Archer Western Aviation Partners ( 2020 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Archer Western Aviation Partners ) ASBCA Nos. 62035, 62047
) 62387, 62388
Under Contract No. W912DQ-14-C-4006 )
APPEARANCE FOR THE APPELLANT: Steven D. Meacham, Esq.
Peel Brimley LLP
Henderson, NV
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Virginia S. Murray, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Kansas City
OPINION BY ADMINISTRATIVE JUDGE SWEET
On March 5, 2020, we sua sponte raised the issue of whether we possess
jurisdiction over ASBCA Nos. 62035 and 62387 (collectively, 4/5 Line Appeals), and
directed the parties to brief the issue. After reviewing the parties’ briefs, we conclude
that we possess jurisdiction over the 4/5 Line Appeals because appellant Archer
Wester Aviation Partners (AWAP) filed an effective, timely notice of appeal of a
Contracting Officer’s Final Decision (COFD) regarding those appeals.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On May 22, 2014, the Army Corps of Engineers (Corps) and AWAP entered
into Contract No. W912DQ-14-C-4006 (4006 Contract) for the construction of
airplane hangars and an aircraft parking apron at McConnell Air Force Base in Kansas
(R4, tab 1). 1
2. On December 4, 2017, AWAP submitted a request for equitable adjustment
(REA) for $236,083, asserting that the Corps changed the 4006 Contract when it
required AWAP to install an insulated metal wall panel on the Y column line between
1 Neither party provided citations to the R4 file in its brief. The parties are reminded
that, in the future, it is imperative to include citations to the R4 file.
column lines 4 and 5 (4/5 Line REA). The 4/5 Line REA did not include a
certification. 2 (R4, tab 37 at 2, 4)
3. On January 8, 2018, the government responded to the 4/5 Line REA,
indicating that it found the REA meritless (R4, tab 39).
4. On April 5, 2018, AWAP submitted a supplemental 4/5 Line REA
(Supplemental 4/5 Line REA; collectively with 4/5 Line REA, 4/5 Line REAs) for
$175,828, which did not contain a certification (R4, tab 41).
5. On January 10, 2019, the contracting officer (CO) issued a COFD, denying
the Supplemental 4/5 Line REA (R4, tab 42).
6. On April 9, 2019, AWAP filed a notice of appeal with the Board, which we
docketed as ASBCA No. 62035 (R4, tab 44).
7. On May 2, 2019, AWAP filed an unopposed motion to stay ASBCA
No. 62035, so AWAP could submit a certified claim. We granted the motion, and
required periodic joint status reports.
8. On July 2, 2019, AWAS submitted a certified 4/5 Line Claim to the CO for
$103,644 (Certified 4/5 Line Claim) (R4, tab 46 at 2).
9. On August 29, 2019, the CO issued a COFD denying the Certified 4/5 Line
Claim (Certified 4/5 Line Claim COFD) (R4, tab 47).
10. Less than 90 days after AWAP received the Certified 4/5 Line Claim COFD,
it filed a joint status report on September 9, 2019 (Joint Status Report). In the Joint
Status Report, AWAP expressed dissatisfaction with the Certified 4/5 Line Claim
COFD and indicated an intention to appeal that COFD to the Board by stating that
AWAP “intends to appeal the Contracting Officer’s Final Decision related to ASBCA
No. 62035.” However, AWAP moved to continue the stay because it still was
attempting to cure the certification defect regarding the claim underlying ASBCA
No. 62047 (Roof Claim) 3—with which the 4/5 Line Appeals are consolidated—by
2 The “certification” to which we refer is a statement, executed by a person authorized
to bind the contractor stating that the claim is made in good faith; that the
supporting data is accurate; that the amount being requested is what the
contractor believes the government owes it; and that the person executing the
certification is authorized to do so. It is required by the Contract Disputes Act
(CDA) for claims over $100,000. See 41 U.S.C. § 7103(b).
3 This decision only addresses ASBCA Nos. 62035 and 62387. It does not address
ASBCA Nos. 62047 and 62387 (Roof Claim Appeals), which involve a
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obtaining a COFD on a certified Roof Claim (Certified Roof Claim). We granted that
motion.
11. After the CO issued a COFD on the Certified Roof Claim—and more than
90 days after the Certified 4/5 Line Claim COFD—AWAP filed formal notices of
appeal regarding the Certified 4/5 Line Claim and the Roof Claim on February 5,
2020, which we docketed as ASBCA Nos. 62387 and 62388 respectively.
DECISION
We possess jurisdiction over the 4/5 Line Appeals because AWAP filed an
effective, timely notice of appeal of the Certified 4/5 Line Claim COFD. “The Board
has historically liberally read contractors’ communications in finding effective appeal
notices and has repeatedly held a notice of appeal requires only a writing filed within
the requisite time period that expresses dissatisfaction with the contracting officer’s
decision and indicates an intention to appeal the decision to a higher authority.”
Ft. McCoy Shipping & Servs., ASBCA No. 58673, 13 BCA ¶ 35,429 at 173,794; see
also Board Rule 1(b) (only requiring that a notice of appeal indicate that an appeal is
being taken). Moreover, a contractor must file a notice of appeal with the Board
within 90 days of the contractor’s receipt of the COFD in order for us to possess
jurisdiction over that appeal. Cosmic Constr. Co. v. United States, 697 F.2d 1389,
1390-01 (1982); Anaconda Constr. Co., ASBCA No. 60905, 17-1 BCA ¶ 36,789
at 179,315.
Here, AWAP filed an effective, timely notice of appeal when it filed the Joint
Status Report. 4 First, under our liberal construction, the Joint Status Report
constituted an effective notice of appeal because it expressed dissatisfaction with the
Certified 4/5 Line Claim COFD and indicated an intention to appeal that COFD to the
separate claim regarding costs associated with additional roof penetrations
located at the Bay Hanger (Roof Claim). Thus, we only refer to the Roof Claim
Appeals to the extent necessary to understand our jurisdiction over the 4/5 Line
Appeals.
4 The 4/5 Line REAs do not establish our jurisdiction. A document labelled as an
REA may constitute a claim if it otherwise meets the CDA’s requirements for a
claim. Hejran Hejrat Co., LTD v. United States Army Corps of Engineers, 930
F.3d 1354, 1357 (Fed. Cir. 2019). Moreover, a defective certification is curable
and does not deprive us of jurisdiction. Id. at 1359. However, the complete
absence of a certification on a claim for more than $100,000 is a jurisdictional
defect that cannot be cured during an appeal. Tefirom Insaat Enerji Sanayi ve
Ticaret A.S., ASBCA No. 56667, 11-1 BCA ¶ 34,628 at 170,630. Here, the 4/5
Line REAs were for more than $100,000, but completely lacked certifications.
(SOF ¶¶ 2, 4). Therefore, the 4/5 Line REAs do not establish our jurisdiction.
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Board. (SOF ¶ 10) Indeed, we have held that language that is virtually identical to the
Joint Status Report’s statement that AWAP “intends to appeal the Contracting
Officer’s Final Decision related to ASBCA No. 62035” constitutes an effective notice
of appeal. (SOF ¶ 10); H & S Corp., ASBCA No. 26712, 82-2 BCA ¶ 15,910 (holding
that a letter stating that “[w]e intend to appeal the Contracting Officer’s Final
Decision” constituted an effective notice of appeal). Moreover, the Joint Status Report
was timely because AWAP filed it on September 9, 2019—less than 90 days after
receiving the Certified 4/5 Line Claim COFD. (SOF ¶ 10). Because the Joint Status
Report constituted an effective, timely notice of appeal of the Certified 4/5 Line Claim
COFD, we possess jurisdiction over the appeal of the 4/5 Line claim.
CONCLUSION
For the foregoing reasons, we possess jurisdiction over ASBCA Nos. 62035
and 62387.
Dated: August 26, 2020
JAMES R. SWEET
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD J. REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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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. 62035, 62047, 62387,
62388, Appeals of Archer Western Aviation Partners, rendered in conformance with
the Board’s Charter.
Dated: August 27, 2020
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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