Ford Lumber & Building Supply, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

)

Ford Lumber & Building Supply, Inc. ) ASBCA Nos. 61617, 61618, 61619

)

Under Contract No. DACA27-1-96-9 )

APPEARANCE FOR THE APPELLANT: Timothy D. Hoffman, Esq.

Dinsmore & Shohl LLP

Dayton, OH

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

Engineer Chief Trial Attorney

Nicole E. Angst, Esq.

Engineer Trial Attorney

U.S. Army Engineer District, Louisville

OPINION BY ADMINISTRATIVE JUDGED' ALESSANDRIS ON THE

GOVERNMENT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

Pending before the Board is the motion to dismiss filed by respondent the United

States Army Corps of Engineers (Corps or government).· These appeals arise from a

1996 Base Realignment and Closure (BRAC) Lease in Furtherance of Conveyance for

land that was previously part of the Jefferson Proving Ground, in Jefferson County,

Indiana. The government asserts that appeal 61617, for damages to a building and

generator caused by a government contractor "in the late 1990s," is barred by the statute

of limitations; that appeal 61618 requesting a reduction in the purchase price of property

was not premised upon a valid claim because it did not state a sum certain; and that

appeal 61619 seeking reimbursement of asbestos-related remediation costs and fines

should be dismissed for failure to state a claim upon which relief can be granted (gov't

mot. at 7-11). Because the government cited documents beyond the complaint in its

., motion, the Board notified the parties that it intended to treat the government's motion as

a motion for summary judgment. The order specifically noted that the opposition to the

motion to dismiss filed by appellant, Ford Lumber & Building Supply, Inc. (Ford), stated

that it "could provide additional testimony" regarding the "real facts" of the appeal. The

Board informed Ford that "it should provide such relevant evidence in the form of

declarations in response to this order." (Bd. corr. Order Jhd. Jan. 8, 2019) For the

.reasons described below, we grant the government's motion in part, and dismiss appeals

61617 and 61618, but deny the government's motion with regard to appeal 61619.

STATEMENT OF FACTS (SOF) FOR PURPOSE OF THE GOVERNMENT'S MOTION

On October 16, 1995, the Corps issued an invitation for bids for the sale of

approximately 3,400 acres of the Jefferson Proving Ground in Jefferson County, Indiana

(R4, tab 8 at GR4_79, 88). Mr. Dean Ford, president of appellant, was the successful

bidder (R4, tab 8). The parties entered into a Lease in Furtherance of Conveyance

(LIFOC) 1 on May 13, 1996 (id. at GR4_78). The initial term of the lease was 5 years, or

until delivery of the final deed, whichever was sooner (R4, tab 8 at GR4_ 63 ), but this

lease term was modified to 50 years by Supplemental Agreement No. 3 on November 25,

1997 (id. at GR4_167).

The lease provided that the government would transfer the property to the awardee

once environmental clean-up made the property suitable for transfer (R4, tab 8 .

at GR4_62). The contract made clear that there was asbestos and lead paint in the

property to be transferred (R4, tab 8 at GR4_93). ("The facilities at Jefferson Proving

Ground contain asbestos. The asbestos contains materials that are believed to be

nonfriable. The family housing units were constructed prior to 1978 and lead-based paint

is present."). The contract additionally provided at i12.3.5 that it would issue a Finding

of Suitability for Transfer (FOST) that:

[W]ill indicate that all remedial actions necessary to protect

human health and the environment have been taken to the

satisfaction of the concerned regulatory agencies with

jurisdiction over the property, ·and will identify, to the extent

such are required to protect human health and the

environment, appropriate use restrictions to be included as

covenants in the instruments of title conveyance.

(R4, tab 8 at GR4_84)

The LIFOC indicated that additional environmental restrictions may apply:

'

[A ]s soon as the Finding of Suitability to Transfer (FOST) is

executed by the Army for the Leased Premises, or a portion

of said Leased Premises, and said Leased Premises may be

conveyed consistent with the requirements of the

Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA), 42 United States Code (U.S.C.),

Section 9620 (h), as amended, and other legal and policy

1A LIFOC is commonly used by the government as a means of transferring property

from itself to private entities while allowing for environmental remediation by the

government prior to full conveyance of title.

2

requirements, the Secretary intends to convey to the

Buyer/Lessee by one or more quitclaim deeds, for said

property or portions of said property, subject to any necessary

restrictions, reservations, conditions, and exceptions, and the

Buyer/Lessee hereby agrees to accept such conveyance(s) as

soon as the above-referenced conditions are met. ...

(R4, tab 8 at GR4_63) (emphasis added) The contract additionally provided that the

Army will effectuate conveyance of title to the property offered for sale herein, subject to

appropriate covenants, restrictions, and other reasonable and necessary limitations on use

of the property (id. at GR4_84).

The LIFOC provided for indemnification by the lessee to the government and by

the government in favor of the lessee as follows:

14. INDEMNITY

a. The United States shall not be responsible for

damages to property or injuries to persons which may arise

from or be incident to the exercise of the privileges herein

granted, or for damages to the property of the Lessee, or for

damages to the property or injuries to the person of the

Lessee's officers, agents or employees or others who may be

on the Leased Premises at their invitation or the invitation of

any one of them, and the Lessee shall indemnify and hold the

United States harmless from any and all such claims, not

, including damages due to the fault or negligence of the

United States or its contractors.

b. The Army shall hold harmless, defend, and

indem.riify in full the Lessee and any successor, assignee,

transferee, lender, or sublessee of the Lessee as provided for

in, and subject to the conditions set out in, Section 330 of the

Department of Defense Authorization Act of 1993, and to

otherwise meet its obligations under the law. To the extent

that these persons or entities contributed· to any such releases

or threatened release, this indemnification shall not apply.

The deed(s) of conveyance will include the covenants

required by Section 120(h), 42 U.S.C., Section 9620(h).

c. The Lessee shall indemnify and hold harmless the

· Government from any costs, expenses, liabilities, fines, or

3

penalties resulting from discharges, emissions, spills, storage,

disposal, or any other action by the Lessee giving rise to

Government liability, civil or criminal, or responsibility under

Federal, state or local environmental laws.

(id. at GR4_ 68)

The reference in paragraph b of the indemnification clause to Section 330

refers to Section 330 of the National Defense Authorization Act for Fiscal Year 1993,

Pub. L. 102-484, 106 Stat. at 2315, 2371, 10 U.S.C. § 2687 (note). This uncodified

provision provides, in relevant part, that:

Except as provided in paragraph (3) and subject to subsection

(b), the Secretary of Defense shall hold harmless, defend, and

indemnify in full the persons and entities described in _

paragraph (2) from and against any suit, claim, demand or

action, liability, judgment, cost or other fee arising out of any

claim for personal injury or property damage (including

death, illness, or loss of or damage to property or economic

loss) that results from, or is in any manner predicated upon,

the release or threatened release of any hazardous substance

or pollutant or contaminant as a result of Department of

Defense activities at any military installation (or portion

thereof) that is closed pursuant to a base closure law.

106 Stat. at 2371. Paragraph 3 excludes from coverage "persons and entities" that

"contributed to any such release" (id. at 2372). Indemnification is not available, unless

the person or entity seeking indemnification "notifies the Department of Defense in

writing within two years after such claim accrues or begins action within six months after

the date of mailing, by certified or registered mail, of notice of final denial of the claim

by the Department of Defense" (id.).

The reference in paragraph b of the indemnification clause to Section 120(h),

refers to the Comprehensive Environmental Response Compensation and Liability Act

(CERCLA, also known as Superfund) Section 120(h), 42 U.S.C. § 9620(h); requiring the

government to provide notice of the type and quantity of hazardous substances, a

description of remedial action taken and, relevant to this appeal, a covenant warranting

that all remedial action necessary to protect human health and the environment with

respect to hazardous substances remaining on the property has been taken prior to

transfer, and that any additional remedial action found to be necessary after the date of

transfer will be taken by the United States. 42 U.S.C. § 9620(h)(3)(A). However, the

covenant regarding remediation is not available to a "potentially responsible party," that

4

is, a party that contributed to the contamination, with regard to that transferred property.

42 U.S.C. § 9620(h)(3)(B).

Ford alleges in its claim, which we treat as its complaint, that in the late 1990s,

while removing fuel tanks, "contractors hired by the Army damaged a generator and

building located on the property" (R4, tab 3 at GR4_14). Ford additionally alleges that

"these claims have been discussed with Army representatives over phone and email over

the years" (id.). Ford's counsel asserts that "[t]he claim was actually made timely (years

ago) by the Appellant and the Respondent unilaterally informed the Appellant that it

would wait until the final deeds were executed to decide it" (app. resp. at 1), and that it

was "told repeatedly over the years that the proper time to submit a claim on the

generator and building damage was near the time frame when the final parcels would be

transferred" (app. opp'n at 12). Ford's counsel additionally speculated that it "is highly

probable that Army personnel who passed this information along to the Fords made

mistakes, since the 6-year statute of limitations on cfaims had just gone into effect the

year before" (id.).

Additionally relevant to these appeals, the transferred property included portions

of over three miles of above-ground insulated steam lines. In the Jefferson Proving

Ground, South of the Firing Line; Final Asbestos Survey Summary Report: Volume IV

(Building 501 through Building 903), September 1993 report (Final Asbestos Report), the

Corps' contractor that drafted the report reported the presence of asbestos in the outside

overhead insulated steam lines. (R4, tab 7 at GR4_55) 2 On the record before us, there is

no evidence that this report was incorporated into the invitation for bids or the LIFOC. 3

The LIFOC does reference a "Draft Remedial Investigation for Jefferson Proving Ground

(July 1994)" that was to be attached as an exhibit to,the LIFOC (R4, tab 8 at GR4_73);

however, the exhibit is not contained in the Rule 4 file submitted by the government, or

in the version of the LIFOC submitted by appellant. The Final Asbestos Report was

referenced in the Finding of Suitability to Transfer Remaining Parcels, March 2010 (app.

supp. R4, tab A at Ford-53, 62, 67) and the Finding of Suitability to Transfer Remaining

Parcels 1-7, December 2014 (R4, tab 11 at GR4_211).

In the fall of 2010, Jim Reed, a former employee of Ford, approached Ford for

permission to remove old steam pipes on the property, in exchange for the scrap metal

(app. supp. R4, ex. 2, Ford decl. 'if'if 7-8; R4, tab 5 at 1). Mr. Ford told Mr. Reed that he

2

Ford designated its claim documents as its complaints in these appeals. While we cite

to certain facts relevant to appeal no. 61619 submitted by the government that go

beyond the claim documents, we still consider them in the light most favorable to

Ford.

3

We note that that invitation for bids contained in the Rule 4 file is missing exhibit D

"Community Environmental ·Response Facilitation Act Report/ Draft Remedial

Investigation" (R4, tab 8 at GR4_61).

5

was not authorized to give permission and that Mr. Reed would need to obtain

permission from the Army (id. 17). Mr. Reed subsequently obtained permission from

Ken Knauf, Army site manager, who stated that the pipe contained plaster ofparis, so he~

had no objection. The work was additionally performed with the knowledge of

Paul Cloud, the Army's environmental coordinator (id at ex. A). According to Mr. Ford,

the "pipes had been deteriorating for years, and had even fallen on the ground in some

places" and constituted a health and safety hazard (id. 17). Mr. Reed additionally alleges

thafapproximately a quarter of the insulation was already on the ground, and that the

Army ~ould simply pick-up fallen pieces of insulation. Mr. Reed additionally stated that

fallen insulation was "mowed over" by department of corrections prisoners "for years"

(id. at ex. A). Mr. Lamb, who works in a building on the former Jefferson Proving

Ground additionally provided a declaration that the insulation was decaying and "was

falling off every time there was a storm" (id at ex. B).

Ford was subsequently contacted by the Indiana Department of Environmental

Management(IDEM) regarding asbestos contamination from the steam pipes. Ford hired

an asbestos contractor to clean-up the contamination and incurred costs for the clean-up,

plus a fine from the IDEM, and attorney fees (id. 119-1 O; R4, tabs 5, 9).

In December 2014, the government issued a FOST for the remaining parcels to be

transferred to Ford. The FOST included, in Enclosure 9, environmental restrictions and

restrictive covenants for the transfei;red property. The FOST provides that that deed will

prohibit residential use of parcels 1 through 4 and part of parcel 5, as well prohibiting the

use of groundwater on parcels 2 and 4 and part of parcel 5, and restrictions on

excavations for parcel 1. (R4, tab 11 at GR4_234)

In a letter dated November 14, 2017, Ford asserted a certified claim in the amount

of $197,000 for the damaged generator and building, based on price quotes provided in

2009 and 2010, for the damage purportedly caused in the "late 1990's" (R4, tab 3). The

claim letter asserts that "[o]ver the 20-year duration of our Lease in Furtherance of

Conveyance, Army personnel have advised us to wait to submit claims until the final

parcels of [Jefferson Proving Ground] are near to the time of transfer" (id.). The

government did not issue a final decision on Ford's claim and Ford appeals from the

deemed denial of the claim. This' claim was docketed by the Board as ASBCA

No. 61617.

In a second letter, with the same date, Ford asserted a claim regarding land use

restrictions placed on parcels 1 through 7 in the final FOST, including a restriction

against residential use for a portion of the property (R4, tab 4 at GR4_18). In the

document Ford alternatively requests that the government "please remove residential

restrictions" or provide "a ~orresponding reduction in the purchase price of the land" (id.

at GR4_19-20). Ford's letter does not request a specific reduction on the amount of the

purchase price for the land, rather it notes that purportedly similar building lots near the

6

property in question are assessed "at or above $20,000 per acre" (id. at GR4_19). Ford

notes that 123 of 770 ac.res in question could be valued at $2,575,620 at the assessed

values, before noting that the remaining acreage is "not as valuable" but that' the "interior

woods certainly suffers from these restrictions as well." (Id. at GR4_19-20) Ford refers

to lost rental income of $864,POO over the next 30 years for parcel 5 (id. at GR4_18).

The claim does not address the reduction in value of parcels 2-4, 6, and 7. In a final

decision dated February 13, 2018, the Corps contracting officer denied the claim on the

basis that the claim failed to set forth a sum certain (R4, tab 1). On appeal to the Board,

this claim was docketed as ASBCA No. 61618.

In a third letter, again with the same date, Ford asserted a claim for expenses

incurred in remediating asbestos from the above ground steam pipes. The claim asserts

that the government authorized a contractor to remove steam pipes from the property,

still owned by the government, in exchange for the scrap metal recovered. The letter also

asserts that the government monitored the progress of the contractor; and that the

dismantled steam pipes exposed material that was later determined to be asbestos. IDEM

J notified Ford and the government of an environmental hazard and the government

refused to acknowledge its involvement and Ford was forced to perform remediation

activities on the property at a cost of $457,259, including a fine assessed by IDEM, and

attorney fees (R4, tab 5 at GR4_21-22). In a final decision dated February 14, 2018 the

contracting officer denied Ford's claim, finding that Ford had failed to request written

permission from the government to make any alterations to the property and the lease

expressly placed liability for cleanup of hazardous materials on Ford, and that Ford was

to indemnify the government for any costs of environmental remediation (R4, tab 2

at GR4_11). Ford appealed to the Board from the final decision and the appeal was

docketed as ASBCA No. 61619.

DECISION

I. Standard Of Review

Ford bears the burden of proving the Board's subject matter jurisdiction by a

preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service,

846 F.2d 746, 748 (Fed. Cir. 1988); United Healthcare Partners, Inc., ASBCA

No. 58123, 13 BCA 1J 35,277 at 173,156.

We will grant summary judgment only if there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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).

The moving party bears the burden of establishing the absence of any genuine issue of

material fact, and all significant doubt over factual issues must be resolved in favor of the

party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d

7

1387, 1390 (Fed. Cir. 1987). Once the moving party has met its burden of establishing

the absence of disputed material facts, then the non-moving party must set forth specific

facts, not conclusory statements or bare assertions, to defeat the motion. Pure Gold, Inc.

v. Syntex (US.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984). .

II. Appeal No. 61617 -Damage To Generator And Building

The government moves to dismiss appeal number 61617 as untimely because it

was not brought within six years of accrual of the claim (gov't mot. at 7). Pursuant to

statute, a claim must be submitted within six years of accrual of the claim. 41 U.S. C.

§ 7103(a)(4)(A). · We interpret the term "accrual of the claim" based upon the definition

in the Federal Acquisition Regulation (FAR). See, Kellogg Brown & Root Services, Inc.

v. Murphy, 823 F.3d 622,626 (Fed. Cir. 2016). The FAR defines accrual of a contract

claim, in relevant part, as the "date when all events, that fix the alleged liability of either

the Government or the contractor and permit assertion of the claim, were known or

should have been known." FAR 33.201.

Here, Ford alleges that the government damaged a generator and a building in "the

late 1990s" (R4, tab 3 at GR4_14). Ford's claim is dated November 14, 2017, or roughly

twenty years after the cause of action accrued. Thus, Ford's claim is time-barred, unless

it can establish that it submitted a valid claim at an earlier date, 4 or that it was under an

infirmity sufficient to toll the statute of limitations.

Ford asserts that the "claim was actually made timely (years ago) by the Appellant

and the Respondent unilaterally informed the Appellant that it would wait until the final

deeds were executed to decide it" (app. resp. at 1). However, Ford cites to no record

evidence in support of this statement. While Mr. Ford submitted a declaration in

response to the Board's order informing the parties that it would treat the government's

motion as a motion for summary judgment, his declaration does not address this issue.

When a motion to dismiss denies or controverts allegations of jurisdiction, only

uncontroverted factual allegations are accepted as true for purposes of the motion, and

other facts underlying the jurisdictional allegations are subject to fact-finding.

Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993);

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The facts supporting jurisdiction are

subject to fact-finding by the Board based on our review of the record. CCIE & Co.,

ASBCA Nos. 58355, 59008, 14-1 BCA 'if 35,700 at 174,816; Raytheon Missile Sys.,

ASBCA 58011, 13 BCA 'if 35,241 at 173,016. As the burden is on Ford to establish

jurisdiction, we find that Ford has not established that it submitted a claim prior to the

one submitted on November 17, 2017.

4

Assuming the most generous possible interpretation of "the late 1990's" possible Ford's

claim would have needed to be submitted on or before December 31, 2005 to be

within the 6-year statute of limitations.

8

The Board has held that the CDA's six-year statute oflimitations "may be

equitably tolled when a litigant has (1) been pursuing his rights diligently, and (2) some

extraordinary circumstance 'stood in his way and prevented timely filing.'" Adamant

Group for Contracting and General Trading, ASBCA No. 60316, 16-1 BCA 1J 36,577

at 178,136, citing Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755

(2016). In addition, equitable tolling is available "where the complainarit has been

induced or tricked by his adversary's misconduct into allowing the filing deadline to

pass." Environmental Safety Consultants, 97 Fed. Cl. 190, 200-01 (2011), citing Irwin v.

Dep 't of Veterans Affairs, 498 U.S. 89, 96 (1990). As we noted in Raytheon Missile

Systems, in the absence of trickery, once a claim has accrued and the statute of limitations

begins to run, "subsequent communications between [the contractor] and the government

about the claim's merits and magnitude [do] nothing to toll it." Raytheon Missile Systems,

13 BCA 1J 35,241 at 173,018.

Here, Ford's claim5 asserts that "[o]ver the 20-year duration of our Lease in

Furtherance of Conveyance, Army personnel have advised us to wait to submit claims

until the final parcels of [Jefferson Proving Ground] are near to the time of transfer" (R4,

tab 3 at GR4 14). Ford's counsel asserts, without any citation to record evidence, that

"[t]he claim was actually made timely (years ago) by the Appellant and the Respondent

unilaterally informed the Appellant that it would wait until the final deeds· were executed

to decide it" (app. resp. at 1). In response to the Board's order informing the parties that

it would treat the government's motion as one for summary judgment and stating that

Ford "should provide such relevant evidence in the form of declarations in response to

this order" Ford responded only with statements of counsel to the effect that the Fords

were "told repeatedly over the years that the proper time to submit a claim on the

generator and building was near the time frame when the final parcels would be

transferred" (app. opp'n at 12). Ford's declaration does not address this issue. Counsel

additionally speculated that it "is highly probable that Army personnel who passed this

information along to the Fords made mistakes, since the 6-year statute of limitations on

claims had just gone into effect the year before" (id.).

Even assuming that the statements of counsel in opposition to the government's

motion were sworn statements, they would not be sufficient to support tolling of the

statute of limitations. At best, Ford makes a vague allegation that, in an unspecified

number of instances, at unspecified times over a 20-year period, unspecified "Army

personnel" informed him to wait until the time of transfer to assert his claim. Ford's

statements do not allege that these statements were made by a contracting officer or other

individual with authority to bind the government, nor does Ford explain why he did not

review the terms of the LIFOC, which specifies the procedure for asserting a claim (R4,

tab 8 at GR4_ 70-71 ). To establish equitable tolling, the party advocating tolling must

demonstrate that it has been pursuing its rights diligently. We find that Ford has not

5

Absent more, an assertion included in a claim does not constitute evidence.

9

satisfied this requirement. Additionally, the party advocating equitable tolling must

establish that some extraordinary circumstance prevented it from timely filing its claim.

Here, Ford does not allege any such extraordinary disability.

To the extent Ford is alleging that the government provision of incorrect

information about filing its claim constitutes an extraordinary circumstance, we reject

that claim. The courts have found, in rare instances, that "trickery" can be a basis for

equitable tolling; however, here, Ford alleges error on the party of the government, rather

than trickery or an intent to deny Ford its right to present its claim (app. opp'n at 12). 6

Accordingly, we find that Ford has not established equitable tolling and grant the

government's motion to qismiss ASBCA No. 61617.

III. ASBCA No. 61618 -Failure To State Sum Certain

The government moves to dismiss ASBCA No. 61618 on the grounds that Ford

fails to assert a valid claim because its demand included no sum certain (gov't mot.

at 8-9). Pursuant to the CDA, a contractor may, "within 90 days from the date of receipt

ofa contracting officer's decision" under 41 U.S.C. § 103 "appeal the decision to an

agency board as provided in" section 7105. 41 U.S.C. § 7104(a). Our reviewing court,

the Federal Circuit, has held that CDAjurisdiction requires both a valid claim and a

contracting officer's final decision on that claim. M Maropakis Carpentry, Inc. v. United

States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M Ellett Constr. Co. v.

United States, 93 F.3d 1537, 1541-42 (Fed. Cir. 1996)). The FAR defines a claim as 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.... " FAR 2.101. The Federal Circuit has

held that an additional jurisdictional requirement is that a claim be submitted in writing

and contain a "clear and unequivocal statement that gives the contracting officer adequate

notice of the basis and amount of the claim." Contract Cleaning Maintenance, Inc. v.

United States, 811 F.2d 586, 592 (Fed. Cir. 1987); Maropakis, 609 F.3d at 1327. "The

statement of claim must provide a basis for meaningful dialogue between the parties

aimed toward settlement or negotiated resolution of the claim if possible, or for adequate

identification of the issues to facilitate litigation should that be necessary." Blake

Constr., Co., ASBCA No. 34480 et al., 88-2 BCA, 20,552 at 103,890; see also Holk

Development, Inc., ASBCA Nos. 40579, 40609, 90-3 BCA, 23,086 at 115,939.

Here, Ford's letter purporting to be a claim requests alternatively that the

government "please remove residential restrictions" or provide "a corresponding

reduction in the purchase price of the land" (R4, tab 4 at GR4_19-20). Ford's letter does

6

We note that the LIFOC initially had a five year term. If the damage alleged to have

occurred in the late 1990s happened before the term of the LIFOC was extended to

50 years, a government employee statement to wait until the end of the lease

would not have raised a statute of limitations issue.

10

not request a specific reduction on the amount of the purchase price for the land, rather it

notes that purportedly similar building lots near the property in question are assessed ''at

or above $20,000 per acre" (id. at GR4_19). Ford notes that at 123 of 770 acres in

question could be valued at $2,575,620 at the assessed values (id. at GR4_20).

To the extent Ford seeks a Board award compelling the government to remove the

residential restrictions from the deed, such a request would constitute a valid claim;

however it would be a request for specific performance which we lack jurisdiction to

entertain. See, e.g., Versar, Inc., ASBCA No. 56857, 10-1BCA134,437 at 169,959.

The Board does possess jurisdiction to entertain a claim for a monetary adjustment to the

purchase price of the property. However, here, we find that Ford did not assert a valid

claim because it does not request a sum certain. While Ford's counsel represents that the

claim .could be treated as one for $2,575,620, such representations to the Board cannot

correct a deficient claim. Such a resolution would deprive the contracting officer of the

ability to review Ford's claim in the first instance. Even ifwe were inclined to treat the

$2,575,620 amount as a sum certain, Ford's claim implies that this amount represents

compensation for only aportion of the property. Ford's claim letter states that there are

deed restrictions in the final POST. (R4, tab 4 at GR4_18). Ford refers to lost rental

income of $864,000 over_ the next 3 0 years for parcel 5 (id.). Ford then "highlights the

effect on Parcel 1" in computing damages of $2,575,620 for 123 of770 c1,cres in parcel 1,

before noting that the remaining acreage is "not as valuable" but that the "interior woods

certainly suffers from these restrictions as well" (id. at GR4_19-20). The letter does not

address the reduction in value of parcels 2-4, 6, and 7. The CDA "requires that claims

for monetary relief must be quantified as to amount before the contracting officer is

obligated to issue a final decision." Liberty Painting Co., ASBCA No. 39562, 91-1 BCA

123,561 at 118,119. Thus, we hold that Ford's letter has not set forth a valid claim

because it does not assert a sum certain. We grant the government's motion to dismiss

ASBCA No. 61618.

IV. ASBCA No. 61619 -Asbestos Remediation

The government seeks summary judgment on this count, asserting that there is "no

obligation on the part of the government under the contract or under state or federal law

to indemnify the lessee for penalties resulting from violations of the law" (gov't mot.

at 10). The government notes that Ford was on notice of the existence of asbestos in the

steam pipes and that Ford failed to comply with the LIFOC by obtaining written

permission from the government for the work (id. at 11). Ford alleges that there is a

factual issue in dispute regarding the responsibility for asbestos abatement with regard

to the steam pipes and that this prevents the entry of summary judgment (app. opp'n

at 9-10). Ford further relies upon the holding of the Court of Federal Claims in

Richmond American Homes of Colorado, inc. v. United States, 75 Fed. Cl. 376 (2007)

finding the government liable for asbestos remediation in the base alignment and closure

context pursuant to Section 330 of the National Defense Authorization Act for Fiscal

11

Year 1993, Pub. L. 102-484, 106 Stat. at 2315, 2371, 10 U.S.C. § 2687 (note) (id.). The

government responds that any claim pursuant to Section 330 would be time-barred under

that provision's two-year statute oflimitations (gov't reply br. at 7-9).

The BRAC process protects purchasers of former base property in two ways.

First, the base closure act requires conveyances of property to contain CERCLA section

120(h), 42 U.S.C. § 9620(h), requiring the government to provide notice of the type and

quantity of hazardous substances, a description of remedial action taken and, relevant to

this appeal, a covenant warranting that all remedial action necessary to protect human

health and the environment with respect to hazardous substances remaining on the

property has been taken prior to transfer, and that any additional remedial action found to

be necessary after the date of transfer will be taken by the United States. 42 U.S.C.

§ 9620(h)(3)(A). However, the covenant regarding remediation is not available to a

"potentially responsible party," that is, a party that contributed to the contamination, with

regard to that transferred property. 42 U.S.C. § 9620(h)(3)(B).

The second protection provided in the transfer of BRAC properties is Section 330

of the NDAA. That provision provides that the Secretary of Defense will: "hold

harmless, defend, and indemnify" purchasers ofBRAC properties "from and against any

suit, claim, demand or action, liability, judgment, cost or other fee arising out of any

claim for personal injury or property damage" resulting from "the release or threatened

release of any hazardous substance" as a result ofDoD activities. 106 Stat. at 2371.

Paragraph 3 excludes from coverage "persons and entities" that "contributed to any such

release" (id. at 2372). Indemnification is not available, unless the person or entity

seeking indemnification "uotifies the Department of Defense in writing within two years

after such claim accrues or begins action within six months after the date of mailing, by

certified or registered mail, of notice of final denial of the claim by the Department of

Defense" (id.).

We first turn to CERCLA § 120(h), which provides a covenant requiring the

government to remediate health and safety issues discovered after transfer. While the

government asserts that the existence of asbestos insulation on the above-ground steam

pipes was known and had been disclosed to Ford (R4, tab 7 at GR4_55), the record

before us is not sufficiently developed to support the entry of summary judgment in favor

of the government. The record before us does not establish that the Final Asbestos

Report was disclosed in the LIFOC, although it was disclosed in FOSTs that are part of

the record (R4, tab 11 at GR4_211; app. supp. R4, tab A at Ford-53, 62, 67). Moreover,

the Final Asbestos Report disclosed asbestos in the steam pipes, but did not address

fallen asbestos in the soil, at least in the portion of the report included in the record. Ford

has supported with declarations statements that the steam pipe insulation was falling off

of the steam lines and had been run-over by lawnmowers "for years" and that the pipes

were a health and safety hazard (app. supp. R4, ex.' 2, Ford. decl. ,r 7, exs. A, B). We

note that the LIFOC disclaims indemnity on behalf of the government "to the extent that

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the [transferee] contributed to any such release or threatened release" (R4, tab 8

at GR4_68; see also 42 U.S.C. § 9620(h)(3)(B)). However, the Court of Federal Claims

has found similar indemnity language to be ambiguous. See American Inter. Specialty

Lines Ins. Co. v. United States, No. 05-1020C, 2008 WL 1990859 at *17 (Fed. Cl.

Jan. 3l,2008)(AISLIC).

AISLIC involved claims for remediation costs for chlordane and organochlorine

pesticides (OCPs) applied by the Navy prior to BRAC transfer of property that was part

of the Naval Air Station Alameda. Id. at* 1. The AISLIC court reasoned that the "release

or threatened release" could apply to the release of the OCPs prior to transfer or the

release caused by demolition of buildings (which had been sprayed with OCPs) after

transfer. Id. at* 17. Similarly here, we find paragraph 14(b) of the LIFOC to be

ambiguous (R4, tab 8 at GR4_68). Ford's statements, read in the light most favorable to

the non-moving party, assert that the government was responsible for releases of asbestos

in the soil from asbestos falling off the steam lines over a period of years, and further was

responsible for authorizing Mr. Reed's removal of the overhead steam line. Thus,

pursuant to the facts presented we cannot find that the government bears no responsibility

for the remediation costs.

Similarly, the LIFOC provides that Ford will indemnify and hold harmless the

government from claims for damages to the property, this indemnification does not

include "damages due to the fault or negligence of the United States or its contractors"

(R4, tab 8 at GR4_68). Thus, to the extent Mr. Reed alleges he was given permission by

the Army to remove the steam lines, we cannot find that Ford is exclusively responsible

for the asbestos remediation. Thus, on the record before us, which appears to be missing

several re_levant documents, we cannot find that the government is not responsible for any

of the release of asbestos.

With regard to a claim for reimbursement pursuant to.Section 330 of the NDAA,

we similarly find that factual issues prevent entry of summary judgment. The

government did not address Section 330 in its motion to dismiss. After the Board

informed the parties that it would treat the motion as a motion for summary judgment,

Ford raised the Section 330 issue by citing Richmond American Homes (app. opp'n

at 8-10) which had held that Section 330 makes the government liable for environmental

remediation costs on BRAC properties. The government raised the section's two-year

statute of limitations as a defense in its supplemental reply.(gov't reply at 7-9).

The Court of Appeals for the ·Federal Circuit has held that a claim for remediation

costs pursuant to action by a state regulator states a claim for indemnification pursuant to

Section 330. Indian Harbor Ins. Co. v. United States, 704 F.3d 949, 956 (Fed. Cir .

. 2013). Board precedent holds that we have jurisdiction, pursuant to the CDA, to

entertain a claim pursuant to Section 330 based upon the indemnification provisions in a

13

LIFOC. New London Development Corp., ASBCA No. 54535, 05-2 BCA 133,018

at 163,637.

The government's motion treats Section 330's requirement for a claim as

requiring a CDA claim. However, the plain language of the statute, and case law, do not

support this interpretation. The language of Section 330 requires that the "person or

entity making a claim for indemnification ( 1) notif1y] the Department of Defense iri

writing within two years after such claim accrues." 106 Stat. at 2372. The language

"claim for indemnification" does not imply that a CDA claim is required. The

requirement is simply that the party "notifl:y]" the "Department of Defense" (id.). The

statute does not require that the notification contain the elements of a CDA claim (viz.

certification of claims over $100,000, a statement that the claim is made in good faith,

etc.) and, notably, the claim for indemnification is required to be made to the

"Department of Defense" and not the contracting officer. Moreover, we note that the

appeal period contained in section 330 is six-months (id.), and not the appeal period for a

CDA claim. .

Additionally, we note that the Court of Federal Claims has asserted jurisdiction to

entertain Section 330 claims pursuant to its Tucker Act jurisdiction to entertain non-CDA

contracts with the government. See, e.g., Indian Harbor Ins. Co. v. United States, 100

Fed. Cl. 239,242 (2011), rev'd on other grounds 704 F.3d 949 (Fed. Cir. 2013);

Richmond American Homes, 75 Fed. Cl. at 385. While the Board has the power to

determine its jurisdiction sua sponte, here, where the government raised the statute of

limitations defense for the first time in its reply brief, 7 we believe further development of

the factual record is necessary before deciding the issue and deny the government's

motion.

7

The parties have not addressed whether the statute of limitations in Section 330 is

jurisdictional. See Sikorsky Aircraft Corp. v. UnitedStates, 773 F.3d 1315,

1321-22 (Fed. Cir. 2014) (holding that the CDA's statute of limitations is not

jurisdictional). ·

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CONCLUSION ,

For the reasons stated above, we grant the government's motion to dismiss

ASBCA appeals number 61617 and 61618 but deny the government's motion for

summary judgment with regard to ASBCA number 61619.

Dated: August 1, 2019

DAVID D' ALESSANDRIS

Administrative Judge

Armed Services Board

of Contract Appeals

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. 61617, 61618, 61619,

Appeals of Ford Lumber & Build Supply, Inc., rendered in conformance with the Bo~rd's

Charter.

Dated:

PAULLAK. GATES-LEWIS

Recorder~ Armed Services

Board of Contract Appeals

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