ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--

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_ ) ASBCAN<».MS

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Under Contract No. W9 lJA4-12-C-7 l 31

APPEARANCE FOR THE APPELLANT:
Managing Director

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attomey
CPT Harry M. Parent lII, JA

Trial Attomey

OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT
ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

This is an appeal of` a contracting officer’s denial of a claim by

(_ or appellant), alleging that it is owed $l42,000.00
for extra work performed on construction Contract No. W9lJA4-12-C-7l3l in Kabul,
Af`ghanistan. In its complaint, appellant states that it presented a quote for $l42,000.0010
the contracting officer’s representative, received verbal direction from the contracting
officer’s representative to perform the work and a promise that the contracting officer would
issue a modification for $l44,000.00 but appellant never received the modification or funds.
The government moves for summary judgment because appellant signed a final release and
received final payment after executing a final release. We grant the govemment’s motion
and deny the appeal.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF Tl-IE MOTION

l. On 5 July 2012, the Phoenix Regional Contracting Center, Camp Phoenix,
Afghanistan (the govemment) executed Contract No. W9lJA4-12-C~7l3l, to
construct and provide building upgrades for the Af`ghan National Police and Central
Unit Headquan¢rs, for $1,897,160.17 to _ (R4, cabs 1-4).

2. Federal Acquisition Regulation (FAR) 52.232-5, PAYMENTS UNDER leED -PRlCl-:
CONSTRUCT|ON CONTRACTS (SEPT 2002), was incorporated by reference in the contract (R4,
tab l at 23). Regarding final payments, FAR 52.232-5 states:

(h) Final payment. The Govemment shall pay the
amount due the Contractor under this contract after_

(l) Completion and acceptance of all work;
(2) Presentation of a properly executed voucher; and

(3) Presentation of release of all claims against the
Govemment arising by virtue of this contract, other than
claims, in stated amounts, that the Contractor has
specifically excepted from the operation of the release.

3. On 14 July 2012, the government issued the notice to proceed to commence
work within 10 days and complete the project within 210 calendar days (R4, tab 13).

4. Over the next several months, the government administered the contract.
The parties executed modifications to extend the contract or to add additional work.
billed for partial payments and the government paid appellant for
work performed. (R4, tabs 15-72)

5. On 4 November 2013, the government signed a material inspection and
receiving report, documenting that Contract No. W9lJA4-12-C-713l was complete
and accepted, and that_ was owed the amount of AFN 25,831,477.58
(R4, tab 75).

6. Also on 4 November 2013, _ completed a new Electronic
Funds Transfer form to update banking and payment information (R4, tab 76).

7. Also on 4 November 2013, _ submitted Invoice No. WSCC0003
for Contract No. W91JA4-12-C-7131. This invoice was marked as a final payment and
contained release of claims language:

Release of Claims: Know all men by these presents, in
consideration of the premise and sum of

AFN 94,966,372.58 of which AFN 69,134,895.00 has been
paid, and a balance due of AFN 25,831,477.58 is to be paid
by the United States Govemment under the above noted
contract, the undersigned contractor does release and
discharge the Govemment, its officers, agents and
employees, of and from all liabilities, obligations and
claims whatsoever in law and equity arising out of or by
virtue of said contract, except specified claims in stated
amounts, or in estimated amounts when the amounts are
not susceptible of exact statement by the contractor, as
follows.

(R4, tab 77) The outstanding claims section was left blank and the box beside “None”
was checked. _ signed the final release as CEO and President. (Ia’.)

8. On 14 November 2013, the government issued Modification No. P00007 to
decrease the DBA insurance to match the actual amount (R4, tab 80).

9. On 12 December 2013, after two rounds of modifications of the final invoice
due to rejections from the Defense Finance and Accounting Service (DFAS) to correct
minor clerical errors, _ submitted the amended final invoice. This
invoice again contained the release language and no exceptions (R4, tab 110)

10. On 30 December 2013, DFAS Rome made final payment to _
- in the amount of AFN 25,831,477.58 (R4, cab 86).

11. On 7 January 2014, the government executed a DD Forrn 1594, Contract
Completion Statement reflecting that final payment had been made on 30 December
2013 (R4, tab 87).

12, On 24 June 2016, _ filed an appeal to the Board for
$l42,000.00 for extra work on Contract No. W91JA4-12-C-7l31, which was docketed
as ASBCA No. 60644 (R4, tab 88).

13. On 8 August 2016, the government filed a motion to dismiss ASBCA
No. 60644 because _ had not submitted a claim to the contracting officer.

14. On 6 October 2016, _ submitted a certified claim to the
contracting officer in the amount of $144,000.00. _ claimed that the
contracting officer’s representative directed and approved work f`or the subject matter
of a $142,000 quote. _ stated it was informed that the contracting
officer would issue a modification for $144,000. (R4, tab 94)

15. On 8 November 2016, the Board dismissed ASBCA No. 60644 for lack of

jurisdiction because did not submit a claim to the contracting officer
prior to filing the appeal. , ASBCA

No. 60644, l6-l BCA 11 36,556.

16. on 18 November 2016, _ Objected to the ASBCA No. 60644
decision and ex lained, “We did forget to check our record for this contract.”
ialso stated that it signed the final release in error. (R4, tab 96 at 4)

17. On 25 January 2017, the contracting officer issued a final decision, denying
the 6 October 2016 claim (R4, tab 97).

18. On 20 February 2017, _ filed a timely notice of appeal with
the Board from the 25 January 2017 final decision, which was docketed as ASBCA

No. 61065.

19. On 12 Ma 2017, the government filed a motion for summary judgment
contending that h filed the claim after it executed a final release and

received final payment

20. The Board provided _ several opportunities to respond to the
govemment’s motion for summary judgment but only received electronic mail
re uesting that the parties conduct a joint site inspection in Afghanistan. The Board sent
h correspondence, allowing it additional time to respond to the
govemment’s motion. On 29 August 2017, the Board informed _ that it
would not be conducting a site visit but that _ could submit photographs
or any other documents to explain what it would like the Board to see during a site visit
and further instructions for responding. The Board allowed _ until
19 September 2017 to respond. _ did not respond. (Bd. corr. file)

DECISION

It is well settled that summary judgment is appropriate where the moving party
establishes that there are no disputed material facts, and the moving party is entitled to
judgment as a matter of law. Riley & Ephriam Constr. Co. v. United States, 408 F.3d
1369, 1371-72 (Fed. Cir. 2005); Mingus Constructors, Inc. v. United States, 812 F.2d
1387, 1390 (Fed. Cir. 1987). When considering summary judgment motions, “the
evidence of the non-moving party is to be believed, and all justifiable inferences are to
be drawn in his favor.” Tri-County Contractors, Inc., ASBCA No. 58167, 13 BCA
11 35,310 at 173,346 (citing FED. R. ClV. P. 56(a); Anderson v. Liberty Lobby, lnc., 477
U.S. 242, 247 (1986)). There is no genuine dispute as to any of the material facts set
forth in our SOF.

The govemment’s motion for summary judgment is based on _
executing a final release and receiving final payment. “A final release followed by a
final payment to a contractor generally bars recovery of the contractor’s claims under
the contract except for those excepted on the release.” Tri-County Contractors,

13 BCA 11 35,310 at 173,346 (citing Mingus Constructors, 812 F.2d at 1394). “It is
well settled, however, that there are special and limited situations in which a claim
may be prosecuted despite the execution of` a general release.” Bender Shipbuilding
and Repaz'r Co.. ASBCA No. 41459, 91-3 BCA ‘ll 24,230 at 121,186. These special
and limited situations include mutual mistake, continued consideration of a claim after
the execution of the release, fraud, or duress. [d. (citing J.G. Watts Construction Co.

v. United States, 161 Ct. Cl. 801, 806-07 (1963)). None of the exceptions apply in this
case so the general rule govems.

Here, the parties clearly closed out the contract, _ executed a
final release, and the government made final payment. Several documents recorded
completion of the contract, including the final release and multiple submissions for
final payment. (SOF 1111 5-10) _ submitted a final invoice with a
signed final release which did not expressly except any claims and affirmativer
checked the “None” box indicating that it had no excepted claims (SOF 11 7).
_ had several opportunities to notify the government of additional work
that had not been included in the contract prior to the final release and final payment
(see SOF 1111 5-10). However, _ failed to raise the issue until June 2016
when it submitted its claim directly to the Board.

Had _ responded in this appeal, it might have asserted that it
was entitled to recovery because of a mistake in signing the final release, much like it
did when it objected to our decision in ASBCA No. 60644 (SOF 11 16). Unfortunately
for _ in order to benefit from the special and limited situation of
mistake, the mistake must be mutual. See, e.g., J.G. Watts Construction, 161 Ct. Cl. at
806-07 (1isting several examples of mutual mistakes). Here, the mistake, if valid, is
solely on the part of _ and was not discovered until years after the final
release and final payment were complete. Therefore, _ cannot benefit
from one of the special and limited exceptions to the general rule that a final release
generally bars recovery of claims made after the release has been executed.

Finally, in its complaint, _ stated that the government was aware
of the additional work and, thus, might have argued that the claim was excepted due to
the govemment’s knowledge We have previously held that “final payment does not
bar a claim where the contracting officer knows that the contractor is asserting a right
to additional compensation, even though a formal claim has not been filed.” Matcon
Diamond, lnc., ASBCA No. 59637, 15-1 BCA 11 36,144 at 176,408. However,

did not provide any evidence to support its assertion that the
government had knowledge of the claim and the record in this appeal does not reflect
that the government was aware of the claim for $142,000.00 of additional work. Thus,

was required to list the claim as an exception in the final release in
order to maintain its rights to the claim afier final release, which it did not.

CONCLUSION

The govemment’s motion for summary judgment is granted. The appeal is denied.

Dated: 14 November 2017

l concur

glickth

HEIDI L.\GSTERHOUT
Administrative Judge
Armed Services Board
of Contract Appeals

1 concur

CQC\

 

 

RJ‘CHXRD stiAcKLEFoRD
Administrative Judge

Acting Chairrnan

Armed Services Board

of Contract Appeals

OWEN C. WILSON
Administrative Judge
Vice Chairrnan
Armed Services Board
of Contract Appeals

1 certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 61065, Appeal of _

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

Dated:

 

JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals

