ASBCA 58517

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) The R.R. Gregory Corporation ) ASBCA No. 58517 ) Under Contract No. DACA31-00-C-0037 ) 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. Engineer Trial Attorney U.S. Army Engineer District, Baltimore OPINION BY ADMINISTRATIVE JUDGE JAMES ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The government moves to dismiss this appeal for lack of jurisdiction asserting that appellant's claim, submitted more than six years after the government withheld liquidated damages, is barred by the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7109-7109, statutory limitation period. Appellant opposed the motion, arguing that its claim is timely because it did not accrue until the expiration of the government's time to issue a decision withholding liquidated damages and the government's withholding of liquidated damages, without a final decision, was invalid. The government replied to appellant's opposition, and appellant submitted a sur-reply. We grant the motion and dismiss the appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The U.S. Army Corps of Engineers (government) awarded Contract No. DACA31-00-C-0037 (the contract) for $6,998,000 to The R.R. Gregory Corporation (Gregory) on 30 September 2000 for construction of a new physical fitness center at Walter Reed Army Medical Center in Washington, DC (R4, tabs 2, 3). 2. The contract incorporated by reference the FAR 52.233-1, DISPUTES (DEC 1998) clause, which stated in relevant part: (c) "Claim," as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of 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.. .. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act.. .. (d)( 1) ... A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer. and the FAR 52.211-12, LIQUIDATED DAMAGES-CONSTRUCTION (APR 1984) clause, whose~ (a) stated: If the Contractor fails to complete the work within the time specified in the contract, or any extension, the Contractor shall pay to the Government as liquidated damages [LDs ], the sum of$1,015.00 for each day of delay. (R4, tab 2 at 6 1, 21) 3. The contracting officer (CO) issued to Gregory a notice to proceed to perform the contract on 13 November 2000, which Gregory received on 17 November 2000, establishing an original contract completion date of 12 November 2001 (R4, tab 4; compl. & answer~ 5). 4. Thirteen of the 34 contract modifications gave Gregory a total of 549 days of time extensions. Bilateral Modification No. P00034 set the final contract completion date of 15 May 2003. (R4, tabs 5-8, 10, 12-13, 15-16, 19, 28-29, 32) 5. Administrative CO (ACO) Jeffrey J. Werner's 12 November 2002 letter to Gregory expressed disappointment with its "lack of progress towards completion" of the contract and stated "that as of 1 December 2002, the Government will withhold from your pay request liquidated damages in the contractually specified amount of $1,015.00 per day" until Gregory demonstrated substantially improved progress (R4, tab 9). 6. The government's 27 January 2003 payment estimate for the period 1 November 2002 through 31 December 2002 withheld $31,465 for 31 days ofLDs (R4, tab 14). Gregory's 18 February 2003 letter to ACO Werner acknowledged receipt of the foregoing payment estimate and disputed the withheld LDs (app. supp. R4, tab 43). 1 Rule 4 page cites are to their Bates numbers. 2  7. The government's 21 May 2003 payment estimate No.