Penna Group, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

)

Penna Group, LLC ) ASBCA Nos. 61640, 61641, 61642

) 61643, 61708

Under Contract No. W9126G-09-C-0014 et al. )

APPEARANCES FOR THE APPELLANT: Bryant S. Banes, Esq.

Sean D. Forbes, Esq.

Neel, Hooper & Banes, P.C.

Houston, TX

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

Engineer Chief Trial Attorney

Katharine S. Talbot, Esq.

Blake Hedgecock, Esq.

Engineer Trial Attorneys

U.S. Army Engineer District, Fort Worth

OPINION BY ADMINISTRATIVE JUDGE WOODROW ON GOVERNMENT’S

MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO DISMISS AND

APPELLANT’S MOTION FOR LIMITED DISCOVERY

These appeals involve disputes arising out of a series of contracts between the

U.S. Army Corps of Engineers (USACE or the government) and the Penna Group,

LLC (Penna or appellant). The contracts involve ecosystem restoration projects at the

Samuels Avenue North/South Valley Storage Site, Fort Worth Central City, Upper

Trinity River, Fort Worth, Texas (TRVA Phase I and Phase II contracts; ASBCA

Nos. 61640, 61641), construction of low flow gate controllers at Ray Roberts Lake,

Texas (Ray Roberts contract; ASBCA Nos. 61642, 61708), and construction of a

project office at Somerville Lake, Texas (Somerville contract; ASBCA No. 61643).

The government filed a motion for summary judgment in ASBCA No. 61640, and

motions to dismiss ASBCA Nos. 61641, 61643 for lack of jurisdiction.

On October 2, 2020, we issued an order requesting additional briefing on two

issues. First, we requested briefing regarding whether the Board possesses jurisdiction

to entertain ASBCA No. 61640, given that the entity that filed the underlying claim –

Penna Group LLC – is different from the entity that was awarded the contract –

Penna-Ambreco JV. Under our jurisprudence, the claimant must be in privity of

contract with the government in order to possess standing under the Contract Disputes

Act. Second, we requested briefing regarding whether the role of government counsel,

Dawn-Carole Harris, Esq., as both the government’s attorney of record and a potential

material fact witness, creates a potential conflict of interest. On November 5, 2020,

the government filed its brief and notice of appearance, substituting

Katherine S. Talbot, Esq., and Blake Hedgecock, Esq., for Ms. Harris and Ms. Jeanelle

Patel, as counsel for the USACE. On November 6, 2020, appellant withdrew ASBCA

No. 61640.1

Given appellant’s decision to withdraw ASBCA No. 61640, we deny, as moot,

the government’s motion for summary judgment in that appeal. We also deny the

government’s motion to dismiss ASBCA No. 61641, because we conclude that

appellant submitted a properly certified claim. We grant the government’s motion to

dismiss ASBCA No. 61643, because appellant did not submit a new claim; rather,

appellant submitted the same claim that previously was denied from which no appeal

was taken. Finally, we deny appellant’s motion for limited discovery in ASBCA

Nos. 61641 and 61643.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THESE MOTIONS

Unless otherwise noted, the following facts are undisputed or uncontroverted.

I. Contract No. W9126G-09-C-0014, ASBCA No. 61640

1. On February 27, 2009, the government awarded Contract No. W9126G-09-C-

0014 to Penna-Ambreco, Joint Venture, for the project titled, “Phase 1 – Samuels Avenue

(North) Valley Storage Site, Fort Worth Central City, Upper Trinity River, Fort Worth,

Texas” (TRVA Phase I) (ASBCA No. 61640 (61640) R4, tab 4 at 2-4). 2 TRVA Phase I

involved a myriad of ecosystem restoration projects at the North Valley Storage Site

(61640 R4, tab 4 at 5-10). Part of the contract required appellant to establish grass for

erosion control (61640 R4, tab 2 at 1, tab 4 at 9).

2. On June 29, 2015, appellant, the Penna Group LLC, submitted a claim in the

amount of $8,216.53 to contracting officer (CO) June Wohlbach. Appellant alleged

that the “discovery of [] hazardous waste onsite constitutes a latent defect and a failure

1 In its brief, appellant further contended that Ms. Talbot and Ms. Patel should not be

permitted to represent the government, speculating that they have worked with

Ms. Harris as co-counsel for several years on this case and may have been

involved with the administration of the contracts with Penna prior to the appeals

being brought (app. br. at 4-5). However, appellant has not submitted a motion

to disqualify counsel and we will not sua sponte act in the absence of any

evidence that newly assigned government counsel possess a conflict of interest.

2 According to a footnote in the government’s June 29, 2018 motion for summary

judgment, the appellant, Penna Group, LLC, is the managing member of the

joint venture (gov’t br. at 1).

2

to disclose, and as such, the failure of the turf to establish and the resultant erosion

were beyond the Contractor’s control.” (61640 R4, tab 2 at 1-2). The government

paid appellant’s claim (61640 R4, tab 5).

3. As a condition of receipt of the payment, the government required appellant to

sign a release of claims. On July 7, 2015, Penna-Ambreco JV executed a release of

claims, signed by Penna-Ambreco JV (with Michael Evangelista-Ysasaga signing as the

Managing Partner) and Ambreco, LTD (with Robert Dominguez, Jr. signing as Partner)

(61640 R4, tab 3 at 12). The release stated that appellant “hereby releases the United

States, its officers, agents, and employees from any and all claims arising under or by

virtue of said Contract or any modification or change thereof.” (61640 R4, tab 6) The

government then paid the claim in full (61640 R4, tab 5).

4. On January 24, 2018, government counsel, Dawn-Carole Harris, Esq., sent an

email to appellant’s chief executive officer (CEO), Mr. Michael Evangelista-Ysasaga,

with the subject line “Valley Storage, Phase I close out.” The email stated, “Release of

claims for both Phase I and Phase II are attached. Just scratch out the ‘NONE’ and

write in what you want.” (61640 app. supp. R4, tab 1 at 2)

5. Mr. Evangelista-Ysasaga responded to the email on February 28, 2018. His

response stated, in part:

DC, apologies for the delay. Our lawyers were working on

the claims reorganization which are now finalized.

Regarding TRVA Phase 1, as mentioned, we are still owed

approximately $80K for having to warrant the grass which

died as a result of the undisclosed hazardous waste in the

soil. See attached.

(61640 app. supp. R4, tab 1 at 1) Attached to the email was a document titled “TRVA

Phase 1 Warrant on Erosion,” which listed the total cost as $79,593.80 (61640 app.

supp. R4, tab 1 at 9-10).

6. By letter dated March 16, 2018, CO Linda Eadie 3 notified Penna-Ambreco

Joint Venture that the government would not consider appellant’s request for

additional funds due to the government’s payment of the prior claim and execution of

the release (61640 R4, tab 3 at 1).

3 It is the Board’s understanding that CO Linda Eadie took over as the contracting officer

on all of the contracts discussed in these appeals after CO June Wohlbach’s

apparent retirement sometime in mid-January 2018 (See 61641 app. supp. R4,

tab 12 at 7).

3

7. On June 8, 2018, appellant filed a notice of appeal with the Board, which we

docketed as ASBCA No. 61640. The notice of appeal stated that this was an appeal

from the March 16, 2018 denial of its claim. On November 6, 2020, appellant submitted

a filing stating that it “hereby withdraws ASBCA No. 61640, its appeal based on its

June 29, 2015 and February 28, 2018 claims against the Government relating to Contract

No. W9126G-09-C-0014. (See R4 Tab 2; R4 Tab 4).” (App. br. dtd. November 6,

2020, at 1)

II. Contract No. W9126G-10-C-0009; ASBCA No. 61641

8. On January 25, 2010, the government awarded Contract No. W9126G-10-C-

0009 to appellant for the project titled, “Phase 2 – Samuels Avenue North/South Valley

Storage Site, Fort Worth Central City, Upper Trinity River, Fort Worth, Texas” (TRVA

Phase II) (61641 app. supp. R4, tab 13 at 1-3). Similar to TRVA Phase I, TRVA Phase II

involved ecosystem restoration projects at the North and South Valley Storage Sites

(61641 app. supp. R4, tab 13 at 3-9).

9. On June 18, 2015, Mr. Evangelista-Ysasaga submitted via email a document

purporting to be a Request for Equitable Adjustment (REA) to CO Wohlbach (61641 R4,

tab 5 at 2-4; 61641 app. supp. R4, tab 1). The REA requested a total sum certain amount

of $1,439,224.03 (61641 app. supp. R4, tab 1 at 35). Mr. Evangelista-Ysasaga certified

the REA under the Defense Federal Acquisition Regulation Supplement (DFARS)

252.243-7002, REQUESTS FOR EQUITABLE ADJUSTMENT. The certification

stated, “I certify that the request is made in good faith, and that the supporting data are

accurate and complete to the best of my knowledge and belief.” (61641 R4, tab 5 at 3;

61641 app. supp. R4, tab 1 at 35) The REA also requested a Contracting Officer’s Final

Decision (COFD). It stated:

[P]lease consider this correspondence our Certified

Request for Equitable Restitution [] and Formal Request

for Contracting Officer’s Final Decision [] under FAR

33.221(c)(2). If a Final Decision cannot be reached within

the prescribed 60 days under FAR 33.221(c)(2) [sic], after

receiving this certified REA, please provide notification

within that 60-day period of time within which a decision

will be issued as mandated under this clause.

(61641 R4, tab 5 at 3; 61641 app. supp. R4, tab 1 at 1)

10. The same day, Ms. Harris replied to the email requesting clarification as to

whether appellant intended the action to be an REA or a Contract Disputes Act (CDA)

claim. Ms. Harris wrote:

4

The certification you have provided is consistent with

DFARS 252.243-7004. That would classify the action as a

request for equitable adjustment (REA). You are also

requesting a Contracting Officer’s Final Decision under

“FAR 33.221(c)(2)” (I am assuming you are referring to

33.211(c)). Contracts Disputes Act (CDA) claims are

covered in Part 33 of the FAR.

...

Because the correspondence does not contain the required

certification for a CDA claim, the Government will process

this action as an REA.

If you wish to have this action processed as a CDA claim

under FAR Part 33, you will need to provide the

appropriate certification.

(61641 R4, tab 5 at 1-2)

11. Later that day, Mr. Evangelista-Ysasaga replied via email, stating that he

intended the submission to be an REA. Mr. Evangelista-Ysasaga wrote, “Yes, we are

aware of the distinction between a Claim and an REA. Our selection to proceed with

an REA was deliberate.” (61641 R4, tab 5 at 1)

12. Appellant submitted amendments to its REA on July 6, 2015 and August 17,

2015 (61641 R4, tabs 7-8). Appellant provided two additional amendments on

December 1, 2015 (61641 R4, tabs 10-11). Mr. Evangelista-Ysasaga certified each of

the REA amendments using the same DFARS certification language found in the initial

REA (61641 R4, tab 7 at 2, tab 8 at 2, tab 10 at 10, tab 11 at 2).

13. On July 12, 2016, CO Wohlbach provided a written response to the REA

and its amendments. CO Wohlbach’s response letter stated, in part:

This does not constitute a final contracting officer’s

decision nor denies your right to resubmit a request for

equitable adjustment under DFAR Clause 252.243-7002,

Requests for Equitable Adjustments, or pursue a dispute

under FAR clause 52.233-1, Disputes. Please ensure if

5

either option is pursued that all requirements of the

appropriate clause are followed.

(61641 R4, tab 12 at 5)

14. On October 11, 2017, appellant submitted an additional amendment to its

REA (61641 R4, tab 9). Again, Mr. Evangelista-Ysasaga certified the submission with

the same DFARS certification language found in the initial REA (61641 R4, tab 9 at 13).

15. On February 28, 2018, Mr. Evangelista-Ysasaga sent Ms. Harris a series of

emails pertaining to appellant’s various contracts; one of which was in reference to the

TRVA Phase II contract (61641 R4, tab 14 at 1-2). The TRVA Phase II email stated,

“DC, as mentioned, we would like [to] meet to negotiate this claim. See attached

Contractor Estimate of Costs” (61641 R4, tab 2 at 1). Attached to the email was a

document titled “Contractor Estimate of Costs (Original vs. Completion),” which

listed a total claimed amount of $2,420,317.53 (61641 R4, tab 2 at 3-56).

16. That same day, Ms. Harris responded via email stating, “I’m not sure what

the Valley Storage 1 and 2 emails are; REAs, claims or just additional information to

supplement existing REAs. Could you please clarify for me?” (61641 R4, tab 14 at 2)

17. On March 6, 2018, appellant’s counsel responded to Ms. Harris’ email.

Appellant’s counsel wrote, “The additional emails on [TRVA] are mainly revised

calculations of damages on the existing [TRVA] claim, dated June 18, 2015.”

(61641 R4, tab 14 at 1)

18. On March 28, 2018, CO Eadie provided a written response to appellant.

CO Eadie’s response letter stated, in part:

I have completed a review of our file for the REA that

Penna Group submitted on W9126G-10-C-0009, TRVA

Phase 2.

...

It is the Government’s position that all issues associated

with the June 18, 2015 REA, and supplements, have been

addressed, the Government will not be reopening

negotiations in this matter.

(61641 R4, tab 3 at 1-2)

6

19. On April 3, 2018, Mr. Evangelista-Ysasaga signed an affidavit regarding

appellant’s various government contracts (61641 app. supp. R4, tab 12 at 7-11). The

affidavit describes a December 7, 2017 meeting with government counsel, Ms. Harris.

The affidavit alleges:

At that meeting, Ms. Harris stated that she expected Penna

Group’s claim to be settled after Ms. Wohlbach retired in

mid-January 2018. Ms. Harris emphasized that the delay was for

the government’s convenience and stated that Ms. Wohlbach’s

absence would help facilitate a settlement of all claims, namely

those for TRVA, Sommerville, and Ray Roberts. She told me

that USACE had certain pots of money and asked that the claims

be revised in part to trigger the types of claims that covered those

areas, such as loss of productivity. We complied and resubmitted

the information requested after Ms. Wohlbach left, as Ms. Harris

had asked. Ms. Harris also assured us that all pending claims

would be fully and fairly considered.

(61641 app. supp. R4, tab 12 at 7, ¶ 4) 4

20. Paragraph 23 of the affidavit states, “Although never specially raised in a

timely fashion as required by 41 USC 7103(b)(3), I recertify all of the pending claims

for in Paragraph 13 above, namely Sommerville ($465,950.55), Ray Roberts ($175,799)

and TRVA ($2,100,37.53) as follows.” The affidavit then provided the CDA’s claim

certification language. (61641 app. supp. R4, tab 12 at 10) Paragraph 13 of the

affidavit included “TRVA Phase 2, Contract No. W9126G-09-C-0014 [sic]”

(61641 app. supp. R4, tab 12 at 8). Appellant provided a copy of the affidavit to the

government that same day (61641 app. supp. R4, tab 12 at 1).

21. On September 27, 2018, Mr. Evangelista-Ysasaga signed a supplemental

affidavit in which he provided, “In paragraphs 13 and 23 of this affidavit, while I

correctly refer to what everyone knows in this appeal is ‘TRVA 2,’ the contract

number is a typo. Instead, the contract number for TRVA 2 is Contract No. W9126G-

10-C-0009, and I make that correction here.” (App. sur reply, ex. 2 at 2)

4 The government does not explicitly confirm or deny whether this meeting occurred,

noting in its reply “Government’s counsel then allegedly stated that she

believed Appellant should wait and settle its pending claims with the new

contracting officer. The alleged enlightenment of Government counsel is not a

special circumstance that would vitiate the release.” (Gov’t reply br. at 7)

7

22. On June 8, 2018, appellant filed a notice of appeal with the Board, which

we docketed as ASBCA No. 61641. The notice of appeal stated that this was an

appeal from the CO’s March 28, 2018 refusal to issue a final decision on its claim.

III. Contract No. W9126G-10-C-0079; ASBCA No. 61643

23. On July 30, 2010, the government awarded Contract No. W9126G-10-C-

0079 to appellant for the design and construction of an office at Somerville Lake, Texas

(Somerville) (61643) R4, tab 4 at 1-4).

24. By letter dated July 8, 2012, appellant submitted an REA to CO Wohlbach

(61643 R4, tab 5 at 2-19). The REA requested a contracting officer’s determination

regarding the assessment of liquidated damages and sought equitable restitution for

various government caused delays (61643 R4, tab 5 at 2-19). On January 2, 2013,

CO Wohlbach sent appellant an email with “questions/clarifications” regarding

appellant’s REA (61643 R4, tab 6 at 932). Appellant responded, by letter dated May 2,

2013, with answers to CO Wohlbach’s questions/clarifications (61643 R4, tab 6 at 38-52).

CO Wohlbach denied appellant’s REA on December 13, 2013 (61643 app. supp. R4,

tab 23 at 1).

25. By letter dated March 13, 2014, appellant requested that the government

convert the previously submitted REA into a claim. The letter stated, “The Penna Group,

LLC [] hereby formally requests that the Government [] convert the previously submitted

REA . . . into a ‘Claim.’” (61643 R4, tab 5 at 1). Accompanying the letter was a claim

certification document, signed and dated March 3, 2014 (61643 R4, tab 5 at 20).

26. By letter dated December 5, 2014, CO Wohlbach issued a COFD on

appellant’s claim (61643 R4, tab 6 at 1-37). The COFD noted that appellant’s “May 2,

2013 response [] shall be considered the ‘Claim’ document. The May 2, 2013 document

contains the entire July 8, 2012 . . . (REA), plus additional information and documents”

(61643 R4, tab 6 at 2).

27. The COFD found partial merit to the claim, determining that appellant was

entitled to $52,239.99. In reaching this figure, the COFD noted that the government

withheld $5,055.20 for Davis-Bacon labor violations. (61643 R4, tab 6 at 36-37) The

COFD also stated:

The proceeds from this Contract are subject to a tripartite

agreement between the Government, Penna and the surety

(SureTec). Pursuant to that agreement, SureTec is to

receive all remaining funds (except the $5055.20 withheld

for labor violations) under this Contract. Further, due to

the IRS levy, SureTec has filed a stakeholder appeal with

8

the ASBCA (ASBCA No. 59657) seeking to enforce the

tripartite agreement against the Government.

No proceeds shall be disbursed until a decision has been

rendered in ASBCA No. 59657.5

(61643 R4, tab 6 at 37) (emphasis in original)

28. Appellant acknowledged receipt of the COFD via email on December 5,

2014 (61643 R4, tab 3 at 105).

29. By letter dated February 28, 2018, appellant submitted a certified claim

requesting a contracting officer’s final decision. Appellant’s letter stated, “We are

submitting our prior request for equitable adjustment, dated July 8, 2012 (‘REA-1’) and

May 2, 2013 (‘REA-2’), as a certified claim. In reviewing the government’s

December 13, 2013 letter responding to the REA, we note that it is rife with errors and

misstatements.” The claimed amount was $465,950.55. The letter did not reference

CO Wohlbach’s December 5, 2014 COFD. (61643 R4, tab 2 at 1-17)

30. By letter dated March 19, 2018, CO Eadie issued a response to appellant’s

February 28, 2018 claim. The response letter stated:

On December 5, 2014, a Contracting Officer’s Final

Decision (COFD) was issued. [] The COFD was sent to

you via e-mail on December 5, 2014 and you

acknowledged receipt on that same day. []

Pursuant to 41 U.S.C. § 606, the time for appeal of the

contracting officer’s final decision has passed.

Accordingly, I decline to consider this matter further.

(61643 R4, tab 3 at 1)

31. On June 8, 2018, appellant filed a notice of appeal with the Board, which

we docketed as ASBCA No. 61643. The notice of appeal stated that this was an

appeal from the CO’s March 19, 2018 denial of its claim.

5 The COFD incorrectly identifies ASBCA No. 59657 as the relevant appeal; the

correct appeal is ASBCA No. 59647.

9

DECISION

I. Motion for Summary Judgment; ASBCA No. 61640

The government moves for summary judgment in ASBCA No. 61640, arguing

that appellant’s claim is barred by the parties’ execution of an unconditional release

and final payment (gov’t mot. at 2-3). Because appellant voluntarily has withdrawn its

appeal in ASBCA No. 61640 (SOF ¶ 7), we deny the government’s motion for

summary judgment as moot.

II. Motion to Dismiss for Lack of Jurisdiction; ASBCA No. 61641

The government moves to dismiss ASBCA No. 61641, arguing that appellant

never requested that its June 18, 2015 submission be converted into a claim and never

provided a CDA claim certification (gov’t mot. at 3). The government stresses that

Mr. Evangelista-Ysasaga’s email stated that he was aware of the distinction between a

claim and REA, and that his selection to proceed with an REA was deliberate (gov’t

mot. at 3; SOF ¶ 11). The government states that to convert an REA into a claim

generally requires requesting a COFD and certification of the claim, which appellant

allegedly failed to do (gov’t reply br. at 6).

Appellant maintains that it did provide a CDA claim certification, that any

defect in the certification is correctable, and that the totality of the circumstances

shows that it submitted a claim (app. resp. at 7). We conclude that appellant’s initial

submission constituted a claim, because it was a non-routine request for a sum certain,

contained a certification, and expressly included a request for a final decision.

Moreover, any doubt concerning whether the submission was a claim was eliminated

when appellant submitted an affidavit referencing the claim and containing the correct

CDA certification language.

An REA is a request from a contractor to a CO to consider adjusting contract

terms. In certain circumstances, contractors prefer to pursue REAs prior to submitting

CDA claims so as to preserve the relationship of the parties during contract

performance, or because they may receive compensation for the work required to

prepare an REA. See generally, Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541

(Fed. Cir. 1995) (overruled in part on other grounds, Reflectone, Inc. v. Dalton,

60 F.3d 1572, 1579, n.10 (Fed. Cir. 1995)). The CDA does not define an REA.

Although the CDA does not define “claim” either, the Federal Circuit has held

that we must look to the FAR for its definition. See, e.g., H.L. Smith, Inc. v. Dalton,

49 F.3d 1563, 1564-65 (Fed. Cir. 1995). FAR 2.101 provides that a claim is “a written

demand or written assertion by one of the contracting parties seeking, as a matter of

10

right, the payment of money in a sum certain, the adjustment or interpretation of

contract terms, or other relief arising under or related to the contract.”

The CDA provides that “[e]ach claim by a contractor against the Federal

Government relating to a contract shall be submitted to the contracting officer for a

decision.” 41 U.S.C. § 7103(a)(1). Consequently, a contractor must request a final

decision in order to submit a proper claim. Hejran Hejrat Co. v. United States Army

Corps of Engineers, 930 F.3d 1354, 1356 (Fed. Cir. 2019) (citing M. Maropakis

Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010).

The record demonstrates that appellant’s June 18, 2015 submission did request

a COFD. The second paragraph states, “please consider this correspondence our

Certified Request for Equitable Restitution [] and Formal Request for Contracting

Officer’s Final Decision [] under FAR 33.221(c)(2). If a Final Decision cannot be

reached within the prescribed 60 days under FAR 33.221(c)(2), after receiving this

certified REA, please provide notification within that 60-day period of the time within

which a decision will be issued as mandated under this clause.” (SOF ¶ 9) 6 This

language unmistakably requests a COFD.

The government maintains that appellant’s request for a COFD is inconsequential

because Mr. Evangelista-Ysasaga’ s subsequent email clarified that he intended the

submission to be an REA, and not a CDA claim (gov’t mot. at 3; SOF ¶ 11).

As an initial matter, we agree with the government that appellant initially

intended its June 18, 2015 submission to be an REA, based upon appellant’s email

response on the same day to Ms. Harris’ question of whether the document was a CDA

claim or REA. Appellant stated: “Yes, we are aware of the distinction between a

Claim and an REA. Our selection to proceed with an REA was deliberate.”

(SOF ¶ 11) We take appellant at its word that it intended the June 18, 2015 submission

to be a REA and not a claim. See Hejran at 1358 (A party in a dispute cannot

retroactively reach back in time and re-characterize a document to their benefit; “The

contracting officer could not retroactively turn a qualifying claim document into

something else.”)

However, despite the appellant’s expressed intent to treat its June 18, 2015

submission as an REA and not a claim, the fact that appellant unequivocally requested

a contracting officer’s final decision squarely classifies appellant’s submission as a

claim. As we recently discussed in BAE Systems, the distinction between an REA and

a claim often comes down to whether the contractor has requested a final decision

6 Appellant’s reference to “FAR 33.221(c)(2)” appears to be an oversight. Appellant

likely intended to reference FAR 33.211(c)(2), as recognized in Ms. Harris’

reply email (SOF ¶ 10).

11

from the CO. BAE Systems Ordnance Systems, Inc., ASBCA No. 62416, 21-1 BCA

¶ 37,800 at 183,577. Citing Reflectone, we noted that even a document referring to

itself as an REA often meets the definition of a claim in that it makes a non- routine

written demand for payment as a matter of right. Id. at 176,424-25 (citing Reflectone,

60 F.3d at 1577). Hence, in Hejran Hejrat, the communication with the CO was

styled as an REA and the contractor disavowed any intention of submitting a claim,

but the Federal Circuit nevertheless held that the document met the FAR’s definition

of a claim. 930 F.3d at 1357-58.

This appeal is distinct from our recent decision in BAE Systems, in which we

found that the contractor’s submissions constituted REAs and not claims. 21-1 BCA

¶ 37,800 at 183,579. The key difference between BAE Systems and this appeal is that

BAE assiduously avoided asking for a final decision, whereas Penna asked for a final

decision on its REA in the first instance.

Appellant’s June 18, 2015 submission contains all the hallmarks of a CDA

claim. It is a written demand for payment, seeking a sum certain amount and final

decision. The only question left for consideration is whether it was properly certified.

A. Whether appellant’s claim was properly certified

Appellant’s June 18, 2015 submission requested a total sum certain amount of

$1,439,224.03 (SOF ¶ 9), and, therefore, was required to be certified. The document

contained certification language that stated, “I certify that the request is made in good

faith, and that the supporting data are accurate and complete to the best of my

knowledge and belief” (SOF ¶ 9). It also stated that it was being certified under DFARS

252.243-7002 (SOF ¶ 9), which is the certification section applicable to REAs.

In BAE Systems, we clarified that the form of the certification is not dispositive.

BAE Systems Ordnance Systems, Inc., ASBCA No. 62416, 21-1 BCA ¶ 37,800 at 183,578.

The CDA requires that all claims over $100,000 in value be certified in accordance with

41 U.S.C. §7103(b). Special Operative Grp., LLC, ASBCA No. 57678, 11-2 BCA

¶34,860 at 171,480 (citation omitted). The DFARs include a special certification to be

used for REAs that does not include all of the statements required for certification of

claims by the CDA’s statutory language. Compare DFAR 252.243-7002 (the DFARs

REA certification provision) to 41 U.S.C. §7103(b). In Air Services, Inc., ASBCA

No. 59843, 15-1 BCA ¶ 36,146 at 176,427, we recognized that the DFARS REA

certification makes both the first and second attestations required by 41 U.S.C.

§ 7103(b)(1). Furthermore, we held that including the DFARS REA certification is

correctible under 41 U.S.C. § 7103(b)(3). Id. Likewise, the REA in Hejran Hejrat,

which the Federal Circuit held to constitute a CDA claim, used the DFARs-prescribed

REA certification language. See Hejran Hejrat Co., ASBCA No. 61234, 18-1 BCA

¶37,039 at 180,322-23. Appellant’s certification of its June 18, 2015 submission,

12

while “defective,” thus requiring later correction, is, nevertheless, sufficient to qualify

the submission as a claim.

The defective certification, in fact, was remedied three years later. On April 3,

2018, appellant submitted an affidavit to the CO referencing many of the ongoing

disputes, including the REA that was the subject of appellant’s June 18, 2015

submission. (SOF ¶¶ 29-30) This affidavit is important, because it references the

parties’ impasse in negotiations and expressly states that appellant recertifies all

pending claims. It also included a signed CDA certification pursuant to 41 USC

¶ 7103(b)(1). (SOF ¶ 30)

The government argues that this is a defective certification, and possibly a false

claim. The government notes that the contract number referenced in paragraph 13 of

the affidavit did not list the contract number for TRVA Phase 2, but rather the contract

number for TRVA Phase 1. (Gov’t reply br. at 8-9) The relevant language from

paragraph 13 says “(1) TRVA Phase 2, Contract No. W9126G-09-C-0014” (SOF

¶ 20). It is clear to us that the incorrect contract number listed in paragraph 13 of the

affidavit was an oversight. This oversight was corrected via a supplemental affidavit,

dated September 27, 2018, which amends the contract number to Contract No. W9126G-

10-C-0009 (SOF ¶ 21).

With regard to the False Claims Act, 31 U.S.C. §§ 3729-33, the government

alleges that at the time Mr. Evangelista-Ysasaga signed the affidavit, he knew that

appellant already had been paid for certain work that was part of its June 18, 2015

REA. The government argues that the affidavit did not distinguish between those

matters that had been settled and the issues that remain unsettled, but rather certified the

entire REA and all amendments and is thereby requesting payment for matters already

settled (gov’t reply br. at 8). The government surmises that this may be a violation of

the False Claims Act.

We are not convinced that Mr. Evangelista-Ysasaga’s affidavit raises any

jurisdictional issues under the False Claims Act. The relevant portion of the affidavit

cited by the government states, “I recertify all of the pending claims for in Paragraph

13 above” (gov’t reply br. at 8; SOF ¶ 20). We note that the affidavit only certifies

appellant’s “pending” claims. Certainly, any matter that was previously settled by the

parties (see e.g. gov’t reply br., ex. N), would not be considered part of a pending

claim. It should also be relatively easy to identify these matters if the parties have a

properly executed modification (see e.g. gov’t reply br., ex. N).

In our view, appellant’s affidavit eliminates any ambiguity about whether its

claim was properly certified, and taken together with the detailed submissions during

the course of negotiations, constitutes a properly certified CDA claim over which we

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possess jurisdiction. Accordingly, we deny the government’s motion to dismiss

ASBCA No. 61641 for lack of jurisdiction.

III. Motion to Dismiss for Lack of Jurisdiction; ASBCA No. 61643

The government moves to dismiss ASBCA No. 61643 for lack of jurisdiction,

arguing that appellant’s February 2018 claim is merely a resubmittal of its March 2014

claim. The government stresses that in December 2014, the CO issued a final decision

on the March 2014 claim, from which no appeal was filed. The government argues

that appellant should not be permitted to escape the consequences of failing to appeal

the COFD simply by resubmitting the same claim. (Gov’t mot. at 3)

Appellant makes two primary arguments asserting the Board’s jurisdiction.

First, appellant maintains that its February 2018 claim contained new language and

new facts that did not appear in its prior claim and were not addressed in the COFD

(app. resp. at 2-3). Second, appellant argues that the COFD was not final, but rather

“contingent on both: (1) the decision by this Board in ASBCA No. 59657 (sic) 7; and

(2) the outcome of a labor investigation” (app. resp. at 4).

A. Comparison of March 2014 and February 2018 Claims

Appellant bears the burden of proving the Board’s subject matter jurisdiction by

a preponderance of the evidence. Colonna’s Shipyard, Inc., ASBCA No. 59987 et al.,

16-1 BCA ¶ 36,518 at 177,900. The CDA provides that “[t]he contracting officer’s

decision on a claim is final and conclusive and is not subject to review by any forum,

tribunal, or Federal Government agency, unless an appeal or action is timely

commenced as authorized by this chapter.” 41 U.S.C. ¶ 7103(g). In order for the

Board to possess jurisdiction over an appeal, a contractor’s notice of appeal must be

mailed or otherwise furnished to the Board within 90 days from the date of receipt of

the final decision. 41 U.S.C. ¶ 7104(a); see Cosmic Constr. Co. v. United States,

697 F.2d 1389 (Fed. Cir. 1982) (90 day filing requirement is statutory and cannot be

waived by the Board).

Appellant’s first claim is dated March 13, 2014 (SOF ¶ 25). On December 5,

2014, the CO issued a final decision on the claim (SOF ¶ 26). Appellant

acknowledged receipt of the COFD on December 5, 2014 (SOF ¶ 28). Appellant never

submitted an appeal of the December 5, 2014 COFD. By letter dated February 28,

2018, appellant submitted another claim (SOF ¶ 29). Appellant filed the current

appeal based on the deemed denial of its February 28, 2018 claim (SOF ¶ 31).

7 The correct appeal number is ASBCA No. 59647.

14

If appellant’s February 2018 claim is the same claim that was previously

submitted and decided by the CO, then we would lack jurisdiction. See SMS Agoura

Sys., Inc., ASBCA No. 50878 et al., 97-2 BCA ¶ 29,321 (dismissing appeal for lack of

jurisdiction where appellant’s claims were the same claims previously denied by the

CO, from which no appeal was filed). Therefore, we must determine whether the

February 2018 claim constitutes a new claim or is the same claim that was previously

submitted and decided.

We have recognized that “[t]he introduction of additional facts which do not

alter the nature of the original claim . . . or the assertion of a new legal theory of

recovery, when based upon the same operative facts as included in the original claim,

do not constitute new claims.” Trepte Constr. Co., ASBCA No. 38555, 90-1 BCA

¶ 22,595 at 113,385-86.

Appellant cites the entirety of the opening paragraph to the February 2018 claim

as one of the primary sources of new language that did not appear in its prior claim

(app. resp. at 2). The opening paragraph begins by stating, “We are submitting our

prior request for equitable adjustment, dated July 8, 2012 [] and May 2, 2013 [], as a

certified claim” (SOF ¶ 29). This language is notably similar to appellant’s March 13,

2014 claim, which begins by stating “[t]he Penna Group, LLC [] hereby formally

requests that the Government [] convert the previously submitted REA . . . into a

‘Claim’” (SOF ¶ 25). In short, both the March 2014 and February 2018 claims

requested that the government convert the same REA into a claim.

The opening paragraph goes on to state, “In reviewing the government’s

December 13, 2013 letter responding to the REA, we note that it is rife with errors and

misstatements” (SOF ¶ 29). Here, we note that while the opening paragraph refers to

the December 13, 2013 REA denial (SOF ¶ 24), it makes no reference to the

December 5, 2014 COFD. In fact, there is no reference to the December 5, 2014

COFD anywhere in the February 2018 claim (SOF ¶ 29).

The remainder of the opening paragraph briefly describes the bases of the

claim. Review of the language shows references to a differing site condition,

government caused delay, extended nonpayment, and over inspection in retaliation for

raising hazardous waste issues on the TRVA contract. It states that this all resulted in

delay labor costs of $465,950.55. For purposes of our inquiry, the most noteworthy

aspect of this language is that each of the bases identified in the opening paragraph are

discussed with reference to specific factual allegations in the remainder of the claim.

This is important because the overwhelming majority of the rest of the claim - that is,

aside from the language in the opening paragraph - is recreated nearly verbatim from

the March 2014 claim.

15

The content of the February 2018 claim and the March 2014 claim are

remarkably similar. Indeed, the entirety of the language from appellant’s July 8, 2012

and May 2, 2013 REA submissions is included in the February 2018 claim. Again,

this is the exact same language that was included in the March 2014 claim.

Nevertheless, appellant argues that it included new language throughout the

February 2018 claim, which makes it a new claim (app. resp. at 2). Appellant states

that the new language adds claims what were not addressed in any COFD (app. resp.

at 2). Review of the claim confirms the presence of some new language. For example,

in the main body of the claim, where appellant specifically details the various bases for

its claim, there are several paragraphs that contain one to two additional sentences at

the end of the paragraph that cannot be found in appellant’s prior submissions. These

additional sentences appear to be appellant’s responses to the government’s December

13, 2013 REA denial as the language consistently refers to appellant’s opposition to

the government’s position. As noted above, appellant’s opening paragraph stressed

that the December 13, 2013 REA denial was “rife with errors and misstatements”

(SOF ¶ 29). Crucially, however, none of this language contain new operative facts that

were not part of appellant’s earlier claim. Instead, the new sentences read more like

appellant’s commentary disagreeing with the CO’s position.

After a thorough review of the March 2014 and February 2018 claims, we conclude

that, while there is some new language included in the February 2018 claim, the new

language did not contain any new operative factual allegations. Moreover, to the

extent that the language raises new legal bases, they are all based on the same

operative facts as included in the original claim. Therefore, the February 2018

submission is not a new claim.

B. Whether the December 2014 COFD was contingent

Appellant also argues that the December 2014 COFD was not actually final.

Appellant states that it was in fact contingent on the Board’s decision in ASBCA

No. 59657 and the outcome of a labor investigation. (App. resp. at 4)

I. Ancillary Board Decision

Appellant maintains that the December 2014 COFD was contingent on the

Board’s decision in ASBCA No. 59657, which is an unrelated appeal having nothing

to do with appellant or this appeal (app. resp. at 4). The government argues that the

finality of the decision was not contingent on any other Board decision, but rather that

the payment on the claim was contingent on the decision (gov’t reply at 2).

The December 2014 COFD stated that no proceeds would disbursed until a

decision has been rendered in a stakeholder appeal involving appellant’s surety,

16

SureTec (SOF ¶ 27). While the COFD stated that the applicable appeal number was

ASBCA No. 59657 (SOF ¶ 27), the correct appeal number was ASBCA No. 59647.

We view the reference to ASBCA No. 59657, instead of ASBCA No. 59647, to

be a typographical error. We believe that the COFD described the appeal in sufficient

detail that appellant could have identified the correct appeal number (see SOF ¶ 27).

We also note that appellant makes no assertion that it actually relied on the inclusion

of the erroneous appeal number during the December 2014 COFD appeal period.

Furthermore, appellant’s argument that the finality of the COFD is somehow

contingent on the outcome of the Board’s decision in either ASBCA No. 59657 or

59647 is not supported by the language in the COFD. The CO’s conclusions regarding

the merits of appellant’s claim are not held open in the COFD. Rather, the COFD

thoroughly analyzed the claim, finding partial merit to it and denying the remainder

(see SOF ¶ 27). There is no language included stating that the CO would reconsider

her conclusions. The language emphasized by appellant merely puts appellant on

notice that the payment amount it should expect to receive will depend on the outcome

of this ancillary appeal. It takes nothing away from the finality of the decision itself.

II. Labor Investigation

Additionally, appellant maintains that the COFD was not final because of an

alleged ongoing labor investigation (app. resp. at 4). Appellant’s argument is

apparently in reference to the portion of the COFD that withheld $5,055.20 for

Davis-Bacon labor violations (SOF ¶ 27).

The COFD does not mention any pending labor investigation, nor does it purport

to make any findings concerning any alleged labor violations. Instead, the COFD

simply notes that $5,055.20 of the contractor’s final payment “is being withheld for

Davis-Bacon violations (nonsubmittal of payrolls).” (SOF ¶ 27) The government is

entitled to withhold these funds pursuant to provisions of the Davis-Bacon Act. See,

e.g., 42 U.S.C. § 3142(c)(3) (pertaining to wage rate violations) and 42 U.S.C. § 3702(d)

(pertaining to overtime violations). The contracting agency’s decision to withhold

unpaid wages has no effect on the finality of the contracting officer’s final decision, but

merely provides notice to the contractor that the government was withholding a portion

of the final payment pursuant to the Davis-Bacon Act.

Moreover, nothing in the COFD indicates that it is contingent on the findings of

a pending labor investigation. Appellant’s reliance on Wilson, ASBCA No. 47831,

97-1 BCA ¶ 28911, is misplaced. Wilson addressed a situation where the CO elected

to reconsider his decision within the time allowed by the CDA for the appeal of the

decision, thereby preventing the decision from becoming final. Here, the CO did not

17

withdraw or reconsider her decision, but expressly stated that her decision was final

(SOF ¶ 27).

Accordingly, we grant the government’s motion to dismiss ASBCA No. 61643

for lack of jurisdiction.

III. Appellant’s Motion for Limited Discovery in ASBCA Nos. 61640, 61641, 61643

Lastly, appellant has filed motions for limited discovery in ASBCA Nos. 61640,

61641, 61643. With regard to ASBCA No. 61640, appellant argues that it needs limited

discovery to identify material facts essential to its opposition to the government’s motion

for summary judgment (app. mot. at 4-8). We view this motion as moot given that we

have already denied the government’s motion for summary judgment because material

facts are in dispute.

With respect to the government’s motions to dismiss for lack of jurisdiction in

ASBCA Nos. 61641, 61643, appellant states that the government has relied on

evidence outside the pleadings, thereby necessitating their conversion to motions for

summary judgment. As such, appellant says it needs limited discovery to show

genuine issues of material fact. (App. mot. at 4-8)

Under certain circumstances, the Board will convert a motion to dismiss into a

motion for summary judgment. It is the Board’s practice to convert a motion to

dismiss for failure to state a claim upon which relief can be granted or a motion for

judgment on the pleadings to a motion for summary judgment if we need to consider

matters outside of the claim and the complaint to decide them. See, e.g., Third Coast

Fresh Distrib., LLC, ASBCA No. 59696, 16-1 BCA ¶ 36,340; Precision Standard,

Inc., ASBCA No. 54027, 03-2 BCA ¶ 32,265; see also FED. R. CIV. P. 12(d). That is

not the case for a motion to dismiss for lack of jurisdiction, for which consideration of

evidence outside of the pleadings is routine and permissible when jurisdictional facts

are disputed. See, e.g., Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746,

747 (Fed. Cir. 1988). In any event, there is no basis to convert the government’s

motions to dismiss into motions for summary judgment and there is no need for

discovery upon the only motion to dismiss which we granted, since it turned upon the

contents of the pertinent claims documents and COFD, which are not in dispute.

Accordingly, we deny appellant’s motions for limited discovery.

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CONCLUSION

We deny, as moot, the government’s motion for summary judgment in ASBCA

No. 61640. We deny the government’s motion to dismiss ASCBA No. 61641. We

grant the government’s motion to dismiss ASBCA No. 61643. Additionally, we deny

appellant’s motions for limited discovery.

An order addressing further proceedings in these appeals will follow.

Dated: August 25, 2021

KENNETH D. WOODROW

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD 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. 61640, 61641, 61642,

61643, 61708, Appeals of Penna Group, LLC, rendered in conformance with the

Board’s Charter.

Dated: August 30, 2021

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

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