                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Petition of --                                 )
                                               )
Rizzani de Eccher (USA), Inc.                  )   ASBCA No. 61584-984
                                               )
Under Contract No. W912ER-l l-C-0001           )

APPEARANCES FOR THE PETITIONER:                    Jeffrey G. Gilmore, Esq.
                                                   John M. Neary, Esq.
                                                   Daniel R. Miktus, Esq.
                                                    Akerman LLP
                                                    Washington, DC

APPEARANCES FOR THE GOVERNMENT:                    Michael P. Goodman, Esq.
                                                    Engineer Chief Trial Attorney
                                                   Regina L. Schowalter, Esq.
                                                   Nancy L. Pell, Esq.
                                                    Engineer Trial Attorneys
                                                    U.S. Army Engineer District, Middle East
                                                    Winchester, VA

                ORDER PURSUANT TO BOARD RULE l(a)(S)
           DIRECTING CONTRACTING OFFICER TO ISSUE DECISION

        The contractor filed, under Rule l(a)(S), a request for an order directing the
contracting officer (CO) to render a decision on a December 29, 2017 certified claim
in the amount of $10,248,275. The contractor requested that the CO issue a decision
by August 2, 2018. The government has advised that a final decision on the claim will
be issued by November 16, 2018. We find this date unreasonable and direct the
contracting officer to issue a decision by September 12, 2018.

       STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE PETITION

       1. On December 16, 2010, the U.S. Army Corps of Engineers (government or
USA CE) awarded Contract No. W9 l 2ER- l l-C-OOO 1 to Rizzani de Eccher (USA), Inc.
(the contractor) to construct two billets facilities and a subsistence warehouse at
Al Udeid Air Base, State of Qatar (pet. at 2).

       2. By letter dated December 29, 2017, the contractor submitted a certified
claim to the CO for a time extension, compensable delays and costs, and remission of
liquidated damages in the amount of $10,248,275. The claim was 80-pages long and
contained 108 exhibits. (Pet., ex. 1)
        3. On January 8, 2018, the CO acknowledged receipt of the claim via email
(pet., ex. 2).

       4. By letter dated February 23, 2018, the CO stated that due to the size and
complexity of the claim, a final decision would be issued by February 27, 2019.* The
CO's letter also requested that the contractor submit the exhibits for the subject claim
and certain scheduling files. (Pet., ex. 3)

        5. The contractor submitted the exhibits and scheduling files on April 16, 2018
(pet. resp. at 2).

                                       DECISION

       When a CO receives a certified claim over $100,000, the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7101-7109, requires that within sixty days of receipt of the
claim, the CO shall (a) issue a decision or (b) notify the contractor of the time within
which a decision will be issued. 41 U.S.C. § 7103(f)(2).

       The CDA also requires that the decision of the CO on a contractor claim "shall
be issued within a reasonable time ... taking into account such factors as the size and
complexity of the claim and the adequacy of information in support of the claim
provided by the contractor." 41 U.S.C. § 7103(f)(3).

        Under the CDA, "[a] contractor may request the tribunal concerned to direct a
contracting officer to issue a decision in a specified period of time, as determined by
the tribunal concerned, in the event of undue delay on the part of the contracting
officer." 41 U.S.C. § 7103(f)(4). Board Rule l(a)(5) implements this section
providing that "[i]n lieu of filing a notice of appeal under paragraph (a)(l) or (a)(2) of
this Rule, the contractor may petition the Board to direct the contracting officer to
issue a decision in a specified period of time as determined by the Board."

       Whether the time in which a CO states he or she will issue a decision is
reasonable must be determined on a case-by-case basis. Eaton Contract Services, Inc.,
ASBCA Nos. 52686, 52796, 00-2 BCA ~ 31,039 (finding eight months reasonable
given the volume of documentation, number of issues and time needed to gather
information due to relocation of personnel); Defense Systems Co., ASBCA No. 50534,
97-2 BCA ~ 28,981 (finding nine months reasonable when claimed amount exceeded
$71 million and narrative portion of the claim alone exceeded 162 pages);
Dillingham/ABB-SUSA, a Joint Venture, ASBCA Nos. 51195, 51197, 98-2 BCA


• The government's response to the petition updated the expected date of the final
      decision to November 16, 2018 (gov't opp'n at 3).
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, 29,778 (finding 14-16 months unreasonable for a small construction claim and an
impact claim that had been extensively analyzed and audited).

        The government and contractor disagree over when the contractor provided the
CO information necessary to process the claim. The government points to the CO's
February 23, 2018 letter requesting the contractor "submit the exhibits for the subject
claim, P6/xer files for the approved baseline schedule, monthly updates, and
final/as-built schedules in order to analyze time related impacts as soon as possible."
The government states that the CO' s request went unanswered until after the current
petition was filed with the Board. (Gov't opp'n at 2)

       The contractor acknowledges that it provided the requested documents on
April 16, 2018, but also maintains that these documents were already in the possession
of the government (pet. resp. at 1-2). The contractor submitted to the Board a
screenshot from the USACE's Resident Management System and Quality Control
System programs showing that the claim and its 108 exhibits were sent to the
government on December 31, 2017 (pet. resp., ex. 1). Regarding the requested
scheduling files, the contractor asserts that these were provided to the government
during the pendency of the contract (pet. resp. at 2).

        After considering the parties' arguments, we find neither wholly persuasive.
The contractor submitted the certified claim and exhibits on December 31, 2017. The
CO acknowledged receipt of the claim on January 8, 2018, but made no mention of the
allegedly missing exhibits at that time. It was not until his February 23, 2018 letter
that the CO requested the exhibits and certain scheduling files. It is not clear why the
CO requested the claim exhibits when they were previously provided. At the same
time, though, the contractor's lack of communication in response to the CO's letter
also contributed to the delay. Finally, the contractor asserts that the requested
scheduling files were submitted during the pendency of the contract, but does not
provide anything to support this assertion.

        Under the circumstances, we find the November 16, 2018 date for issuing a
final decision to represent undue delay. We believe that a reasonable time for the CO
to issue a final decision is September 12, 2018.

                                   CONCLUSION

      The Board hereby directs the CO to issue a decision on the contractor's claim
by September 12, 2018.

      This Order completes all necessary action by the Board. If the CO fails to
comply with this Order, such failure will be deemed a decision by the CO denying the


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claim, and the contractor may appeal to this Board or sue in the United States Court of
Federal Claims pursuant to the Contract Disputes Act, 41 U.S.C. §§ 7103(£)(5) and
7104.

       Dated: July 6, 2018




                                                   ~dministrative Judge
                                                   Chairman
                                                   Armed Services Board
                                                   of Contract Appeals


 I concur
                                                   !co~


 RICHARD SHACKLEFORD                               OWEN C. WILSON
                                                                            -------
 Administrative Judge                              Administrative Judge
 Vice Chairman                                     Vice Chairman
 Armed Services Board                              Armed Services Board
 of Contract Appeals                               of Contract Appeals


       I certify that the foregoing is a true copy of the Order Pursuant to Rule l(a)(5)
of the Armed Services Board of Contract Appeals in ASBCA 615 84-984, Petition of
Rizzani de Eccher (USA), Inc., rendered in conformance with the Board's Charter.

       Dated:




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




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