ASBCA 60648

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Areyana Group of Construction Company ) ASBCA No. 60648 ) Under Contract No. W5J9LE-12-C-0013 ) APPEARANCE FOR THE APPELLANT: Mr. Zabit Khan President APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney James D. Stephens, Esq. Edward J. McNaughton, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Memphis OPINION BY ADMINISTRATIVE JUDGE PAUL ON THE GOVERNMENT'S MOTION TO DISMISS This is a timely appeal of a contracting officer's (CO's) final decision denying appellant Areyana Group of Construction Company's (AGCC's) request for a 188-day time extension and the return of liquidated damages withheld by the government in a total amount of $380,512. The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, is applicable. The government filed a motion to dismiss, contending that AGCC failed to certify its request and that, accordingly, the Board lacked jurisdiction to review its allegations. 1 STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 28 December 2011, the government entered into fixed-price contract, No. W5J9LE-12-C-0013, with AGCC in a total amount of $13,058,609.03 (R4, tab 3 at 1-2). Under the contract, AGCC was required to design and construct "the Open Bay Barracks for the Afghan National Civil Orders Police (AN COP) Patrol Battalion at Tarim K wot, Uruzgan Province, Afghanistan" (id. at 5). 2. The contract incorporated by reference several Federal Acquisition Regulation (FAR) clauses, including FAR 52.233-1, DISPUTES (JUL 2002) (R4, tab 3 at 11), which included in pertinent part: 1 This decision pertains only to ASBCA No. 60648, which is consolidated with ASBCA No. 60649.  (c) Claim, as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter by right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under the [CDA] until certified. The contract also contained FAR 52.211-12, LIQUIDATED DAMAGES-CONSTRUCTION (SEP 2000), which provided for damages in the amount of $2,024 for each day of delay in completing the work. In addition, the contract included FAR 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984), which stated: The Contractor shall be required to (a) commence work under this contract within 10 calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and ( c) complete the entire work ready for use not later than 460 calendar days from notice to proceed. The time stated for completion shall include final cleanup of the premises. (Id. at 33)2 3. On 4 December 2012, the contracting officer's representative (COR) informed AGCC that she was withholding 5 percent of progress payment No. 7 due to unsatisfactory performance (R4, tab 12). On 12 December 2012, the CO informed AGCC that, although it should have achieved completion of 52 percent, it had only made progress in the amount of 30 percent. He asked AGCC to provide a remediation plan. (R4, tab 13 at 1) As of2 January 2013, AGCC had not produced the requested plan. On that date, the COR informed AGCC that it was over 10 percent behind schedule and that accordingly, 10 percent of progress payment No. 8 was being withheld. (R4, tab 14 at 1) 4. On 8 January 2013, the COR informed AGCC that it was "over 20% behind schedule." On this basis, she wrote that she was preparing "an interim unsatisfactory evaluation" with respect to AGCC's work on the contract. (R4, tab 15 at 1) On 4 February 2013, the COR informed AGCC that it was withholding 10 percent of progress payment No. 9 for unsatisfactory performance (R4, tab 17).