                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                        )
                                                    )
Thorington Electrical and Construction Company      )   ASBCA No. 604 76
                                                    )
Under Contract No. FA3300-05-C-0015                 )

APPEARANCES FOR THE APPELLANT:                          Deitra Crawley, Esq.
                                                        Natalie Mark, Esq.
                                                         Taylor English Duma LLP
                                                         Atlanta, GA

APPEARANCES FOR THE GOVERNMENT:                         Jeffrey P. Hildebrant, Esq.
                                                         Air Force Deputy Chief Trial Attorney
                                                        Lawrence M. Anderson, Esq.
                                                         Trial Attorney

                OPINION BY ADMINSTRATIVE JUDGE PROUTY
          ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

       Before us is the government's motion for summary judgment, which argues that
the claim appealed here by appellant, Thorington Electrical and Construction Company 1
(Thorington), is time-barred under the Contract Disputes Act of 1978 (CDA), 41 U.S.C.
§§ 7101-7109. Thorington opposes the government's motion, arguing that its claim was
timely because it is an amendment of an earlier claim of which the government was on
notice. For the reasons stated herein, we conclude that the claim is time-barred under the
CDA and enter judgment in favor of the government.

           STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

         1. On 30 September 2005, the United States Air Force (government) awarded
Contract No. FA3300-05-C-0015 (the contract) to Thorington for the construction of a
new entry control facility at the Bell Street Gate at Maxwell Air Force Base, Alabama
(R4, tab 1).

      2. The construction of the facility was substantially completed by 11 August 2008,
when the government determined that it was "fully operational" (compl. ~~ 32, 34).


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    Contract was awarded to "Thorington Electrical/Construction Company" but the claim
         and correspondence herein replaces the backslash (/) with "and."
        3. On 28 April 2009, Thorington submitted a letter to the contracting officer (CO)
seeking $764,813 in compensation from the government (R4, tab 48). The letter was
labeled as a "claim" and was certified by Thorington's general manager and owner,
Mr. Kelvin R. Thorington (id.). The letter provided that, "[t]he items that [Thorington]
is making a claim [upon] are associated with work that was performed but was never paid
and material cost for items increased since submitting the original cost estimate in 2005"
(id. at 1). Thorington also stated, in relevant part:

             In Addition, the claim does not include cost that TECC
             [Thorington] has acquired or projects that TECC could have
             obtained over the last six months. The delay in paying the
             modifications has caused TECC to lose several projects over
             the past year. As stated in several letters to the CO, the
             impact of nonpayment towards these modifications has
             caused delays in TECC paying our sub-contractors in a timely
             manner. This delay in payment has also caused the sub-
             contractors and venders [sic] to file claims against the surety
             company. If all modifications had been paid in a timely
             manner, TECC could have paid the sub-contractors and
             venders [sic] which would have eliminated any intervention
             by the surety company. Once the surety company pays any
             claims it is detrimental to your company's future ability to
             bond. The extended performance time occupied our bonding
             because the government delayed the project for
             approximately 1 Yi years and continues to occupy our
             bonding capabilities until the modifications are settled. These
             additional claims will be submitted through the legal system
             at a later date but with-in the next few months.

(Id. at 6)

        4. By letter dated 14 August 2009, the CO issued a final decision
partially granting and partially denying Thorington's claim dated 28 April
2009 (R4, tab 49).

        5. Thorington appealed the CO's decision to this Board, and the appeal was
docketed on 17 November 2009 as ASBCA Nos. 56987, 56988, 56989, 56990, 56991,
56992, 56993, 56994, 56995, 56996, 56998, 56999 and 57000. These appeals were
all resolved when Thorington signed an agreement, dated 18 August 2015, which
resolved all of its claims dated 28 April 2009 (gov't mot., attach. 1). The agreement




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stated that "[t]he only claim that is not discharged is Contractor's 17 July 2015£21 claim
for $20 million" (id. at 2). At the parties' request, the Board subsequently dismissed with
prejudice ASBCA Nos. 56987, 56988, 56989, 56990, 56991, 56992, 56993, 56994,
56995, 56996, 56998, 56999 and 57000 on 26 August 2015.

        6. The July 2015 "claim" excluded by the August 2015 settlement agreement,
originated in a letter dated 16 July 2015, that Thorington submitted to the CO (R4, tab 52).
This letter is titled "Amended Claim to the Claim Submitted on 28 April 2009," and seeks
$20 million for the value of the loss of business, profit, and income; opportunity costs;
damage to business relationships; and irreparable injury on the grounds that the CO's
failure to issue timely change orders or to grant its claim destroyed its personal and
business finances (id. at 2-3).

       7. By letter dated 30 November 2015, the CO issued a final decision denying
Thorington's claim dated 16 July 2015 (R4, tab 55). Thorington appealed to the Board
on 26 February 2016, and reduced its amount in dispute to $3.75 million. We have
docketed this appeal as the present case.

                                      DISCUSSION

        Thorington's 16 July 2015 claim was untimely because, as demonstrated by its
28 April 2009 claim letter, Thorington knew or should have known the basis for this
claim by 28 April 2009 at the latest, meaning that it fell outside of the CDA's six-year
statute of limitations. Thorington's assertion that the 2015 claim was merely an
amendment to the 2009 claim, permissible under FED. R. CIV. P. 15(c) is misguided,
to say the least. Rule 15(c ), governing the amendment of pleadings before federal courts,
has no bearing upon the statute of limitations for filing a claim before a CO, and the
statute of limitations may not be evaded by submitting a late "amendment" to a timely
claim long since denied.

I.     The Standards for Summary Judgment

       The standards for summary judgment before the Board are well established3
and need little elaboration here. Summary judgment should be granted if it has been
shown that there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A non-movant seeking to defeat summary judgment by suggesting conflicting facts

2 In the parties' settlement agreement, it states that the claim is dated 17 July 2015;
        however, the document in the record is dated 16 July 2015 (R4, tab 52).
3 Board Rule 7(c)(2) provides that the Board looks to FED. R. C1v. P. 56 for guidance in

        deciding motions for summary judgment.

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"must set forth specific facts showing that there is a genuine issue for trial." Anderson v.
Liberty Lobby, Inc., 4 77 U.S. 242, 248 ( 1986) (quoting First National Bank ofArizona v.
Cities Service Co., 391 U.S. 253, 288-89 (1968)). Put another way, ifthe non-moving
party carries the burden of proof at trial for elements of its case and fails to provide such
proof at the motion for summary judgment, the moving party is entitled to summary
judgment. Dairyland Power Co-op v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994).
We do not resolve controversies, weigh evidence, or make determinations of credibility.
Liberty Lobby, 477 U.S. at 255. All reasonable inferences are drawn in favor of the
non-movant. Id.

II.    The CDA Requires the Submission of a Claim to the CO within Six Years of its Accrual

        It is the government's burden as movant for summary judgment to show by
undisputed material facts that Thorington's claim dated 16 July 2015, is time-barred
under the CDA. The CDA requires a contract claim to be "submitted within 6 years
after the accrual of the claim." 41 U.S.C. § 7103(a)(4)(A). A claim accrues under the
CDA when "all events, that fix the alleged liability ... and permit assertion of the claim,
were known or should have been known." Some injury must have occurred; however
"monetary damages need not have been incurred." FAR 33.201. The events fixing
liability should have been known when they occurred unless they can be reasonably
found to have been either concealed or "inherently unknowable" at that time.
Raytheon Missile Systems, ASBCA No. 58011, 13 BCA, 35,241at173,017.

III.   The Claim Here Accrued More Than Six Years Before its Submission

       It is undisputed that the claim, dated 16 July 2015, accrued at the very latest on
28 April 2009 when Thorington notified the government of the potential claim that is at
issue in this appeal (SOF, 3). Thorington acknowledges this fact as it repeats the
government's argument in its response that 'TECC succinctly stated all its claims against
the Air Force in its original claim and the facts that give rise to them, which was filed on
or around April 28, 2009" (app. resp. at 3). It is further undisputed that the claim at issue
in this appeal was not submitted to the CO until the letter dated 16 July 2015 (SOF , 5).
Thus, Thorington's claim dated 16 July 2015, was submitted more than six years after its
accrual and is time-barred under the CDA.

IV.    Thorington Provides No Basis to Excuse its Late Submission of its Claim

      Thorington asserts that its late submission of the present claim is excusable
because it is merely an amendment of its earlier, timely claim, and that, as such, the
"amended" claim should relate back in time to the original claim pursuant to operation
of FED. R. CIV. P. 15(c) (app. resp. at 3-6). The problems with this line of argument
are many and reflect a misunderstanding of the nature of a claim before a CO versus an


                                              4
appeal at a tribunal. In short, the law cited by appellant is utterly inapplicable to the
situation presented here.

       First and foremost, the terms of FED. R. C1v. P. 15(c) and the case cited by
appellant that interprets it, Design and Production, Inc. v. United States, 10 Cl. Ct. 80
( 1986), refer to the amendment of a complaint that is already before a federal judicial
tribunal. The closest analog to the situation presented here (for we are not a federal court,
but are an administrative body and the Federal Rules of Civil Procedure do not apply to
us except to the extent that we look to them for guidance) would be an amendment to the
complaint in the appeal of a CO's final decision to the Board. Thorington did not do that
here: the purported amendment was to the claim before the CO, not to any complaint
before us, and it was submitted to the CO, not to the Board.

        Beyond the inapplicability of FED. R. CIV. P. 15(c),4 there is no provision in the
Board's rules or in the CDA permitting an amendment of a claim in such circumstances,
much less allowing it to "relate back" in time to the initial claim. First, Thorington has
presented no authority for the notion that it may submit an amendment to a claim upon
which a CO has already issued a final decision. A final decision is, after all, final,
unless the CO chooses to amend it and there is no law requiring consideration of an
amendment to an already-denied claim. With respect to whether there is any basis,
outside of FED. R. CIV. P. 15(c ), that would permit relation back for the amendment of an
already-denied claim (even were the amendment to be permitted), the law indicates that it
would not. As noted above, the case upon which Thorington principally relies, Design
and Production, involves amending a complaint before the Claims Court to include relief
already sought in a timely claim submitted to (and denied by) the CO. 10 Cl. Ct. at 81.
The court there made clear, moreover, that, had plaintiff in that case sought to add new
claims not already considered by the CO, it would not have permitted the amendment.
See id. In a similar case, the Court of Federal Claims bluntly stated that "Rule 15(b)
cannot be invoked to resurrect an otherwise time-barred claim." Renda Marine, Inc. v.
United States, 65 Fed. Cl. 152, 162 (2005). Merely going through the motions of
submitting a purported "amendment" to a claim previously submitted to the CO, but
denied more than five years earlier, does not provide a back-door means to reset the
statute of limitations.


4   The government implicitly concedes the applicability of FED. R. CIV. P. 15(c), by
         arguing that the amendment should not be permitted because the claims were so
         different (gov't reply at 4-5). The claims were, in fact, different, given
         Thorington' s own statement in its initial claim promising that it would
         subsequently file the additional claims, which would likely preclude amendment
         pursuant to Rule 15(c), even if it were applicable. Nevertheless, we need not
         decide that here.

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V.    There is No Need for Additional Discovery

       Thorington' s argument that summary judgment should be deferred to allow for
additional discovery regarding the government's knowledge of its additional claims
(app. resp. at 6-7), is misplaced because such discovery could not conceivably affect
any material facts before us. To be sure, under the FED. R. CIV. P. 15 construct, the
government's knowledge of potential claims may be relevant in a tribunal's evaluation of
whether to permit amendment of a complaint before it, see, e.g., Design and Production,
10 Cl. Ct. at 82, but that construct has no applicability here. The statute of limitations
decision in the motion for summary judgment before us is based upon what Thorington
knew and when, not the government's knowledge. Indeed, even ifthe government knew
every particular of Thorington' s potential claim, and Thorington obtained proof of that
knowledge in additional discovery, it would not change the outcome of this case so long
as Thorington failed to file its claim within the time set forth by the CDA, as it did.
Accordingly, Thorington has given us no reason to delay deciding the motion before us.
See, e.g., Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984).

                                     CONCLUSION

      For the reasons stated herein, we grant summary judgment in favor of the
government. The appeal is denied.

       Dated: 16 February 2017



                                                 J.
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

I concur                                         I concur



~~~/~
~N.STEMPLE            ~
                                                   F\··
                                                 RICHARD SHACKLEFORD
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. 60476, Appeal of Thorington
Electrical and Construction Company, rendered in conformance with the Board's Charter.

      Dated:



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




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