ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Maersk Line Limited, Inc. ) ASBCA No. 58779
)
Under Contract No. HTC-711-09-D-0040 )
APPEARANCES FOR THE APPELLANT: Elizabeth A. Ferrell, Esq.
John W. Sorrenti, Esq.
McKenna Long & Aldridge LLP
Washington, DC
Of Counsel:
Michael A. Hopkins, Esq.
General Counsel
Patrick H. McCaffery, Esq.
Associate General Counsel
APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF
Air Force Chief Trial Attorney
Christopher S. Cole, Esq.
Maj Donald N. Bugg, USAF
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PEACOCK
ON GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The government asserts that the captioned appeal involves a dispute for resolution
by the General Services Administration (GSA) pursuant to its authority under section 322
of the Transportation Act of 1940 (Transportation Act), 31 U.S.C. § 3726. The
government therefore moves to dismiss this appeal, arguing that the Board lacks
jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, to consider
matters arising under the Transportation Act. We deny the motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. The United States Transportation Command (USTRANSCOM or government) and
Maersk Line Limited, Inc. (Maersk or appellant) entered into Contract
No. HTC-711-09-D-0040 (the contract or the USC-06 1 contract) on 30 January 2009 for the
provision of "international cargo transportation and distribution services using ocean common
1
USC is an abbreviation for Universal Services Contract.
or contract carriers ... offering regularly scheduled commercial liner service for requirements
that may arise in any part of the world" (R4, tab 1 at 1, 52). The contract was solicited as a
commercial item contract pursuant to the Federal Acquisition Regulation (FAR) (compl. and
answer ~ 18).
2. The contract's Performance Work Statement at section 2.A stated that the
contract "is not subject to terms or conditions of Contractors' tariffs except for war risk
or as otherwise specified in this contract" (R4, tab 1 at 52). Instead, the contract schedule
provided that payment was to be made at rates in the Carrier Analysis and Rate
Evaluation System (CARES), and various adjustment factors set forth in the contract (id.
at 3-4, 6-16).
3. The contract was an indefinite delivery/indefinite quantity commercial item
contract with an initial base period of 1 April 2009 through 31 March 2010, in the
estimated amount of approximately $316 million, and included two one-year option
periods (R4, tab 1 at 3-4, 19; compI. and answer~~ 18, 21 ). Although the contract was
"primarily for requirements sponsored by the [Department of Defense]," the contract
permitted "[o]ther organizations [to] fill their requirements through this contract only as
designated by the Contracting Officer" (R4, tab 1 at 52). 2
4. The contract incorporated numerous FAR and DFARS clauses by reference or
by full text. FAR 52.216-18, ORDERING (OCT 1995), incorporated into the contract by
full text, provided in pertinent part: "(b) All delivery orders or task orders are subject to
the terms and conditions of this contract. In the event of conflict between a delivery
order or task order and this contract, the contract shall control." (R4, tab 1 at 16-28)
5. The contract also incorporated by reference FAR 52.212-4, CONTRACT TERMS
AND CONDITIONS - COMMERCIAL ITEMS (FEB 2007), which provided in pertinent part:
(d) Disputes. This contract is subject to the Contract
Disputes Act of 1978, as amended (41 U.S.C. 601-613).
Failure of the parties to this contract to reach agreement on
any request for equitable adjustment, claim, appeal or action
arising under or relating to this contract shall be a dispute to
be resolved in accordance with the clause at FAR 52.23 3-1,
Disputes, which is incorporated herein by reference.
(R4, tab 1at16) FAR 12.302(b), applicable to commercial item procurements, prohibits
the tailoring of certain paragraphs within FAR 52.212-4 that "implement statutory
requirements," including the Disputes paragraph quoted above.
2
Under the present record, it is unclear whether any of the relevant task orders were
issued by non-Department of Defense agencies.
2
6. FAR 52.233-1, DISPUTES (JUL 2002), incorporated into the contract by
reference by virtue of FAR 52.212-4(d), similarly provided in pertinent part:
(a) This contract is subject to the Contract Disputes
Act of 1978, as amended ....
(b) Except as provided in the Act, all disputes arising
under or relating to this contract shall be resolved under this
clause.
7. The contract further incorporated by reference DFARS 252.233-7001, CHOICE
OF LA w (OVERSEAS) (JUN 1997), which provided in pertinent part:
By the execution of this contract, the Contractor
expressly agrees ... to accept the exclusive jurisdiction of the
United Stated Armed Services Board of Contract Appeals and
the United States Court of Federal Claims for hearing and
determination of any and all disputes that may arise under the
Disputes clause of this contract.
(R4, tab 1 at 17)
8. The contract also included, by full text, FAR 52.212-5, CONTRACT TERMS AND
CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS - COMMERCIAL
ITEMS (JUN 2008) (DEVIATION). Paragraphs (a)(l) and (a)(2) of the clause provided the
Comptroller General, or an authorized representative, the right to examine "directly
pertinent records involving transactions related to" the contract until three years after
final payment under the contract. (R4, tab 1 at 17)
9. On 24 April 2012, USTRANSCOM notified Maersk that GSA intended to
conduct post-payment audits of the invoices submitted under the contract (compl. and
answer if 3).
10. As a result of its audit, GSA issued numerous Notices of Overcharge to
Maersk, alleging that Maersk overcharged the government for services provided under
the contract (comp I. and answer if 4 ). Each overcharge notice stated that the
"OVERCHARGE AMOUNT SHOULD BE PROMPTLY REFUNDED OR EVIDENCE
FURNISHED TO SUPPORT CHARGES ORIGINALLY PAID; OTHERWISE,
COLLECTION ACTION MUST BE INITIATED PURSUANT TO 31 U.S.C. 3726."
The Notices of Overcharge directed Maersk to "MAKE CHECK PAYABLE TO
'GENERAL SERVICES ADMINISTRATION."' The Notices of Overcharge further
stated that GSA was assessing interest under the Debt Collection Act of 1982, unless
3
"THE GBL [Government Bill of Lading] OR THE GTR [Government Transportation
Request] CONTAINS A CONTRACT PROVISION RELATING TO THE
ASSESSMENT OF INTEREST," in which case interest would be "CHARGED UNDER
THE CONTRACT TERMS." Lastly, the Notices of Overcharge directed Maersk to send
any protest of the overcharge notices to GSA. (R4, tabs 2-13)
11. In response to the Notices of Overcharge, Maersk submitted a "request for a
contracting officer's decision, concerning the legal and contractual legitimacy of the
[GSA's] Notice of Overcharge claims" to the USTRANSCOM contracting officer (CO),
by letter dated 20 March 2013. Maersk sought a decision "confirming that the[] GSA
Notices are not authorized determinations of contract debts, demands for payment, or
Government contract claims." After discussing the Notices of Overcharge, Maersk stated
in pertinent part:
[I]t is our position that, because the USC-06 is a FAR-based
contract, only a designated contracting officer for USC-06 has
the legal authority to identify and demand payment of
contract debts, and to issue a final decision regarding such
debt ifthe parties are unable to reach agreement on the
existence or amount of the debt in a timely manner. FAR
§§ 32.602(a), 32.604(a), 32.605(a). It is also Maersk's
position that the calculation of interest on contract debts
under USC-06 is governed by FAR§ 32.604(b). In addition,
Maersk concurs with the ASBCA's holdingl3 1 "that the CDA
governs the resolution of disputes relating to FAR-based
transportation contracts" like USC-06, including disputes
relating to alleged contract debts. Maersk's position is based
on the plain language of the CDA, relevant FAR provisions,
the terms of USC-06, as well as binding ASBCA precedent.
Determination of contract debts, demands for payment
and contract claims under FAR-based transportation contracts
are the stated responsibility of the contracting officer. Any
disputes regarding this determination and demand for
payment are subject to the dispute resolution procedures in
the USC-06 as governed by the CDA. Because GSA's Notice
of Overpayment (and the protest procedures included therein)
is not consistent or compatible with the provisions of the
3
Maersk refers to this Board's decision in Maersk Line, Ltd., ASBCA No. 55391,
07-2 BCA if 33,621.
4
CDA, FAR or the USC-06, we request a contracting officer's
final decision on the claim below.
Request for Contracting Officer Final Decision
... Maersk hereby requests a timely contracting
officer's final decision under FAR 33 .211 confirming that the
GSA Notices of Overcharge are not authorized
determinations of contract debts, demands for payment, or
Government contract claims under the USC-06 contract,
specifically:
1. Confirming that GSA's Notice of Overcharge does not
comply with the requirements for a "demand for
payment" and contract "debts" under FAR 52.212-4
and Subpart 32.6.
2. Confirming that GSA's Notice of Overcharge,
including the Notice's requirement for "payment or
protest," is not consistent with FAR 52.212-4(d).
3. Confirming that GSA Transportation Audit Division's
assertion of a right to address Maersk "protests" of
Notices of Overpayment under the authority of the
Transportation Act (31 U.S.C. § 3726) is not consistent
with FAR 52.233-l(b).
4. Confirming that there is no basis under any USC-06
contract terms or FARIDF ARS provisions for GSA
Transportation Audit Division to assert right to
payment, collection and adjudication ofMaersk
"protests" of Notices of Overpayment under the
authority of the Transportation Act (31 U.S.C. § 3726).
Maersk concluded by stating that the "claim addresses contract interpretation issues
only, and do [sic] not address the monetary amount(s) which are the subject of GSA's
overpayment claims," and requesting a final decision within 60 days. (App. supp. R4,
tab 35)
12. USTRANSCOM CO William R. Lindquist issued a "Contracting Officer's Final
Decision [dated 24 April 2013] on General Services Administration's Notice of Overcharge
Claims Submitted to Maersk for Shipments Under Contract HTC-711-09-D-0040." The CO
stated that "[t]he Contracting Officer took no action to collect overpayments owed to the
5
Government due to the GSA post-payment audits and the Notices of Overcharges are not the
result of any Contracting Officer action." Citing FAR 33.210 as authority for addressing
claims "for penalties or forfeitures prescribed by statute or regulation that another Federal
agency is specifically authorized to administer, settle, or determine," the CO considered that
he "lack[ ed] the authority to decide or resolve GSA Notices of Overcharge submitted to
Maersk for shipments under USC-06." (App. supp. R4, tab 36)
13. By Notice of Appeal dated 17 July 2013, Maersk timely appealed to the Board
from the CO's 24 April 2013 final decision. In its Notice of Appeal, Maersk stated that
its appeal raised a jurisdictional issue of "whether Government claims for overcharges
arising under a FAR-based contract for transportation services are governed by the
Transportation Act or the CDA." The Board docketed the appeal as ASBCA No. 58779.
DECISION
The government maintains that the proper means of resolving the present dispute
lies under the dispute resolution procedures prescribed by the Transportation Act and its
implementing regulations, and not under the CDA (gov't mot. at 4-5; gov't reply br. at 1).
In its motion, the government concedes that the contract at issue is a FAR-based
transportation services contract covered by the CDA. Nonetheless, it contends that
disputes concerning contractual payments for transportation services are governed by the
Transportation Act and the GSA disputes process. Appellant contends that its request for
a contracting officer's final decision was a proper CDA claim seeking the interpretation
of contract terms over which the Board has jurisdiction pursuant to the CDA (app. opp'n
at 6-9). The government's motion raises two primary questions: whether the CDA or
Transportation Act's dispute resolution procedures applies, and whether appellant's
20 March 2013 request for a contracting officer's final decision constitutes a proper claim
under the CDA.
Applicability of the CDA
The Transportation Act of 1940, in addition to adopting the short title "Interstate
Commerce Act" (ICA) and making major revisions to the structure of the ICA, contains
Title III, Miscellaneous, Part II, Rates on Government Traffic. Pub. L. No. 785, §§ 321,
322, 54 Stat. 898, 954-55. Under the ICA, a carrier is required to publish tariffs, and a
carrier violates the ICA if it charges a rate different than its published tariffs. 49 U.S.C.
§ 13702. Section 322 of the Transportation Act (codified as amended at 31 U.S.C.
§ 3726) authorizes GSA to conduct "pre- or post-payment audits of transportation bills
of any Federal agency." 31 U.S.C. § 3726(b). Section 322 further establishes
administrative dispute resolution procedures for disputes concerning transportation
6
claims between a carrier and an agency. 4 A carrier may seek further review by the
Civilian Board of Contract Appeals or the United States Court of Federal Claims.
31U.S.C.§3726(i)(l); 41C.F.R.§102-118.650.
In contrast to section 322's dispute resolution procedures, the CDA grants this
Board jurisdiction over claims arising under or relating to contracts made by the
Department of Defense, the military departments, or the National Aeronautics and Space
Administration for, inter alia, the procurement of services. 41 U.S.C. §§ 7101-7109.
4
The Section states in pertinent part:
(c)( 1) The Administrator shall adjudicate transportation
claims which cannot be resolved by the agency procuring the
transportation services, or the carrier or freight-forwarder
presenting the bill.
(2) A claim under this section shall be allowed only if it is
received by the Administrator not later than 3 years
(excluding time of war) after the later of the following dates:
(A) The date of accrual of the claim.
{B) The date payment for the transportation is made.
{C) The date a refund for an overpayment for the
transportation is made.
(D) The date a deduction under subsection (d) of this
section is made.
(d) Not later than 3 years (excluding time of war) after the
time a bill is paid, the Government may deduct from an
amount subsequently due a carrier or freight forwarder an
amount paid on the bill that was greater than the rate allowed
under-
(1) a lawful tariff under title 49 or on file with the
Secretary of Transportation with respect to foreign air
transportation (as defined in section 40102(a) of title 49),
the Federal Maritime Commission, or a State
transportation authority;
(2) a lawfully quoted rate subject to the jurisdiction of
the Surface Transportation Board; or
(3) sections 10721, 13712, and 15504 of title 49 or an
equivalent arrangement or an exemption.
31 u.s.c. § 3726.
7
In Dalton v. Sherwood Van Lines, Inc., 50 F.3d 1014 (Fed. Cir. 1995), the Federal
Circuit addressed whether the CDA applied where a Government Bill of Lading (GBL)
serves as the contract between the parties. The Federal Circuit determined that Sherwood
Van Lines had provided transportation services to the Navy under the Transportation Act.
The court held that the dispute resolution procedures established by the Transportation
Act, 31 U.S.C. § 3726, governed, not the CDA. Id. at 1018-20. In reaching its
conclusion, the court stated that "Congress did not intend the general provisions of the
[CDA] to supplant the pre-existing system of administrative review specifically designed
for transportation services subject to Section 3726." Id. at 1018. The Federal Circuit
further concluded that such simple, individual GBL-based "spot movements" are better
suited to section 3726's informal procedures than the more formal CDA procedures,
emphasizing that bills of lading are explicitly exempted from the FAR. Id. at 1019
(citing FAR 47.000(a)(2), 47.200(b)(2)). The court, however, limited its decision to
"cases in which the government obtains transportation services from a common carrier
pursuant to 49 U.S.C. § 10721 l 5l and in which the GBL constitutes the contract between
the parties," reserving the question of the applicability of the CDA to claims relating to
long-term transportation contracts. Id. at 1020.
The Federal Circuit addressed whether the CDA applied to claims arising from
long-term contracts in Inter-Coastal Xpress, Inc. v. United States, 296 F.3d 1357 (Fed. Cir.
2002). Inter-Coastal sought to recover holdover charges under three separate three-year
tender agreements with the Defense Logistics Agency. Id. at 1359-60. Each tender
agreement stated that Inter-Coastal was providing transportation services "pursuant to
Section 10721 of the Interstate Commerce Act, or other appropriate regulatory authority."
Id. at 1360. After availing itself of the dispute resolution procedures in 31 U.S.C. § 3726,
Inter-Coastal brought suit in the Court of Federal Claims, which dismissed most of
Inter-Coastal's claims because it had failed to file suit within the three-year filing period
prescribed by the ICA, 49 U.S.C. § 14705. Id at 1361-65. On appeal, Inter-Coastal
argued that the CDA, not the ICA, governed its suit to recover the holdover charges. Id.
at 1365.
The Federal Circuit affirmed, holding that the ICA "govern[s] disputes concerning
contracts for transportation services with the government." Id. at 1366. The Federal
Circuit observed that 49 U.S.C. § 14705 "draws no distinction between transportation
services governed by a Government Bill of Lading on the one hand and a long-term
contract on the other." Id. With regard to 31 U.S.C. § 3726, the court stated that "[i]t too
makes no distinction based on the number of deliveries, the complexity of the
transportation agreement, whether an agreement resulted from the procurement process
or instead from a 'spot movement,' or whether a GBL or a tender agreement (or both)
5
Subsequent to the Federal Circuit's decision in Sherwood Van Lines, Congress passed
the ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803, which
recodified section 10721at49 U.S.C. §§ 10721, 13712.
8
formed the parties' contract." Id. at 1367. The court found it instructive that
section 3726's implementing regulations indicate "that the ICA administrative procedures
apply equally to transportation-services contracts formed by a GBL or by a tender
agreement, as well as other forms of contracts." Id. at 1368.
In contrast, the FAR applies to the acquisition of "transportation or transportation-related
services by contract methods other than bills of lading, transportation requests, transportation
warrants, and similar transportation forms." FAR 47.000(a)(2). In this regard, the FAR
notes that "transportation services can be obtained by acquisition subject to the FAR or by
acquisition under 49 U.S.C. 10721 or 49 U.S.C. 13712." Id. The Defense Transportation
Regulation (DTR) similarly recognizes that the Department of Defense "uses a number of
different procurement instruments" to acquire transportation services, including "FAR contracts,
Bills of Lading (BLs), government transportation requests, and similar transportation forms."
DTR 4500.9-R, Part II, ch. 201, ~ L.12 (citations omitted). Although the DTR instructs that
payment disputes under non-FAR-based contracts are governed by 31 U.S.C. § 3726 and its
implementing regulations, with regard to FAR-based contracts the DTR provides that
"Protests and Disputes are governed by 48 CFR 33 [FAR Part 33]." Id.~~ N.l.b, N.5.
In light of these regulations, we have held that "Inter-Coastal merely extended the
Sherwood Van Lines holding, i.e., spot movement of property by a common carrier using a
GBL to long-term (three-year) tender agreements," noting that in both cases the carrier had
provided transportation services pursuant to the Transportation Act. Maersk, 07-2 BCA
~ 33,621at166,525. We have further determined that, as part of the Transportation Act, "the
administrative dispute resolution procedure in 31 U.S.C. § 3726 ... applies when transportation
services are provided under that Act (49 U.S.C. §§ 10721, 13712)." Eimskipafeleg Island,
ehf, ASBCA No. 55209, 07-2 BCA ~ 33,620 at 166,518. Therefore, as the Board held in
Maersk, ''the CDA governs resolution of disputes relating to FAR-based transportation
contracts, and 31 U.S.C. § 3726 governs resolution of claims relating to Transportation Act
non-FAR-based contracts." 07-2 BCA ~ 33,621 at 166,526.
In both Eimskipafeleg and Maersk, we found that the contracts were not entered
into pursuant to the Transportation Act, but rather, pursuant to the FAR. Eimskipafeleg,
07-2 BCA ~ 33,620 at 166,518; Maersk, 07-2 BCA ~ 33,621at166,525. Both
Eimskipafeleg and Maersk involved contractor claims under FAR-based commercial item
contracts for transportation services. Eimskipafeleg, 07-2 BCA ~ 33,620 at 166,518;
Maersk, 07-2 BCA ~ 33,621 at 166,521. The contracts at issue in each case included
FAR 52.212-4 and FAR 52.233-1, which specified that the contracts were subject to the
CDA. Eimskipafeleg, 07-2 BCA ~ 33,620 at 166,514; Maersk, 07-2 BCA ~ 33,621
at 166,521-22. Accordingly, we determined, in each case, that the Transportation Act's
dispute resolution procedures did not apply. Eimskipafeleg, 07-2 BCA ~ 33,620
at 166,519 ("We conclude that the Transportation Act administrative dispute resolution
procedure in 31 U.S.C. § 3726 is inapplicable."); Maersk, 07-2 BCA ~ 33,621 at 166,526
("[The] dispute resolution procedures set out in 31 U.S.C. § 3726 and its implementing
9
regulations have no application to the two FAR-based contracts involved in this
appeal."). We therefore held that the Board had jurisdiction over each appeal pursuant to
the CDA. Eimskipafeleg, 07-2 BCA iJ 33,620 at 166,519; Maersk, 07-2 BCA iJ 33,621
at 166,526.
Maersk asserts that the USC-06 contract is a commercial item FAR-based contract
for transportation services subject to the CDA (app. opp'n at 3-4). The government does
not dispute that the USC-06 contract is a FAR-based contract (gov't mot. at 1-2; gov't
reply br. at 1). The government solicited the USC-06 contract pursuant to the FAR
(SOF iJ 1). The USC-06 contract included numerous FAR clauses, which are routinely
considered and analyzed by the Board, including FAR 52.212-4 and FAR 52.233-1,
which specify that the USC-06 contract is subject to the CDA (SOF iii! 5-6). The contract
prescribed its own, discrete contractual rate schedule (CARES) and expressly stated that
the contractor's extant tariffs were not applicable (SOF iJ 2). We therefore conclude that
disputes arising under or relating to the FAR-based USC-06 contract are governed by the
CDA.
In his final decision, the CO took the position that he lacked authority by virtue of
FAR 33.210 to resolve the overpayments dispute (gov't mot. at 3; gov't reply br. at 1).
FAR 33.210 states, in pertinent part, that a contracting officer's "authority to decide or
resolve claims does not extend to - (a) A claim or dispute for penalties or forfeitures
prescribed by statute or regulation that another Federal agency is specifically authorized
to administer, settle~ or determine." FAR 33.210(a) derives from 41 U.S.C. § 7103(a)(5),
which excludes such "claim[s] or dispute[s] for penalties or forfeitures" from claims
under the CDA. There is no basis to suggest that these payments are anything other
than routine. The GSA's Notices of Overcharge simply do not fall within the
section 7103(a)(5) exclusion. As we noted in Midwest Window Systems, Inc., ASBCA
No. 25035, 82-2 BCA iJ 16,055 at 79,654 (citations omitted) the CDA's legislative
history is "silent as to what Congress meant by 'penalties and forfeitures."' However,
31 U.S.C. § 3726, titled "Payment for transportation," does not use either term. 6 Nor is
the collection of alleged overpayments a "penalty" or a "forfeiture" within the common
meaning of those terms. See BLACK'S LAW DICTIONARY 661, 1153-54 (7th ed. 1999).
In any event, the government's motion does not argue or rely on the "penalties or
forfeiture" exception to CO authority.
Whether Appellant Submitted a Valid CDA Claim
Submission of a claim to the contracting officer and a decision on, or deemed
denial of, the claim are prerequisites to the Board's jurisdiction over contractor claims
6
Section 3726( e) describes the collection of overpayments under that section as
"refunds." The GSA Notices of Overcharge likewise directed Maersk to refund
the alleged overpayments (SOF iJ 10).
10
under the CDA. 41 U.S.C. §§ 7103-7104; Parsons Global Servs., Inc., ASBCA
No. 56731, 11-1BCAif34,632 at 170,653; Madison Lawrence, Inc., ASBCA No. 56551,
09-2 BCA if 34,23 5 at 169,206. 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, the adjustment or interpretation of contract terms, or
other relief arising under or relating to the contract." FAR 2.101. We interpret the FAR
definition of a claim broadly. Todd Constr., L.P. v. United States, 656 F.3d 1306, 1311
(Fed. Cir. 2011) ("the broad language of the statute and FAR provision supports a broad
reading of the term 'claim"').
The government argues that appellant's 20 March 2013 request for a contracting
officer's final decision did not constitute a proper CDA claim (gov't mot. at 3-4).
According to the government, this appeal does not concern "a dispute over the contract
itself' (id. at 4 ). Instead, the government characterizes the 20 March 2013 request as
"purely a challenge to the authority of a Federal agency under a statute over which the
Board lacks subject-matter jurisdiction" (id.).
The government misconstrues appellant's 20 March 2013 request for a contracting
officer's final decision. Contrary to the government's assertion, appellant did not seek
"a declaration of rights with regard to the GSA's authority pursuant to the Transportation
Act" (gov't reply br. at 1). The crux ofMaersk's request was its assertion that the GSA
overcharge notices are "not consistent or compatible with the provisions of the CDA, FAR
or the USC-06 [contract]." Although Maersk noted that the GSA acted under the authority
of the Transportation Act in issuing its Notices of Overcharge at numerous points in its
20 March 2013 request, Maersk sought a contracting officer's final decision regarding the
effect of those notices under the terms of the USC-06 contract and relevant regulatory and
statutory provisions. (SOF if 11) We conclude that Maersk's 20 March 2013 request
for a contracting officer's final decision is a claim seeking the contracting officer's
interpretation of the contract terms and relevant FAR and CDA provisions with regard to
the GSA overcharge notices. That claim arose under and is related to the contract.
The Board's jurisdiction over contract interpretation claims seeking declaratory
relief is well settled. Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1265-67,
reh 'g denied, 186 F.3d 1379 (Fed. Cir. 1999); Versar, Inc., ASBCA No. 56857, 10-1 BCA
if 34,437 at 169,958; Donald M Lake, d/b/a Shady Cove Resort & Marina, ASBCA
No. 54422, 05-1BCAif32,920 at 163,071-72; Martin Marietta Corp., ASBCA No. 38920,
90-1 BCA if 22,418 at 112,609. We have long held that a contract interpretation claim
may include a request for a decision as to the correctness of actions taken under the
contract in light of the clause and associated regulations. Colonna 's Shipyard, Inc.,
ASBCA No. 56940, 10-2 BCA if 34,494 at 170,140; HMRTECH2, LLC, ASBCA No. 56829,
09-2 BCA if 34,287 at 169,373; TRW, Inc., ASBCA Nos. 51172, 51530, 99-2 BCA
if 30,407 at 150,331.
11
That the actions of the GSA, and not the USTRANSCOM, underlie appellant's
claim does not alter our conclusion. See Raytheon Missile Sys. Co., ASBCA No. 57594,
13 BCA ~ 35,264 at 173, 111 (rejecting the government's argument that the Board lacked
jurisdiction over a contractor's claim relating to the actions of an agency other than the
contracting agency). We need not decide whether the actions taken by the GSA were
authorized by the Transportation Act (see gov't mot. 3-5). The issue before the Board is
the effect of those actions on the rights and obligations of the parties under the terms of
the contract. Viewed in this light, this appeal falls squarely within the Board's CDA
jurisdiction. See, e.g., Burnside-Ott Aviation Training Ctr., Inc. v. United States,
985 F.2d 1574, 1580 (Fed. Cir. 1993); Pub. Warehousing Co. K.S.C., ASBCA
No. 58078, 13 BCA ~ 35,460 at 173,897 ("The Board does have jurisdiction under the
CDA to decide the contract rights of the parties even when fraud has been alleged.");
Overstreet Elec. Co., ASBCA Nos. 51653, 51715, 00-2 BCA ~ 31,038 at 153,271 ("[T]he
Board has jurisdiction over disputes which are centered upon the parties' contract rights
and obligations, even though matters reserved to [the Department of Labor] may be part
of the factual predicate.").
We note that the Board has consistently "rejected attempts to cloak a monetary
claim as a request for contract interpretation." Eaton Contract Servs., Inc., ASBCA
No. 52888 et al., 02-2 BCA ~ 32,023 at 158,268; see also Weststar Eng 'g, Inc., ASBCA
No. 52484, 02-1BCA~31,759 at 156,851. However, the crux of the underlying dispute
in this case involves a government claim, albeit one that has not at this juncture been
formally asserted by the contracting officer. Under the CDA, government claims must be
the subject of a contracting officer's final decision. 41 U.S.C. § 7103(a)(3). In its
request for a final decision, Maersk took the position that the GSA Notices of Overcharge
failed to constitute proper government claims (SOF ~ 11 ). Under these circumstances,
we do not consider that speculative quantification of a "sum certain" and certification by
the contractor of the amounts the GSA considers to be "overcharges" is required.
Although "conversion" of the potential government claim into a contractor claim may be
permissible, it is not required for us to assume jurisdiction over the contractor's request
for interpretation of the contract. 7 In comparable circumstances, we have found
jurisdiction, stating that what the contractor needed was "the COs' interpretations of the
clauses ... whether it be the conclusion that no government claim should be asserted, or
the issuance ofCOs' decisions asserting government claims." Linc Gov't Servs., LLC,
7
Nonetheless, we note that appellant subsequently opted to do so in this instance. As
appellant notes in its opposition, "[s]ubsequent to Maersk's submission of its
claim for interpretation of contract terms in March 2013, the GSA began the
recoupment of the alleged overcharges by offset against payments due Maersk."
Maersk submitted to the USTRANSCOM CO a 5 June 2013 claim in the amount
of $298,654.54 regarding the GSA's administrative offsets. The CO denied the
claim in a 31 July 2013 final decision. (App. opp'n at 5 n.2.) Maersk's timely
appealed that final decision, which the Board docketed as ASBCA No. 58844.
12
ASBCA No. 58561 et al., 14-1BCA~35,473 at 173,934. In Linc, the Defense Finance
and Accounting Service (DFAS), pursuant to a Memorandum of Agreement between
DFAS and the Army, issued letters to the contractor asserting liability for alleged unpaid
medical services. Id. at 173,932-33. In response, the contractor submitted letters to the
COs of its various affected contracts denying liability, contending that it was responsible
for such medical costs only in certain circumstances, and stating that there was
insufficient evidence demonstrating liability. Id. at 173,932. In finding jurisdiction, we
determined that contractor's letters to the COs were claims seeking "the COs'
interpretations of the terms of the contracts under which the alleged liability for medical
costs is asserted." Id. at 173,934. Similarly, Maersk here requests the CO's
determination regarding appellant's liability under the contract for the alleged
overpayments claimed by GSA in its Notices of Overcharges.
CONCLUSION
We conclude that the claim and dispute under the referenced FAR-based contract
are within our jurisdiction to resolve under the CDA. The government's motion to
dismiss is denied.
Dated: 23 April 2014
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
l~tM
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
RICHARD SHACKLEFORD
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
13
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. 58779, Appeal ofMaersk
Line Limited, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
14