ASBCA 60710

ARMED SERVICES BOARD OF CONTRACT APPEALS Petition of -- ) ) Volmar Construction, Inc. ) ASBCA No. 60710-910 ) Under Contract No. W912QR-12-C-0074 ) APPEARANCE FOR THE PETITIONER: Richard T. Garofalo, Esq. Garrity, Graham, Murphy, Garofalo & Flinn East Hanover, NJ APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Carlton A. Arnold, Esq. Engineer Trial Attorney U.S. Army Engineer District, Louisville OPINION PURSUANT TO BOARD RULE l(a)(5) DIRECTING CONTRACTING OFFICER TO ISSUE DECISION Pursuant to Board Rule l(a)(5), Volmar Construction, Inc. (Volmar) petitions the Board to direct the contracting officer (CO) to issue a decision on its claims in advance of the date announced by the CO. In response, the government argues that the CO's decision to issue the final decision no later than 31 March 2017 is reasonable because the current CO has no prior knowledge of the claims and the government will require an outside scheduling expert to examine the delay and impact damages. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE PETITION 1. On 29 September 2012, the United States Army Corps of Engineers, Louisville District (government) awarded Contract No. W912QR-12-C-0074 to Volmar to renovate and repair buildings on Joint Base McGuire-Dix-Lakehurst, New Jersey (gov' t ex. 1, contract at 1-6). 2. By letter dated 19 May 2016, Volmar submitted eight claims to the CO, seeking money and extensions of time. Volmar previously submitted the substance of its claims to the CO as written demands for payment or requests for equitable adjustment 1 as follows: $84, 191.11 for additional asbestos abatement, temporary 1 The Board expresses no opinion as to whether the previous submittals were claims or requests for equitable adjustment. heating costs, and inadequate water flow conditions dated 29 January 2016; $663,600.00 for extended office overhead dated 11 February 2016; $59,208.28 for kitchen equipment 2 dated 12 February 2016; $930,584.74 for canopy modification and loss of electrical subcontractor dated 22 February 2016; extension of time request for smoke seals dated 29 February 2016; extension of time request for railings 3 dated 15 March 2016 4 ; $516,356.63 for additional labor, material testing, and extended office overhead related to impacts and delays with peeling paint from the ceiling dated 21 March 2016 5 ; and $41,868.06 and $34,808.08 for additional costs regarding installation of booster fans dated 23 February 2016 and 31March2016 6 . (Gov't ex. 2, claim at 1-3) 3. By letter dated 27 June 2016, Volmar modified its two extension of time claims by adding extended field office overhead in the amounts of $110,538.00 for the railings claim and $202,756.50 for the smoke seals claim 7 (gov't ex. 6). 4. By letter dated 18 July 2016, the CO issued a final decision, granting the - $59,208.28 claim for kitchen equipment (gov't ex. 7 at 1). The government attorney sent a separate letter to Volmar, dated 18 July 2016, stating that the remaining seven CO final decisions would be issued on or before 31 March 2017 (gov't ex. 8). 5. Pursuant to Board Rule l(a)(5), Volmar petitioned the Board, by letter dated 23 July 2016, for an order directing the CO to issue a decision on its seven remaining claims no later than a reasonable time set by the Board (pet. at 4). 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 either (a) issue a decision or (b) notify the contractor of the time 2 Volmar submitted a notice of appeal regarding the kitchen equipment to the Board on 17 June 2016 and it was docketed as ASBCA No. 60634. 3 Volmar submitted a notice of appeal regarding the smoke seals and railings time extensions on 17 June 2016 and it was docketed as ASBCA No. 60635. 4 In its 19 May 2016 claim, Volmar states that this prior submittal was dated 29 February 2016; however, the document in the record is dated 15 March 2016 (gov't ex.