Opinion

Derian, Inc.

Court
Armed Services Board of Contract Appeals
Filed
Feb 1, 2023
Status
Published
On the bench
Young
Cited by
0 cases
Authority
More cited than 22.6%

The opinion

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of - )

)

Derian, Inc. ) ASBCA No. 63283

)

Under Contract No. W912EF-20-C-0029 )

APPEARANCE FOR THE APPELLANT: Mr. Mark Jensen

President

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

Engineer Chief Trial Attorney

Theresa L. Hampson, Esq.

Deputy District Counsel

U.S. Army Engineer District, Walla Walla

OPINION BY ADMINISTRATIVE JUDGE YOUNG

ON THE GOVERNMENT’S MOTION TO DISMISS

Derian, Inc. (Derian or appellant) filed a notice of appeal alleging the contracting

officer had not issued a timely decision. Appellant did not include a copy of a purported

claim or any other documentation about the contract. The U.S. Army Corps of Engineers

(USACE) Walla Walla District (government) filed a motion to dismiss for lack of

jurisdiction alleging appellant did not submit a claim to the contracting officer. The

Contract Disputes Act (CDA), 41 U.S.C. §§7101-7109, is applicable. For the reasons

stated below, the appeal is dismissed.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. On May 3, 2022, appellant submitted correspondence to the Board stating as

follows:

USACE Walla Walla District refuses to issue timely

responses or decisions; therefore, Derian considers these

actions a deemed denial. USACE is unreasonably delaying

final contract completion and payment.

Owner: USACE Walla Walla District

Contact: Jani Long Jani.C.Long@usace.army.mil

Contractor: Derian, Inc.

Contract: W912EF-20-C-0029

Title: McNary Unwatering Upstream Sump Repair

Project Substantial Completion: September 2021

Modifications:

Electrical/Fire: USACE issued January 2021

Derian response February 2021

USACE response March 2022

Negotiations fail March 2022

USACE refuses to issue unilateral modification or respond

P-10 Pump: Performance test completed August 2021

USACE informs Derian mod issuance/final acceptance

forthcoming in September 2021

USACE refuses to respond

Final closeout and payment pending issuance of modifications.

(Notice of appeal at 1)

2. On May 17, 2022, the Board docketed appellant’s correspondence as ASBCA

No. 63283.

3. On June 15, 2022, the government filed a motion to dismiss for lack of

jurisdiction, arguing that appellant did not submit a claim to the contracting officer.

4. On June 22, 2022, the Board issued an Order directing appellant to respond to

the motion within 30 days of the Order.

5. Appellant did not file a response as directed. On August 23, 2022, the

government submitted correspondence to the Board noting that appellant had failed to

respond within the timeframe directed by the Board. (Gov’t. corr. dtd. August 23, 2022)

6. On August 24, 2022, the Board issued an Order directing appellant to file an

opposition to the government’s motion if appellant elected to do so, within 14 days of the

date of the Order.

7. To date, appellant has not submitted a response to the government’s motion to

dismiss for lack of jurisdiction, or any other correspondence to the Board.

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DECISION

“It is axiomatic that, in order for this Board to review an appeal under the CDA,

there must be an underlying claim.” Golden Build Co., ASBCA No. 62294, 20-1 BCA

¶ 37,649 at 182,774 (citing Parsons Evergreene, L.L.C., ASBCA No. 57794, 12-2 BCA

¶ 35,092 at 122,346). The CDA requires that “each 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). A valid claim from a contracting officer’s final

decision is a prerequisite to jurisdiction by the Board. See Parsons Glob. Servs., Inc. v.

McHugh, 677 F.3d 1166, 1170 (Fed. Cir. 2012).

Here, appellant’s submission of May 3, 2022 (SOF ¶ 1) contains no information as

to whether a claim was submitted to the contracting officer. Appellant simply states that

the government “refuses to issue timely responses or decisions” which Derian considers a

deemed denial (app. corr. dtd. May 3, 2022). Nothing in the record supports that Derian

submitted a claim to the contracting officer. Despite multiple Orders to respond,

appellant has not provided any evidence that a claim was submitted to the contracting

officer. Therefore, we must grant the government’s motion to dismiss for lack of

jurisdiction.

CONCLUSION

The appeal is dismissed for lack of jurisdiction.

Dated: February 1, 2023

LIS B. YOUNG

Administrative Judge

Armed Services Board

of Contract Appeals

(Signatures continued)

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I concur I concur

RICHARD SHACKLEFORD OWEN C. WILSON

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 No. 63283, Appeal of Derian,

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

Dated: February 1, 2023

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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