ASBCA 58634

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Parsons Evergreene, LLC ) ASBCA No. 5 8634 ) Under Contract No. FA8903-04-D-8703 ) APPEARANCES FOR THE APPELLANT: Douglas S. Oles, Esq. James F. Nagle, Esq. Adam K. Lasky, Esq. Howard W. Roth III, Esq. Oles Morrison Rinker & Baker LLP Seattle, WA APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Michelle D. Coleman, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S MOTION TO PARTIALLY DISMISS FOR LACK OF JURISDICTION The Air Force (AF) moves to dismiss Section V of Parsons Evergreene, LLC's (PE' s) certified claim for lack of jurisdiction. As decided in our decision on the larger claim issued today, we have jurisdiction to consider this motion pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny the motion. DISCUSSION The AF identifies the issue presented in its motion as: Whether the Armed Services Board of Contract Appeals has jurisdiction to decide the modified total cost claim in section V of Parsons Evergreene, LLC's certified claim dated 29 June 2012 when section V of the claim lacked sufficient information and detail that would have allowed the CO to meaningfully consider the claim? (Gov't mot. at 4) (Footnotes omitted) Claim Section V was previously Request for Equitable Adjustment (REA) No. 8 (id. at 8). Summary Chronology PE's REA No. 8 was submitted on 30 November 2011 (R4, tab 1540; gov't mot. at 5). The AF did not agree with the REA and PE filed a certified claim on 29 June 2012 (R4, tab 21; gov't mot. at 8). A final decision denying the claim was issued on 27 March 2013 (R4, tab 214; gov't mot. at 10). This appeal was docketed by the Board on 24 April 2013. A hearing was held from 2 to 27 March 2015. The final brief, PE's reply brief, was received by the Board on 25 May 2016. The AF's motion to partially dismiss for lack of jurisdiction was received by the Board on 28 December 2017. Therefore, the AF's motion was filed after the case was fully litigated and over five years from the AF's receipt of the claim. PE's Claim PE's 29 June 2012 detailed certified claim had 127 pages, 7 discrete sections, only Section V (previously REA No. 8) is the subject of the AF's motion. Section V, Government Management and Administration of the Design-Build Process during the Build Phase, claimed $28,157,994; it was identified by PE as a Modified Total Cost (MTC) claim. (R4, tab 21 at PDF 53, 56) The Technical Review Claim Section V was submitted to the AF Center for Engineering and the Environment (AFCEE) (R4, tab 213 at 33 7) for technical evaluation. AFCEE issued the results of its evaluation on 4 September 2012 (id. at 306). AFCEE reviewed the 22 "events" in Section V of the claim and recommended that AF "reject PE's unsupported claim of a 'Cardinal Change' doctrine" 1 (id. at 307). The AFCEE discusses each "event" in its 31-page report (id. at 306-3 7). The events were: Structural Change, Structural Brick (id. at 309); Design Deficiencies-Denial of Design Flexibility (id. at 311 ); Government Interference with Implementing Approved Design (id. at 312); Issuance of Improper Cure Notice (id.); Title II Representative Malfeasance (id. at 313 ); Base Entry Issues (id. at 314); Final Inspection Process (id.); Late Material Submittals Approvals (id. at 315); Standing Seam Metal Roof, Material Approvals (id. at 317); EIFS versus Stucco (id.); Manhole 35 Asbestos Extension (id. at 319); TLF Windows (id.); Delegation of Field Authority (id. at 321); Standing Seam Metal Roof, Oil Canning (id.); TLF Windows (Size) (id. at 323); Retention Pond (id. at 324); TLF Mechanical Room Noise and Vibration (id. at 327); Roof Steel and Walkway in VQ Roof (Catwalks) (id.); High Temperature Hot Water (id.); Switch to Tri-Arch Paint (id. at 328); Sewage in VQ Caused by CE Service Call (id.