Name Redacted, ASBCA No. 60597

Background

The Army awarded a construction contract (W91B4M-09-C-7088) for FOB Muqor, Afghanistan, which was terminated for convenience in October 2011.
The contractor claimed it had purchased materials and incurred costs and attempted to submit a settlement proposal; communications with contracting officers occurred in 2012 seeking a settlement proposal.
A document labeled "Settlement Proposal" (undated, unsigned, uncertified, lacking backup) listing $649,807 was produced to government counsel in 2016 but was not found in the government contract file.
In November 2012 the contracting officer made a $123,200 counteroffer for labor and equipment which the contractor accepted by email; the government promised payment but failed to pay.
The contractor filed an appeal with the Board on 25 May 2016 seeking $649,807 (docketed ASBCA No. 60597). The government moved to dismiss for lack of jurisdiction, arguing no certified claim or contracting officer final decision existed for amounts over $100,000.
The Board found no certified claim in the record and dismissed ASBCA No. 60597 for lack of jurisdiction; a separate appeal (ASBCA No. 60915) remains based on the contracting officer’s November 3, 2016 final decision on the May 25, 2016 submission.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellant submitted a CDA claim sufficient to invoke Board jurisdiction	Appellant says it submitted a claim/BOQ in May 2011 and later submitted a settlement proposal and accepted the $123,200 offer	Government says no certified claim over $100,000 was submitted and no contracting officer final decision existed when appeal was filed	No jurisdiction: record contains no certified claim for amount > $100,000 and no final decision on such a claim
Whether a settlement proposal can ripen into a claim	Appellant implicitly contends its settlement proposal and follow-up communications constituted a claim	Government treats the documents as settlement negotiation, not a CDA claim	Settlement proposals may become claims, but here the record is incomplete and lacks certification for > $100,000, so ripening (if any) does not confer jurisdiction
Whether a later contracting officer final decision (Nov 3, 2016) cures jurisdictional defect for the May 25, 2016 appeal	Appellant relies on subsequent CO action	Government supplemented file and issued a final decision only after litigation began	The Board dismissed ASBCA No. 60597 for lack of jurisdiction; the November 3, 2016 decision gave rise to a separate appeal (ASBCA No. 60915) but did not revive the dismissed appeal
Whether the contractor’s informal email acceptance created an enforceable final agreement	Contractor asserts acceptance of $123,200 and that government promised payment	Government points to lack of payment and need for contracting officer final decision	Board did not award relief in this appeal due to jurisdictional defect; entitlement to $123,200 was recognized in the later CO decision (forming separate appeal)

Key Cases Cited

James M. Ellett Constr. Co. v. United States, 93 F.3d 1537 (Fed. Cir.) (settlement proposals ordinarily are not CDA claims but can ripen into claims under certain circumstances)