CBCA 4717

DENIED: February 12, 2016 CBCA 4717, 4741 JDL CASTLE CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. W. David Shannon, President of JDL Castle Corporation, Winston-Salem, NC, appearing for Appellant. Helen Y. Kearns, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges VERGILIO, DRUMMOND, and SHERIDAN. DRUMMOND, Board Judge. These appeals arise out of a lease between JDL Castle Corporation (JDL or appellant) and the General Services Administration (GSA or respondent). In both matters, JDL alleges that Government-caused delay entitles it to damages based on delayed rental payments. GSA filed motions for summary relief, arguing that JDL has not provided evidence to prove compensable relief. Although these appeals concern two different periods of alleged delay under the lease, our analysis of appellant’s entitlement to damages is the same for each. As explained below, we find that appellant has failed to establish any compensable damages CBCA 4717, 4741 2 resulting from Government-caused delays. We therefore grant GSA’s motions and deny the appeals. Findings of Fact On November 26, 2012, GSA awarded lease GS-07B-17152 (lease) to JDL for building space for the United States Citizenship and Immigration Services (USCIS) in Fort Smith, Arkansas. The claims before the Board involve two periods of alleged delay during the course of the project – one occurring in the preconstruction phase (CBCA 4717), and one during construction (CBCA 4741). In CBCA 4717, appellant seeks compensation for Government-caused delay in the completion of project design activities, which delayed issuance of the notice to proceed. GSA accepts responsibility for the delay, but denies appellant established any damages. In CBCA 4741, appellant seeks delay costs related to the approval and installation of a security system. GSA denies responsibility for the delay, but again argues that appellant has failed to establish any damages. CBCA 4717 The project schedule provided for 170 working days between contract award and the notice to proceed on construction, in order to allow JDL, GSA, and USCIS to complete design activities for the space. Those activities included developing the schematic design layout, reviewing and approving design intent drawings (DIDs) and construction documents (CDs), and negotiating the tenant improvements price proposal (TIPP). JDL and GSA agree that the project schedule was not followed and that the Government was responsible for the delay in completing the project design activities and issuing the notice to proceed. The parties agreed to a 135-day delay. GSA attributed the delay, in part, to USCIS’ failure to provide a schematic design layout in a timely manner, changes to the DIDs and CDs, and submittal of incorrect DIDs. Exhibit 48.1 While negotiating the delay period, JDL and GSA also negotiated the TIPP. JDL asserts that during these negotiations it agreed to accept a reduction in overhead and profit in the TIPP in exchange for the costs associated with the Government-caused delay.2 GSA 1 All exhibits for this section are found in the CBCA 4717 appeal file, unless otherwise noted; in addition, all cited pleadings are those filed under this docket number. 2 In a February 24, 2014, email message, JDL states that it “will accept the [TIPP] after Reduction amount as long as we have [GSA’s] word that the [delay claim] will be given a fair and reasonable evaluation for payment.” Exhibit 26. CBCA 4717, 4741 3 counters that JDL agreed to this reduction to continue negotiations to the notice to proceed and construction phase. Exhibit 24.3 On March 4, 2014, GSA issued lease amendment 3, containing the notice to proceed. Exhibit 30. On January 8, 2015, JDL submitted a certified claim in the amount of $53,494.46 for delay damages.4 Exhibit 40. JDL characterized this claim as an “interest carry cost” claim for the delay period. JDL states that its “interest carry cost” claim represents interest paid on construction loans and the cost of carrying payments on the property. Exhibits 26, 39. On January 28, 2015, the contracting officer (CO) issued a decision on the claim. Exhibit 48.