Mindseeker, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of - )

)

Mindseeker, Inc. ) ASBCA No. 63197

)

Under Contract No. W81K04-18-D-0002 )

APPEARANCES FOR THE APPELLANT: Stephanie D. Wilson, Esq.

Rachael C. Haley, Esq.

Charles L. Bonani, Esq.

Berenzweig Leonard, LLP

McLean, VA

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

Army Chief Trial Attorney

MAJ Heather M. Martin, JA

MAJ Joshua B. Fix, JA

MAJ Harry M. Parent III, JA

Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE HERZFELD

ON THE GOVERNMENT’S MOTIONS

The Department of the Army moves to dismiss Mindseeker, Inc.’s

(Mindseeker), appeal for lack of jurisdiction due to (1) Mindseeker’s alleged failure to

convert its request for equitable adjustment (REA) into a Contract Disputes Act (CDA)

claim and (2) its alleged failure to present the complaint’s breach allegation regarding

the covenant of good faith and fair dealing to the contracting officer. We grant the

motion in part and deny the motion in part.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS

On January 5, 2018, the U.S. Army Health Contracting Activity (Army) and

Mindseeker entered a contract (Contract) for Mindseeker to provide medical coding

services to the United States Medical Command using the government-provided

browser-based Application Virtualization Hosting Environment (AVHE) (R4, tab 1

at 1, 4, 40).

On November 18, 2019, Mindseeker submitted a “Request for Price

Modification” seeking costs for (1) recovery of health and welfare increases mandated

by the government under the Service Contract Act, (2) lost production due to the

government-imposed downtime for the AVHE system, (3) recovery of wage

determination increases mandated by the government under the Service Contract Act,

and (4) a price increase per coded record (R4, tab 2 at 68). The request concluded:

“Mindseeker appreciates the opportunity to present our concerns and requests for the

Government to consider. We are ready, willing, and able to meet with you at your

request and convenience to discuss one or all of the contents of the letter” (id. at 75).

On February 21, 2020, the Army’s contract specialist requested that Mindseeker

provide additional information to “validate your numbers” for the downtime request

(app. supp. R4, tab 63 at 203). On February 26, 2020, Mindseeker provided additional

information for 11 months regarding the downtime request (app. supp. R4, tab 63

at 201).

On July 10, 2020, Mindseeker submitted a revised request for price

modification, labeling it a “Request for Equitable Adjustment” (R4, tab 5 at 95).

Mindseeker acknowledged that Mindseeker and the Army had resolved the two price

modifications for costs related to health and welfare increases and wage determination

increases required by the Service Contract Act (id. at 95). Mindseeker still sought

payment for government-imposed downtime for the AVHE system and a price

increase for each coded record (id.). Mindseeker included additional monthly data to

support its request for payment for the government downtime, including requesting

“an Equitable Adjustment of $615,199, for this unexpected loss” (id. at 98, 102-16).

Mindseeker also provided additional information to support its price increase for the

coded records, including requesting the Army either (A) provide a per unit price

increase from $2.90 to $3.90 or (B) include a new contract line item number to pay for

systems downtime hours “greater than 0.4%” per fiscal year with an hourly rate of

$44.95 (id. at 99-101). Similar to its request for a price modification, the “REA”

concluded: “Mindseeker appreciates the opportunity to present our concerns and

requests for the Government to consider. We are ready, willing, and able to meet with

you at your request and convenience to discuss the requests presented herewith” (id.

at 101).

Mindseeker’s president continued to communicate with the Army’s contract

specialist and updated the “REA,” particularly providing information for additional

months of downtime losses and increasing the amount for equitable adjustment to

$677,614 (app. supp. R4, tabs 107-08). In November 2020, Mindseeker’s president

asked the Army’s contract specialist for “an estimated date that this will be resolved”

(app. supp. R4, tab 104 at 527). The Army contract specialist responded that, “I’m

hopeful we can have this resolved within the next 60 days” (id.).

On December 9, 2020, the Army’s contract specialist asked that Mindseeker

“include the verbiage below” on a revised letter and sign it:

2

I certify that the 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 the

contractor believes the Governmnet [sic] is liable; and I am

duly authorized to certify the claim on behalf of the

contractor.

(App. supp. R4, tab 109 at 554). Notably, the Contract incorporated by reference both

the Disputes clause and the Requests for Equitable Adjustment clause (R4, tab 1 at 10,

12) (incorporating by reference Federal Acquisition Regulation (FAR) 52.212-4(d)

(JAN 2017), which in turn incorporates FAR 52.233-1 – Disputes; and Defense

Federal Acquisition Regulation Supplement (DFARS) 252.243-7002(b)). The

certification language requested by the Army contract specialist matches the language

for certification of a claim under the Disputes clause. (Compare app. supp. R4,

tab 109 at 554 with FAR 52.233-1(d)(2)(iii)). The Army contract specialist also added

up Mindseeker’s proposed downtime losses and “came up with $677,616.00 versus

$677,614.00” (app. supp. R4, tab 109 at 554).

Later that day, on December 9, 2020, Mindseeker’s president responded and

acknowledged that the Army contract specialist’s calculation was correct (app. supp.

R4, tab 110 at 557). Mindseeker’s president attached a revised “request for equitable

adjustment” with the corrected dollar amount and the certification:

I certify that the 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 the

contractor believes the Government is liable; and I am duly

authorized to certify the claim on behalf of the contractor.

(App. supp. R4, tab 110 at 557; R4, tab 6 at 121, 124). As it had previously,

Mindseeker closed the letter: “Mindseeker appreciates the opportunity to present our

concerns and requests for the Government to consider. We are ready, willing, and able

to meet with you at your request and convenience to discuss the requests presented

herewith” (R4, tab 6 at 124).

On August 25, 2021, the Army’s contract specialist requested that Mindseeker’s

president submit a revised “document” including the costs of downtime losses from

December 2020 (when Mindseeker last submitted a revised REA with claim

certification) through “the present” (app. supp. R4, tab 134 at 681). On August 26,

2021, Mindseeker responded to the request by submitting a revised document updating

its downtime losses through July 2021, which now totaled $924,384 (R4, tab 13

3

at 204). As it previously had done, Mindseeker continued to call the document an

REA, minimally revised the text (continuing to include the same closing), and again

included the claim certification language from the Disputes clause (R4, tab 13 at 199,

207).

On September 16, 2021, Mindseeker’s president followed up with the Army’s

contract specialist “respectfully requesting an update” regarding the REA, recounting

that the contract specialist had previously stated he needed to “first draft the

mod[ification] and then present to” the contracting officer (app. supp. R4, tab 141

at 720). The Army’s contract specialist responded the same day, stating that “the

Contracting Officer’s Decision document is just about complete,” and he intended to

provide it to the contracting officer the following day (app. supp. R4, tab 114 at 719).

On October 15, 2021, Mindseeker’s president emailed the Army’s contract

specialist to “see if you have a status update on the Contracting Officer’s Decision

Document” (app. supp. R4, tab 146 at 741). On October 19, 2021, after the two

talked, Mindseeker’s president followed up by asking the contract specialist to nudge

the contracting officer to have agency counsel “render a timely decision” (app. supp.

R4, tab 145 at 737). On October 22, 2021, the contract specialist responded that

agency attorneys were reviewing the decision and expected to complete that review by

Thursday of the following week (app. supp. R4, tab 146 at 740).

In November 2021, a different Army contracting officer – the branch chief –

assumed responsibilities for this Contract (gov’t mot., ex. G-1 – Smith declaration

¶ 4). On January 6, 2022, Mindseeker’s president emailed the cognizant contracting

office seeking to talk with someone about the “outstanding REA” (R4, tab 17 at 232).

The Army branch chief spoke with Mindseeker’s president, who “expressed concern

over the fact that the Government has not yet rendered a decision” and indicated

Mindseeker had a meeting with their congressional representative the following week

(id. at 230). They discussed “that there is not a firm deadline associated with the

REA,” and the branch chief felt that Mindseeker’s president understood “that it would

not be the case if converted to a claim” (id. at 230; gov’t mot., ex. G-1 – Smith

declaration ¶¶ 11-12).

On January 24, 2022, the branch chief issued a decision denying Mindseeker’s

“REA” (R4, tab 18 at 240). The Army’s branch chief prefaced his decision by

characterizing how he viewed Mindseeker’s submission:

Although Mindseeker’s 26 August updated/revised REA

included a Contract Disputes Act certification (see, e.g.,

41 U.S.C. § 7103(b)(1); FAR 52.233-1(d)(2)(iii)), the

language and tenor of that document, as well as other

contemporaneous communications between Mindseeker

4

and the Government at the time that the updated/revised

REA was submitted, indicate that the 26 August

updated/revised REA is in fact a ‘request for equitable

adjustment’ rather than a ‘claim’ submitted pursuant to the

subject contract’s Disputes clause, FAR 52.233-1,

DISPUTES (MAY 2014).

(R4, tab 18 at 233). Instead, the branch chief asserted that the August 26, 2021 revised

REA “satisfies the requirement for a contractor submitting an REA in excess of the

simplified acquisition threshold to certify that the request is made in good faith and

that supporting data are accurate and complete to the best of the certifier’s knowledge

and belief” (id. at 233).

Substantively, the Army’s branch chief denied Mindseeker’s request asserting

that Mindseeker failed to “establish that performance disruptions actually occurred;

that such performance disruptions, if they occurred, resulted exclusively from AVHE

System downtime and that they were solely attributable to the Government” (id. at 239

(emphasis in original)). The Army concluded that Mindseeker’s claimed lost

production was “speculative” and it had failed to include sufficient “supporting

evidence to substantiate its actual performance” (id.). The Army denied the equitable

adjustment of $924,384 for the alleged government downtime disruptions (id.). The

Army also denied Mindseeker’s request for a price increase per coded record,

explaining that the Contract included a firm fixed-price contract line item for that

payment and Mindseeker bore the risk of any foreseeable changes (id. at 239-40).

On February 16, 2022, Mindseeker appealed to the Board. In addition to

appealing its submitted claim, Mindseeker’s complaint also asserted: “[A]s no

remedial action was taken to address the defective AVHE uptime stated in the

Contract’s PWS Paragraph 1.5.1.1, the government’s failure to act in good faith when

considering Mindseeker’s REA was a breach of contract” (compl. ¶ 8; amend. compl.

¶ 8).

DECISION

The Army asserts that Mindseeker failed to convert its REA to a CDA claim by

failing to request a sum certain for part of its claim and failing to request a contracting

officer’s final decision for the entire claim. We disagree, in part. Mindseeker properly

requested a contracting officer’s decision for its claim for downtime losses but failed

to make a demand as a matter of right and failed to assert a sum certain for its request

for a new contract line item to pay it an increased rate for each coded record or an

hourly rate for future downtime losses. The Army also asserts that Mindseeker raised

a breach of the covenant of good faith and fair dealing in its complaint that the

5

contractor failed to present to the contracting officer. Mindseeker did not address this

assertion in its briefs.

I. Standard of Review

Mindseeker, as the proponent of the Board’s jurisdiction, bears the burden of

establishing jurisdiction by a preponderance of the evidence. Najmaa Alshimal Co.,

ASBCA No. 62701, 21-1 BCA ¶ 37,872 at 183,899. We rely on the record for fact-

finding when evaluating whether jurisdiction exists. Kellogg Brown & Root Servs.,

Inc., ASBCA No. 62681 et al., 22-1 BCA ¶ 37,974 at 184,426.

Though the Board’s rules have no equivalent to FED. R. CIV. P. 12(B)(6) or

12(c), “we permit motions to dismiss for failure to state a claim upon which relief may

be granted.” Fluor Intercontinental, Inc., ASBCA No. 62550, 22-1 BCA ¶ 38,105

at 185,095. We assess whether a complaint and claim contain “sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “We are not limited to the four-corners of the complaint,

but look also to the contractor’s or government’s claim – the wellspring of our

jurisdiction” and may review “‘matters incorporated by reference or integral to the

claim, items subject to judicial notice, matters of public record, orders, items appearing

in the record of the case, and exhibits attached to the complaint whose authenticity is

unquestioned,’ as appropriate.” Fluor, 22-1 BCA ¶ 38,105 at 185,096 (quoting 5B

CHARLES A. WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. CIV. § 1357 (3d

ed.)).

II Mindseeker Converted its REA into a Claim for its Downtime Losses but

not for its Proposed Modification for Future Hourly Increases

The Federal Circuit has pointed to three objective criteria to assess whether a

submission is a claim rather than a routine request or an REA: (1) the submission

must meet the definition of a “claim” as defined by the Disputes clause in a contract

(and FAR); (2) the submission includes a CDA certification (or some type of sworn

statement that can be perfected into a CDA certification); and (3) the contractor must

request a final decision from the contracting officer. Zafer Constr. Co. v. United

States, 40 F.4th 1365, 1367-68 (Fed. Cir. 2022). “To determine whether a contractor

has submitted a CDA claim, we apply a common sense analysis, looking at specific

communications on a case-by-case basis and the ‘totality of the correspondence

between the parties.’” Najmaa, 21-1 BCA ¶ 37,872 at 183,899 (quoting CCIE & Co.,

ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816). Mindseeker’s

submissions for downtime losses (although not its request for a unit price increase)

meet these criteria. Thus, as discussed below, Mindseeker submitted a claim for

6

downtime losses and properly appealed a contracting officer’s final decision on that

claim.

A. Mindseeker’s Downtime Losses Met the Definition of a Claim, But its

Request to Add a Line Item for Future Losses Did Not

Mindseeker’s submissions regarding its downtime losses meet the definition of

a “claim.” The Contract’s Disputes clause includes the FAR definition of a claim:

“[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.” FAR 52.233-1(c) (incorporated by reference in the Contract, R4, tab 1 at 10

(incorporating by reference FAR 52.212-4(d)); see also FAR 2.101 (same definition of

claim). The FAR definition of a claim governs the use of the term under the CDA.

Zafer, 40 F.4th at 1367 (citing Todd Constr., L.P. v. United States, 656 F.3d 1306,

1311 (Fed. Cir. 2011)). A CDA claim need not take “‘any particular form or use any

particular wording,’ . . . so long as it has ‘a clear and unequivocal statement that gives

the contracting officer adequate notice of the basis and amount of the claim.’” Hejran

Hejrat Co. v. United States Army Corps of Eng’rs, 930 F.3d 1354, 1357 (Fed. Cir.

2019) (quoting M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327

(Fed. Cir. 2010) and Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586,

592 (Fed. Cir. 1987)).

A contractor can meet the requirement of a “written demand or written

assertion” regarding the basis of the claim by submitting a document that provides

“detailed factual bases for its alleged losses . . . .” Hejran Hejrat, 930 F.3d at 1357-58.

The Army asserts that Mindseeker’s written submissions cannot meet the definition of

a claim because the contractor labeled these documents “REAs” (gov’t supp. br. at 6;

gov’t reply br. at 6). However, even if labeled an “REA” and subjectively treated as

an “REA” by the parties, the request may still constitute a claim. Hejran Hejrat, 930

F.3d at 1357 (concluding that a request labeled as an “REA” constituted a claim);

Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1578 (Fed. Cir. 1995) (en banc) (concluding

REA constituted a claim because the “REA satisfies all the requirements listed for a

CDA ‘claim’ according to the plain language” of the FAR’s definition of a claim).

Here, nearly every filing (whether labeled a “request for price modification” or

an “REA”) included a clear and unequivocal statement explaining the basis of

Mindseeker’s downtime losses claim for each month and for its request to modify the

Contract to increase the price per unit for coded records (R4, tabs 2, 4-6, 13; app. supp.

R4, tab 110). Mindseeker provided documentation to support its request to recover

alleged costs for downtime losses (R4, tabs 5-6). On several occasions, the Army

asked Mindseeker to update the calculation of its downtime losses and include similar

supporting documentation for the additional months of downtime losses (app. supp.

7

R4, tabs 63, 107, 134). Thus, Mindseeker made a written demand or written assertion

as required to meet the definition of a claim.

Next, we turn to whether the submissions adequately explained the amount of

the claim, which requires assessing whether the contractor has included a sum certain

in its submission. Zafer, 40 F.4th at 1369 (assessing whether a contractor provided

“detailed factual bases for its alleged losses, and a sum certain based on those losses”

(quoting Hejran Hejrat, 940 F.3d at 1357-58)); Najmaa, 21-1 BCA ¶ 37,872

at 183,899 (“To provide notice for the amount of any monetary claim, the contractor

must provide a sum certain in its written communication to the contracting officer.”)

(citing Sweet Star Logistic Serv., ASBCA No. 62082, 20-1 BCA ¶ 37,704 at 183,046).

Although subject to dismissal for failure to state a claim rather than lack of

jurisdiction, “the need to state a sum certain in submitting a claim under the CDA is a

mandatory rule provided for in the FAR.” ECC Int’l Constructors, LLC v. Sec’y of

Army, 79 F.4th 1364, 1370 (Fed. Cir. 2023).

Mindseeker’s submissions included a sum certain for the downtime losses

portion of its claim, clearly asserting losses that increased as additional months passed

from $615,199 to $677,614 to $924,384 (R4, tab 5 at 98, tab 13 at 204; app. supp. R4,

tabs 107-08). Indeed, the Army understood this sum certain so thoroughly that the

Army’s contract specialist even corrected a calculation error in one of Mindseeker’s

submissions and requested that Mindseeker re-submit with the corrected dollar amount

(app. supp. R4, tab 109 at 554).

On the other hand, Mindseeker’s request to modify the contract to increase the

price per unit for each coded record or, alternatively, to add a new line item to

reimburse Mindseeker for each hour of future downtime suffers from two problems.

First, because Mindseeker seeks a modification relating to a future monetary payment,

it has not made a “demand for something due or believed to be due” to meet the FAR’s

requirement to demand money as a “matter of right.” Lockheed Martin Aeronautics

Co. v. Sec’y of Air Force, 66 F.4th 1329, 1335-36 (Fed. Cir. 2023) (internal citation

omitted).

Second, Mindseeker’s request for an increased unit price does not satisfy the

sum certain requirement because Mindseeker’s submission fails to quantify the

number of units (without which we cannot apply a mathematical calculation to derive

a total sum). Strobe Data, Inc., ASBCA No. 60123, 16-1 BCA ¶ 36,214 at 176,694-95

(concluding that a submission seeking costs as “profit per unit” failed to state a sum

certain because it included an “uncertain” number of units); Howell Tool &

Fabricating, Inc., ASBCA No. 47630, 95-1 BCA ¶ 27,474 at 136,866 (“Appellant’s

14 December 1993 letter contained a request for a price increase of $21.18 per unit,

but it is not clear for how many units appellant seeks the price increase; lacking that

8

information, the request for compensation was not for a sum certain and was,

therefore, not a claim.”). 1

Ultimately, we conclude that Mindseeker has shown that its submissions meet

the FAR definition of a “claim” regarding its downtime losses. But, Mindseeker has

failed to show its unit price request for future monetary payments meets the FAR

definition of a “claim” because Mindseeker failed to make the demand as a matter of

right and failed to include a sum certain. We dismiss this component of its claim

without prejudice to Mindseeker submitting a new claim and appealing it, even though

the failure to show a sum certain constitutes a failure to state a claim upon which relief

may be granted. ECC Int’l, 79 F.4th at 1380 (“A claim that does not state a sum

certain has not sufficiently pleaded the elements of a claim under the CDA and may be

denied by the contracting officer and dismissed on appeal to the boards or Court of

Federal Claims for failure to state a claim.”). The Federal Circuit anticipated that a

contractor would have the opportunity “to timely revise and refile its claim to specify

the sum certain” after a board or court dismisses for failure to state a claim. ECC Int’l,

79 F.4th at 1370. While dismissal for failure to state a claim usually (but not always)

results in dismissal with prejudice, here “dismissal without prejudice” best meets the

Federal Circuit’s intent because it results in “dismissal without barring the plaintiff

from returning later, to the same court, with the same underlying claim.” Semtek Int’l

Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001); cf. also Rollins v.

Wackenhut Servs., Inc., 703 F.3d 122, 132-33 (D.C. Cir. 2012) (stating that FED. R.

CIV. P. 41(b) gives a district court “discretion to dismiss a complaint without prejudice

when the district court concludes that the circumstances so warrant” even when

dismissal involves failure to state a claim under 12(b)(6)) (Kavanaugh, J. concurring). 2

1

Notably, Mindseeker did not assert before the contracting officer or argue before the

Board that it was seeking a non-monetary remedy of reforming the Contract

through a modification for future costs, which would have met the requirement

to make a demand “as a matter of right.” See Alliant Techsys., Inc. v. United

States, 178 F.3d 1260, 1265 (Fed. Cir. 1999) (noting that contractor made a

demand “as a matter of right” by asserting “specific contractual and legal

grounds for its interpretation” of a contract option). Mindseeker also would not

have needed to meet the sum certain requirement. See Ebasco Envtl., ASBCA

No. 44547, 93-3 BCA ¶ 26,220 at 130,490 (“It does not include the amount of

the claim, but it was not necessary to do so since appellant seeks the adjustment

of contract terms to correct a mistake rather than monetary relief.”);

FAR 33.205(b) (“A contractor’s allegation that it is entitled to rescission or

reformation of its contract in order to correct or mitigate the effect of a mistake

shall be treated as a claim under the Disputes statute.”).

2

The Federal Circuit also raised the specter of forfeiture if the government fails to

timely challenge the absence of a sum certain. ECC Int’l, 79 F.4th at 1380.

9

B. Mindseeker Certified its Claim under the CDA and Disputes Clause

Starting with its December 7, 2020 submission, Mindseeker certified its claim,

including a statement with the four required elements to certify a claim under the CDA

and the Contract’s Disputes clause. Compare R4, tab 6 at 124, with FAR 52.233-

1(d)(2)(iii), and 41 U.S.C. §§ 7103(b)(1)(A)-(D); see also Zafer, 40 F.4th at 1367

(discussing the statute). Consistent with the CDA certification requirement,

Mindseeker’s certification states that the signatory certifies “that the claim is made in

good faith” and has the authority “to certify the claim on behalf of the contractor.”

(R4, tab 6 at 124) (emphasis added); FAR 52.233-1(d)(2)(iii) (emphasis added); 41

U.S.C. §§ 7103(b)(1)(A), (D) (emphasis added). When Mindseeker amended its

submission in August 2021, it again included the same signed certification for CDA

claims (R4, tab 13 at 207). Thus, Mindseeker properly certified its claim pursuant to

the CDA and the Disputes clause.

C. Mindseeker Requested a Final Decision

The request requirement “focuses on whether, objectively, the document’s

content and the context surrounding the document’s submission put the contracting

officer on notice that the document is a claim requesting a final decision.” Zafer,

40 F.4th at 1368. “[A] contractor’s submission may merely imply a request for a

contracting officer decision without explicitly doing so.” BAE Sys. Ordnance Sys.,

Inc., ASBCA No. 62416, 21-1 BCA ¶ 37,800 at 183,577. Whether explicit or implicit,

a submission need not use any “magic words” to make a request for a contracting

officer’s final decision. Hejran Hejrat, 930 F.3d at 1357.

Here, the content and context of the correspondence between the Army and

Mindseeker show that Mindseeker requested a final decision for a CDA claim.

Mindseeker’s submissions started as an REA, but that changed when Mindseeker

certified its submission beginning in December 2020 and again certified the amended

submission in August 2021 (R4, tab 6 at 124, tab 13 at 207). Previously, the Army

had provided some price adjustments after negotiations of the REA for the two Service

Contract Act issues prior to August 2020 (R4, tab 5 at 95). But, the Army provided no

relief on the two issues that Mindseeker later certified, which remain in dispute in this

appeal.

After Mindseeker inquired when its REA on these two remaining issues would

be resolved, the Army contract specialist indicated that it would be resolved in 60 days

– the time for issuance of a contracting officer’s final decision under the CDA (app.

Here, however, the Army moved to dismiss at the beginning of this appeal on

the same day its initial responsive pleading was due.

10

supp. R4, tab 104 at 527); 41 U.S.C. § 7103(f)(2). Next, the Army’s contract specialist

asked Mindseeker to submit a CDA certification with its updated claim in

December 2020, further signaling a change in how these issues would be treated (app.

supp. R4, tab 109 at 554). In response, Mindseeker included a CDA certification that

“satisfies all of the certification requirements for a claim, which go beyond what is

required for a mere request for equitable adjustment.” Zafer, 40 F.4th at 1369; JAAAT

Tech. Servs., ASBCA No. 61792 et al., 21-1 BCA ¶ 37,878 at 183,953 (“An REA can

be converted into a claim by the addition of a CDA certification . . . .”). The Federal

Circuit has credited a certification as a key fact serving to imply a request for a final

decision because it can show, as it did here, a “formality lacking in the earlier

submissions.” Hejran Hejrat, 930 F.3d at 1358 (crediting an REA certification as

evidence of a request for a contractor’s final decision); Zafer, 40 F.4th at 1369

(crediting CDA certification). Indeed, “[c]ertification plays a serious role in the

statutory scheme because it triggers a contractor’s potential liability for a fraudulent

claim . . . [and is] designed to discourage the submission of unwarranted contractor

claims and to encourage settlement.” Hejran Hejrat, 930 F.3d at 1358 (quoting Skelly

& Loy v. United States, 685 F.2d 414, 418 n.11 (Ct. Cl. 1982)).

Moreover, if there was any doubt that Mindseeker had implicitly requested a

decision, it remedied any ambiguity by explicitly requesting a decision in

correspondence with the Army. After amending its submission in August 2021,

Mindseeker inquired with the Army contract specialist to request an update regarding

its submission (app. supp. R4, tab 141 at 720). The Army’s contract specialist

responded the same day, stating that “the Contracting Officer’s Decision document is

just about complete” (app. supp. R4, tab 141 at 719). Several weeks later, Mindseeker

sought a status update regarding the “Contracting Officer’s Decision Document” (app.

supp. R4, tab 146 at 741). And, then after the Army contract specialist spoke with

Mindseeker’s president and explained it was subject to legal review, Mindseeker asked

the contract specialist to nudge the contracting officer to have agency counsel “render

a timely decision” (app. supp. R4, tab 145 at 737). The Federal Circuit has greeted far

more ambiguous contractor statements as sufficient to show an express request for a

final decision. James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1544 (Fed.

Cir. 1996) (“After ten months of fruitless negotiations, Ellett explicitly requested that

the contracting officer settle its claim. This demand is tantamount to an express

request for a contracting officer’s decision.”).

The Army says we should discount the CDA certification as proof of a request

for a final decision because the Army contract specialist requested Mindseeker to add

the CDA certification to its submission (gov’t reply br. at 3). The Army then contends

that Mindseeker never placed the Army on notice that it had converted its REA to a

claim (gov’t supp. br. at 6; gov’t supp. reply br. at 3-5). We disagree. The Army

placed itself on notice that Mindseeker was converting its REA to a CDA claim by

11

requesting that Mindseeker certify its REA using the CDA certification, which goes

beyond an REA’s certification. Zafer, 40 F.4th at 1367.

The Army also asserts that Mindseeker understood it was submitting an REA,

not a CDA claim, based on a conversation between Mindseeker’s president and the

Army’s branch chief more than a year after Mindseeker certified its claim and months

after explicitly asking for a decision (gov’t supp. br. at 8; gov’t supp. reply br. at 3-5).

The Army claims that Mindseeker engaged in gamesmanship, even employing a “Jedi

mind trick” to assert that the REA had been a claim that permitted this appeal (gov’t

supp. br. at 10-13; gov’t supp. reply br. at 6-8). The Federal Circuit has recognized

that the overlap between an REA and CDA claim “might create room for

gamesmanship” and a contracting officer might communicate whether the agency

would issue a final decision or require the contractor to propose additional settlement

terms to negotiate an REA. Zafer, 40 F.4th at 1371. However, “[t]he contracting

officer could not retroactively turn a qualifying claim document into something else.”

Hejran Hejrat, 930 F.3d at 1358. Even while acknowledging the possibility of

contractor gamesmanship, the Federal Circuit reiterated that “[r]equirements ‘that

allow [ ] the government to unilaterally designate when a submission becomes a claim’

disrupt[ ] the balance of power between the government and contractors that the CDA

sought to establish.’” Zafer, 40 F.4th at 1370 (quoting Reflectone, 60 F.3d at 1582).

Moreover, if any party engaged in gamesmanship, it was the Army, not

Mindseeker. Notably, the branch chief became the cognizant contracting officer for

Mindseeker’s REA almost a year after Mindseeker’s submissions added the CDA

certification (gov’t mot., ex. G-1 – Smith declaration ¶ 4). If the branch chief treated

Mindseeker’s submission as a claim, that meant interest began running over 13 months

prior to the Army rendering a decision on the claim. 41 U.S.C. § 7109(a)(1) (“Interest

on an amount found due a contractor on a claim shall be paid to the contractor for the

period beginning with the date the contracting officer receives the contractor’s claim . .

. .”); Zafer, 40 F.4th at 1370-71. The branch chief’s decision engaged in some

interpretive gymnastics by acknowledging that Mindseeker’s “REA included a

Contract Disputes Act certification” but that “the language and tenor of that document,

as well as other contemporaneous communications” indicated it should be treated as an

REA, not a claim (R4, tab 18 at 233). The branch chief’s analysis nearly turns the

DFARS on its head because, typically, a CDA certification displaces an REA

certification (not the other way around). DFARS 243.204-71(c) (“If the contractor has

certified a request for equitable adjustment in accordance with 10 U.S.C. 3862(a), and

desires to convert the request to a claim under the Contract Disputes statute, the

contractor shall certify the claim in accordance with FAR subpart 33.2.”).

The Army also asserts that the REA could not be a claim because each

submission ended with language that appeared to seek settlement rather than demand a

decision (gov’t mot. at 4-5; gov’t reply br. at 4). In each REA, before and after

12

certification, Mindseeker stated it was “ready, willing, and able to meet with you at

your request and convenience to discuss” the requests in each submission (R4, tab 2

at 75, tab 5 at 101, tab 6 at 124, tab 13 at 207). However, hortatory language seeking

settlement does not signify that the submission is an REA rather than a claim. As the

Federal Circuit has repeatedly stated, “‘[t]here is no necessary inconsistency between’

a claim and ‘an expressed desire to continue to mutually work toward a claim’s

resolution.’” Zafer, 40 F.4th at 1370 (quoting Reflectone, 60 F.3d at 1583). Thus,

Mindseeker’s willingness to meet and discuss its claim with the Army does not negate

that Mindseeker converted its REA to a claim.

Finally, the Army asserts that its decision does not qualify as a “final decision”

because the decision lacks the required notice of appeal rights to the contractor, and

Mindseeker failed to advise the Army of this deficiency (gov’t supp. br. at 4-5, 8, 11).

The CDA requires that a contracting officer’s final decision must provide a contractor

with notice of its right to appeal to a board or file suit at the U.S. Court of Federal

Claims. 41 U.S.C. § 7103(e) (“The contracting officer’s decision shall state the

reasons for the decision reached and shall inform the contractor of the contractor’s

rights as provided in this chapter.”); FAR 33.211(a)(4)(v). However, the CDA

requires the contracting officer to include these appeal rights for the “protection of the

contractor,” not the government. Decker & Co v. West, 76 F.3d 1573, 1579 (Fed. Cir.

1996); Kellogg, 22-1 BCA ¶ 37,974 at 184,429. No harm arises where a contractor

does not detrimentally rely on an agency’s failure to include the required CDA appeal

rights in a contracting officer’s final decision. Fla. Dep’t of Ins. v. United States,

81 F.3d 1093, 1098 (Fed. Cir. 1996); Kellogg, 22-1 BCA ¶ 37,974 at 184,429.

Mindseeker timely appealed the contracting officer’s final decision despite the

agency’s failure to provide a notice of appeal rights. Thus, “the failure to include

appeal rights, will not render the otherwise valid final decision into an invalid

decision.” JAAAT, 21-1 BCA ¶ 37,878 at 183,951.

III. Mindseeker Abandoned Its Breach of Good Faith and Fair Dealing Allegation

In its complaint, Mindseeker alleges: “[A]s no remedial action was taken to

address the defective AVHE uptime stated in the Contract’s PWS Paragraph 1.5.1.1,

the government’s failure to act in good faith when considering Mindseeker’s REA was

a breach of contract” (compl. ¶ 8; amend. compl. ¶ 8). The Army asserts that

Mindseeker failed to present this allegation to the contracting officer and, thus, the

Board lacks jurisdiction to hear this allegation (gov’t mot. at 8; gov’t reply br. at 6-8);

41 U.S.C. § 7103(a)(1) (“Each claim by a contractor against the Federal Government

relating to a contract shall be submitted to the contracting officer for a decision.”);

Anthony & Gordon Constr. Co., ASBCA No. 61916, 21-1 BCA ¶ 37,887 at 184,001.

Mindseeker has not responded to the Army’s argument. Given Mindseeker’s complete

failure to defend its breach allegation, “we consider this issue to have been

13

abandoned.” Cellular Materials Int’l, Inc., ASBCA No. 61408, 22-1 BCA ¶ 38,022

at 184,645. Thus, we strike this breach allegation from the complaint.

CONCLUSION

For the foregoing reasons, we deny the Army’s motion to dismiss the downtime

losses portion of Mindseeker’s claim because Mindseeker converted that portion of its

REA to a claim. We dismiss, without prejudice, the portion of Mindseeker’s claim

seeking a modification to increase the per unit price per coded record or include a new

contract line item for future system downtime hours. Finally, we strike Mindseeker’s

assertion of a breach of the duty of good faith and fair dealing from the complaint.

Dated: August 29, 2024

DANIEL S. HERZFELD

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

OWEN C. WILSON MICHAEL N. O’CONNELL

Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

14

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. 63197, Appeal of

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

Dated: August 29, 2024

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

15