The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
A Best Services Inc. ) ASBCA No. 63816
)
Under Contract No. W9126G-20-D-0034 )
APPEARANCES FOR THE APPELLANT: David N. Deaconson, Esq.
Will Gray, Esq.
Pakis, Giotes, Burleson & Deaconson, P.C.
Waco, TX
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Rachel Fayas, Esq.
Jennifer M. Dorsey, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Fort Worth
ORDER OF PARTIAL DISMISSAL
On November 14, 2024, the government filed a motion seeking the dismissal of
several counts of appellant’s complaint for lack of jurisdiction. On December 2, 2024,
appellant consented to the government’s motion to dismiss for lack of jurisdiction, of
five of the six claims set forth in appellant’s complaint. ∗
Appellant appealed the December 19, 2023, contracting officer’s final decision
(COFD) denying in its entirety the claim seeking reimbursement of $215,000 for costs
associated for work performed for each Letter of Instructions (LOI), and a claim of
differing site condition related to grass height. The notice of appeal was filed with the
Board on January 24, 2024, and was assigned ASBCA No. 63816.
On February 12, 2024, appellant filed a complaint seeking the following
compensation:
1) REA, two hundred and fifteen thousand dollars ($215,000).
At the time of the filing of the complaint, A Best Services, Inc., was represented by
∗
one of its officers. On May 28, 2024, a notice of appearance was filed by
David N. Deaconson and Will Gray, PAKIS, GIOTES, BURLESON &
DEACONSON, P.C.
2) To be paid for the machines I purchased for this contract, three
hundred fifty thousand dollars ($350,000).
3) To be paid for amount that was left on the contract from June 1st,
2022 to September 30th, 2022, a total of one hundred sixty-seven
thousand dollars ($167,000).
4) To be paid for the amount that was left on the contract from
October 1st, 2022 to September 30th, 2023, a total of four hundred
twenty-one thousand dollars ($421,000).
5) To be paid for the amount that was left on the contract from
October 1st, 2023 to September 30th, 2024, a total of four hundred
twenty-one thousand dollars ($421,000).
6) To be paid for the amount that was left on the contract from
October 1st, 2024 to September 30th, 2025, a total of four hundred
twenty-one thousand dollars ($421,000).
The government filed its answer on March 27, 2024, asserting affirmative
defenses of assumption of the risk and payment.
The Appellant failed to submit any of the five additional claims for
compensation (¶¶ 2 through 6) to the contracting officer for decision, and the
government now seeks the dismissal of these five additional claims because they lack
jurisdiction before the Board (gov’t mot. at 2). The scope of the appeal, and our
jurisdiction are dependent upon the claim submitted for final decision by the
Contracting Officer. Under the CDA the Board has jurisdiction over disputes based
upon claims that a contractor has first submitted to the CO for decision. 41 U.S.C. §§
605(a), 606. We lack jurisdiction over claims raised for the first time on appeal, in a
complaint or otherwise. D.L. Braughler Co., Inc. v. West, 127 F.3d 1476, 1480 (Fed.
Cir. 1997); Consolidated Defense Corp., ASBCA No. 52315, 03-1 BCA ¶ 32,099.
Whether a claim before the Board is new or essentially the same as that presented to
the contracting officer depends upon whether the claims derive from common or
related operative facts. Lockheed Martin Aircraft Center, ASBCA No. 55164, 07-1
BCA ¶ 33,472 at 165,933; Contel Advanced Systems, Inc., ASBCA No. 49073, 02-1
BCA ¶ 31,809 at 157,149; Trepte Construction Co., Inc., ASBCA No. 38555, 90-1
BCA ¶ 22,595 at 113,385-86; see also Placeway Construction Corp. v. United States,
920 F.2d 903, 908 (Fed. Cir. 1990). The assertion of a new legal theory of recovery,
when based upon the same operative facts as the original claim, does not constitute a
new claim. Trepte, id. Dawkins General Contractors & Supply, Inc., ASBCA
No. 48535, 03-2 BCA ¶ 32,305 at 159,844.
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The additional claims presented here do not constitute new theories based upon
the same operative facts but are entirely new and separate claims. Accordingly, we
find that appellant’s claims seeking payment for equipment purchased ($350,000), the
payment of the balance left on the 2022 contract ($167,000), and the payment for
option years 2022 ($421,000), 2023 ($421,000), and 2024 ($421,000), represent new
claims that we lack jurisdiction to decide. The monetary claim that is the subject of
the December 19, 2023 COFD in the amount of $215,000 remains before the Board
and the current schedule remains unchanged.
Date: December 12, 2024
STEPHANIE CATES-HARMAN
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Partial Dismissal of the
Armed Services Board of Contract Appeals in ASBCA No. 63816, Appeal of A Best
Services Inc., rendered in conformance with the Board’s Charter.
Dated: December 12, 2024
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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