ASBCA 59178

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Lobar, Inc. ) ASBCA No. 59178 ) Under Contract No. W912QR-11-C-0062 ) APPEARANCE FOR THE APPELLANT: R. Dale Holmes, Esq. Cohen Seglias Pallas Greenhall & Furman PC Philadelphia, PA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Kevin M. Finley, Esq. Engineer Trial Attorney U.S. Army Engineer District, Louisville OPINION BY ADMINISTRATIVE JUDGE STEMPLER ON GOVERNMENT'S MOTION TO STAY PROCEEDINGS Appellant appeals under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109, from the alleged deemed denial of its 26 November 2013 differing site conditions claim in the amount of $1,412,348.00. The government moves to stay proceedings until 12 May 2014 to permit the contracting officer to issue a final decision. The Board, sua sponte, directed the parties to address whether appellant's appeal is premature and, therefore, whether the Board lacks jurisdiction to adjudicate this appeal. Both parties have responded. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On or about 29 September 2011, the United States Army Corps of Engineers awarded Contract No. W912QR-11-C-0062 to Lobar, Inc., for the design and construction of an Army Reserve Center in Newtown Square, Pennsylvania (compl. iii! 1-2). 2. By letter to the contracting officer (CO) dated 26 November 2013, Lobar submitted a certified claim seeking $1,412,348.00 and a 257-day time extension due to an alleged differing site condition ( compl. ii 51; gov't br., attach. I). Lobar submitted its claim to the CO by email dated 26 November 2013 (gov't br., attach. 1). Both appellant and the government provided copies of the email that show appellant submitted the claim to the CO on 26 November 2013 at 3:03 PM (app. opp'n to gov't mot. to stay proceedings, attach. 1; gov't br. attach. 1). The government has neither asserted nor provided evidence that the CO did not receive the claim on that date. Subsequently, Lobar also sent a copy of its claim to the contracting officer's representative (COR) by email dated 5 December 2013 (gov't br., attach. 2). The COR acknowledged receipt of Lobar's claim on behalf of the government by letter dated 5 December 2013. The COR's acknowledgment letter, however, did not indicate when the government received the claim. (Gov't mot. to stay proceedings, attach. 2) We find that the CO received the claim on 26 November 2013. 3. By letter to Lobar dated 3 February 2014, the CO stated: I am writing to follow up on USACE Letter No. 42, dated December 5, 2013, which acknowledged the Request for a Contracting Officer's Decision you submitted in Lobar Letter No. 0050. Since your claim is for more than $100,000, FAR Clause 52.233-1, "Disputes," requires that the Government notify you as to when the Decision will be made within sixty (60) days of receipt of the Request. Accordingly, I am notifying you that the Contracting Officer's Decision requested in Lobar Letter No. 0050 will be issued on or before May 12, 2014. (Gov't mot. to stay proceedings, attach. 3) 4. Lobar filed a deemed denial appeal by an emailed notice of appeal dated 26 February 2014, stating that the CO "failed to issue a final decision within 60 calendar days and failed to notify Lobar, Inc. within 60 calendar days of receiving Lobar' s certified claim, of when she would issue her final decision." 5. By motion dated 4 March 2014, the government moved to stay proceedings until 12 May 2014 to allow the CO to issue a final decision on Lobar's claim. Appellant opposes the motion. 6. By Order dated 5 March 2014, the Board directed the parties to provide a copy ofLobar's 26 November 2013 and 5 December 2013 emails (SOF ii 2), with evidence of the date of receipt by the CO and the COR, respectively. The Board also, sua sponte, directed the parties to provide their views as to whether the appeal was premature and whether the Board had jurisdiction to adjudicate the appeal.