CBCA 3246

CBCA 3246 DISMISSED FOR LACK OF JURISDICTION; CBCA 4356 GRANTED-IN-PART and DISMISSED-IN-PART FOR LACK OF JURISDICTION: August 17, 2016 CBCA 3246, 4356 REGENCY CONSTRUCTION, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. S. Leo Arnold and Matthew W. Willis of Ashley, Ashley & Arnold, Dyersburg, TN, counsel for Appellant. Danny L. Woodyard, Office of the General Counsel, Department of Agriculture, Little Rock, AR, counsel for Respondent. Before Board Judges SOMERS, VERGILIO, and SULLIVAN. SULLIVAN, Board Judge. Appellant, Regency Construction, Inc. (Regency), appeals two decisions of the contracting officer for respondent, Department of Agriculture, Natural Resources Conservation Service (NRCS), denying its claim for additional costs of performance on the task order for canal excavation services in St. Bernard Parish, Louisiana. The appeal of the first decision, issued by the contracting officer on November 15, 2012, on Regency’s uncertified claim, was docketed as CBCA 3246. The appeal of the second decision, issued CBCA 3246, 4356 2 by the contracting officer on November 25, 2014, after Regency certified its claim, was docketed as CBCA 4356. In its claim, Regency sought $292,403, as the costs arising from four different issues that occurred during performance: (1) delays caused by the continued presence of another contractor at the site, despite the agency’s representation that the other contractor would be finished prior to the start of task order performance; (2) delays in survey work caused by the NRCS; (3) costs incurred to remove additional material that entered the canal when the sides of the canal would not maintain the slope that NRCS mandated; and (4) delays Regency experienced looking for gas pipelines that did not exist. In its appeals, Regency also seeks the costs paid to a consultant who assisted with contract administration related to these problems, although these costs were not discussed in its claim to the contracting officer. The Board convened a hearing in this matter in New Orleans, Louisiana, on December 9-12, 2014. Two fact witnesses testified in support of Regency’s claims: Mr. John Smith, the president and owner of Down To Earth Contracting (DTEC), which was the subcontractor to Regency for the task order at issue in this appeal; and Mr. Paul Kosbab, the president and owner of Regency. Mr. Kosbab has been performing excavation and other storm-related clean-up projects for NRCS since 1989. Transcript at 493-94. Regency also presented the testimony of two experts: Dr. Berkeley Traughber, geotechnical expert; and Mr. William Connole, cost and pricing and delay analysis expert. Three witnesses testified on behalf of the agency: Mr. Brad Sticker, Ms. Cherie LeFleur, and Mr. Dale Garber. Mr. Sticker is no longer employed by the agency but had held the title State Conservation Engineer and served as one of the managers of the NRCS emergency operations center (EOC) in Louisiana during the pendency of the task order. Transcript at 844-45. That office was responsible for the projects in Louisiana after Hurricane Katrina. Id. Ms. LeFleur is an environmental engineer with the agency and also served as a manager of the EOC. Id. at 765. Ms. LeFleur designed the project. Id. at 777. Mr. Garber is an engineer with NRCS, and served as the contracting officer’s technical representative (COTR) on the task order for approximately two weeks at the beginning of January 2008. Id.