Derian, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Derian, Inc. ) ASBCA No. 63283)
Under Contract No. W912EF-20-C-0029 )
APPEARANCE FOR THE APPELLANT: Mr. Mark Jensen
President
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Theresa L. Hampson, Esq.
Deputy District Counsel
U.S. Army Engineer District, Walla Walla
OPINION BY ADMINISTRATIVE JUDGE YOUNG
ON THE GOVERNMENT’S MOTION TO DISMISS
Derian, Inc. (Derian or appellant) filed a notice of appeal alleging the contracting
officer had not issued a timely decision. Appellant did not include a copy of a purported
claim or any other documentation about the contract. The U.S. Army Corps of Engineers
(USACE) Walla Walla District (government) filed a motion to dismiss for lack of
jurisdiction alleging appellant did not submit a claim to the contracting officer. The
Contract Disputes Act (CDA), 41 U.S.C. §§7101-7109, is applicable. For the reasons
stated below, the appeal is dismissed.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On May 3, 2022, appellant submitted correspondence to the Board stating as
follows:
USACE Walla Walla District refuses to issue timely
responses or decisions; therefore, Derian considers these
actions a deemed denial. USACE is unreasonably delaying
final contract completion and payment.
Owner: USACE Walla Walla District
Contact: Jani Long Jani.C.Long@usace.army.mil
Contractor: Derian, Inc.
Contract: W912EF-20-C-0029
Title: McNary Unwatering Upstream Sump Repair
Project Substantial Completion: September 2021
Modifications:
Electrical/Fire: USACE issued January 2021
Derian response February 2021
USACE response March 2022
Negotiations fail March 2022
USACE refuses to issue unilateral modification or respond
P-10 Pump: Performance test completed August 2021
USACE informs Derian mod issuance/final acceptance
forthcoming in September 2021
USACE refuses to respond
Final closeout and payment pending issuance of modifications.
(Notice of appeal at 1)
2. On May 17, 2022, the Board docketed appellant’s correspondence as ASBCA
No. 63283.
3. On June 15, 2022, the government filed a motion to dismiss for lack of
jurisdiction, arguing that appellant did not submit a claim to the contracting officer.
4. On June 22, 2022, the Board issued an Order directing appellant to respond to
the motion within 30 days of the Order.
5. Appellant did not file a response as directed. On August 23, 2022, the
government submitted correspondence to the Board noting that appellant had failed to
respond within the timeframe directed by the Board. (Gov’t. corr. dtd. August 23, 2022)
6. On August 24, 2022, the Board issued an Order directing appellant to file an
opposition to the government’s motion if appellant elected to do so, within 14 days of the
date of the Order.
7. To date, appellant has not submitted a response to the government’s motion to
dismiss for lack of jurisdiction, or any other correspondence to the Board.
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DECISION
“It is axiomatic that, in order for this Board to review an appeal under the CDA,
there must be an underlying claim.” Golden Build Co., ASBCA No. 62294, 20-1 BCA
¶ 37,649 at 182,774 (citing Parsons Evergreene, L.L.C., ASBCA No. 57794, 12-2 BCA
¶ 35,092 at 122,346). The CDA requires that “each 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). A valid claim from a contracting officer’s final
decision is a prerequisite to jurisdiction by the Board. See Parsons Glob. Servs., Inc. v.
McHugh, 677 F.3d 1166, 1170 (Fed. Cir. 2012).
Here, appellant’s submission of May 3, 2022 (SOF ¶ 1) contains no information as
to whether a claim was submitted to the contracting officer. Appellant simply states that
the government “refuses to issue timely responses or decisions” which Derian considers a
deemed denial (app. corr. dtd. May 3, 2022). Nothing in the record supports that Derian
submitted a claim to the contracting officer. Despite multiple Orders to respond,
appellant has not provided any evidence that a claim was submitted to the contracting
officer. Therefore, we must grant the government’s motion to dismiss for lack of
jurisdiction.
CONCLUSION
The appeal is dismissed for lack of jurisdiction.
Dated: February 1, 2023
LIS B. YOUNG
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice 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. 63283, Appeal of Derian,
Inc., rendered in conformance with the Board’s Charter.
Dated: February 1, 2023
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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