Europe Asia Construction Logistic ( 2019 )


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  •                ARMED SERVICES BOARD OF CONTRACT APPEALS
    Appeal of --                                  )
    )
    Europe Asia Construction Logistic             )      ASBCA No. 61553
    )
    Under Contract No. W9184L-10-C-Ol 15          )
    APPEARANCE FOR THE APPELLANT:                        Mr. Shakir Sardari
    Vice President
    APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
    Army Chief Trial Attorney
    L TC Kelli A. Hooke, JA
    Trial Attorney
    OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT
    ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
    Europe Asia Construction Logistic (EACL or appellant) seeks $336,816.00 for
    payments made for supplies under Contract No. W91B4L-I0-C-Ol l5 (the contract).
    EACL submitted a claim in September 201 7 after the contract was terminated in
    May 2010. The United States Army (Army or government) responded in its answer
    that EACL' s claim was time-barred because EACL failed to submit a claim within six
    years and requested the Board dismiss the appeal. The Board treated that portion of
    the answer as a motion for summary judgment for failure to file a claim within six
    years of accrual of the claim. Summary judgment is granted and EACL's appeal is
    denied.
    STA TEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
    1. On April 22, 2010, the government awarded the contract for $569,600.00,
    which included $569,300.00 to construct communication infrastructure at Kandahar Air
    Field in Afghanistan and $300.00 for Defense Base Act (DBA) Insurance (R4, tab 1).
    2. On April 24, 2010, the contracting officer issued a notice to proceed for the
    contract (R4, tab 2).
    3. On May 17, 2010, the contracting officer issued Modification No. POOOOl
    which deobligated $569,300 from the contract citing the authority as FAR 52.243-4,
    CHANGES. The contracting officer reduced the amount of the contract to $300, which
    allowed payment for DBA insurance. (R4, tab 3) The Defense Finance and
    Accounting Service administratively removed the funds because no one ever invoiced
    or charged for the required OBA insurance (R4, tab 7 at 129-30). We find that this is
    the date (May 17, 2010) that EACL knew, or should have known, the events that fix
    the alleged liability of its claim against the government.
    4. On September 3, 2017, EACL submitted a certified, but unsigned, claim to
    the contracting officer, requesting $336,816.00 for the total amount EACL spent on
    the contract (R4, tab 4 ).
    5. On September 5, 2017, the contracting officer informed EACL that the claim
    needed to be signed (R4. tab 5 at 82).
    6. On September 12. 2017, more than seven years after the contract was
    terminated, EACL submitted a signed copy of the certified claim. The signed,
    certified claim included the information provided with the September 3, 2017 letter
    and additional supporting documents. EACL provided email conversations that
    occurred prior to termination to the contracting officer. EACL did not provide any
    correspondence or evidence that demonstrated it sought payment or disputed the
    no-cost termination before the claim was initially filed on September 3, 2017. (R4,
    tab 5 at 85)
    7. On December 7, 201 7. the contracting officer denied the claim. She listed
    several problems with contract performance and stated that Modification No. POOOO I
    was a no-cost cancellation which reduced the amount of the contract to an amount that
    only covered OBA insurance. She also stated that there was no evidence that EACL
    ever purchased DBA insurance. She rejected EACL's claim, stating, "[m]oreover, in
    accordance with FAR 3 3 .206 Initiation of a Claim, EACL did not submit a written
    claim to the Contracting Officer within the six (6) year statute oflimitations." The
    contracting officer included the required appeal language in her final decision. (R4,
    tab 8)
    8. On March 7, 2018, EACL appealed the decision. The appeal was docketed
    as ASBCA No. 61553.
    9. On April 23, 2018, EACL filed its complaint. In its complaint, EACL
    requested $336,816.00 for money spent on the contract and noted portions of the
    contract that caused its performance to be delayed. EACL stated, "EACL has truly
    suffered a loss of $336,816 due to honest misunderstandings and, we believe, a lack of
    necessary detail in the original contract award, which did not account for unavoidable
    requirements of the awarded work." EACL stated it was willing to provide whatever
    documentation was required.
    10. On May 22, 2018, the government filed its answer. In "Part III" of its
    answer, the government "raise[ d] as an affirmative defense the statute of limitations."
    2
    The government opined that because EACL did not submit its claim within six years,
    the statute of limitations barred appellant's claim and requested the claim be
    dismissed.
    11. On August 21, 2018, the Board informed the parties that it was considering
    Part III of the government's answer a motion for summary judgment for failure to file
    a claim within six years of the accrual of the claim. The Board allowed EACL to
    respond to the motion by September 24, 2018. The Board did not receive a response.
    On November 8, 2018, the Board informed EACL that it had not responded and
    allowed EACL until November 21, 2018, to respond to the motion. Failure to respond
    by that date, the Board added, would result in the issuance of a decision on the motion
    without EACL's response. To date, the Board has not received a response from
    EACL.
    DECISION
    The Board interpreted Part III of the government's answer as seeking summary
    judgment because EACL failed to submit a timely claim. While it is not a condition of
    jurisdiction, the Contract Disputes Act (CDA) requires that a claim be submitted
    within six years of its accrual. 41 U.S.C. § 7I03(a)(4); Menominee Indian Tribe of
    Wisconsin v. United States, 
    136 S. Ct. 750
    , 757 (2016); Sikorsky Aircraft Corp. v.
    United States, 
    773 F.3d 1315
    , 1320 (Fed. Cir. 2014); Green Valley Co., ASBCA
    No. 61275, 18-1 BCA ,i 36,977 at 180,119. "Accrual ofa claim means the date when
    all events, that fix the alleged liability of either the Government or the contractor and
    permit assertion of the claim, were known or should have been known." FAR 33.201.
    The Board has long recognized "that summary judgment is appropriate where
    the moving party establishes that there are no disputed material facts, and the moving
    party is entitled to judgment as a matter of law." American Boys Constr. Co .. ASBCA
    No. 61163, 18-1 BCA ,i 36,949 at 180,051 (citations omitted). "When considering
    summary judgment motions, the evidence of the non-moving party is to be believed,
    and all justifiable inferences are to be drawn in his favor." 
    Id. (citations and
    internal
    quotations removed).
    There is no dispute that the government terminated EACL' s contract on
    May 17, 2010 (SOF ,i 3). Further, the record does not contain any evidence, nor does
    EACL even argue, that it submitted a claim to the contracting officer within the
    six-year period. In fact, the claim was submitted more than seven years after the
    contract was terminated (SOF ,i, 3, 6)
    In order to submit a claim that met the timeliness requirements of the CDA,
    EACL was required to submit its certified claim within six years of the no-cost
    termination, or by May 16, 2016. September 2017 is over one year later than the CDA
    3
    requirement to submit a claim to the contracting officer within six years of an accrued
    claim. Thus, we must deny the appeal.
    CONCLUSION
    The government's motion for summary judgment is granted. EACL's appeal is
    denied.
    Dated: February 14, 2019
    "-11                            

Document Info

Docket Number: ASBCA No. 61553

Judges: Osterhout

Filed Date: 2/14/2019

Precedential Status: Precedential

Modified Date: 2/25/2019