
written notice to the agency." (Id.)

       5. On 7 November 2013, ACC apparently submitted a settlement proposal
(settlement proposal) to the CO for $451,600, which represented labor and leased
equipment expenses (R4, tab 49 at 210). 2

        6. On 18 November 2013, the CO sent ACC a "Notice of Intent to Settle by
Contracting Officer Determination." The notice stated that the government intended to
reject the settlement proposal due to a lack of supporting documentation. (R4, tab 49 at
210) The notice also requested that ACC submit supporting documentation within
15 days (id.).

       7. Within 15 days, ACC submitted a revised settlement proposal (R4, tab 48). The
revised settlement proposal sought to recover ( 1) $160,000 for the two loaders that were
the subject of the October claim; and (2) $112,900 in other costs (id.). The revised
settlement proposal did not contain a certification3 (id.).

       8. On 26 November 2013, the CO sent ACC a final decision (November decision)
on the revised settlement proposal (R4, tab 53). The November decision stated that,
"[s]ince the matter of the loaders was addressed by previous Contracting Officer Final
Decision (dated 28 Oct 2013) outside the termination process, ... the cost could not be
included in the settlement" (id. at 223). The November decision also found that ACC
was not entitled to any of the claimed $112,900 in costs (id.). As with the October
decision, the November decision stated that "[t]his is the final decision of the Contracting
Officer. You may appeal this decision to the agency board of contract appeals. If you
decide to appeal, you must, within 90 days from the date you receive this decision, mail
or otherwise furnish written notice to the agency." (Id. at 224)




2
  The settlement proposal is not part of the record, but is referenced in the
       18 November 2013 notice of intent to settle (R4, tab 49 at 210; SOF ii 6).
3
  Nor was one required as a settlement proposal is typically submitted for negotiation
       and it becomes a claim after the parties reach an impasse.

                                            2
     9. On 7 November 2016--more than 90 days after the October decision and the
November decision-ACC filed a notice of appeal with the Board. 4

                                      DECISION

        We do not possess jurisdiction over this appeal from either final decision. The
Contract Disputes Act (CDA) states that "[t]he contracting officer's decision on a
claim is final and conclusive and is not subject to review by any forum, tribunal, or
Federal Government agency, unless an appeal or action is timely commenced as
authorized by this chapter." 41 U.S.C. § 7103(g). The CDA requires that a contractor
certify a claim for more than $100,000. 41 U.S.C. § 7103(b)(l). Indeed, "a written
demand or written assertion by the contractor seeking the payment of money
exceeding $100,000 is not a claim ... until certified as required by the statute."
FAR 2.101. Therefore, we do not possess jurisdiction to hear an appeal when a
contractor did not certify a claim for more than $100,000. Sygnetics, Inc., ASBCA
No. 56806, 10-2 BCA ~ 34,576 at 170,464-65.

        The CDA also requires a contractor to appeal a final decision on a claim within
90 days of receipt of that decision. 41 U.S.C. § 7104(a). Therefore, we do not possess
jurisdiction to hear an appeal when a contractor failed to file a notice of appeal within
90 days of its receipt of the final decision. Cosmic Constr. Co. v. United States, 

, 1390-91 (1982).

       Here, ACC did not certify the November revised settlement proposal, despite
the fact that it was for more than $100,000 (SOF ~ 7). Therefore, the revised
settlement proposal was not a claim, and we do not possess jurisdiction over any
appeal based upon that proposal. FAR 2.101; Sygnetics, 10-2 BCA ~ 34,576 at
170,464-65. 5 While ACC certified the October claim, it did not file a notice of appeal
within 90 days of the October decision on that claim (SOF ~~ 3, 9). Thus, we do not
possess jurisdiction over an appeal of that decision either. Cosmic Constr., 697 F .2d at
1390-91.

       ACC does not dispute that it failed to file a notice of appeal within 90 days of its
receipt of the October decision or the November decision. Rather, in its brief response to
the government's motion to dismiss, ACC argues that the CO did not inform it that it had


4
  ACC is not clear whether it is appealing the October decision, the November
       decision, or both (compl.). For purposes of this motion, we assume ACC is
       appealing both decisions.
5 Even if ACC had certified the revised settlement proposal, it did not file a notice of

       appeal within 90 days of the November decision on that proposal, which would
       preclude our jurisdiction over any appeal based upon the revised settlement
       proposal.

                                            3
to file an appeal within "30 days." The period for commencing an appeal does not
commence if the CO inaccurately advises a contractor about its appeal rights, and the
contractor detrimentally relies upon that inaccuracy. Decker & Co. v. West, 

,
1579 (Fed. Cir. 1996). Here, the CO accurately informed ACC in both the October
decision and the November decision that "[i]f you decide to appeal, you must, within
90 days from the date you receive this decision, mail or otherwise furnish written notice to
the agency" (SOF ilil 4, 8). Because the CO accurately notified ACC that it had
90 days 6-not 30 days-to file an appeal, the 90-day period for filing a notice of appeal
commenced respectively when ACC received the October decision and the November
decision.

                                    CONCLUSION

       The government's motion to dismiss is granted. This appeal is dismissed for
lack of jurisdiction.

         Dated: 26 June 2017



                                                  JAMES R. SWEET
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


                                                  I concur



    RICHARD SHACKLEFORD
    Administrative Judge
    Acting Chairman
    Armed Services Board
    of Contract Appeals




6
    We do not know why ACC referenced 30 days in its response to the government's
        motion.

                                           4
     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. 60905, Appeal of
Anaconda Construction Company, rendered in conformance with the Board's Charter.

      Dated:



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




                                         5