Platinum Services, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of - )

)

Platinum Services, Inc. ) ASBCA Nos. 62199, 62200

)

Under Contract Nos. W91ZLK-09-D-0001 )

W91QV1-11-D-0003 )

W91QV1-11-D-0004 )

W91QV1-11-D-0006 )

APPEARANCES FOR THE APPELLANT: Anthony J. Marchese, Esq.

Carol L. O’Riordan, Esq.

O’Riordan Bethel Law Firm, LLP

Washington, DC

APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq.

Army Chief Trial Attorney

MAJ Heather M. Martin, JA

LTC Julie A. Glascott, JA

Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE HARTMAN

ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

Platinum Services. Inc. (PSI) seeks payment of 26 invoices it submitted to the

Department of the Army (Army) in 2010 to 2013 under four contracts for the provision

of moving services. The Army has moved for summary judgment, contending

PSI’s claims are time-barred by the Contract Disputes Act (CDA) six-year statute of

limitations. PSI does not dispute that its claims for a final contracting officer (CO)

decision regarding the invoices were submitted more than six years after the last date it

submitted any of the unpaid invoices. It contends, however, that this Board should

equitably toll the statute of limitations with respect to the claims. For the reasons

stated below, we grant the Army’s motion and deny the appeals.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

From 2009 to 2011, appellant, Platinum Services, Inc. (PSI) received four

indefinite-delivery, indefinite-quantity (IDIQ), firm-fixed-price requirements contracts

from the Army to provide services for the shipment and/or storage of household and

other goods of military service members. The contracts had an initial base period of

12 months, contained four option periods each of 12 additional months, and provided

for an Army “Ordering Officer” to place service delivery orders to PSI. Funding for

service delivery orders issued to PSI was tied administratively to a service member’s

orders to “change duty station,” and the Army had to submit the service member’s

duty change orders to the Defense Finance and Accounting Service (DFAS) for

payments to be issued to PSI for its work performance. Service members’ orders were

not among the paperwork generally provided to PSI, nor required to be submitted by

PSI to the Transportation Office at Fort Belvoir, which by late 2012 was PSI’s

designated point of contact for payment issues with respect to all four contracts. (R4,

tabs 1 at 32 & 35-38, 16 at 243-44, 248, 26 at 577, 585-86, 590, 33 at 1001-02, 1006;

answer ¶ 6, 26, 28, 31; Federal Acquisition Regulation (FAR) 52.216-18 (ORDERING

(OCT 1995)); 52.216-21 (REQUIREMENTS (OCT 1995)) 1

The four contracts all incorporated by reference FAR 52.232-25, PROMPT

PAYMENT (OCT 2008), which requires contractors to submit billing statements to

the designated payment office (52.232-25(a)(3)), and with respect to payment of those

invoices, states in pertinent part --

(a) Invoice Payments -- (1) Due Date. (i) Except as

indicated in paragraph (a)(2) and (c) of this clause, the due

date for making invoice payments by the designated

payment office is the latter of the following two events:

(A) The 30th day after the designated billing office has

received a proper invoice from the Contractor . . . .

(B) The 30th day after Government acceptance of . . .

services performed. . . .

...

(c) Fast payment procedure due dates. If this contract

contains the clause at [FAR] 52.213-1, Fast Payment

Procedure, payments will be made within 15 days after the

date of receipt of the invoice.

(R4, tabs 1 at 34, 16 at 236, 26 at 578, 33 at 994) Paragraph (a)(2) of this clause sets

forth special provisions if the contractor invoices are for supply of certain food

products. None of PSI’s contracts here involved provision of any food products.

Also, none of PSI’s contracts here included the “fast payment” clause referenced in

1

The documents in the Rule 4 file and its supplement that were submitted by the

government are all stamped with Bates numbers beginning with zeros. We cite

to these Bates numbers but omit the initial unnecessary zeros.

2

paragraph (c). The contracts, however, incorporated by reference FAR 52.233-1,

DISPUTES (JUL 2002) which provides:

(a) This contract is subject to the Contract Disputes Act of

1978, as amended (41 U.S.C. 601-613) [(CDA)].

(b) Except as provided in the Act, all disputes arising

under or relating to this contract shall be resolved under

this clause.

(c) “Claim,” as used in this clause, means 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. However, a written demand or written

assertion by the Contractor seeking the payment of

money exceeding $100,000 is not a claim under the Act

until certified. A voucher, invoice, or other routine

request for payment that is not in dispute when

submitted is not a claim under the Act. The submission

may be converted to a claim under the Act by complying

with the submission and certification requirements of this

clause, if it is disputed either as to liability or amount or is

not acted upon in a reasonable time.

(d)(1) A claim by the contractor shall be made in writing

and, unless otherwise stated in this contract, submitted

within 6 years after accrual of the claim to the

Contracting Officer for a written decision.

(Emphasis added) (R4, tabs 1 at 34, 16 at 236, 26 at 578, 33 at 994) Three of PSI’s

contracts were awarded by Army contracting personnel located at Fort Belvoir, VA

and one (Contract No. W91ZLK-09-D-0001) by contracting personnel at Aberdeen

Proving Ground, MD. (R4, tabs 1 at 1, 16 at 191, 26 at 507, 33 at 922).

The parties do not dispute that PSI performed services under the contracts from

2010 to 2012 pursuant to delivery orders issued under the contracts and then submitted

invoices for its services to the Army in order to be paid for those services. While PSI

ultimately was paid hundreds of thousands of dollars by the Army under the contracts

(see app. supp. R4, tabs 137 at 2121-22, 229 at 2307), there were 26 invoices

submitted that were never paid. The Army does not dispute that PSI performed the

work in question or that PSI’s invoices for that work were properly submitted. Rather,

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as discussed below, it appears that the change of duty station orders for the service

members moved by PSI were lost as a result of computer problems and not available

to be submitted by the Army to DFAS.

Beginning in 2012, the Army informed PSI it was having difficulty locating

copies of service members’ change of station orders for delivery orders performed by

PSI. In April, the Army stated in an email that “[t]he only invoices we have in our

office are the ones that . . . need orders” and “[a]ll other invoices were sent to . . .

DFAS[]” for payment. (App. supp. R4, tab 63 at 1982) PSI and the Army exchanged

more than 70 emails during 2012 regarding non-payment issues (app. supp. R4,

tabs 55 – 88)). The following exchange occurred on October 9 --

Army: Since taking over this position, I am trying to clear

up old invoices. I will let you know if I need anything else

regarding this move.

PSI: Thank you, I really appreciate you trying to clear

these up! We have over half a million still due us from

2011 alone.

Army: No problem at all! I will be happy to see them

gone, LOL. One quick question: Do you ever see the

service member’s orders?

PSI: Rarely but sometimes we do get them. If I have them

I attach it with the invoice. Let me know if you need me to

check the files for any.

Army: No you don’t need to go looking for them. I just

notice that the majority of the invoices that are held up

seem to be because they are waiting for a copy of the

orders.

(App. supp. R4, tab 79 at 2011-13) Ten days subsequent, the Army informed PSI that

“I have been threatening people with my first born if they don’t find orders :)” and,

“by the end of the day, I will have a count for you of invoices from 2011 and 2012 that

were submitted [to DFAS].” Later, the same day, the Army stated “attached is what I,

personally, have submitted since October 1, 2012,” and “hopefully we are starting to

make a dent in the old stuff.” (App. supp. R4, tab 84 at 2022-23) The next week, the

Army sent PSI, per the request of PSI’s President, a list of the invoices currently

“waiting on orders” of duty station change to be sent DFAS (app. supp. R4, tab 86

at 2029).

4

In 2013, PSI and the Army exchanged over 60 emails regarding nonpayment

issues (app. supp. R4, tabs 89-121)). For example, in April 2013, the Army asked PSI

to forward its prior emails listing invoices awaiting payment so it could ascertain the

dates that its personnel forwarded the invoices to DFAS. PSI responded it had been

informed that its Army contact was waiting for service members’ change-of-duty-

station orders to forward the invoices for payment and once again sent its requested

November 2012 emails listing unpaid invoices to the Army. (App. supp. R4, tab 102

at 2059) During July 2013, PSI found a change-of-duty-station order for one of the

unpaid invoices and additionally sent it to the Army (app. supp. R4, tab 111 at 2081).

During 2014, PSI and the Army exchanged 25 emails regarding non-payment

issues under the contracts (app. supp. R4, tabs 122-34)). PSI’s President, Mario

Smoot, informed the Army in February 2014 (app. supp. R4, tab 122 at 2098) that it

was awaiting payments of nearly a half million dollars and many of the unpaid

invoices were over two and a half years old (app. supp. R4, tab 122 at 2098) In

response, an Army Division Chief asked agency personnel to give him “an update on

$ owed Mario” (id. at 2097). Months later, in November, the Division Chief again

asked Army personnel for an update regarding lack of invoice payment to PSI (app.

supp. R4, tab 133 at 2111).

Because PSI was concerned about the lack of progress in payment of

its invoices, it elevated the issue to an Army CO in 2015, exchanging some 134 emails

regarding its lack of payment (app. supp. R4, tabs 135-169)). During February 2015,

PSI President Smoot informed the CO and other Army personnel as follows:

I have tried very hard to work with you in resolving the

open invoices from 2011. But it seems like all I hear is

excuses. I realize that you and your staff are short handed

however I need to get this resolved now. We have

spoke[n] many times and we have provided you with all

the documents over and over. I know you are trying but

this will not pay my bills. It is not my fault that your

system crashed and all the orders were lost. Nor is it

yours, but I can’t afford to wait any longer to receive the

estimated open amount of $1,200,000.00 that has been

unpaid for over 3 years now. Please let me know what will

be the next step taken to resolve this issue and how we can

help.

(App. supp. R4, tab 137 at 2121-22) The CO responded that she was not familiar with

the PSI non-payment issues (other than an unrelated settlement agreement the parties

had negotiated), she had nothing to do with paying invoices, and would “look into the

issue” (id. at 2119-22). At the direction of PSI’s President, Mr. Smoot, a PSI

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representative provided the CO with information she requested and thanked her for her

offer to help with the matter (id.). In late spring, the CO advised PSI: she had been

working on the non-payment issues with DFAS for almost two months; it has been very

difficult to obtain funding from all the different agencies (Air Force, Navy, Army, etc.);

Army lawyers were involved in the matter; and she would update PSI as efforts

progressed (app. supp. R4, tab 138 at 2124). With the CO’s involvement, the Army

made progress in paying amounts owed. Throughout 2015, the Army processed

payment for a number of PSI’s “old DPM invoice[s]” and provided updates on

payment. For example, the Army advised PSI a list of invoices attached to the

Army’s email had been submitted that date to DFAS for payment. PSI responded in

April 2015 by thanking the Army for its efforts, and by noting “we have a long way to

go.” It stated its list of remaining unpaid invoices totaled $990,619.89. (App. supp.

R4, tab 139 at 2127) In its effort to process PSI’s old invoices, the Army even

contacted another contractor that had performed part of the moving services for a

service member PSI had moved to ascertain if that contractor had a copy of the service

member’s change of station orders needed to process payment for PSI. The contractor,

however, replied that it did not have a copy of those orders, noting “[w]e hardly ever

get the [service member’s] orders.” (App. supp. R4, tab 168 at 2196-97)

During 2016, PSI and the Army exchanged over 130 emails regarding

non-payment issues, including the following –

Army: I sent 23 new invoice[s] up to DFAS already but it

is difficult for me to see what’s been paid because I cannot

see the invoice or contract number. Can you tell me if

anything [has] been paid off the sheet you sent me.

PSI: Updated list attached of all open invoices. I can

email you each time we receive a payment, no problem.

Army: You don’t have to send the list but you can send

the name. You can wait until you get more than one.

I sent out a lot of email and the orders are coming in now.

I just need to resen[d] them if over two week go by with no

payment. . . . I only have about 10 more email to try to get

order. If I get the orders, they can be paid. So far I am

waiting on payment for about 25 or more. I will have more

to submit soon. Thank you for all your help in getting

these invoices off my desk.

(App. supp. R4, tab 197 at 2254-56; (app. supp. R4, tabs 170-225)) PSI believed that

significant progress was now being made with respect to its unpaid invoices (app.

supp. R4, tabs 198-225)).

6

In 2017, PSI and the Army exchanged 54 emails regarding non-payment issues

under the contracts (app. supp. R4, tabs 226-243)). By March 2017, the Army

managed to locate many of the missing change of duty station orders needed for

invoice payment and pay PSI for much of its work under the contracts. However,

more than $350,000 in open unpaid PSI invoices remained. (App. supp. R4, tab 229

at 2307) In June 2017, the Army told PSI it was continuing to work to pay PSI the

“over aged DPM invoices” (app. supp. R4, tab 231 at 2311).

By the start of 2018, the Army reduced the amount it owed PSI for contract

invoices to $147,959.49 (app. supp. R4, tab 243 at 2332) and continued working on

having outstanding invoice payments made to PSI, as evidenced by the Army’s

February 1 email stating --

Just spoke to DFAS and sure enough it didn’t pay yet.

They have put in an elevated ticket to expedite it. They are

also checking on Cason. I will let you know once I hear.

If I do not hear by Monday I will call them again.

I appreciate your patience!

(App. supp. R4, tab 244 at 2334) In 2018, the Army and PSI exchanged more than

40 emails regarding invoice non-payment issues (app. supp. R4, tabs 244 – 51)).

On November 27, 2018, the following email exchange occurred –

PSI: Thank you so much Ms. Pam! What about the rest of

these going back to 2011? Is there a reason we are not

getting these paid? Do you need new copies of paperwork

or are you still trying to obtain orders? We need an update

please on what is being done. Thank you again!

Army: Hi Carie, Tiera Hadin is now handling the over

aged invoices.

PSI: Good afternoon Ms. Hardin. Do you need any info

for the attached past due invoices? What do we need to do

to get these processed?

Army: Hello Ms. Galusha. These invoices are a part of

the Over age project. The reasoning why these invoices

have not been paid is because of the lack of orders with the

funding information. All of the Overage invoices we are

working by branch of service and submitting them to

DFAS once I obtain orders I can use for payment. As of

right now, I am working the [N]avy invoices and

7

submitting them when I can find orders that are acceptable.

I will go through your list to make sure I have all of these

invoices and reach out to you if I’m missing any.

Thank you for your patience!

(App. supp. R4, tab 249 at 2344-46)

During 2019, PSI deemed Army progress on finding missing service members’

change of duty orders and payment of outstanding PSI invoices to have “slowed to a

near stand-still” (Appellant’s Proposed Finding of Fact ¶ 42). As a result, PSI’s law

firm sent the following email on February 6, 2019, to Army CO Quinn “initiating a

dialogue” with the Army –

Our firm is counsel for [PSI], a DPM moving and storage

contractor who has held several contracts administered by

your office.

Due to what we understand to have been a computer

crash/database related issue impacting MICC, [the Mission

& Installation Command,] payment for a number of [PSI]

invoices has been delayed.

....

Attached is a list of the invoices outstanding.

From my conversations with MICC staff, it is my

understanding that . . . you are the CO handling the

outstanding issues on these contracts. Please let me know

if that is not the case. I’d like to speak with you to

determine if there is a way to get the open invoices on

these contracts paid, and the contracts closed out.

(R4, tab 40 at 1302) About one week later, by email dated February 14 to CO Quinn,

PSI counsel added –

[A]ttached is some correspondence that I believe will help

explain this [PSI lack of payment] issue further.

The second attached email is a note from the transportation

office Voucher Examiner, explaining that certain [PSI]

invoices could not be processed out from the transportation

office to DFAS, because the service member’s Orders

could not be located. It’s our understanding that

8

transportation office records, including the needed service

members’ Orders, were lost due to a computer crash. This

was back in 2012. As you’ll see, many of the invoices

listed by the Voucher Examiner as held up due to lack of

Orders back in 2012 overlap with the invoices that show as

still open based on PSI’s records (attached to my email).

....

For DPM contracts, the carrier sends its invoices to the

transportation office where they are approved. The

transportation office then sends the invoices to the

appropriate DFAS office for payment. Payment is then

processed through WAWF. [PSI] has not reached out to

WAWF because WAWF never received these open

invoices, so it isn’t like WAWF rejected them or there is a

hold-up [that] is with them. The hold up, we believe, is

with Ft. Belvoir’s transportation office – voucher examiner

branch.

As we understand it, all of these currently open invoices

have been approved by the transportation office [(TO)] as

payable, but have not been sent out from the [TO] for

payment because the TO needs to locate the service

member’s Orders so that they can submit to DFAS for

payment.

So that is the heart of the issue. Locating and providing

service member’s Orders is not something [PSI] can assist

with. It is [PSI’s] understanding that the [TO] has worked

to obtain the needed orders from the various service

branches, but has had some difficulties.

[PSI] has meanwhile been patient, but we need to come up

with a path forward to resolve the matter and get these

contracts closed out.

(R4, tab 43 at 1522-23) By email dated February 25, 2019, CO Quinn advised PSI

that “[o]ur legal team is looking into any alternate ways of getting you paid for your

work provided” and “I will reach out to you once I hear back from them” (R4, tab 43

at 1518-19).

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PSI’s counsel advised as follows –

We understand that the contracting office is looking for

ways to address this matter. A few clarifications:

[PSI] did not wait to bring this issue to the agency’s

attention.

[PSI] timely submitted its invoices for payment years ago,

back when the services were performed. Mr. Thomas and

many other agency officials have been aware of this issue

since at least 2012 . . . . Our understanding is that

transportation office personnel have been working to track

down the service member’s Orders for several years, but

have not been successful with respect to [locating] the

invoices that still remain open. That is why we have

contacted you to help bring this matter to resolution.

. . . The [TO] has not submitted these invoices to DFAS for

payment because they cannot locate the service member’s

Orders apparently needed to do so. However, the agency

still owes [PSI] for these services, and [PSI] cannot just go

unpaid indefinitely.

Since, as you note, there may be little hope that the missing

orders actually get located at this point, the agency will

need to find a different mechanism by which to pay [PSI].

We have . . . found that due to the complexities of funding

for DPM programs, for certain debts the agency has had to

make payment from funds that are allocated for the

resolution of disputes. That is the path we will have to

pursue in this matter . . . (essentially obtaining a judgment)

if another workable path is not identified.

(R4, tab 43 at 1519-20) About 50 days later, on April 16, 2019, after its email

exchanges “did not identify a path to resolution of th[ese] matter[s]“ PSI submitted a

“request for a final decision” seeking in excess of $100,000 to CO Quinn, who was

then responsible for the three Fort Belvoir contracts (R4, tab 45 at 1617). The unpaid

invoices under the Fort Belvoir contracts were as follows:

10

Date Name Amount

W91QV1-11-D-0003

10/25/2011 Cecil, Kevin 425.00

07/09/2011 Quintero, Alfredo 156.00

Contract Total 581.00

W91QV1-11-D-0004

07/19/2011 Avalos, Elizabeth 6,160.00

12/26/2012 Hall, Thomas 3,830.32

12/28/2012 Harris, Michael 973.88

12/28/2012 Hill, Valyncia 1,776.90

07/23/2012 Irsik, Larry 3,996.04

08/01/2011 Johnson, Tony 1,582.00

12/28/2012 Lee, John 275.27

04/02/2013 Padilla, Leyla 4,297.44

12/26/2012 Pilkington, Stephanie 5,218.00

10/25/2011 Trowbridge, Robert 416.88

04/02/2013 Woodfin, Joseph 17,175.06

Contract Total 45,701.79

W91QV1-11-D-0006

07/19/2011 :Clabaugh, Jo 26,924.68

01/21/2013 :Garcia, Julio 4,743.15

07/23/2012 :Garner, Patrick 6,038.45

07/25/2012 Hudson, Donnie 9,925.89

10/24/2011 Miller, Brian K 340.38

07/25/2012 Morton, Lisa 7,442.24

06/18/2011 White Jr, Matthew 9,563.50

Contract Total 64,978.29

TOTAL $111,261.08

On June 13, 2019, the CO responded that PSI’s submission did not constitute a

claim because it was not certified (R4, tab 46 at 1649) and, if it was deemed to be a

claim, it was barred by the six-year statute of limitations:

The shipment files show that the services connected with

these invoices were performed between May 12, 2011

(T. Johnson) and September 18, 2012 (V. Hill). The

accrual of the claim was when the alleged liability should

have been known, which would be the last date of the

service of each move. The latest date that any part of the

claim began to accrue was September 18, 2012, which

11

means that any claim filed after September 18, 2018

is barred by the six-year statute of limitations.

(Id. at 1650) On June 25, 2019, PSI sent the CO a certified claim for the 20 unpaid

invoices under the three contracts that had been awarded by Army personnel

at Fort Belvoir a “request for a final decision” seeking $111,261.08. PSI stated this claim

was timely due to “equitable tolling” (R4, tab 48 at 1664-65). On July 19, 2019, PSI

submitted to another Army CO a second certified claim for six different PSI invoices

totaling $13,833.82 under its contract awarded by the Aberdeen Proving Ground (R4,

tabs 12-15). The claim under the Aberdeen contract consists of invoices dated from

July 25, 2011 to January 22, 2013 for services PSI provided between June 28, 2010 and

January 10, 2012 (R4, tabs 40, 42 at 1462-66, 43). On September 18, 2019, the CO for

the three PSI Belvoir contracts denied PSI’s certified claim as barred by the statute of

limitations (R4, tab 54). One week later, PSI appealed the deemed denial of its Aberdeen

contract claim (docketed as ASBCA No. 62199) and the CO’s final decision on the

20 unpaid invoices under the Belvoir contracts (docketed as ASBCA No. 62200).

The Army has moved for summary judgment, contending PSI’s claims for

amounts due and owing under the four contracts are time-barred under the CDA

because they were submitted to a CO more than six years after they accrued. PSI

contends that the claims are timely because the six-year statute of limitations should be

equitably tolled. In a declaration appended to the contractor’s opposition to the Army’s

summary judgment motion, PSI’s President states that the Army’s loss of service

members’ orders to change station, documents needed to compensate contractors for

services provided to the military, was, in his experience, “extraordinary” action that

justifies tolling the statute of limitations (app. opp’n, Ex. A ¶ 6). He asserts that loss of

that paperwork, in conjunction with Army promises to pay PSI for its services as soon

as it could (and the Army’s progress in making payments) “induced [PSI] to hold off in

pursuing a claim” (id. ¶ 13).

DECISION

The standards set forth in FED. R. CIV. P. 56 guide us in resolving a motion for

summary judgment. Cubic Defense Applications, Inc., ASBCA No. 58519, 18-1 BCA

¶ 37,049 at 180,378; Dongbuk R&U Eng’g Co., ASBCA No. 58300, 13 BCA ¶ 35,389

at 173,637. We will grant summary judgment only if a moving party demonstrates there

is no genuine issue as to any material fact, and it is entitled to judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mingus Constructors, Inc.

v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). A material fact is one that may

affect the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248-49 (1986).

In resolving summary judgment motions, we draw all reasonable inferences in

favor of the non-moving party. Celotex, 477 U.S. at 322-24; Elekta Insurance S.A.

12

v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1306 (Fed. Cir. 2000). When a moving

party meets its burden of establishing the absence of disputed material facts, a

non-moving party must set forth specific facts, rather than conclusory statements or

bare assertions. A “non-movant runs the risk of a grant of summary judgment if it

fails to disclose the evidentiary basis for its claim.” See Pure Gold, Inc. v. Syntex

(U.S.A.), Inc., 739 F.2d 624, 627 (Fed. Cir. 1984); Barmag Barmer Maschinenfabrik

AG v. Murata Machinery, Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984).

Under FAR 33.201, the accrual of a claim is defined as the date when all events

that fix the alleged liability of either the government or contractor, and permit claim

assertion, were known or should have been known. “For liability to be fixed, some

injury must have occurred . . . [but] monetary damages need not have been incurred.”

Triple Canopy, Inc. v. Sec’y of the Air Force, 14 F.4d 1332, 1339 (Fed. Cir. 2021)

(quoting FAR 33.201); Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315,

1320 (Fed. Cir. 2014) (same).

To determine when claims accrued and the events that fixed the alleged liability

were known, we must examine the legal basis for those claims. The legal basis for the

asserted claims here are the four PSI contracts and invoices PSI submitted to the Army

for contract work it performed. Triple Canopy, 14 F.4d at 1339; Cubic Defense,

18-1 BCA ¶ 37,049 at 180,376.

The Army argues that PSI’s payment claims for each invoice at issue accrued

on the last day that PSI performed work for which it was seeking payment in the

invoice because it knew or should have known of its claim against the Army on that

date. While the Army correctly sets forth the “general” standard for determining claim

accrual with respect to “non-routine” requests for payment under the CDA,

FAR 33.201, it errs by failing to recognize that the invoices for work PSI performed

pursuant to its Army contracts are “routine,” not “non-routine,” submissions under the

CDA. The costs set forth in the invoices originate from specified contract work PSI

performed. None of the work was additional or unforeseen work performed at the

Army’s behest. To be paid for contract work performed, PSI was to submit invoices

for that work to the Army and did so. Because PSI’s invoices were submitted under

its Army contracts and in accord with its contract work performance, they are

“routine.” See, e.g., Parsons Glob. Servs., Inc. v. McHugh, 677 F.3d 1166, 1170 (Fed.

Cir. 2012); James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1542-43 (Fed.

Cir. 1996); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed. Cir. 1995) (en

banc). Where a request for payment is “routine,” a pre-existing dispute is necessary

for it to constitute a “claim” under the CDA. Parsons Glob. Servs., 677 F.3d at 1170;

Reflectone, 60 F.3d at 1576 & n.6. Neither of the parties here contends that the PSI

invoices were “in dispute” at time of submission. Thus, contrary to the Army’s

assertions, no payment “claims” accrued prior to or at time of PSI invoice submission.

See Reflectone, 60 F.3d at 1575 (“we must assess whether a particular demand for

13

payment constitutes a claim, based on the FAR implementing the CDA, the language

of the contract in dispute, and the facts of the case”); FAR 52.233-1(c), Disputes

(JUL 2002).

Fixing the date of accrual of a claim requires first that there is a “claim”

as defined in the CDA and associated FAR regulations. Kellogg, Brown & Root

Servs., Inc. v. Murphy, 823 F.3d 622, 626 (Fed. Cir. 2016); Cubic Defense, 18-1 BCA

¶ 37,049 at 180,376. Here, the Army contracts required that PSI submit invoices for

costs of contract work to the Army for payment and that the government essentially

had 30 days from invoice receipt to review the submissions and, if proper, make

payment to PSI or make payment 30 days from Army acceptance of PSI’s work if

later. FAR 52.232-25. Since the Army set forth in its four contracts administrative

procedures to obtain reimbursement for contract performance, PSI could not pursue a

CDA “claim” for invoice payment until those mandatory pre-claim procedures were

pursued and it was evident there was a dispute regarding payment of the invoices.

See, e.g., Triple Canopy, 14 F.4d at 1339-40; Kellogg, Brown & Root, 823 F.3d at 628;

Parsons Glob. Servs., 677 F.3d at 1170; accord Martinez v. United States, 333 F.3d

1295, 1304 (Fed. Cir. 2003) (en banc). Supreme Court precedent provides that the

statute of limitations will not begin to run when a claim cannot be pursued because

mandatory pre-claim procedures have not been completed. See Crown Coat Front Co.

v. United States, 386 U.S. 503, 511-12 (1967) (pre-CDA case finding contractor’s

claim “first accrued . . . upon the completion of the administrative proceedings

contemplated and required by the provisions of the contract”); accord Triple Canopy,

14 F.4d at 1340; Parsons Glob. Servs., 677 F.3d at 1171-72 (because the contractor’s

request was “routine,” it must be in dispute before contractor can submit “a written

demand [to CO] . . . seeking, as a matter of right, the payment of money in a sum

certain” (quoting FAR 2.101)); Nager Electric Co. v. United States, 368 F.2d 842, 852

(Ct. Cl. 1966) (contract claim accrues when the contractor could ordinarily demand his

money and bring suit if payment was not made).

In these appeals, it is undisputed that: PSI provided moving services to the Army

under four contracts which the Army accepted; PSI submitted invoices for those services

to the Army in accord with the four contracts; and the Army failed to pay PSI for those

services as required by the contracts. In sum, PSI performed services and submitted

26 invoices for those services to the Army on the following dates: July 20, 2010;

June 18, 2011; July 9, 2011; July 19, 2011; July 25, 2011; July 26, 2011; August 1,

2011; October 24, 2011; October 25, 2011; March 2, 2012; April 16, 2012; July 23,

2012; July 25, 2012; December 26, 2012; December 28, 2012; January 21, 2013,

January 22, 2013; and April 2, 2013. (R4, tabs 40 at 1304-64; 41 at 1380-87,

1388-1414, 1428-46; 42 at 1462-1506; 43 at 1507-12, 1528-96).

PSI’s invoices were thus required to be paid by the Army under the contracts,

respectively, on or about the following dates: August 19, 2010; July 18, 2011;

14

August 8, 2011; August 18, 2011; August 24, 2011; August 25, 2011; August 31,

2011; November 23, 2011; November 24, 2011; April 1, 2012; May 16, 2012;

August 22, 2012; August 24, 2012; January 25, 2013; January 27, 2012; February 20,

2013; February 21, 2013; and May 2, 2013. On these latter dates, all events fixing

liability for the unpaid contract invoices were or should have been known. See

Oceanic Steamship Co. v. United States, 165 Ct. Cl. 217, 225 (1964) (claim against

United States based upon a contract obligation to pay accrues upon the date when

payment becomes due and is wrongfully withheld); Bernard Cap Co., ASBCA

No. 56679 et al., 10-1 BCA ¶ 34,387 at 169,800; FAR 33.201.

PSI’s certified claims for payment of the 26 invoices submitted to the COs for

the issuance of final decisions were dated June 25, 2019, and July 19, 2019, and thus

were submitted by PSI to the COs for final decisions more than six years after each

invoice payment claim accrual date, the latest of which was on or about May 2, 2013.

It is well established that the CDA, 41 U.S.C.§ 7103(a), formerly codified at 41 U.S.C.

§ 605(a), mandates a contractor submit a claim to a CO for a final decision within

six years of accrual of that claim. Kellogg, Brown, & Root Servs, v. Murphy, 823 F. 3d

622 (Fed. Cir. 2016); Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed.

Cir. 2014); Arctic Slope Native Ass’n v. Sebelius, 583 F.3d 785, 793 (Fed. Cir. 2009).

Subject to any applicable tolling of the statutory period, “the timely submission of a

claim to a [CO] is a necessary predicate” to our resolution of a contract dispute

governed by the CDA. Because PSI’s certified claims were submitted to the COs

more than six years after their accrual they are barred, absent a suspension of the

six-year limitations period.

PSI argues that the six-year statute of limitations should be deemed to have

been suspended or equitably tolled with respect to its 26 invoice payment claims

at issue in these appeals. Its President states in a declaration appended to its summary

judgment motion opposition that the Army’s loss of military service members’ orders

to change duty station was, in his experience, “extraordinary” action justifying tolling

of the statute of limitations. He asserts that loss of that paperwork, in conjunction with

Army promises to pay PSI for its services as soon as it could (and the Army’s progress

in making payments) “induced [PSI] to hold off in pursuing a claim.” (Smoot decl.

¶ 6, 13)

Tribunals have typically extended equitable relief only sparingly. They have

allowed equitable tolling where a claimant has actively pursued its remedies by filing a

defective pleading during the statutory period or where a complainant was induced or

tricked by an adversary’s misconduct into allowing the filing deadline to pass. They

generally have been less forgiving when a claimant has failed to exercise due diligence

in preserving its legal rights. E.g., Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

96 (1990); Martinez, 333 F.3d at 1318-19; Hopland Band of Pomo Indians v. United

15

States, 855 F.2d 1573, 1580 (Fed. Cir. 1988); Welcker v. United States, 752 F.2d 1577,

1580 (Fed. Cir. 1985).

Here, PSI was fully cognizant of its claims of contract breach premised upon

lack of payment. PSI’s contracts set forth the government’s duty to pay invoices,

i.e., defined the time by which the government was required to pay. When the duty

to pay timely was breached, all events necessary to fix liability existed and established

the date of accrual of that claim. FAR 33.201. Each failure to pay within 30 days of

invoice receipt for services accepted by the agency and invoiced in accord with a PSI

contract comprised a separate and discreet wrong under a PSI contract for which PSI

could “claim” relief. Unfortunately, it did not do so within the six-year limitations

period for any of the 26 invoices at issue.

While the government’s loss of financial data due to a computer “crash” or

other problem is unfortunate, it is not highly unusual in today’s technologically based

society. That the Army was to submit each service members’ change of duty station

orders (along with PSI invoices for moving services furnished) in order to have DFAS

generate payment to PSI was not specified in the contracts and was an administrative

duty or obligation of the Army. The means by which DFAS elected to pay an invoice

received from the Army accordingly had no bearing on when a breach claim accrued

or on PSI’s ability to submit claims to a CO regarding unpaid contract invoices. See

Bernard Cap Co., 10-1 BCA¶ 34,387 at 169,800-01. PSI does not state how a

computer crash mislead it with respect to the length of the CDA six-year statute of

limitations. Misleading conduct by an adversary can be a basis for equitable tolling if

a party has been induced or tricked by its adversary into allowing a deadline to pass

when a party has been pursuing its rights diligently and some extraordinary

circumstance stood in the way to prevent timely submission of its claim. Abozar

Afzali, 20-1 BCA ¶ 37,673 at 182,892; Khenji Logistics Grp., ASBCA No. 61178,

18-1 BCA ¶ 37,674, citing Arctic Slope Native Ass’n v. Sebelius, 583 F.3d 785,

798 (Fed. Cir. 2009). “Extraordinary circumstance analysis” examines whether

circumstances rendered “critical information, reasonable investigation notwithstanding,

undiscoverable.” Kamaludin Slyman CSC, ASBCA Nos. 62006, 62007, 62008,

2021-1 BCA ¶ 37,849 at 183,795, citing Gould v. U.S. Dept. of Health and Human

Servs., 905 F.2d 738, 745-46 (4th Cir. 1990). For example, in Glus v. Brooklyn Eastern

District Terminal, 359 U.S. 231, 1232 (1959), a litigant was allowed to proceed where

it showed its opposing party had represented to it that it had seven years to sue, despite

the statute of limitations running after only three years. Accord Irwin v. Dept. of

Veterans Affairs, 408 U.S. 89, 96 (1990); Dobyns v. United States, No. 2021-2309, slip

op at 11 (Fed. Cir. May 10, 2024).

Instead of submitting its contract breach claims to an Army CO for final

decision within six years of each one’s accrual, PSI waited for more than six years

after each claim’s accrual. The Disputes clause of PSI’s Army contracts set forth its

16

ability and requirement to submit contract claims to COs for a final decision.

FAR 52.233-1. PSI was free during the six-year limitations period here to submit

claims for final decisions regarding its invoice payments, bring a subsequent protective

action, and move for a suspension or stay of proceedings while it further attempted to

negotiate resolution of its claims with the Army. E.g., Brighton Village Assocs. v.

United States, 52 F.3d 1056, 1060 (Fed. Cir. 1995). It is well-established “[t]here is

no . . . inconsistency between” the submission of a claim and “an expressed desire to

continue to mutually work toward a claim’s resolution.” Reflectone, 60 F.3d at 1583

(quoting Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1579 (Fed. Cir.

1992)); accord Zafer Constr. Co. v. United States, 40 F.4th 1365, 1367-68 (Fed. Cir.

2022). “[P]arties are not prevented or discouraged from settling their differences

because the first written demand for payment as a matter of right that is not merely a

routine request for payment is recognized and treated as a CDA ‘claim.’ If anything,

such a rule promotes settlement by preventing procrastination.” Reflectone, 60 F.3d

at 1583.

It is admirable PSI was very patient with Army efforts to resolve computer

problems that arose during performance of the contracts and made repeated efforts to

amicably resolve the unpaid invoices. We recognize a stated purpose of the CDA is to

“induce resolution of more contract disputes by negotiation prior to litigation . . . .”

S. REP. NO. 95-1118, at 1 (1978); see also Zafer, 40 F.4th at 1370 (quoting H. R. REP.

NO. 95-1556, at 5 (1978) (the “purpose of the proposed legislation as amended is to

provide for . . . administrative and judicial procedures for the settlement of claims and

disputes relating to Government contracts.”). Pursuit by PSI, however, of an amicable

resolution of its invoice payment claims did not preclude or interfere with its ability

to satisfy the statute of limitations here. See, e.g., Welcker, 752 F.2d at 1583 (statute

of limitations not tolled by “litigative timidity”); Henry Prods. Co. v. United States,

180 Ct. Cl. 928, 930 (1967) (settlement talks do not toll statute of limitations once

cause of action has accrued). Indeed, mere continuance of settlement negotiations

(even where a government representative has expressed a view that settlement

is likely) does not constitute a reason to extend the limitations period. See, e.g.,

Brighton Village, 52 F.3d at 1061; Cuban Truck & Equip. Co. v. United States,

333 F.2d 873, 879 n.15 (Ct. Cl. 1964); accord Henry Prods. Co., 180 Ct. Cl. at 930-31.

PSI was responsible for determining whether to submit its claims to an Army

CO and bring actions in a timely fashion. See, e.g., Frazer v. United States, 288 F.3d

1347, 1353 (Fed. Cir. 2002); Boling v. United States, 220 F.3d 1365, 1374 (Fed. Cir.

2000) (declining to equitably toll statute of limitations even where a substantive action

appeared futile during limitations period). Failure to bring the contract breach claims

within the statute of limitations period were judgments for which PSI was responsible.

In sum, PSI is responsible for the consequences of its judgments, including the risk

that they were incorrect. See Irwin, 498 U.S. at 96.

17

In addition to PSI’s failure to exercise diligence, the type of governmental

action necessary to invoke equitable tolling here is plainly lacking. In the event of late

filed submissions, equitable tolling is available only if the “lateness” is attributable,

at least in part, to misleading government action. See Bailey v. West, 160 F.3d 1360,

1364-65 (Fed. Cir. 1998) (en banc) (noting if government misled claimant into missing

submission deadline, such inducement by an adversary may allow equitable tolling of

limitations period even absent trickery or misconduct) rev’d Henderson v. Shinseki,

589 F.3d 1201, 1215 (Fed. Cir. 2009) (en banc), rev’d 562 U.S. 428 (2011);

Juice Farms, Inc. v. United States, 68 F.3d 1344, 1346 (Fed. Cir. 1995) (citing Irwin,

498 U.S. at 96) (equitable tolling allowed if government by its misconduct tricks

its adversary into missing submission deadline). There is no allegation or evidence in

the record that any Army representative gave PSI incorrect or misleading legal advice,

tricked PSI into missing the six-year submission deadline, or engaged in affirmative

misconduct with respect to the four contracts at issue. The Army, as it was required

to do by the PSI contracts, took administrative actions to obtain payment of PSI’s

contract invoices. Throughout its performance of those actions, various Army

personnel advised PSI of the status of its ongoing efforts. There is no allegation or

evidence here that the Army ever advised PSI it need not submit invoice payment

claims to a CO within six years of claim accrual or that the statute of limitations period

for its claims would be extended. See Electric Boat Corp. v. Sec’y of the Navy,

958 F.3d 1372 (Fed. Cir. 2020) at 1376; Frazer, 288 F.3d at 1354 (agency conduct not

affirmatively misleading); Bonneville Associates, Ltd. Partnership v. Barram,

165 F.3d 1360, 1366 (Fed. Cir. 1999) (Circuit held in Bailey that given special

relationship between veterans and government, veteran was misled by VA conduct

into allowing deadline to pass). PSI therefore has not presented an equitable basis to

support the tolling of the statutory limitations period.

Federal Circuit precedent makes clear that equitable tolling against the

United States is a narrow doctrine. Mere “excusable neglect” is not enough to

establish a basis for equitable tolling. There “must be a compelling justification for

delay,” such as inducement or trickery by the misconduct of one’s adversary into

allowing a filing deadline to pass. What transpired in these appeals falls short of those

situations in which equitable tolling has been applied. This is not a case where a party

endeavors to meet a statutory time deadline but fails to do so due to a minor technical

error or inadvertent mistake. See, e.g., Bonneville Associates, 165 F.3d at 1366.

Further, the injuries PSI incurred were not inherently unknowable at date of claim

accrual and the Army did nothing to conceal its actions breaching the parties’ contracts

resulting in those injuries. See, e.g., Martinez, 333 F.3d at 1318-19; Welcker, 752 F.2d

at 1580. PSI was aware of the existence of its injuries and the acts giving rise to its

claims, as evidenced by its numerous emails to the Army regarding invoice monies

contractually due it.

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In sum, these are not appeals where a claimant has received inadequate notice

of its claims or where affirmative misconduct upon the part of the government lulled

an appellant into inaction. The simple fact is that PSI’s contracts set forth what it must

do to preserve its claims, and PSI did not do it. Baldwin Co. Welcome Ctr. v. Brown,

466 U.S. 147, 151 (1984). Consequently, PSI cannot show entitlement to equitable

tolling of the limitations period.

To the extent that PSI is asserting that the Army should be equitably estopped

from asserting the CDA statute of limitations in these appeals, it must set forth facts

showing some affirmative agency misconduct. Frazer, 288 F.3d at 1354; Zacharin v.

United States, 213 F.3d 1366, 1371-72 (Fed. Cir. 2000). While the Supreme Court has

not expressly held that affirmative misconduct is a prerequisite for invoking equitable

estoppel against the government, the Federal Circuit has, see id.; Henry v. United

States, 870 F.2d 634, 637 (Fed. Cir. 1989); Hanson v. Office of Personnel Management,

833 F.2d 1568-69 (Fed. Cir. 1987), as well as every other federal court of appeals.

Tefel v. Reno, 180 F.3d 1286, 1303 (11th Cir. 1999) (collecting cases). As discussed

above, PSI has not asserted or shown any specific Army actions here that would support

existence of affirmative misconduct under the more stringent standard applicable to

equitable estoppel.

It is unfortunate that the parties were not able to resolve these appeals amicably.

It is not disputed that: PSI performed the contractual services for which it invoiced the

Army; those services were accepted by the Army; PSI communicated frequently with

Army personnel regarding its lack of invoice payment; PSI made efforts to assist the

Army in locating change of duty station paperwork lost due to government computer

problems (and other information that the Army desired) that PSI was not required

contractually to supply in order to receive contract invoice payments from DFAS;

Army personnel expressed gratitude to PSI for its assistance with and patience in

obtaining DFAS payments; and the parties ultimately were able to procure belated

payment of all but 26 PSI contract invoices. Personnel for both parties here worked

to facilitate issuance of belated invoice payments under difficult circumstances, i.e.,

the loss of computer data associated with government funding for PSI’s four contracts.

The lack of payment to PSI for contractual services performed and accepted by

the Army is troubling. It presents difficult circumstances for resolution of equitable

tolling claims. We note that opportunities remain for the parties to resolve the appeals

amicably because further litigation is possible with respect to the claims. Appeals

presenting difficult circumstances for the application of existing tolling law, such

as these, could ultimately produce legal precedent undesirable to one or all of the

19

parties. A resolution of the claims by the parties, therefore, may produce a more

desirable result for both. 2

Our role is to apply existing law governing contract claims. We are bound by,

and adhere to our understanding of, controlling legal precedent regarding the use of

equitable tolling and estoppel. Procedural requirements Congress has established for

obtaining judicial review should not be disregarded by a tribunal based upon sympathy

for a particular litigant. As the Supreme Court has stated in Baldwin Co, 466 U.S.

at 152, “experience teaches that strict adherence to the procedural requirements

specified by the legislature is the best guarantee of evenhanded administration of the

law.”

CONCLUSION

We grant the Army’s motion for summary judgment because there are

no material facts in dispute to defeat the Army’s assertion that the claims appealed

were submitted more than six years after accrual and thus beyond the statute of

limitations. The appeals are denied.

Dated: August 1, 2024

TERRENCE S. HARTMAN

Administrative Judge

Armed Services Board

of Contract Appeals

(Signatures continued)

2

PSI may have an additional avenue of relief available to it if it petitions Congress.

Congress has recognized existence of a right that fails to meet strict legal

standards but nevertheless is of a moral or an equitable proportion. United

States v. Realty Co., 163 U.S. 427, 440 (1896). In view of this right which a

claimant may have against the United States, Congress has authorized the Court

of Federal Claims to entertain claims merely moral in character and founded

upon conscience. Such claims are commonly referred to as Congressional

Reference cases. See, e.g,, Stanley J. Purzycki, The Congressional Reference

Case in the U.S. Court of Claims, 10 Cath. U. L. Rev. 35 (1961); 28 U.S.C.

§ 1492; 28 U.S.C. § 2509; Zadeh v. United States, 11 F. Supp. 248, 124 Ct. Cl.

650 (1953).

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I concur I concur

OWEN C. WILSON J. REID PROUTY

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 Nos. 62199, 62200, Appeals of

Platinum Services, Inc., rendered in conformance with the Board’s Charter.

Dated:

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

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