ASBCA 58782

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Certified Construction Company of ) ASBCA No. 58782 Kentucky, LLC ) ) Under Contract No. W9124D-06-D-0001 ) APPEARANCES FOR THE APPELLANT: Thomas E. Roma, Jr., Esq. G. Alan Oliver, Esq. Ackerson & Yann, PLLC Louisville, KY APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Tyler L. Davidson, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE TING ON GOVERNMENT'S PARTIAL MOTION TO DISMISS Certified Construction Company of Kentucky, LLC (Certified or appellant) submitted a $839,052.31 request for equitable adjustment (REA) in September 2012. After the contracting officer (CO) denied the REA, Certified submitted a claim. The CO denied the claim and Certified appealed. The government moves to dismiss a portion of appellant's claim for lack of Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, jurisdiction, arguing that it accrued six years prior to appellant's claim submission. Certified maintains that its REA was a claim and that the Board has jurisdiction over a larger portion of appellant's claim than the government asserts. We grant the government's motion and dismiss the portion of the appeal pertaining to costs incurred prior to 22 March 2007. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Effective 20 October 2005, Fort Knox Directorate of Contracting (Army or the government) awarded Contract No. W9124D-06-D-0001 to Certified. The requirements-type contract was for concrete placement, asphalt surface treatments and pavement markings at Fort Knox, Kentucky, for a period of performance from 1 November 2005 through 31 October 2006. The contract included a one-year option period. (R4, tab 1)  2. The government exercised the first option year by Modification No. P00005 extending the contract through 31 October 2007 (R4, tab 7 at 1-2) and extended that option through 30 April 2008 by Modification No. P00009 (R4, tab 11 at 1). The government also modified the contract multiple times to adjust line item pricing (R4, tabs 8-10, 12-14). The final estimated value of the contract was$ 3,166,308.90 (R4, tabs2, 14). 3. The contract contained Alternate I of the Disputes clause, FAR 52.233-1, DISPUTES (JUL 2002)-ALTERNA TE 1 (DEC 1991 ). 4. During the course of performance, appellant alleges, "the cost of certain petroleum products substantially increased in a manner unanticipated at the time Appellant entered into the contract" (comp I. ~ 7). Certified sent a letter, dated 17 September 2012, to the CO with the subject line "Requirements Type Contract for Concrete and Asphalt-W9l24D-06-D-OOO1." The letter stated: We are making a Request for Equitable Adjustment to this contract. ... During the contract we incurred additional expenses due to the extreme rise in petroleum products used in this contract. The product that had the greatest impact to our costs was Liquid Asphalt.. .. The CLIN's that were affected by this cost impact are 0072, 0073, 1072 and 1073. We have estimated our request using the Kentucky Transportation Cabinet, Department of Highways Standard Specifications for Road and Bridge Construction, Section 109.07.01, Price Adjustments for Liquid Asphalt. We have attached the worksheets we used in the determination of the cost impact for this request and the REA is based on the KY Asphalt Index, KAPI at the time of the contract bid, versus the KAPI at the time of production and installation. The total amount requested for the REA is listed below for the Asphalt Base and Asphalt surface items we used for the duration of the contract. Total Request for Equitable Adjustment $ 839,052.31 2  In summary, this request is for adjustment to contract pnce. (R4, tab 15 at 1-2) 5.