CBCA 2953-R

MODIFIED ON RECONSIDERATION: April 13, 2020 CBCA 2953-R, 2954-R, 2955-R, 3596-R, 4175-R, 4377-R, 5006-R SUFFOLK CONSTRUCTION COMPANY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James R. Newland, Jr., of Seyfarth Shaw LLP, Washington, DC, counsel for Appellant. James F. H. Scott and Justin S. Hawkins, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges SOMERS (Chair), DRUMMOND, and ZISCHKAU. ZISCHKAU, Board Judge. Appellant, Suffolk Construction Company, Inc. (Suffolk), and respondent, General Services Administration (GSA), have moved to amend our decision in Suffolk Construction Co. v. General Services Administration, CBCA 2953, et al., 20-1 BCA ¶ 37,488 (2019). We treat their motions as motions for reconsideration. The parties do not contest any of the entitlement determinations of our decision, but seek adjustments to the quantum award. We grant reconsideration and amend in part our quantum award. CBCA 2953-R, 2954-R, 2955-R, 3596-R, 4175-R, 4377-R, 5006-R 2 Background Familiarity with the underlying decision is presumed. This appeal arose from a contract GSA awarded to Suffolk for the renovation of the McCormack Building, an historic building located in Boston, Massachusetts. Suffolk filed appeals seeking $22,766,290, plus interest, while GSA sought $3,196,437 in claims of its own. We found Suffolk entitled to a net recovery of $12,583,546, plus interest. Suffolk seeks reconsideration (1) of the Board’s award of $1,135,000 for Suffolk’s general conditions claim, and (2) on the failure of the Board to award commission and insurance/bonding on portions of two subcontractor claims. GSA seeks reconsideration of the Board’s jurisdiction to award Suffolk’s contract balance, and of the award of $314,302 on proposed change order (PCO) 1048 under Suffolk’s PCO claims. Discussion Board Rules 26 and 27 authorize the Board to grant reconsideration or relief for any reason recognized in Rules 59 and 60 of the Federal Rules of Civil Procedure. See 48 CFR 6101.26(a), 27(a) (2019). These reasons include: justifiable or excusable mistake, inadvertence, surprise, or excusable neglect; the decision is void, whether for lack of jurisdiction or otherwise; and any other ground justifying relief from the operation of the decision or order. See Watermark Environmental, Inc. v. Department of Agriculture, CBCA 2866-R, 15-1 BCA ¶ 36,113. Additionally, Board Rule 29 authorizes the Board to “correct clerical mistakes while a case is pending, or within 60 days thereafter if a decision has not been appealed.” Suffolk’s General Conditions Claim We found Suffolk entitled to $1,135,000 in general conditions costs related to the period of government delay from May 29, 2009, through March 31, 2010. We calculated the amount by dividing the period of delay into four phases and multiplying the duration of each phase by a daily rate that represented Suffolk’s costs during that period. Prior to arriving at a final number for each period, we accounted for the costs that GSA had already credited to Suffolk for the government delay, which we noted Suffolk had excluded from its claim. In this motion, Suffolk requests that we increase the general conditions award from $1,135,000 to $2,265,986. See Appellant’s Motion at 1. Suffolk suggests that “the Board may have overlooked the fact that Suffolk had already reduced its claim” by the amount that GSA had credited to Suffolk. Id. at 2. The Board did not come to its lower award by double-counting the amount that GSA had already credited to Suffolk for the delay period. Rather, the Board found Suffolk entitled to general conditions costs at a lower daily rate particularly for the later delay periods. We determined that the awarded amount of $1,135,000 reasonably CBCA 2953-R, 2954-R, 2955-R, 3596-R, 4175-R, 4377-R, 5006-R 3 reflected Suffolk’s additional general conditions costs on its contract work. Accordingly, we deny Suffolk’s motion to amend the general conditions award. Commission and Bonding Costs for Suffolk’s Subcontractors In our decision, we found Suffolk entitled to $4,520,133 for costs associated with the claims of its subcontractors NB Kenney and City Lights. In calculating quantum for these subcontractors, the Board mistakenly omitted awarding Suffolk’s 10 % commission and 1.362 % insurance and bond mark-up.