BAE Systems Ordance Systems, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
BAE Systems Ordnance Systems, Inc. ) ASBCA No. 62416)
Under Contract Nos. W52P1J-11-C-0012 )
W52P1J-11-D-0013 )
APPEARANCE FOR THE APPELLANT: Michael A. Richard, Esq.
Obermayer Rebmann Maxwell &
Hippel LLP
Philadelphia, PA
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
LTC Gregory T. O’Malley, JA
LTC Jess R. Rankin, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PROUTY
The issue before us in the government’s pending motion to dismiss is whether
the Federal Circuit’s recent decision in Hejran Hejrat Co. Ltd v. United States Army
Corps of Engineers, 930 F.3d 1354 (Fed. Cir. 2019), so alters the law regarding
requests for equitable adjustment (REAs) that a contractor submitting documents
plainly intended to be REAs, but not claims pursuant to the Contract Disputes Act
(CDA), and scrupulously avoiding requesting final decisions from the contracting
officer (CO) must, nevertheless, be considered to have submitted claims pursuant to
the CDA. In the case before us, the conversion of the REAs to claims without the
contractor’s intent or knowledge would require dismissal of the appeal because the
time between the denial of the REAs and the submission of this appeal is beyond the
CDA’s statute of limitations. For the reasons explained below, Hejran Hejrat does not
require such a result and the Army’s motion to dismiss, advancing that argument, is
denied.1
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
BAE Systems Ordinance Systems, Inc. (BAE) had two related contracts with the
United States Army (Army). The first contract in the caption above (the 12 contract) is
1
The government has also requested a stay of this case. That request is mooted by this
decision.
the one relevant to the pending motion to dismiss, and it was to perform Facilities
Operation and Maintenance of the Radford Army Ammunition Plant (RFAAP),
collocated in Radford and Dublin, Virginia (see R4, tab 1). The second contract in the
caption (the 13 contract) was to produce propellant at the RFAAP for use in artillery
(see R4, tab 3).
An issue arose during contract performance regarding who would be
responsible for payment of certain costs relating to environmental conditions at the site
and fines that BAE was incurring from state regulators as a result (see R4, tabs 122,
186, 192). As a consequence, BAE submitted three letters to the CO: The first letter
was submitted on December 7, 2016 (REA 1 2) (R4, tab 122). The second was
submitted on August 3, 2017 (REA 2) (R4, tab 186). The third was submitted on
September 6, 2017 (REA 3) (R4, tab 192).
The “subject” line of each of the three letters from BAE labelled it as an REA
(R4, tab 122 at 1338, tab 186 at 1612, tab 192 at 1680). Consistent with that label, the
introductory paragraph of each letter begins with the words, “In accordance with
FAR 52.243-1, Changes – Fixed Price (Alternate I), and DFARS 252.243-7002,
Requests for Equitable Adjustment, BAE Systems Ordnance Systems Inc. (BAE
Systems) herein submits our Request for Equitable Adjustment (REA) for . . .” 3 (R4,
tab 122 at 1339, tab 186 at 1612, tab 192 at 1680). BAE did not request a CO’s final
decision pursuant to the CDA in any of the three letters (R4, tabs 122, 186, 192).
The penultimate paragraph of each letter consisted of the following words:
I certify that the request is made in good faith, and that the
supporting data are accurate and complete to the best of
my knowledge and belief.
(R4, tab 122 at 1343, tab 186 at 1615, tab 192 at 1683) This is precisely the language
contained in DFARS 252.243-7002, regarding REAs. The next paragraph was simply
a sentence referring the CO to the person signing the letter if she had any questions.
They were then signed by Shelley R. Czapkewicz-Klingborg, BAE Senior Manager,
Contracts. (R4, tab 122 at 1343, tab 186 at 1615, tab 192 at 1683) Nowhere in the
2
We refer to these letters here as REAs because that is what they were labelled by
BAE and, as will be seen later in this opinion that is what we find them to be.
3
The subject lines of the letters all referred to the REAs as being brought pursuant to
the 12 contract (R4, tab 122 at 1338, tab 186 at 1612, tab 192 at 1680). The
12 contract incorporated by reference both Federal Acquisition Regulation
(FAR) 52.243-1, Changes – Fixed Price (Alternate I), and the Department of
Defense Supplement to the Federal Acquisition Regulation (DFARS)
252.243-7002, Requests for Equitable Adjustment (R4, tab 1 at 22).
2
letters does BAE state that the adjustment reflects the amount for which the contractor
believes the government is liable, nor do they state that the certifier is authorized to
bring the claim on behalf of the contractor (id.), which is the language required for
claims certification by the CDA. 41 U.S.C. § 7103(b)(1).
BAE’s opposition to the government’s motion included the declaration of
Roosevelt Burden. Mr. Burden testified that he was the Senior Manager of Contracts
for BAE who was tasked with converting REA 1, REA 2, and REA 3 into claims
within the meaning of the CDA (Burden decl. ¶ 6). Mr. Burden asserts that BAE did
not intend for REA 1, REA 2 or REA 3 to be submitted or treated as a claim pursuant
to the CDA (Burden decl. ¶¶ 7, 9). This was because BAE initially sought to negotiate
the resolution of the REAs rather than pursue a CDA claim (Burden decl. ¶ 8, 10).
Mr. Burden explained that in preparation of REA 1, REA 2 and REA 3, BAE
purposefully avoided making a request to the CO for a final decision as defined in the
CDA, 41 U.S.C. § 7103(d-f) (Burden decl. ¶¶ 7, 9-10).
Thus, on the facts before us, we conclude that each of the three letters was
intended by BAE to be an REA as opposed to a CDA claim and that each letter
unambiguously communicated as much to the government.
The government has alleged no communications from BAE which expressed a
desire to convert these apparent REAs into CDA claims, nor, critically, has it
identified any request from BAE for a final decision on the REAs. On the record
before us, we find that there was no such request by BAE.
The CO responded to the REAs by letter on November 13, 2018. In the
opening paragraph, she described the nature and purpose of the letter:
The purpose of this letter is to notify BAE of my position
on contractor entitlement relative to . . . [the] REA
submittals. A technical and legal review of the initial
REAs submitted were conducted, and were also considered
in reaching my position. Upon thorough review and
analysis of the information provided, I do not find merit or
entitlement to any of the cost elements of the three REAs
presented. However, the Procuring Contracting Officer
(PCO) is willing to entertain reimbursement of a portion of
the penalties paid . . . .
(R4, tab 197 at 1716) To be fair to the government, she did state that a contractor was
required to prove its “claims” by a preponderance of evidence and that BAE had not
done so (R4, tab 197 at 1719); moreover, she also referred to the REAs as a “claim”
once when disavowing any admission of liability stemming from any settlement
3
discussions (R4, tab 197 at 1721), but did not otherwise suggest that she was issuing a
final decision upon a claim or that the matter was being treated any differently than an
REA. The letter closed by requesting further information from BAE by November 20,
2018 (a week later) (id.).
BAE responded to the CO’s letter on November 19, 2018. The company’s
correspondence similarly described its purpose and intent:
Th[e] purpose of this letter is to confirm receipt of the
ACC-RI entitlement determination letter . . . [on the] REA
submittals. BAE Systems respectfully disagrees with the
Government’s entitlement determination and does not
accept the Government’s reimbursement of a portion of the
penalties but appreciates the opportunity to further
substantiate our REAs. However, given the length of time
that the Government took to evaluate and respond to BAE
Systems REA submittals and the number of questions and
issues raised by the letter, BAE Systems finds the
Government’s requested response date to be unreasonable.
BAE Systems will need time to assimilate a
comprehensive response that proves BAE Systems
entitlement.
(R4, tab 200)
The CO responded to BAE’s request on November 21, 2018:
The Government is in receipt of . . . [BAE’s] letter, in
which BAE advised it would need additional time to
provide a response that proves BAE entitlement regarding
. . . [the] REAs. BAE is reminded that, as is stated in [the
determination] with respect to the referenced REAs, BAE
has failed to fully demonstrate by a preponderance of
evidence its claims that the Government bears full
responsibility for the fines and penalties . . . .
The purpose of this letter is to formally notify BAE that
my Final Determination regarding referenced REAs will be
forthcoming by close of business on December 14, 2018.
If BAE has any additional information it would like to
submit for consideration, it is welcome to do so prior to
4
this date. I will consider any additional information with
respect to [the] REAs provided it is received by close of
business on December 13, 2018.
(R4, tab 202 at 1728-29) This letter also included the same language that was in the
CO’s November 19 letter disavowing any admission of liability stemming from any
settlement discussions over BAE’s “claims” (R4, tab 202 at 1729).
On December 13, 2018 Mr. Burden from BAE sent a letter which stated:
Thank you for your correspondence dated 13 November
2018 . . . in which you explain the government’s position
regarding three requests for equitable adjustment submitted
by BAE Systems . . . . We are pleased to know the
government’s concerns and questions so that we may be
better able to respond. The purpose of this letter is to
provide further explanation and substantiation of BAE
Systems’ entitlement to the referenced REAs. In addition,
we provide a certificate in accordance with
DFAR 252.243-7002 at the end of this correspondence. As
you know, in these REAs . . . BAE Systems seeks
equitable adjustments to the subject contract . . . arising out
of certain environmental fines . . . . BAE Systems paid the
fines for these violations, and now seeks reimbursement
from the government.
(R4, tab 203 at 1731) With that letter, BAE included the certification required by
DFARS § 252.243-7002 (the same REA certification that had been in its earlier
correspondence) because it was providing additional information to support its REAs
(R4, tab 203 at 1739; Burden decl. ¶ 12). As in its prior correspondence, BAE did not
include the certification required for a claim under the CDA or request a CO’s final
decision (R4, tab 203).
On January 9, 2019 the CO reiterated her response to BAE’s REAs but couched
as a final determination on the merits of the REAs:
The purpose of this letter is to notify BAE of the Procuring
Contracting Officer’s Final Determination relative to [the]
REAs. The Government has thoroughly reviewed the data
submitted to date, including the additional information
provided December 13, 2018 . . . . Taking all of the
information provided to date into consideration, the
Government finds that BAE has still failed to establish
5
entitlement or merit for its claims, including evidence that
the Government bears full responsibility for the fines and
penalties imposed for violations and other cost elements
claimed in the REAs . . . .
Accordingly, the Government’s Final Determination
rejects the referenced REAs in their entirety, as BAE has
failed to establish its entitlement to recovery under law and
regulation. If BAE chooses to dispute this determination,
it is entitled to submit a claim in accordance with
FAR 52.233-1 – Disputes.
(R4, tab 232 at 6040-41) In that letter, the CO only refers to BAE’s submissions as
REAs. She also clearly differentiated those submissions from claims as defined by the
CDA, and did not refer to her letter as a Contracting Officer’s Final Decision. This
characterization of the REAs was confirmed by the direction to BAE to “submit a
claim” if it disagreed with the CO’s determination.
The CO went through that same process again in a letter on February 12, 2019,
sent to provide BAE with an “additional opportunity to submit additional evidence or
data to support [the] REAs” 4 (R4, tab 235 at 6052). Again the contracting officer
referred to BAE’s submissions only as REAs. The contracting officer included a
warning that “BAE is hereby reminded that the additional opportunity presented by
this letter shall not be misconstrued as deviation from the Final Determination” (R4,
tab 235 at 6052).
On February 13, 2019, in response to this letter, BAE sent a short
correspondence to the CO informing her that, though it had thought it had adequately
supported its REAs, it would forward additional information for the CO’s consideration
by March 7, 2019 (R4, tab 238 at 6061). On February 21, 2109, BAE sent another
letter to the CO, informing her that on further consideration, it had decided to not send a
further response to the CO’s February 12 letter (R4, tab 240 at 6067).
The CO tied up any loose ends on February 27, 2019, sending BAE a short
letter reconfirming the Final Determination provided in the January 9, 2019
correspondence (R4, tab 243 at 6080). The February 27 letter again advised BAE that
it could submit a claim following the procedure contained in its contract in
FAR 52.233-1–Disputes (id.).
4
This letter does not appear to have been a response to a formal letter or inquiry from
BAE in response to the CO’s January 9, 2019 letter, and the CO stated that she
had not heard “directly” from BAE on the matter; rather, the CO was
responding to what she “underst[ood]” to be questions BAE might have had
about her final determination (R4, tab 235 at 6051).
6
In accordance with that advice and that same guidance in the January 9 final
determination, BAE decided to “submit a claim” rather than file an appeal (Burden
decl. ¶ 15). On June 17, 2019, BAE submitted a letter to the Army claiming
entitlement to the same dollars sought through REA 1, REA 2 and REA 3 (R4, tab 246
at 6090). In contrast to the prior correspondence, BAE’s introductory paragraph
stated:
BAE Systems Ordnance Systems, Inc. (BAE Systems)
submits its claim arising from Contract
No. W52P1J-11-C-0012 with the U.S. Army Joint
Munitions Command (Army) for the operation and
maintenance of the Radford Army Ammunition Plant
(RFAAP) in Radford and Dublin Virginia. BAE Systems
submits this claim pursuant to the Contract Disputes Act,
41 U.S.C. 7101-7109 (CDA), and requests a contracting
officer’s final decision.
(Id.) The recovery requested in the claim is nearly identical to the amount sought by
the REAs. 5 The claim included a certification by Vincent Bevilaqua as director of
contracts for BAE which states:
I certify that this claim is made in good faith, that the
supporting data are accurate and complete to the best of
my knowledge and belief, that the amount requested
accurately reflects the contract adjustment for which I
believe the Federal Government is liable, and that I am
authorized to certify this claim on behalf of BAE Systems
Ordinance Systems, Inc.
(R4, tab 246 at 6116-17) Mr. Bevilaqua’s certification closely adheres to the
certification required in 41 U.S.C. § 7103(b).
On August 13, 2019 the CO acknowledged “receipt of the . . . letter and related
environmental claim submission. At this time no final decision has been made and the
Government intends to submit its formal response by October 15, 2019.” (R4,
tab 260) Once it was received, the CO kept BAE informed of the government’s
progress in evaluating the claim. On October 11, 2019, the CO informed BAE that
5
BAE’s claim letter, which essentially converted the REAs under the 12 contract into
a claim, also alleged, in the alternative, that it was entitled to relief under the
13 contract (R4, tab 246 at 6116-17), which explains the two contracts in the
caption of this appeal.
7
“the Government is still evaluating. At this time, no final decision has been made and
the Government intends to submit its formal response by 31 OCT 2019.” (R4, tab 262
at 6308) On October 31, 2019, the CO informed BAE by email that “BAE’s
environmental claim dated 17 JUN 2019” was still being evaluated, that “no final
decision has been made at this time” and he intended to issue a formal response by
November 21, 2019 (R4, tab 266 at 6318). The next email was sent by the contracting
officer on November 20, 2019 (R4, tab 268 at 6325). In that email BAE was informed
that the government believed that “[m]ore time than previously anticipated is needed
to continue our thorough evaluation of the subject environmental claim. As a result,
no final decision has been made at this time. The Government intends to submit its
formal response on/before 13 Dec.” (Id.)
The government’s self-imposed December deadline passed. On January 15,
2020, BAE was informed that the CO was out of her office because of a personal
matter (R4, tab 273 at 6353). On January 30, 2020, BAE was informed by the CO that
she had returned to her office and that she would provide a response by February 28,
2020 (R4, tab 275 at 6368). On February 24, 2020, BAE appealed the deemed denial
of its claim to this Board.
DECISION
The Army has moved to dismiss this appeal asserting that BAE’s challenge to
the contracting officer’s decision is untimely since the REAs were, in fact, CDA
claims, and the CO’s final determination upon them was thus a CO’s Final Decision
upon the claims (see gov’t mot. at 10-11). Indeed, the Army is correct that there is
little basis for arguing that the text of the REAs did not meet the requirements for
claims under the CDA (notwithstanding the clear intent of BAE to limit itself to
REAs) (gov’t mot. at 11), with one very intentional exception: BAE did not request a
CO’s final decision. BAE argues that this exception is enough to preclude the finding
of a claim (app. opp’n at 16-17). BAE also argues that its use of the REA form of
certification, rather than the CDA claim form of certification, is an additional basis for
finding that it did not submit a claim (app. opp’n at 18-19). We reject BAE’s
argument regarding the form of certification as being contrary to the law.
Nevertheless, we find that, unlike the circumstances in Hejran Hejrat which the Army
relies upon, BAE’s actions never explicitly or implicitly requested a decision, thus
changing them to claims. Thus, because the first CO’s decision on a claim from BAE
was appealed in a timely fashion, we deny the government’s motion.
8
I. The Distinction Between a Claim and an REA 6
Broadly speaking, an REA is a request from a contractor to a CO to consider
adjusting contract terms. Because of their (relatively) non-adversarial nature,
contractors sometimes prefer to pursue REAs prior to submitting CDA claims so as to
preserve the relationship of the parties during contract performance. See generally,
Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541 (Fed. Cir. 1995) (overruled in
part on other grounds, Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1579, n.10 (Fed. Cir.
1995)). Also, significantly, under certain circumstances, contractors may receive
compensation for the sometimes-significant work required to prepare an REA that is
short of a claim, but are foreclosed from such compensation if the document they
submit to the CO is a claim. Bill Strong Enterprises, 49 F.3d at 1547-50. An REA is
not defined by the CDA.
“Claim” is not defined by the CDA, either, thus the Federal Circuit instructs
that we turn to the FAR for its definition. See, e.g., H.L. Smith, Inc. v. Dalton, 49 F.3d
1563, 1564-65 (Fed. Cir. 1995). FAR 2.101 provides that a claim is “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 related to the contract.”
For us to possess jurisdiction over a claim under the CDA, it must request a
final decision from the CO. 41 U.S.C. § 7103(a); M. Maropakis Carpentry, Inc. v.
United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M. Ellett Constr.
Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996) (“The CDA [] requires that a
claim indicate to the contracting officer that the contractor is requesting a final
decision.”)). But, the Federal Circuit has made clear that a claim requires no
“particular form or use any particular wording” nor does it “require an explicit request
for a final decision; ‘as long as what the contractor desires by its submissions is a final
decision, that prong of the CDA claim test is met.’” Maropakis, 609 F.3d at 1327-28(quoting Ellett, 93 F.3d at 1543). In fact, a contractor’s submission may merely imply
a request for a contracting officer decision without explicitly doing so. Ellet, 93 F.3d
at 1543 (quoting Heyl & Patterson, Inc. v. O’Keefe, 986 F.2d 480, 483 (Fed. Cir.
1993) (“a request for a final decision can be implied from the context of the
submission.”)).
The distinction between an REA and a claim is somewhat blurry, and often
comes down to the second major component, whether the contractor has requested a
final decision from the CO. In Air Services, Inc., ASBCA No. 59843, 15-1 BCA
¶ 36,146, we explained that, “[t]here is no bright-line distinction between an REA and
6
As will be discussed further in this section, a document entitled an REA can also be
considered to be a CDA claim. Here, we are discussing non-claim REAs.
9
a CDA claim.” Id. at 176,424. Citing Reflectone, we noted that even a document
referring to itself as an REA often meets the definition of a claim in that it makes a
non-routine written demand for payment as a matter of right. Id. at 176,424-25 (citing
Reflectone, 60 F.3d at 1577). Hence, in Hejran Hejrat, the communication with the
CO was styled as an REA and the contractor disavowed any intention of submitting a
claim, but the Federal Circuit nevertheless held that the document met the FAR’s
definition of a claim. 930 F.3d 1357-58. In Air Services and other cases, an REA was
converted to a claim upon the simple expedient of the contractor subsequently
requesting a final decision from the CO. Air Services, 15-1 BCA ¶ 36,146 at 176,425;
see also Hejran Hejrat, 930 F.3d at 1357-58 (court “loath to believe” communications
not meant as request for final decision); cf. Madison Lawrence, Inc., ASBCA
No. 56551, 09-2 BCA ¶ 34,235 (Appellant explicitly stated that it was converting its
REA into a claim and it submitted a proper CDA claim certification.); DTS Aviation
Servs., Inc., ASBCA No. 56352, 09-2 BCA ¶ 34,288 (Contractor submitted a letter
converting REA to a CDA claim).
II. The (Ir)Relevance of the Form of Certification
One distinction that does not make a difference between an REA and a claim is
the form of the certification used. The CDA requires that all claims over $100,000 in
value be certified in accordance with 41 U.S.C. § 7103(b). Special Operative Grp.,
LLC, ASBCA No. 57678, 11-2 BCA ¶ 34,860 at 171,480 (citation omitted). The
DFARs include a special certification to be used for REAs that does not include all of
the statements required for certification of claims by the CDA’s statutory language.
Compare DFAR 252.243-7002 (the DFARs REA certification provision) to 41 U.S.C.
§ 7103(b). In Air Services, we held that the use of the REA certification did not
prevent a submission from being a valid claim since the REA certification,
notwithstanding its limitations, could be considered a defective, but curable CDA
certification. 15-1 BCA ¶ 36,146 at 176,426-27. Likewise, the REA in Hejran Hejrat,
which the Federal Circuit held to constitute a CDA claim, used the DFARs-prescribed
REA certification language. See Hejran Hejrat Co. LTD, ASBCA No. 61234, 18-1
BCA ¶ 37,039 at 180,322-23 (Board decision describing use of DFARS REA
certification); Hejran Hejrat, 930 F.3d at 1359 (finding any defect in certification not
to be dispositive).
BAE argues that its use of the REA certification prevents its letters from being
considered to be claims and that they can only be considered to be claims if it remedies
their certification defects – something which it is unwilling to do, in contrast to the other
cases cited above where it was the contractor that wished the defective certification to be
remedied (see app. opp’n at 35-37). This is a clever argument, but, ultimately,
unpersuasive: in the present case, we are dealing with a question of the statute of
limitations. Statutes of limitations are based upon when a case can be brought. See,
e.g., Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 104 (2013). If the REAs
10
were, in fact claims with defective certifications (as the government argues), their
appeals could, nevertheless, be brought as soon as they were denied or deemed denied
by the CO, see 41 U.S.C. § 7104; thus, the running of the statute of limitations is not
impacted by the subsequent need to remedy the defective certification.
We do, however, believe that the use of the REA certification may prove
relevant in providing context for communications from the contractor. Thus, when
evaluating whether certain communications from the contractor to the CO represent an
implicit request for a final decision, the fact that the contractor chose to use a
non-claim certification could prove to be a helpful, though not necessarily dispositive,
data point. 7
III. BAE Did Not Request a CO’s Final Decision
With the exception of arguing that its REA certification is inadequate for a
CDA claim, BAE wisely makes little effort to argue that its REAs, on their faces, do
not constitute claims. Instead, it primarily argues that it avoided converting them into
claims by scrupulously refraining from requesting a CO’s final decision. It succeeded.
First, the government identifies no explicit request for a contracting officer’s
decision in the correspondence regarding the REA’s. This is hardly surprising as BAE
intentionally sought to avoid converting its REAs into claims.
The government, instead, argues that BAE implicitly requested a final decision,
analogizing it to the circumstances in Hejran Hejrat. It is mistaken. To be sure, the
Federal Circuit in Hejran Hejrat found a document purporting to be an REA on its
face and requesting that it be treated as an REA should be treated as a claim because,
under the circumstances, the court felt the document implicitly requested a decision by
the CO. See 930 F.3d at 1356-58. But in Hejran Hejrat, there had been a year-long
exchange of documents and course of dealings between the parties which the Federal
Circuit characterized in such a way as to make clear that things had changed between
the parties by the time of the submission of the document that the court deemed to be a
claim, including, notably, the addition of a certification that had not been present in
earlier communications. See id. That is not the case presented here. Instead, there
were three original submissions plainly not requesting CO decisions; there was a
preliminary determination by the government which included a request for extra
7
In a similar vein, though we do not believe that the opinion of the CO matters in
determining whether a document is a claim (whether a document is a claim is
surely an objective determination and not subject to the CO’s wishes), the
communications from the CO to the contractor in response to the contactor’s
submissions and the contractor’s response thereto may prove helpful context in
understanding what implicit requests are being made by the contractor.
11
information from BAE; BAE provided some additional information in December
2018, but no certification beyond what it had previously done 8 (in contrast to the
circumstances in Hejran Hejrat, where the certification was new); and then, in
February 2019, BAE generally indicated it might give the CO yet more information
upon its request before thinking the better of it and declining to offer more substantive
responses to the CO before she made her determination.
Thus, unlike the circumstances in Hejran Hejrat, the posture between the
parties did not change substantially as the conversation regarding the REAs went
forward. That was underscored by the correspondence between the parties indicating
that the CO believed no claim had been submitted for a final decision and by the fact
that BAE felt no need to correct that understanding. To be sure, this decision may be a
closer call than it would have been prior to the Hejran Hejrat ruling, but on the very
specific facts before us, we are persuaded that BAE did all that it could to keep its
REAs from falling within the realm of being also considered CDA claims by carefully
avoiding making a request – explicit or implicit – for a CO’s final decision. The Army
argument, that, despite its best efforts, BAE effectively made an implicit request for a
CO’s final decision by accident, 9 is mistaken. Notably, the Federal Circuit’s Hejran
Hejrat decision was based in part upon its finding that, in the circumstances presented
in that case, it was “loathe to believe” that a “reasonable contractor” was not
requesting a final decision in the circumstances of that case. 930 F.3d at 1358. By
contrast, the reasonable contractor here, for its own good reasons, did not wish to cross
the Rubicon by requesting a final decision. Thus, we will not find a request for a final
decision where it was not explicitly made and not implicitly intended. At the end of
the day (consistent with the law, of course), whether a contractor submits a claim or a
non-claim REA should be up to the contractor.
8
This certification was the REA certification which, while not dispositive (as
discussed above), provides added support for a finding that BAE intended to
avoid submitting a CDA claim.
9
Another way to read the Army argument is that Hejran Hejrat effectively did away
with non-claim REAs. If that were the Federal Circuit’s intent, we believe our
reviewing court would have said so directly before eliminating such an
important aspect of contract administration.
12
CONCLUSION
The government’s motion to dismiss for lack of jurisdiction is denied.
Dated: February 10, 2021
J. REID PROUTY
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I concur I concur
JOHN J. THRASHER RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
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. 62416, Appeal of BAE
Systems Ordnance Systems, Inc., rendered in conformance with the Board’s Charter.
Dated: February 10, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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