Melville Energy Systems, Inc. ( 2019 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Melville Energy Systems, Inc. ) ASBCA No. 62045
)
Under Contract No. DACA61-87-C-0015 )
APPEARANCE FOR THE APPELLANT: John H. Melville
Vice President
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
John A. Skarbek, Esq.
Engineer Trial Attorney
U.S. Army Engineer District,
Philadelphia
OPINION BY ADMINISTRATIVE JUDGE WILSON
This is an appeal from a termination for default, denial of unpaid contract
balance and contract price adjustments, as well as government-assessed reprocurement
costs and damages, by Melville Energy Systems, Inc. (MES or appellant). The Board
dismisses this appeal as barred by the election doctrine, as appellant has already
pursued its action before the U.S. Court of Federal Claims (COFC).
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On August 14, 1987, the U.S. Army Corps of Engineers (the government)
awarded Contract No. DACA61-87-C-0015 to MES for the replacement of boilers in
five mechanical rooms on McGuire Air Force Base in Wrightstown, New Jersey.
Melville Energy Systems, Inc. v. United States, 33 Fed. Cl. 616,617 (1995).
2. On January 25, 1989, MES submitted a claim to the contracting officer (CO)
seeking $312,464.27 as payment for an alleged unpaid balance on the contract plus
contract price adjustments. By letter dated October 17, 1989, the CO terminated the
contract for default due to a failure to complete the remaining work, and assessed
reprocurement costs and damages against MES on December 1, 1989. (Id. at 618, 620)
3. On April 4-7, 1995, appellant tried the validity of the default termination,
unpaid contract balance, and price adjustments; the government tried its reprocurement
costs and damages before the COFC. On June 30, 1995, the COFC ruled on the
merits, disallowing recovery by either party (id. at 617, 627).
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4. Appellant filed the instant appeal with the Board by email dated April 19,
2019, requesting the termination for default be converted to a termination for
convenience, recovery of an alleged unpaid contract balance, and contract price
adjustments. On May 23, 2019, the Board sua sponte, ordered appellant to show cause
why the appeal should not be dismissed in light of the election doctrine, and to explain
the basis of the Board's jurisdiction. Appellant replied as follows:
APPELLANT'S RESPONSE TO ORDER TO SHOW
CAUSE
RULES OF THE ARMED SERVICES BOARD OF
CONTRACT APPEALS
I JURISDICTION FOR CONSIDERING APPEALS
The Armed Services Board of Contract Appeals (referred
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to herein as the Board) has jurisdiction to decide any
appeal from a final decision of a contracting officer,
pursuant to the Contract Disputes Act, 41 US.C. 7101-
7109, or its Charter, 48 CFR Chap. 2, App. A, Pt. 1,
relative to a contract made by the Department of Defense,
the National Aeronautics and Space Administration or any
other department or agency, as permitted by law.
FRAUD ON THE COURT DISMISSES ELECTION
DOCTRINE
FRAUD ON THE US ARMY CORPS OF ENGINEERS
that specific time period alleged only
TERMINATES A TERMINATION FOR DEFAULT
INDIVIDUAL O EMBEZZLED BILLIONS
JURISDICTION
If you fine intelligent folks all collaborate and decide to
kick this can up the road stop and think hasn't 30 years
been long enough and nipp [sic] this in the budd [sic] right
here and right now
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TERMINATE THE T4D RHRN
(Emphasis in original)
DECISION
Under the Contract Disputes Act, "in lieu of appealing the decision of a
contracting officer ... to an agency board, a contractor may bring an action directly on
the claim in the United States Court of Federal Claims." 41 U.S.C. § 7104(b)(l).
Courts have consistently interpreted the CDA as providing
the contractor with an either-or choice of forum ... once a
contractor makes a binding election to appeal the CO's
} final decision to a board of contract appeals or to the Court
j of Federal Claims, the contractor can no longer pursue its
claim in the other forum.
Bonneville Associates v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994) (citation
omitted). A contractor is deemed to have made a binding election when: 1) it has
sought to avail itself of one forum over another and 2) that forum has the ability to
exercise jurisdiction at the time the election is attempted (id.; Subsurface
Technologies, ASBCA No. 59775, 15-1 BCA, 36,100 at 176,251-252.). This is to
ensure that while parties have their day in court, both appellant and government can
rely on the resulting decision's finality.
The 1995 decision which the COFC rendered on the merits of this claim evinces
satisfaction of both prongs of this test. The Board alerted appellant to this obstacle to
pursuing its claim before the Board, and appellant does not provide rationale for why
the Board has jurisdiction over something already adjudicated at the COFC. Appellant
provides no supporting statutory, regulatory, or case law authority for its proposition
that fraud on the COFC provides the Board jurisdiction in the face of the election
doctrine. Finding 4. We are unaware of any such support. As MES made a binding
selection to pursue its action before the COFC, we lack jurisdiction to entertain this
appeal.
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CONCLUSION
For the reasons stated above, the appeal is dismissed for lack of jurisdiction.
Dated: July 1, 2019
OWEN C. WILSON
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
dministrative Judge Administrative Judge
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. 62045, Appeal of Melville
Energy Systems, Inc., rendered in conformance with the Board's Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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