                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
The R.R. Gregory Corporation                   )      ASBCA No. 58517
                                               )
Under Contract No. DACA31-00-C-003 7           )

APPEARANCE FOR THE APPELLANT:                         Brian Cohen, Esq.
                                                       Greenburg & Spence, L.L.C.
                                                       Gaithersburg, MD

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      Richard P. White, Esq.
                                                      Michael T. Shields, Esq.
                                                       Engineer Trial Attorneys
                                                       U.S. Army Engineer District, Baltimore

                 OPINION BY ADMINISTRATIVE JUDGE JAMES
               ON APPELLANT'S MOTION FOR RECONSIDERATION

        The Board's 6 February 2014 decision granted respondent's motion to dismiss the
captioned appeal for lack of subject matter jurisdiction, held that appellant's 24 August 2012
certified claim was barred by the Contract Disputes Act (CDA) six-year statute of
limitations, 41 U.S.C. § 7103(a)(4)(A), and dismissed the appeal. On 10 February 2014
appellant received that decision and on 7 March 2014 timely moved for reconsideration. On
7 April 2014 respondent replied thereto. Appellant responded on 22 April 2014.

      Movant asserts that our decision "mischaracterizes Gregory's claim" and:

               [H]as made significant, material mistakes in its findings of fact,
               both in the characterization of the findings and the complete
               omission of material dispositive facts which the Board has chosen
               to ignore. In addition the Board's legal analysis is erroneous,
               misstates cases relied on, and fails to consider other significant case
               law, including cases of this Board which clearly dictate a different
               result.

(App. mot. at 1, 13)
                                              I.

        With respect to the assertion that our decision mischaracterized Gregory's claim, we
stated the fact and date of movant's claim in SOF ii 15, and set out in fair detail its claim
contentions before proceeding to our decisional analysis. 14-1 BCA ii 35,524 at 174,110.
Our statements accurately described, and mischaracterized nothing in, Gregory's 24
August 2012 claim theory and allegations, as appellant now concedes (app. resp. at 8).

                                              II.

        Movant asserts that the Board's SOF ii 13 is incomplete, misleading and erroneous
because some documents cited (R4, tabs 48, 49, 52, 54-55; app. opp'n, ex. 13) do not refer
specifically to "time extensions for unadjusted change orders"; tab 56 omits the "material
facts" of a "$180,032 ... settlement offer" to Gregory for "release ofLD's held on project"
(app. mot. at 2-3); some exhibits (app. opp'n, exs. 13, 14) are outside the "2006 to 2010"
period in SOF ii 13; exhibit 13 shows that in July-August 2011 the government was
interested in settling LDs (id., exs. 3-4); and the decision omitted exhibits (app. opp'n, exs.
6, 7, 9, 11, 12) showing that Gregory was performing corrective work (app. opp'n at 4-5).

        Movant' s allegation of omissions of "material" facts is invalid because the
contracting officer (CO) did not agree to an extension of the substantial completion date
and correlative reduction of Gregory's LD liability; the parties' discussions regarding
unadjusted changes and Mr. Andrysiak's 30 September 2010 settlement recommendation
(app. supp. R4, tab 56) did not postpone the running of the six-year CDA statute of
limitations, for the reasons stated in our decision, 14-1 BCA ii 35,524 at 174, 111; and
repair work Gregory performed after the date of substantial completion is immaterial to
its liability for LDs.

        Accordingly, to clarify the scope and dates of the parties' communications, we
revise SOF ii 13 to state: "From 2006 to 2011 the parties intermittently discussed, inter
alia, time extensions for unadjusted changes, but they did not agree to adjust such changes
or Gregory's liability for LDs (app. supp. R4, tabs 48-56; app. opp'n, exs. 3-4, 11-14)."

                                             III.

       The premises of appellant's August 2012 claim and this motion for reconsideration
are that assessment ofLDs is a government claim for which the CDA requires a CO's
decision, and appellant's claim for remission ofLDs accrued on 3 October 2009 when the
government's LD claim became time-barred.

     Movant's first premise, that assessment ofLDs is a government claim for which the
CDA requires a CO's decision, is unsound. For many decades agency CO's have offset


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LDs from unexpended contract balances, which LDs remain in agency appropriations.
When all LDs are so assessed, the CO has no need to demand payment of LDs.

       The ASBCA has so recognized. In April 2007 the CO notified the contractor that
a deduction "of $103,700.00 for 61 calendar days of [LDs] is also retained" from the
contractor's invoice; in May 2007 the contractor submitted a $51,393.65 claim for
77 days of government delay, and in December 2007 the CO's final decision granted a
4-day time extension on the contractor's May claim. While our decision stated that the
"assessment of [LDs] is a government claim," despite the absence of any CO decision
assessing LDs, we held that the contractor was entitled to recover for 43 days of
compensable delay, but was liable for 34 days ofLDs. See Hedgecock Electric, Inc.,
ASBCA No. 56307, 12-2 BCA ~ 35,086 at 172,312, -314, -318. Thus, it is not correct
the CO always must issue a final decision expressly assessing LDs.

       In the example cited by the Court of Federal Claims, the $303,550 in LDs
exceeded the unexpended contract funding, so the government offset $244,035 for LDs
from contract funds and issued a 20 December 2002 CO' s decision demanding the
$59,514 balance ofLDs, on which balance the trial court granted the government
summary judgment. See M Maropakis Carpentry, Inc. v. United States, 84 Fed. Cl. 182,
193 (2008), ajf'd, 609 F.3d 1323, 1329-30 (Fed. Cir. 2010). The trial court and the
Federal Circuit Court did not hold or state that the government was barred from retaining
the additional $244,035 because it was not demanded in the CO's decision.

        Movant's second argument, appellant's claim for remission ofLDs accrued on
3 October 2009 when the government's LD claim was time-barred, is based on the false
premise that the government was required to submit a claim for LDs. Moreover, this
argument is inconsistent with the CDA statute of limitations. As 41 U.S.C. § 7103(a)(4)(A),
states: "Each claim by a contractor against the Federal Government relating to a contract
and each claim by the Federal Government against a contractor relating to a contract shall be
submitted within 6 years after the accrual of the claim" (emphasis added).

      Accordingly, we deny appellant's motion for reconsideration.

      Dated: 12 May 2014




                                                Administr ive
                                                Armed Sert,..·~
                                                of Contract Appeals

(Signatures continued)


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I concur                                        I concur




Administrative Judge                            Administrative Judge
Acting Chairman                                 Acting 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 Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 58517, Appeal of The R.R. Gregory
Corporation, rendered in conformance with the Board's Charter.

      Dated:



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




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