Selevive Group, LC ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Selevive Group, LC ) ASBCA Nos. 63292, 63293
)
Under Contract No. W91QF4-21-P-0023 )
APPEARANCES FOR THE APPELLANT: Nicole D. Pottroff, Esq.
Shane J. McCall, Esq.
John L. Holtz, Esq.
Stephanie L. Ellis, Esq.
Greg P. Weber, Esq.
Koprince McCall Pottroff LLC
Lawrence, Kansas
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
MAJ Chris C. Walton, JA
Dana J. Chase, Esq.
CPT Camille J. Grathwohl, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE EYESTER
PURSUANT TO BOARD RULE 12.2 ON
THE GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION
Selevive Group, LC (Selevive or appellant) appeals two contracting officer
final decisions (COFD) and has elected to proceed under the Board’s Small Claims
(Expedited) Procedures, Board Rule 12.2. The Contract Disputes Act, 41 U.S.C.
§ 7106(b)(4)-(5), as implemented by Board Rule 12.2, provides that this decision shall
have no precedential value, and in the absence of fraud, shall be final and conclusive
and may not be appealed or set aside.
The government contends the Board lacks jurisdiction and has moved to
dismiss the appeals. For the reasons stated below, we grant the government’s motion
in part and deny it in part.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On December 10, 2020, the Department of the Army, Mission and
Installation Contracting Command, issued Solicitation No. W91QF421Q0010 for
visual inspection and certified testing of lightning protection systems (LPS) at Fort
Leavenworth (R4, tab 1 at 1, 6). The solicitation was set-aside for women-owned
small businesses (id. at 1). Offerors were to submit quotations using fixed-prices for
all contract line-item numbers (CLINs), which included the base year CLIN and two-
option year CLINs, and award was to be made on a lowest-priced technically
acceptable (LPTA) basis (id. at 26-27, 29). The solicitation had two technical exhibit
(TE) attachments: Technical Exhibit A – Facilities Lists & Measurements, and
Technical Exhibit B – Installation Map (id. at 26).
2. On April 27, 2021, the agency awarded purchase order No.
W91QF421P0023 in the amount of $23,087.50 to Selevive for the base year (R4, tab 7
at 64). The purchase order included Federal Acquisition Regulation (FAR) 52.212-4,
Contract Terms and Conditions – Commercial Items (OCT 2018), which requires
resolution of a dispute pursuant to FAR 52.233-1, Disputes, and for the contractor to
proceed with performance pending final resolution of the dispute. FAR 52.212-4(d).
3. Pursuant to the performance work statement (PWS), the appellant was to
provide all supervision, labor, supplies, and equipment “necessary to perform visual
inspections, and certified testing of [LPS] for facilities at Fort Leavenworth as defined
in this [PWS] and the Technical Exhibits and Attachments” (R4, tab 7 at 70). The
purchase order stated several times that the appellant shall “accomplish all inspection
and testing tasks [in accordance with] the Unified Facilities Criteria [(UFC)] 3-575-01,
[National Fire Protection Association (NFPA)] 780, [Department of the Army
Pamphlet (DA Pam)]-385-64, UL Lighting Protection Standards and other listed
regulatory standards” (id. at 78; see also id. at 70). In addition, the appellant was to
ensure all work was accomplished in accordance with the documents in paragraph 7,
which included the technical exhibits, and identified “which buildings/areas belong to
each building type, the approximate square footage of the building/areas roofs, any
special security considerations, and any constraints” (id. at 70, 90).
4. Further, the appellant was to provide the government “with a comprehensive
report showing inspections, tests and results therein performed on all facilities” (R4,
tab 7 at 71). The inspection and testing reports developed for each building were
required to list, “at a minimum, facility number, [a] brief description of facility type or
style (smoke stack, office building, control tower etc.), [a] comprehensive list of
installed LPS system(s) and their respective locations and coverage of the facility it is
installed on, [a] list of all tests performed, satisfactory and unsatisfactory results of the
installation of the system or equipment or test results” (id. at 78).
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5. The purchase order also required appellant to “develop isometric projection
diagrams of each facility and inspected/tested system, and develop comprehensive
reports from each inspection of and test of, each facility and its respective installed
LPS system in its entirety, indicating each inspection and testing result for each
system, and facility covered under this contract” (R4, tab 7 at 78). The purpose of the
drawings was to “identify faulty or inadequate installations of, or deteriorated, broken,
missing, or otherwise unsatisfactory installed parts of the LPS in order to make
informed and required repairs in the future” (id. at 79).
6. According to the order, it was the appellant’s “sole responsibility” to
directly coordinate with the facility occupants for the scheduling of inspection and
testing requirements (R4, tab 7 at 70). However, the contracting officer’s
representative (COR) could “assist with this if there are issues scheduling or
coordinating with individual facilities as needed.” (Id.)
7. The order set forth numerous requirements concerning access to the base.
For example, it stated that all personnel entering must report to the visitor’s center for
a background check and a day pass (R4, tab 7 at 74). In the alternative, personnel
working on an approved contract could apply for a Local Access Credential (LAC)
card that would give them extended access to the base without going to the visitor
center every day (id.). The appellant was to submit the LAC application form to the
COR; the purchase order provided detailed instructions about the application process
and a website to access the form (id.). The average time for standard background
checks from submission until approval/denial was ten business days, and during busy
times the average was one month. (Id.)
8. In addition, if the appellant was to use special equipment or lifts and booms
in an inaccessible area or one designated as general parking to perform direct
inspection and testing of installed systems for facilities, the appellant was to
coordinate with the Ft. Leavenworth Provost Marshall/Military Police Traffic Section
at least four days ahead of the scheduled work (R4, tab 7 at 73). The purchase order
provided a phone number for the traffic section. (Id.)
9. In April and May of 2021, the agency emailed the appellant the government
points of contact, information regarding LAC applications, and other information
about accessing the facilities (R4, tabs 36-37, 40-41). Also in May of 2021, the
government approved the appellant’s LAC passes, but the appellant failed to pick them
up in time and they expired (R4, tab 44). The appellant resubmitted the LAC
applications and was given the option of obtaining day passes to complete the work (as
explained in the purchase order) or reschedule the work once the long-term passes
were approved (id. at 755).
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10. On June 22, 2021, the appellant asked the COR if the agency would
provide a guide to work with them especially since heavy equipment would be used,
and stated some of the buildings did not have a contact person and asked how to get
access to the buildings to establish access and notify them of the impending work (R4,
tab 8 at 102). The COR emailed the appellant with the PWS sections explaining the
coordination process (R4, tab 45 at 767). The appellant also emailed the COR and
stated it was waiting for LAC approval, missing contact information, coordination
with military police, and a training waiver (R4, tab 47 at 771). By June 25, 2021, the
COR provided the appellant an updated points of contact list (R4, tab 48). At this
point, the COR emailed the contracting officer and expressed concern over the
appellant’s ability to perform (R4, tab 8 at 101-02).
11. On August 13, 2021, the appellant provided the COR an inspection report
for the LPS (R4, tab 9 at 112-13). This was the beginning of the issues relating
primarily to the isometric drawings. On August 16, 2021, the COR responded and
requested the isometric drawings and diagrams and the required test data (id. at 111-
12). That same day, the appellant responded and stated that it needed the original
lightning protection as built drawings or, if those were unavailable, architectural or
mechanical roof drawings with actual scaling (id. at 110). According to the appellant,
without this information, there “will be a price per building and a lead time associated
per building based on the amount of engineering time required to produce” the
documents (id. at 110). There continued to be much back and forth about the
isometric drawings (id. at 105-09).
12. On August 18, 2021, the appellant asked for the height of each of the
buildings and a modification of the contract to a cost-type, level-of-effort for a
specified number of hours to be worked by engineering personnel (R4, tab 9 at 105).
On that same day, in an internal email, the COR explained that the heights were
provided as approximates to the bidders to consider potential costs in buying or renting
lifts and the omitted heights would be captured by the vendor at the time of inspection
(R4, tab 10 at 122).
13. On August 19, 2021, the contracting officer emailed the COR and others,
expressing concern about the project and stating the appellant underbid in order to get
this award, there were three acceptable quotations and the appellant’s was $80,000
under the next acceptable quotation for the base period alone but the agency could not
evaluate realism, and the agency could make the appellant whole by stating there was
a mistake in the quotation (R4, tab 10 at 120-21). The contracting officer stated it was
likely the appellant would file a request for equitable adjustment (REA) and then a
claim due to the specific language she used in her request for a modification (id.
at 121).
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14. On August 24, 2021, the appellant informed the contracting officer that the
engineers created the isometric drawings despite the missing information relating to
the height of each building, but this resulted in an additional cost (R4, tab 9 at 104).
On August 27, 2021, the COR informed appellant the drawings were unacceptable
because none showed the installed LPS or the test results (id.; R4, tab 11 at 136-37).
The appellant resubmitted the drawings and test reports and they were again rejected
(see R4, tab 12 at 138). This appears to be the beginning of the issues relating
primarily to the inspection/testing requirements.
15. On September 7, 2021, the agency requested additional drawings and the
inspection readings for all components (R4, tab 13 at 143). In response, the appellant
stated the lightning protection inspection was performed as a visual inspection and
could only be performed as such on the components, with a continuity test at the
through roof connections, and no other testing could be performed (id. at 142-43). The
COR responded that all systems can be tested to ground, as the PWS states, using an
industry standard vibroground device and other means (id. at 141).
16. The next day, the agency again rejected the submitted drawings (R4, tab 14
at 145). On September 21, 2021, the appellant again sent the deliverables stating they
“satisfy NFPA 780 inspections;” the agency accepted the deliverable the next day (R4,
tab 15 at 149-50). The appellant then asked to proceed with close-out and payment,
but was informed that there were still missing deliverables, namely, the test results (id.
at 148-49). The appellant disagreed and stated that testing was performed under the
requirements of NFPA 780. (Id. at 148)
17. On September 30, 2021, the appellant emailed the contracting officer and
requested payment on its invoice (R4, tab 16 at 154). In addition, the appellant
submitted an REA using the template prescribed by DFARS 243.205-71, Requests for
Equitable Adjustment, again asking for a modification to a cost-type, level-of-effort
purchase order for a specified number of hours to be worked by engineering personnel
due to not having the requested information (id. at 154-55). The REA also stated that
a specified number of hours increased due to requested coordination with officers for
building access and other documents not foreseen in the original scope of work (id.
at 155). The total requested was $12,700 (id.). On October 8, 2021, the contracting
officer requested the appellant provide the specific amounts tied to a government-
caused issue (id. at 152).
18. On October 26, 2021, the contracting officer emailed the appellant and
others in the government and stated that there was a “dispute” about the testing
requirements and that the appellant believed the previously provided inspection reports
satisfied the contract (R4, tab 17 at 157). The government maintained that ground
testing was required, and not provided by the appellant. (Id.) On October 27, 2021,
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the appellant submitted an invoice for isometric drawings in the amount of $11,543.75;
the invoice was accepted the same day (R4, tab 30).
19. On November 30, 2021, a different contracting officer issued a COFD
regarding appellant’s September 30, 2021 email asserting it provided all deliverables
and requesting payment in full (R4, tab 18 at 159). The COFD stated the purchase
order was ambiguous regarding the type of testing required such that while the PWS
references NFPA 780 and DA Pam 385-64 “there is not an immediately clear
correlation in the statement of what tests are to be performed nor what tests are
referenced or a location within the specifications to locate applicable testing. . . .” (Id.
at 160). However, because the appellant waited more than 90 days to challenge the
ambiguity, it was required to perform the testing on the LPS (id.). The contracting
officer asked the appellant to provide a revised schedule regarding the testing by
December 3, 2021 (R4, tab 19 at 178). The COFD also stated that the REA relating to
coordination of access to facilities would be handled as a separate matter (R4, tab 18
at 159).
20. On December 1, 2021, the appellant requested a meeting (R4, tab 19
at 172-73). In addition, the appellant submitted a new report (id. at 169). The
contracting officer stated that it appeared to be the original report and requested a
report with the ohm value readings which were needed to determine LPS compliance.
(id. at 168) The appellant informed the agency that it subcontracted the testing work
and it would be performed the week of January 17, 2022 (id. at 162, 166).
21. On February 18, 2022, the agency held a teleconference with the appellant
to discuss the partial acceptance of the deliverables (R4, tab 21 at 182). According to
the meeting minutes, the appellant stated the former contacting officer informed her by
telephone that she only needed to provide the minimum deliverables which she had
already provided, and there was no requirement to provide additional data (id.). The
appellant also stated that the government must meet with her subcontractors and walk
them around each facility to show them what the government wanted (id.). In
response, the government stated that there were no documented or verbal discussions
with any of the assigned contracting officers that changed the scope of the work or
deliverables which were relayed to the COR (id. at 183). The government also stated
that the facilities, locations, and access processes were in the PWS and the appellant
has had access to each facility as confirmed by its own prior admission (id.). The
agency agreed to pay a portion--$8,338.05--of the remaining balance due to the
partially accepted test result deliverables (id.).
22. On March 9, 2022, the contracting officer asked the appellant for more
details concerning the September 30, 2021 REA, such as the hours not included in the
original scope, the personnel not available, and the documentation to be provided that
was out of scope (R4, tab 24 at 194). In response, the appellant stated that only roof
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testing was required but the agency insisted on ground testing per the November 30,
2021 COFD, and the blueprint of the original installation of the LPS was never
provided (id.). The appellant failed to address the allegations relating to access to
government buildings.
23. On March 13, 2022, the agency issued a COFD on the September 30, 2021
REA (R4, tab 22 at 185-86). The agency disputed the REA and concluded the PWS
did not state a requirement for the government to provide drawings or blueprints for
the LPS but stated the appellant was required to provide a drawing of each facility (id.
at 185). The COFD did not address any issues relating to base access.
24. On March 16, 2022, the agency and appellant held another meeting, which
included the appellant’s subcontractors, to explain what test data was still due (R4,
tab 23 at 189). The government insisted the appellant test every installed LPS
component and sub-component for electrical resistance (id.). The appellant argued
that the government was asking for deliverables not required by the purchase order,
that all deliverables provided to date satisfied the order, and the government was
requesting items which were not “industry standard acceptable practice” and
impossible to provide (id. at 190). The government disagreed and stated that it
received this exact same product on another contract (id.). The parties did not resolve
their issues and the appellant insisted it did not owe the government anything more.
(Id.) Nonetheless, the appellant continued work on the purchase order.
25. On March 25, 2022, the COR spoke with an individual working for the
appellant to discuss the LAC/pass process and how to maneuver the boom on the
streets (R4, tab 68 at 1013). On March 30, 2022, the agency sent the appellant and a
subcontractor links to webpages on visitor access to the base such as the visitor’s
office hours and location and pass requirements (R4, tab 67).
26. On March 31, 2022, the appellant’s subcontractor stated it needed a larger
boom lift because it was missing needed information (R4, tab 26 at 218-19). In
response, the appellant asked the subcontractor to confirm that the building dimensions
originally sent were insufficient to determine the building heights because she need to
justify the additional costs for equipment and labor (id. at 218). On that same day, the
subcontractor confirmed that the information was not enough to gauge the size of the
boom lift required (id.).
27. Also on March 31, 2022, the appellant emailed the contracting officer with
an REA seeking $97,370 for missing information not provided by the agency, which
caused an increase in overall costs such as manpower and equipment (R4, tab 26
at 207). The REA listed a cost of $24,470 for the inspection of all 18 buildings and
inspection reports to “include any necessary remediations;” $34,800 for isometric
drawings due to missing information from the agency; and $38,100 for the cost of
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additional testing and measurements due to missing information from the agency (id.
at 209). It included a copy of a check to Lightning Masters Corporation, a copy of a
wire transfer to Scientific Lightning Solutions, LLC, and various emails relating to
missing building heights (id. at 210-14, 217). The appellant informed the contracting
officer that it was “going this route of Equitable Adjustment rather than a different
route for now because I want to preserve a good working relationship with your team”
(id. at 208).
28. In early April 2022, the appellant informed the government it could not
finish the work due to weather conditions and trying to get cars moved or maneuvering
the boom around parked cars (R4, tab 68 at 1011-12). On April 5, 2022, the appellant
emailed the COR and asked to work the weekend to complete the job (id. at 1011).
The contracting officer approved the request, but reminded the appellant to read the
PWS, especially the sections relating to hours of operation, parking, weather
conditions, and coordination with the traffic section (id. at 1010). The contracting
officer stated she was not granting any additional money for overtime work. (Id.)
29. On April 8, 2022, the agency issued a COFD denying the REA (R4, tab
27). According to the COFD, the PWS: (1) required the appellant provide remedies
and solutions for substandard or deficient systems or components; (2) stated the
appellant would provide the government isometric drawings; and (3) stated the
appellant would provide testing and measurements of the buildings (id. at 221). The
COFD stated the government provided building heights for the five tallest buildings in
technical exhibit A, and therefore appellant had knowledge of the appropriate
equipment needed. (Id.)
30. On April 11, 2022, the appellant emailed the contracting officer and stated
“see attached claim” (R4, tab 28 at 223). The claim consisted of a claim summary
schedule (setting forth costs for direct labor, staff payroll, general and administrative
(G&A) expenses and profit), and several corresponding invoices, and requested a total
amount of $97,370 (id. at 224-31). Specifically, the appellant attached the following
invoices: (1) $7,625 from Bolt Lightning Protection for testing, travel, and ground
readings on 13 buildings; (2) $18,470 from Lightning Master for inspection of all 18
buildings, lift rental, travel, inspection reports to include necessary remediations
required to bring LPS up to industry standard per NFPA 780; and (3) $24,012.58 from
Scientific Lightning Solutions, LLC for a feasibility study for lightning protection and
surge protection with notes that the building heights were not provided so the
assumption was a 60-ft boom lift was required (id.).
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31. On April 13, 2022, the agency issued a COFD on the claim (R4, tab 29). 1
First, with respect to the $7,265 for the test reports and grounding readings, the
government denied the claim because the testing and inspection services were required
by the PWS (id. at 233). The COFD also stated: “Additionally, there is no evidence in
the contract file that the contractor posed any questions related to testing and
inspection that would warrant an increase in costs” (id.). The government also denied
the claim seeking $18,470 for testing and inspection reports and isometric drawings
(id. at 232). According to the government, the PWS required the appellant provide all
supplies, equipment, management and labor personnel to perform inspection and
testing services for the specified buildings; and the appellant was to provide remedies
and solutions to get substandard or deficient systems or components within acceptable
standards along with a scale isometric projection drawing of each facility listed in the
TE (id.). The government stated that the appellant had an opportunity to account for
these costs in its quotation and again stated that there was no evidence in the contract
file that the appellant posed any questions on the testing and inspection procedures that
would warrant an increase in costs (id.).
32. The government also denied the request for $24,012.58 for a feasibility
study, which included providing measurements for all buildings listed in the PWS (R4,
tab 29 at 233). According to the government, the PWS required testing and
measurements of the buildings (id.). The government also denied the requests for staff
payroll, G&A, and profit because the PWS required the appellant provide all
supervision, management, tools, equipment, and labor necessary to perform inspection
and testing services (id.). The contracting officer concluded by requiring the appellant
provide the required testing of the LPS (id.).
33. On April 22, 2022, the appellant emailed Thomas Prayne and stated that
testing and inspection would be conducted on April 25-26, 2022 and that all
stakeholders had been informed and vehicles will need to be parked away from the
building to allow access (R4, tab 71 at 1029). On April 22, 2022, Mr. Prayne stated
that he could provide the appellant cones but the appellant would have to pick them up
(id.). On April 25, 2022, the appellant informed the COR she was having problems
with access to certain buildings (R4, tab 70 at 1022-23). The COR asked the appellant
if she had coordinated with the military traffic section to have the areas coned off, as
described in the PWS (id. at 1022). The appellant then forwarded her email to
Mr. Prayne and asked for assistance in accessing the buildings (id. at 1022).
34. On May 18, 2022, the appellant filed a Notice of Appeal on the COFD on
the REA, which the Board docketed as ASBCA No. 63292. On May 25, 2022, the
1
The government found a discrepancy in the amount requested and provided a
response to each of the amounts requested in the various invoices (R4, tab 29
at 232).
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appellant filed a Notice of Appeal filed on the COFD on the claim, which the Board
docketed as ASBCA No. 63293. On May 31, 2022, the appellant submitted a final
invoice for final testing in the amount of $11,543.75; the government accepted the
invoice on June 3, 2022 (R4, tab 31 at 239, 243).
35. On June 21, 2022, the appellant, this time through counsel, submitted a
Statement of Clarification to the Board explaining that the two “claims” submitted
initially by the pro se owner are for the same amount of $97,370 and therefore within
the monetary limits for expedited procedures (app. corr. dtd. June 21, 2022). On
July 19, 2022, the appellant submitted a Second Statement of Clarification explaining
that the March 31, 2022 REA and April 11, 2022 claim submitted by the appellant to
the contracting officer “are for the same matters and based on the same allegations,
which shows why the amounts claimed in each are identical.” (App. corr. dtd. July 19,
2022)
36. In its amended complaint, the appellant alleges the following: (1) there
was promissory estoppel because the contracting officer verbally modified the
solicitation prior to award when it informed the appellant during a call that the
solicitation only sought annual inspection services which the appellant says “would
only consist of visual inspection services in accordance with NFPA 780”(amended
compl. ¶¶ 30-37); and (2) the government breached its implied duty of good faith and
fair dealing when it failed to cooperate and prevented the appellant from accessing the
site to conduct work under the contract, resulting in wasted expenditures on labor,
equipment and subcontractors (amended compl. ¶¶ 38-43).
DECISION
The government has made several arguments that the Board lacks jurisdiction
over the appeal. First, the government argues the appellant never submitted a “valid”
claim to the contracting officer. 2 The government contends the April 11, 2022
correspondence was “simply seeking reimbursement of its costs as if the Contract were
cost-reimbursement type, rather than firm-fixed price type, similar to the appellant’s
efforts in its March 31, 2022 REA” (gov’t reply at 12). The government further
contends the April 11, 2022 communication fails to provide clear language providing
the basis of the claim (gov’t mot. at 11-12; gov’t reply at 12-13).
2
The government has moved to dismiss the appeals by arguing that the April 11, 2022
submission is not a “valid” claim and only averring that the March 31, 2022
submission is an REA even though the agency issued COFDs for both (see e.g.,
gov’t reply at 14-16). As noted, Selevive appeals both COFDs and asserts that
the two are for the same matters and based on the same allegations; the Board
consolidated the appeals. Further matters, if any, relating to the March 31,
2022 REA will be addressed in a decision on the merits.
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The appellant argues that it submitted a claim as evidenced by the earlier
correspondence and communications which preceded the claim, along with the claim
itself (app. resp. at 11-15). According to the appellant, these documents provided a
clear statement of the basis of the claim, and the contracting officer understood the
basis of the claim, as evidenced by the COFD (id.).
Selevive bears the burden of establishing jurisdiction by a preponderance of the
evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.
1988) (citations omitted); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA
¶ 35,700 at 174,816 (citing Hanley Indus., Inc., ASBCA No. 58198, 14-1 BCA
¶ 35,500 at 174,015). “The facts supporting jurisdiction are subject to our fact-finding
upon a review of the record.” CCIE & Co., 14-1 BCA ¶ 35,700 at 174,816 (citing
Raytheon Missile Sys., ASBCA No. 58011, 13 BCA ¶ 35,241 at 173,016).
Is the April 11, 2022 correspondence a claim?
The FAR defines a “claim” as “a written demand or written assertion by one of
the contracting parties seeking, as a matter of right, the payment of money in a sum
certain, the adjustment or interpretation of contract terms, or other relief arising under
or relating to this contract.” 48 C.F.R. § 52.233-1(c). Claims under $100,000 need not
be certified. 41 U.S.C. § 7103(b)(1); see 48 C.F.R. § 52.233-1(d)(2)(i). The FAR also
explains that “[a] voucher, invoice, or other routine request for payment that is not in
dispute when submitted is not a claim under 41 U.S.C chapter 71.” 48 C.F.R.
§ 52.233-1(c). To determine whether a claim was submitted, “we apply a common
sense analysis, looking at specific communications on a case-by-case basis and the
‘totality of previous correspondence between the parties.’” Kellogg Brown & Root
Servs., Inc., ASBCA No. 62681, 21-1 BCA ¶ 37,974 at 184,427 (quoting Holmes &
Narver, Inc., ASBCA No. 51430, 99-1 BCA ¶ 30,131 at 149,054).
The April 11, 2022 submission is a claim. It followed the COFD denying the
March 31, 2022 REA which likewise sought $97,370 for, among other things,
inspection and testing. Further, the April 11, 2022 submission followed months of
conflict between the appellant and government over many things including the
requirements for testing. Based on the record before us, as far back as February 18,
2022, the appellant disputed the requirement to perform ground tests on the LPS due to
an alleged conversation she had with the contracting officer (SOF ¶ 21). Accordingly,
the April 11, 2022 submission sought compensation due to alleged unforeseen or
unintended circumstances and is therefore not a routine submission made “‘in
accordance with the expected or scheduled progression of contract performance.’”
James M. Ellett Constr. Co., Inc., 93 F.3d 1537, 1542 (Fed. Cir. 1996) (quoting
Reflectone, Inc., v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995)).
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Was there a clear and unequivocal statement providing adequate notice of the claim?
The government contends the claim never specifically referenced anything
relating to the first allegation in the complaint--the alleged pre-award clarification call
with the contracting officer--and is only a table of expenses and several invoices which
failed to explain their relevance (gov’t mot. at 2-3, 11; gov’t reply at 20-21). “A claim
need not be submitted in any particular form or use any particular wording, but it must
provide a clear and unequivocal statement that gives the contracting officer adequate
notice of the basis and amount of the claim.” Tolliver Grp., Inc., 20 F.4th 771, 776
(Fed. Cir. 2021) (quoting K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005
(Fed. Cir. 2015)). In addition, “[i]n determining a claim’s scope, we are not limited to
the claim document but can examine the totality of the circumstances.” Dawson-
Alamo1 JV, LLC, ASBCA No. 60590, 19-1 BCA ¶ 37,357 at 181,645 (quoting Sauer,
Inc., ASBCA No. 60366, 16- 1 BCA ¶ 36,565 at 178,101).
When looking at the circumstances in total, the April 11, 2022 claim provided
adequate notice that the appellant was contesting the scope of work due to prior
discussions with the contracting officer. Again, the record shows that during a
February 2022 meeting, the government disputed appellant’s allegations that any of
the assigned contracting officers had discussions that changed the PWS or
deliverables. (R4, tab 21 at 183) The appellant then submitted what it labeled an REA
on March 31, 2022, listing as relevant here a cost of $24,470 for the inspection of all
18 buildings and inspection reports and $38,100 for the cost of additional testing (R4,
tab 26 at 207, 209). The agency issued a COFD denying the REA, contending the
PWS required testing (R4, tab 27). Next, on April 11, 2022, the appellant submitted
the claim at issue here which included invoices for testing and inspection reports (R4,
tab 28). In response, the COFD specifically states twice that there was “no evidence in
the contract file that the contractor posed any questions” related to testing and
inspection that would warrant an increase in costs (R4, tab 29 at 232-33). Therefore,
the government was aware of the basis of the claim, at least as it relates to the
requirement for more than visual inspections.
With respect to the second allegation that the government failed to cooperate
and prevented the appellant from accessing the site, the government argues the claim
says nothing about these issues relating to base access (gov’t mot. at 9; gov’t reply
at 22). The record shows the appellant had raised this issue as far back as
September 2021 (R4, tab 16 at 155), and the issue concerning access to facilities was
apparently discussed again during the teleconference on February 18, 2022 (SOF
¶ 21). However, on March 9, 2022, the contracting officer requested a detailed
response regarding the REA in which this issue was raised and asked for “personnel
not available”; the appellant failed to provide information regarding access to the
facilities (SOF ¶ 22). Further, the March 31, 2022 REA seeking $97,370 for missing
information and the cost of inspections and additional testing failed to set forth any
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allegations regarding lack of access to the buildings (SOF ¶ 27). Likewise, the
subsequent April 11, 2022 claim seeking $97,370 for testing and inspection and other
costs never discussed this issue (SOF ¶ 30). While there is communication in the
record showing in late April 2022 that the appellant believed there were base access
issues, these occurred after both COFDs. Accordingly, the claim failed to provide
adequate notice of this allegation to the contracting officer, and this allegation is
dismissed.
Is this the same claim as presented to the contracting officer?
The government also moved to dismiss the appeals arguing that the causes in
the complaint are not based on the same operative facts and basis of the claim
submitted to the government for a COFD (gov’t mot. at 8-10; gov’t reply at 12). The
Contract Disputes Act requires that “[e]ach claim by a contractor against the Federal
Government relating to a contract shall be submitted to the contracting officer for a
decision.” 41 U.S.C. § 7103(a)(1). The purpose of presenting a claim to the
contracting officer first is “to create opportunities for informal dispute resolution at the
contracting officer level.” Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 (Fed.
Cir. 2021) (quoting Raytheon Co. v. United States, 747 F.3d 1341, 1354 (Fed. Cir.
2014)). Because ‘“[t]he scope of [an] appeal is determined by the claim originally
submitted to the contracting officer for a final decision’. . . . we do not possess
jurisdiction over new claims that were not previously presented to the contracting
officer.” Parwan Grp. Co., ASBCA No. 60657, 18-1 BCA ¶ 37,082 at 180,495
(quoting MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 at 169,673).
A claim presented to the Board may be considered the same as the one
presented to the contracting officer if it “derives from the same set of common or
related operative facts” and “seeks the same or similar relief.” Anthony and Gordon
Constr. Co., ASBCA No. 61916, 21-1 BCA ¶ 37,887 at 184,001 (quoting Parwan
Grp. Co., 18-1 BCA ¶ 37,082 at 180,495). In general, we look at the “operative facts”
of the claim submitted to the contracting officer, which are “the essential facts that
give rise to the cause of action.” M.A. DeAtley Constr., Inc. v. United States, 75 Fed.
Cl. 575, 579 (2007) (quoting Kiewit Constr. Co. v. United States, 56 Fed. Cl. 414, 420
(2003)).
In addition, a claim that introduces “additional facts which do not alter the
nature of the original claim” or asserts “a new legal theory of recovery, when based
upon the same operative facts as included in the original claim” does not constitute a
new claim. Trepte Constr. Co. Inc., ASBCA No. 38555, 90-1 BCA ¶ 22,595at 113,385. The claimant is free to change its legal theory as long as it is not
materially different from what was presented in the claim. Wilwood Eng’g, ASBCA
No. 62773, 22-1 BCA ¶ 38, 116 at 185,144.
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Selevive’s complaint argues there was promissory estoppel because the
contracting officer verbally modified the solicitation prior to award when it informed
the appellant during a call that the solicitation only sought annual inspection services
which the appellant says would only consist of visual inspection services in
accordance with NFPA (amended compl. ¶ 30-37). “[P]romissory estoppel is
essentially an equitable cause of action whereby one who reasonably relies on
another’s promise can subsequently require that person to make good on his promise.”
Carter v. United States, 98 Fed. Cl. 632, 638 (2011). Although Selevive did not
specifically articulate, or use the words, promissory estoppel in its claim, the Army
understood the claim was based on the appellant’s reliance of alleged oral advice from
a contracting officer. Accordingly, we conclude that Selevive did present this theory
of recovery in its claim to the contracting officer.
The parties were asked to provide briefing on whether the Board has
jurisdiction over the appellant’s allegation of promissory estoppel. The government
contends that the Board does not have jurisdiction.
“An obligation based upon promissory estoppel is a type of contract implied-in-
law. . . and cannot be asserted against the government.” RGW Commc’ns., Inc. d/b/a
Watson Cable Co., ASBCA Nos. 54495, 54557, 05-2 BCA ¶ 32,972, at 163,338 n.13
(citations omitted). A contract implied-in-law is one “in which there is no actual
agreement between the parties, but the law imposes a duty in order to prevent
injustice.” International Data Products Corp. v. U.S., 492 F.3d 1317, 1325 (Fed. Cir.
2007). The Board does not possess jurisdiction over a contract implied-in-law, and
therefore we do not possess jurisdiction over a claim of promissory estoppel. See
Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,085 at 180,534. Here, the appellant
has argued that it relied on information provided by the contracting officer prior to
award, and the appellant “adjusted [its] proposal to only account for visual inspection
services” (amended compl. ¶ 36). As the promissory estoppel allegation concerns an
implied-in-law contract, we dismiss for lack of jurisdiction.
In its brief, the appellant argued that “this situation is unique as it is one where
an express contract was made. . . [and] Selevive’s claim can be more properly
described as one for negligent misrepresentation” (app. br. at 1). The appellant has
sought to amend its complaint (app. br. at 2). Accordingly, as appellant has raised an
additional issue that requires further briefing, the appeal remains before the Board and
that issue will be resolved at a later time.
CONCLUSION
For the foregoing reasons, the government’s motion on jurisdiction is granted in
part and denied in part, and the Board dismisses the allegation regarding promissory
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estoppel. Accordingly, ¶¶ 31 through 32, and 38 through 43 are stricken from the
amended complaint.
Dated: October 18, 2022
LAURA EYESTER
Administrative Judge
Armed Services Board
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 Nos. 63292, 63293, Appeals of
Selevive Group, LC, rendered in conformance with the Board’s Charter.
Dated: October 18, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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