Creative Times Dayschool, Inc. ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Creative Times Dayschool, Inc. ) ASBCA Nos. 59507, 59779
)
Under Contract No. W912DW-l l-D-1018 )
APPEARANCE FOR THE APPELLANT: Judith Ward Mattox, Esq.
Colorado Springs, CO
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Ian D. Clunies-Ross, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Seattle
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
The government contracted with appellant, Creative Times Dayschool, Inc.
(CTI), for paving and roofing work at a shipyard. CTI's claims include that (1) the
government constructively changed the work, (2) CTI is entitled to delay costs,
(3) CTI is entitled to recovery of professional consulting fees, and (4) the government
improperly assessed liquidated damages for delayed completion of the work. A
hearing was held and only entitlement is before us. We dismiss one appeal for lack of
jurisdiction, and sustain the other in part.
FINDINGS OF FACT
General background
In September 2011, the U.S. Army Corps of Engineers (government) awarded
Single Award Task Order Contract (SATOC) No. W912DW-l l-D-1018 to CTI for
maintenance, repair, and construction work (R4, tab 3 at 1, 3). On 29 September 2012,
the government awarded Task Order 0002 under the SATOC to CTI to perform
roofing repairs and maintenance yard paving at Lake Washington Ship Canal in
Seattle, Washington, for the fixed price of $398,644 (R4, tab 4 at 1-4). The task order
identified six buildings requiring roofing work, and two areas requiring paving work
(R4, tab 96). The task order completion date was 11 June 2013 (id. at 5, ~ 3). On
9 October 2012, CTI received the government's notice to proceed with the work,
effective that date (R4, tab 6).
The task order provides that "a Standard Construction Management Team
(SCMT), as defined in Paragraph 4.1.2 of the [SATOC's] Statement of Work, is
required for this Task Order" (R4, tab 4 at 5, ii 2). Paragraph 4.1.2 of the SATOC
provides that "[a] Standard Construction Management Team is defined as having
separate individuals serving as Superintendent, Quality Control Manager, and Site
Safety and Health Officer" (R4, tab 3 at 53). Section 10.3.6 of the task order's
statement of work provides that "[t]he superintendent may perform as the QC System
Manager" (R4, tab 4 at 12).
Section 3.1 of the statement of work, Fall Arrest System, provides:
Provide a roof fall arrest system which provides access to
all parts of the roof without having to disengage the
system.... The system at a minimum shall support three
people at 300 hundred pound[ s] each.
(R4, tab 4 at 9) In April 2013, CTI informed the government that its research "found there
is no 3 man per 300 lb each rated system," and recommended "a two man 300 lb rated
system" (R4, tab 12). The government responded that fall arrest systems were available
that met the "three people at 300 pound each" contract requirement (id. at 1).
Paving, roofing, and liquidated damages
Section 9 .1 of the task order's statement of work, Asphalt Pavement Overlay,
provides that "[t]he contractor shall provide all the labor, equipment, and materials to
provide a 2 inch asphalt overlay in the maintenance yard areas as shown in sketch l"
(R4, tab 4 at 11 ). Among the areas listed on and depicted in "sketch 1" to the task
order are two "Maintenance Yard Paving" areas that, in sketch 1, are outlined in red
and marked with the number "7" (R4, tab 4 at 25, tab 96). One of those, the "east
section," is depicted in the lower right comer of sketch 1 (R4, tab 4 at 25; tr. 1/26, 33,
244-45). Before CTI bid on the contract, it attended a site visit during which the
government's project lead is said to have stated, referring to the east section, that "[w]e
don't believe that we have the money to do this, so we're not going to look at it"
(tr. 1/23-25, 31, 93-94).
Sketch 1 also lists and depicts six buildings that are identified in section 2 of the
task order's statement of work as requiring the installation of an "EPDM Roof
Membrane Overlay System" (R4, tab 4 at 7, tab 96). Section 2.1 of the task order's
statement of work provides:
Provide EPDM roof membrane overlay system applied
over new recovery/insulation board substrate which is
sloped to provide positive drainage. The contractor shall
2
evaluate the existing roof system and submit for
information only design details for the new roofing system.
The design will incorporate surfaces which are rigid, clean,
dry, smooth and free from cracks, holes and sharp changes
in elevation. The contractor shall ensure that existing/new
flashing, drains, control joints, expansion joints, and vents
are in place prior to application of roofing materials.
(R4, tab 4 at 7)
The SATOC provides that "[i]f the Contractor fails to complete the work within
the time specified in the contract, the Contractor shall pay liquidated damages to the
Government in the amount of $482.00 for each calendar day of delay until the work is
completed or accepted" (R4, tab 3 at 17). The SATOC also incorporates by reference
FAR 52.242-14, SUSPENSION OF WORK (APR 1984) (R4, tab 3 at 15), which provides,
at paragraph (b ):
If the performance of all or any part of the work is, for an
unreasonable period of time, suspended, delayed, or
interrupted ( 1) by an act of the Contracting Officer in the
administration of this contract, or (2) by the Contracting
Officer's failure to act within the time specified in this
contract (or within a reasonable time if not specified), an
adjustment shall be made for any increase in the cost of
performance of this contract (excluding profit) necessarily
caused by the unreasonable suspension, delay, or
interruption, and the contract modified in writing
accordingly.
On 8 February 2013, the government informed CTI that it was concerned with
CTI' s lack of progress in prosecuting the work, particularly because, the government
stated, "weather conditions have been satisfactory for commencement of this work, yet
no work has occurred" (R4, tab 7). 1 On 15 February 2013, CTI responded that it had
decided to wait until the spring to begin the work, its subcontractor having advised that
seven days of no precipitation were needed to start the work (R4, tab 8 at 1). On
24 April 2013, CTI notified the government of water trapped under the existing
roofing of the "Generator Building," and recommended the removal of the existing
roofing (R4, tab 13). On 25 April 2013, the government responded that CTI had the
opportunity to assess the condition of the existing roof during the site visit and, thus,
the government did "not acknowledge any time or cost impact associated with the
work required to meet the performance standards" of the task order (id.).
1
The government also stated that the contract completion date was 6 June 2013 (id.).
3
CTI followed up on 30 April 2013, characterizing the water as a differing site
condition, and again proposed replacement of the existing roofing system (R4, tab 15).
On 2 May 2013, the government informed CTI that it was evaluating the roofs, and
asked CTI what the cost would be for "full roof replacement" (R4, tab 16). On
15 May 2013, CTI provided a cost breakdown (R4, tab 18 at 1-2). On 16 May 2013,
CTI informed the government that:
It is [CTI's] position that the asphalt work should be done
at the end of the project in order to protect the new asphalt.
We are concerned about driving heavy equipment on the
new asphalt and the damage it will cause. There is no way
we can complete the roofing project without accessing the
area where the asphalt will be installed.
(R4, tab 38 at 25) We find that statement credible and uncontroverted, and
accordingly find that CTI had to complete the roofing before commencing with
pavmg.
On 24 May 2013, the government requested from CTI a proposal "to remove
existing roof and replace" (R4, tab 20 at 1). CTI provided its proposal on 30 May
2013 (R4, tab 21 at 1-2). The parties negotiated terms for the roofing change (that is,
full replacement of all six roofs) at least through 11June2013, including, according to
a 10-11June2013 email string between CTI and the government's project lead, the
following "main point":
Duration: Contractor agrees to 90 calendar days from
June 16th, 2013.
(R4, tab 22) On 13 June 2013, CTI provided a price proposal for removing and
replacing all six roofs (R4, tab 24). On 17 June 2013, 54 days after CTI's 24 April
2013 notice to the government of water under the existing roofing, the parties signed
Modification No. ROOOOI, providing for the deletion of section 2.1 of the task order's
statement of work, and its replacement with the following:
The contractor shall completely remove the existing roof
system to the concrete deck. The contractor will rebuild
the roof by placing an adhered vapor barrier, 3 inches of
closed-cell polyisocyanurate with glass reinforced mat
facer insulation board, new recovery/insulation board
substrate which is sloped to provide positive drainage and
the EPDM roof membrane overlay. The new roof will
incorporate surfaces which are rigid, clean, dry, smooth
4
and free from cracks, holes and sharp changes in elevation.
The contractor shall ensure that new flashing, drains,
control joints, expansion joints, and vents properly
installed and working prior to application of roofing
materials.
(R4, tab 5 at 2) Modification No. ROOOO 1 also added two new sections to the
statement of work, providing for new drains to certain of the project roofs (id.). The
modification states:
The contract completion date shall be extended by
90 calendar days by reason of this modification.
(Id. at 3) Ninety days after the original, 11 June 2013 task order completion date was
9 September 2013. Finally, the modification includes no express release language
(R4, tab 5).
On or about 12 June 2013, CTI wrote to the government that there was a
discrepancy between "what asphalt work was identified at the job walk and
subsequently bid and what asphalt work was identified in the [statement of work]"
(R4, tab 23 at 1). On 19 June 2013, the government informed CTI that "[t]he
Contractor is required to complete all paving work in this contract before the contract
completion date" (R4, tab 25). On 1 August 2013, the government directed CTI ''to
proceed with asphalt paving work as required by contract," and "reminded [CTI] that
the completion date for this contract is 9 September 2013" (R4, tab 29). On 15 August
2013, CTI wrote to the government "confirm[ing] that the completion date remains
9 September 2013" (R4, tab 38 at 16). On 7 October 2013, CTI stated that "[o]n
15 August 2013, CTI...confirmed that it understood that the contract completion date
on the project remained 9 September 2013" (R4, tab 38 at 2).
CTI completed the work, and the government took beneficial occupancy, on
1November2013 (R4, tabs 40, 41). On 3 December 2013, the contracting officer sent
CTI a letter stating that CTI had finished work 53 days past the contract completion
date, and that "in accordance with contract requirements, the Government will retain
liquidated damages from your next pay request on this contract in the amount of
$25,546" (R4, tab 41 ). The government concedes that it has assessed liquidated
damages (gov't br. at 15).
The Request for Equitable Adjustment, and subsequent appeals
The SATOC incorporates by reference FAR 52.233-1, DISPUTES (JUL 2002)
(R4, tab 3 at 14), which provides, at paragraph (e):
5
For Contractor claims of $100,000 or less, the Contracting
Officer must, if requested in writing by the Contractor,
render a decision within 60 days of the request. For
Contractor-certified claims over $100,000, the Contracting
Officer must, within 60 days, decide the claim or notify the
Contractor of the date by which the decision will be made.
On 10 January 2014, CTI presented to the contracting officer a request for equitable
adjustment (REA) in the amount of$348,126.05, including an express request for the
"recission of all assessed Liquidated Damages" (R4, tab 44 at 1, 4, 10, 14, 16). The
REA did not expressly request a contracting officer's final decision, but stated:
While it is understood that the Government has 60 days to
respond, CTI believes that it should receive a response
sooner than 60 days to facilitate a more expeditious
settlement to this REA and a 'Kick-off meeting in Seattle'
to settle this matter.
(R4, tab 44 at 11) The REA was accompanied by a "FAR 33.207 Certification of
Claim," dated 10 January 2014, that stated: 2
Pursuant to [Federal Acquisition Regulation] FAR 33.207,
I Les Syme, Vice President, of CTI Construction, do
hereby state the following:
I certify that the claim is made in good faith; that the
supporting data are accurate and complete to the best of
my knowledge and belief; that the amount requested of
$348, 126.05 accurately reflects the contract adjustment for
which the contractor believes the Government is liable;
and that I am duly authorized to certify the claim on behalf
of the contractor.
(R4, tab 44 at 1, 16)
On 3 February 2014, the government responded that it would treat the REA as a
claim (R4, tab 45). CTI replied on 7 February 2014 that the REA "was being submitted
to facilitate settlement discussions," withdrew its FAR 33.207 certification, and provided
a certification for the REA under Department of Defense FAR Supplement (OF ARS)
252.243-7002, stating:
2 The certification was notarized on 9 January 2014; a discrepancy that we find
immaterial.
6
I certify that the request is made in good faith and that the
supporting data are accurate and complete to the best of
my knowledge and belief.
(R4, tab 46 at 2)
The parties then attempted to settle the matter, unsuccessfully (R4, tabs 47-55).
On 30 April 2014, CTI supplemented the REA, requesting $606, 176.42 (R4, tab 56
at 1, 10). The contracting officer responded to the REA on 14 July 2014, finding it
without merit (R4, tab 62 at 1, 6).
By letter dated 16 July 2014, CTI requested a contracting officer's final
decision on the REA, attaching a certification of the $606, 176.42 amount in the
language required by Contract Disputes Act (CDA), 41 U.S.C. § 7103(b) (R4, tab 63
at 2-3). Although the letter states that the certification is dated 16 July 2014, the
certification is dated 17 July 2014, and a notary stated that she witnessed that the
certification was signed on 17 July 2014 (R4, tab 63 at 2-3). The contracting officer
stated that the government would act on the claim "based on a 16 July 2014 receipt
date" (R4, tab 64); however, we find, based on the notary's statement, that the
contracting officer received the claim certification on 17 July 2014.
On 19 August 2014, CTI filed an appeal from the 14 July 2014 response to the
REA; we docketed that appeal as ASBCA No. 59507. On 12 September 2014, the
government moved to dismiss ASBCA No. 59507 for lack of jurisdiction. In response
CTI asserted that "the first Certified Claim was submitted on 10 January 2014 under
FAR 33.207, which starts interest accruing as of the date the [contracting officer]
receives the Certified Claim" (i.e., 10 January 2014)" (resp. at 4).
On 18 December 2014, the contracting officer denied the 17 July 2014 claim
(R4, tab 2). CTI appealed on 5 January 2015; we docketed the appeal as ASBCA
No. 59779 and consolidated it with ASBCA No. 59507. On 29 July 2015, we deferred
the government's motion to dismiss ASBCA No. 59507 pending a decision upon
entitlement.
During the 2015 hearing of the appeals, CTI's vice-president, who certified the
IO January 2014 REA (R4, tab 44 at 16), gave the following testimony on direct
examination conducted by CTI's counsel:
Q: Okay. And the REA that's contained at Tab
Number 44 in the Rule 4 file, who prepared that for CTI?l31
3 At tab 44 of the Rule 4 file is found the 10 January 2014 REA.
7
A: We had to hire a consultant to put that
together for us.
Q: And why did you hire a consultant?
A: I'm a guy in the field. Nobody -- we have to
get experts to be able to put this together to do it the
proper way. We just don't have the expertise.
Q: And did CTI submit this REA for
purposes of litigating this case today?
A: I would say yes.
(Tr. 1/230)
DECISION
Jurisdiction
The government challenges our jurisdiction to entertain ASBCA No. 59507,
because, the government says, the appeal is from a decision regarding an REA, not a
claim. CTI' s apparent position is that the 10 January 2014 REA was and is a claim.
Our jurisdiction to entertain an appeal under the CDA depends upon the existence of a
contracting officer's final decision on a government or contractor claim, or a deemed
denial of a contractor claim. See 41 U.S.C. §§ 7103(f)(5), 7104(a). A contractor claim
need not be expressed in a particular form, but must manifest the intention to obtain a
contracting officer's final decision. Southern Automotive Wholesalers, Inc., ASBCA
No. 53671, 03-1BCAii32,158 at 158,998. A "claim" is "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." Air Services, Inc., ASBCA No. 59843,
15-1BCAii36,146 at 176,426 (quoting FAR 2.101). We determine whether a
contractor's submission is a CDA claim on a case-by-case basis, applying a common
sense analysis. We may examine the totality of the correspondence between the
parties in determining the sufficiency of a claim. Id.A claim exceeding $100,000 must be certified in accordance with 41 U.S.C.
§ 7103(b). The language of that certification also appears at FAR 33.207. In such a
case, interest accrues from the date that the contracting officer receives the
certification. See Industrial Contractors, Inc., ASBCA No. 31270, 91-3 BCA
ii 24,053 at 120,421.
8
The certification of an REA under FAR 33.207 is evidence that an REA is
intended as a claim. See Southern Automotive Wholesalers, 03-1 BCA ~ 32,158
at 158,998. On the other hand, the certification of an REA under DFARS 252.243-7002
is evidence that an REA is not intended as a claim. See Certified Construction Co. of
Kentucky, LLC, ASBCA No. 58782, 14-1BCA~35,662 at 174,572. An REA can be
converted into a claim by the provision of a CDA certification and a request for a
contracting officer's final decision. See id.On 10 January 2014, CTI submitted the REA to the contracting officer.
Although the REA did not explicitly request a contracting officer's final decision, and
suggested that the parties meet "to settle the matter," it requested a sum certain
($348, 126.05), and was certified under FAR 33.207. It also stated the "understanding"
that the government "ha[ d] 60 days to respond" to the REA, which we take as a
reference to the 60-day period within which the SATOC's disputes clause (and
41 U.S.C. § 7103(t)(l )-(2)) requires that, in general, a contracting officer render a
decision on a contractor's claim. All those manifest that on 10 January 2014, CTI
intended to obtain a contracting officer's final decision on the REA, and that,
therefore, the REA was, on that date, a claim. 4 That conclusion is consistent with the
much later hearing testimony of CTI' s vice-president (who on 10 January 2014
certified the REA), that the REA was submitted "for purposes of litigating this case."
Finally, CTI's position in response to the government's motion to dismiss was that
"the first Certified Claim was submitted on 10 January 2014 under FAR 33.207, which
starts interest accruing as of the date the [contracting officer] receives the Certified
Claim" (i.e., 10 January 2014)" (resp. at 4). Upon this record, we find that when CTI
first submitted the REA to the contracting officer, the REA was a claim, including for,
as stated in the REA, the recission of liquidated damages.
However, on 7 February 2014, CTI withdrew the REA's FAR 33.207
certification, and certified the REA under DF ARS 252.243-7002, indicating its intent
that the REA no longer be treated as a claim, thereby converting it to a non-claim
REA. Because the REA lost its claim status on 7 February 2014, the contracting
officer's 14 July 2014 response to the REA is not a contracting officer's final decision
denying a claim. Consequently, we lack jurisdiction to entertain the appeal from the
contracting officer's 14 July 2014 response, and dismiss ASBCA No. 59507. 5
4
This finding is consistent with CTI's statement, in response to the government's
motion to dismiss ASBCA No. 59507 for lack of jurisdiction, that as of
10 January 2014, "the [government] was obligated to review the REA and issue
a Final Decision by 12 March 2014 [61 days later], or advise of a reasonable
date by which the Final Decision would be issued" (resp. at 6).
5 CTI appears to assert that we have jurisdiction in ASBCA 59507 as a direct appeal
from the assessment of liquidated damages in 2013 (resp. at 3), but CTI's notice
9
Nevertheless, on 17 July 2014, CTI expressly requested a contracting officer's
final decision on the REA, and provided the certification required under the CDA for
requests exceeding $100,000, converting the REA once again into a claim. Because
the contracting officer's 18 December 2014 decision denied that claim, we possess
jurisdiction to entertain ASBCA No. 59779, CTI's timely appeal from that decision.
Whether the government constructively changed the paving work
CTI claims that the government constructively changed the paving work (app.
br. at 4). We find no evidence that CTI performed paving work beyond that depicted in
sketch 1 to the task order. Although CTI says that the statement of the government's
project lead during the site visit that "we don't believe we have the money" to pave the
east area caused it "not to bid the east area on the Sketch" (app. br. at 7), CTI contracted
to pave that "east section," which is depicted in the lower right-hand comer of sketch 1
to the task order. Having failed to demonstrate that it performed any paving work in
addition to that depicted in sketch 1, CTI is not entitled to additional compensation for
pavmg.
Whether the government delayed the roofing work
CTI appears to claim entitlement to additional compensation for government-caused
delays to roofing and paving work, contending that the government delayed the work by
taking from 25 April 2013 through 17 June 2013 to issue Modification No. ROOOO 1 to
account for what CTI says was a defective specification (app. br. at 8-9, 11-12; app. reply
br. at 2-4 ). CTI fails to demonstrate such entitlement.
We assume that the specification that CTI says was defective is the original
version of section 2.1 of the task order's statement of work, one of the subjects of
Modification No. ROOOO 1. First, CTI does not explain how the specification was
defective, and we see no obvious defect in that specification. Indeed, the principal
difference between the original and modified sections 2.1 is that the former required the
contractor to "evaluate the existing roof system and submit for information only design
details for the new roofing system," and the latter required the contractor to "completely
remove the existing roof system to the concrete deck," and "rebuild the roof by placing
an adhered vapor barrier, 3 inches of closed-cell polyisocyanurate with glass reinforced
mat facer insulation board." None of that strikes us as correcting a defect in the original,
and CTI points to no expert testimony to the contrary. CTI points to the parties'
agreement to the modification itself as evidence of a defect in the original specification
(app. reply br. at 2), but the impetus behind the modification was CTI's notice to the
of appeal indicates that the appeal is only from the contracting officer's 14 July
2014 denial of the REA.
10
government that it had encountered water under the existing roofing system. That
indicates a problem with roof conditions, not with the roofing specification.
Second, in order to recover under the Suspension of Work clause a contractor
must prove that the work was suspended or delayed for an unreasonable period of time
by an act of the contracting officer in administration of the contract, or by the
contracting officer's failure to act within a reasonable time. Strand Hunt Construction,
Inc., ASBCA No. 55905, 13 BCA ii 35,287 at 173, 188. CTI fails to demonstrate that
the government unreasonably delayed the modification. In any situation involving
such delays (for example, of the approval of shop drawings), a contractor is not
entitled to any adjustment unless the delay is unreasonable. H.Z. & Co., ASBCA
No. 29776, 87-1 BCA ii 19,384, at 98,007. On 24 April 2013, CTI proposed roof
removal and replacement to deal with water under the existing roofing system. The
government rejected the recommendation the next day. Five days later, CTI again
proposed roof removal. Two days later, the government asked how much that would
cost; CTI answered 13 days after that. Nine days later, the government requested a
cost proposal; five days after that, CTI provided that proposal. The parties negotiated
for at least another 11 days. On 13 June 2013 CTI provided a price proposal, and on
17 June 2013, 54 days after CTI's 24 April 2013 notice of the existence of water under
the existing roofing system, the parties signed Modification No. ROOOOl, specifying
roof removal and replacement.
None of that sequence of events strikes us as unreasonable government delay; it
indicates the parties' diligent, cooperative, and successful efforts to grapple with an
unexpected issue. Indeed, CTI cites no authority in support of its position, not even
any in which analogous circumstances constituted unreasonable delay. We find no
obviously unreasonable government delay during that period, which consists of several
discrete segments of no more than 14 days each. Cf R.J Crowley, Inc., ASBCA
No. 35769, 88-3 BCA ii 21,151at106,786-88 (30 days to review submittals not found
unreasonable).
Whether the government constructively changed the "management team"
CTI contends that the government constructively changed the contract to
require a three-person management team instead of a two-person team, but fails to
point to any record evidence in support of its apparent position that, after it was
awarded the task order, the government insisted upon a three-person management team
(app. br. at 9-10). We will not scour the record for such evidence, and, therefore,
without deciding whether CTI was ultimately obligated to provide a three-person
management team, we hold that CTI has failed to demonstrate entitlement to
additional compensation on this issue.
11
Whether the government constructively changed the contract's 'fall arrest" system
CTI claims that the government constructively changed the contract's "fall arrest"
system; that is, the safety system that the task order required to prevent CTI's workers
from falling off buildings while performing roofing work (app. reply br. at 4). The task
order required a system capable of supporting three 300-pound persons; there is no
evidence that the government changed that requirement. CTI claims that a constructive
change was "caused by a combination of [a] Differing Site Condition and the
Government's failure to respond to" CTI's request to provide only a two-person fall
system, but a constructive change occurs when a contractor performs work beyond the
contract requirements, without a formal order under the changes clause, due either to an
express or implied informal order from an authorized government official or to
government fault. Circle, LLC, ASBCA No. 58575, 15-1 BCA ~ 36,025 at 175,976.
Because CTI does not demonstrate that it provided a fall arrest system beyond the three
300-pound person system that the task order required, it fails to demonstrate that the
government constructively changed the task order's fall arrest system requirement.
Consequently, CTI has failed to demonstrate entitlement to additional compensation on
this issue.
Whether CTI is entitled to recover the cost ofprofessional consulting fees
CTI claims entitlement, pursuant to FAR 31.205-33, to recover consulting fees
incurred in the preparation of the 10 January 2014 REA (app. br. at 14). Although
costs of professional and consultant services are allowable in some circumstances,
FAR 31.205-33, states such costs are unallowable if incurred in connection with
"claims or appeals or the prosecution of claims or appeals against the Federal
Government." FAR 31.205-47(f)(l). We have held above that the 10 January 2014
REA was, when first submitted, a claim; indeed, CTI's vice-president, who certified
the REA, testified that the 10 January 2014 REA was submitted for purposes of
litigation. Moreover, although in its post-trial brief CTI appears to assert that there is
no factual basis to conclude that the consulting fees were incurred for purposes of
filing a claim (app. br. at 15), its earlier position in response to the government's
motion to dismiss was that "the first Certified Claim was submitted on 10 January
2014 under FAR 33.207" (resp. at 4). Because the 10 January 2014 REA was, when
submitted, a claim, any consulting fees incurred in the preparation of that REA are in
connection with "claims or appeals or the prosecution of claims or appeals against the
Federal Government," and, therefore, are unallowable. Accordingly, CTI is not
entitled to recover the cost of professional consulting fees.
Whether CTI is entitled to the rescission of liquidated damages
CTI challenges the government's assessment of liquidated damages (app. br.
at 12). The government has the initial burden of proving that CTI failed to meet the
12
completion date and that the period of time for which it assessed liquidated damages is
correct. KEMRON Environmental Services Corp., ASBCA No. 51536, 00-1 BCA
~ 30,664 at 151,399. The government has met that burden. The original task order
completion date was 11 June 2013, and was extended 90 days by Modification
No. ROOOOl, making the new completion date 9 September 2013. Work was
completed on 1 November 2013, 53 days later. The task order provided for liquidated
damages in the amount of $482 for each calendar day of delay; that amount times
53 equals $25,546, the amount that the contracting officer assessed.
CTI contends that it "had not agreed to [9 September 2013] as the new Contract
Completion Date" and that "the emails regarding the negotiations on [Modification
No. ROOOO 1] are clear that the duration agreed upon was to run 90 calendar days from
16 June 2013," but contradicts itself by stating that "Beneficial Occupancy occurred
on 1November2013, 53 days past the Contract Completion Date" (app. br. at 8, 12,
30, ~ 17). In addition, on 15 August 2013, CTI confirmed its understanding that the
completion date was 9 September 2013, and reconfirmed that understanding on
7 October 2013. In any event, "[w ]hen the contract's language is unambiguous it must
be given its 'plain and ordinary' meaning and the court may not look to extrinsic
evidence to interpret its provisions." BAE Systems Technology Solutions & Services
Inc., ASBCA No. 57581, 13 BCA ~ 35,414 at 173,743. We find nothing ambiguous
about the modification's provision that "[t]he contract completion date shall be
extended by 90 calendar days by reason of this modification," and, therefore, do not
look to the emails that CTI cites to interpret that provision.
Once the government establishes a prima facie case that its assessment of
liquidated damages is accurate, the burden of proof shifts to the contractor to show
why its failure to meet the contract completion date was excusable. KEMRON,
00-1 BCA ~ 30,664 at 151,399. The contractor must prove that the delaying items
complained of caused a delay to the completion of the project as a whole. Id.
at 151,400. The delay must be to work on the critical path, because only work on the
critical path affects when the project is completed. Fru-Con Construction Corp.,
ASBCA Nos. 53544, 53794, 05-1BCA~32,936 at 163,158-59.
On this record and briefing, we are persuaded that, consistent with CTI' s
16 May 2013 notice to the government, CTI had to complete the roofing before
commencing with paving, in order to avoid damaging newly-laid asphalt with the
heavy equipment needed to perform the roofing work. It took the parties 54 days from
the discovery of the water under the existing roofing to agree upon the roofing solution
set forth in Modification No. ROOOOI, delaying completion of the project as a whole
by 53 days. That delay excuses the 53 days of delay upon which the liquidated
damages were assessed, because paving could not commence until roofing was
completed. Although the government contends that Modification No. ROOOO 1
precludes CTI from challenging the assessment of liquidated damages by pointing to
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roof-related delays (gov't br. at 15), that modification contains no language releasing
claims for delay to the work resulting from the discovery of water under the existing
roofing and the search for a solution to that issue. Rather, we interpret the 90-day
extension of the work as providing time to complete the roofing work, not the project
as a whole. CTI has demonstrated entitlement to the rescission of the $25,546 in
assessed liquidated damages.
CONCLUSION
For these reasons, ASBCA No. 59507 is dismissed for lack of jurisdiction, and
ASBCA No. 59779 is sustained to the extent that $25,546 in liquidated damages be
rescinded, with interest from 17 July 2014, the date that the contracting officer received
the claim certification notarized on that date.
Dated: 20 October 2016
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
£~~
Administrative Judge
~CKLEFORD
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 Nos. 59507, 59779, Appeals of
Creative Times Dayschool, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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