ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
L3 Technologies, Inc. ) ASBCA No. 61812
)
Under Contract No. FA8620-06-G-4002 et al. )
APPEARANCES FOR THE APPELLANT: Karen L. Manos, Esq.
Erin N. Rankin, Esq.
Gibson, Dunn & Crutcher LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Arthur M. Taylor, Esq.
DCMA Chief Trial Attorney
Robert L. Duecaster, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE CLARKE
In this decision we consider our jurisdiction in ASBCA No. 61812.* The
government initially filed a motion to dismiss due to the fact that the contracting
officer (CO) withdrew the underlying contracting officer's final decision (COFD)
which asserted a government claim. After briefing the issue, the Board, sua sponte,
raised the jurisdictional question regarding whether the government's claim stated an
amount in a sum certain. For the reasons stated below, we dismiss the appeal for lack
of jurisdiction.
DISCUSSION
On June 28. 2018. the Defense Contract Management Agency (DCMA)
CO Felecia Sousa issued a COFD and demand for payment to L-3 Communications
Integrated Systems L.P ., a subsidiary of L3 Technologies, Inc. (L3) (notice of appeal,
tab 3). The appeal of this COFD was docketed as ASBCA No. 61812. On January 23.
2019. CO Sousa "withdrew" this COFD. On February 1, 2019, DCMA moved the Board
to dismiss ASBCA No. 61812 without prejudice based on its withdrawal. On February 5,
2019, L3 filed its opposition to DCMA's motion to dismiss ASBCA No. 61812. On
February 17, 2019, DCMA filed its reply to L3's opposition. On February 19, 2019, L3
filed its surreply in opposition to DCMA' s motion to dismiss.
As will become clear we need not deal with the parties' arguments other than to say
that L3 is correct in its position that the unilateral withdrawal of a COFD does not divest
* ASBCA No. 61812 is one of five consolidated appeals.
the Board of jurisdiction. However, as we were dealing with DCMA's motion, we noticed
a problem with the COFD that was also recognized by the parties. CO Sousa's COFD
presented three distinct amounts demanded by DCMA, $292,634, $297,677 and $572,318.
The question became was this a sum certain? The jurisdictional requirement for a sum
certain applies to government claims as we have here. See Exe/is, Inc., ASBCA No. 60131,
16-1 BCA ~ 36,485 at 177,781. There is no way to reconcile the three amounts stated in the
COFD through simple mathematical analysis or any other analysis. Neither party argues
that CO Sousa's final decision states a sum certain. It is undisputed that the CDA, as
implemented by Federal Acquisition Regulation (FAR) 2.101 (defining "claim"), requires a
sum certain to support jurisdiction. We hold that because CO Sousa's COFD demands three
distinct amounts, it fails to state a sum certain. Therefore, we have no jurisdiction.
CONCLUSION
For the reasons stated above we dismiss ASBCA No. 61812 without prejudice
for lack of jurisdiction.
Dated: March 19, 2019
Administr tive Judge
Armed Services Board
of Contract Appeals
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
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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. 61812, Appeal ofL3
Technologies, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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