CBCA 5527

DENIED: December 2, 2016 CBCA 5527 HAWK CONTRACTING GROUP, LLC, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Thomas R. Krider and Alix K. Town of Oles Morrison Rinker & Baker LLP, Seattle, WA, counsel for Petitioner. Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs, Pittsburgh, PA, counsel for Respondent. Before Board Judges VERGILIO, KULLBERG, and LESTER. LESTER, Board Judge. Pursuant to section 7103(f)(4) of the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), and Board Rules 1(b)(7) and 2(a)(2) (48 CFR 6101.1(b)(7), .2(a)(2) (2015)), petitioner, Hawk Contracting Group, LLC (Hawk), requests that the Board direct the Department of Veterans Affairs (VA) contracting officer to issue a decision earlier than the date that the contracting officer has identified for its expected issuance. For the reasons set forth below, we deny Hawk’s request. CBCA 5527 2 Background On September 17, 2013, the VA awarded contract no. VA69D-13-C-0289 (the contract) to Hawk to remodel and expand the material management area at the Jesse Brown Veterans Affairs Medical Center in Chicago, Illinois. The VA terminated the contract for the convenience of the Government on June 11, 2015, and requested that Hawk submit a termination settlement proposal. Hawk submitted that proposal on December 31, 2015, along with a cover letter expressing a desire for a prompt resolution of the negotiation and settlement process. On January 29, 2016, in response to a status update request from Hawk, the VA indicated that, pursuant to the requirements of the Federal Acquisition Regulation (FAR), it would need to audit Hawk’s proposal because Hawk was seeking recovery of more than $100,000. Over the course of the next few months, Hawk sought further updates from the VA and was eventually informed that the VA Office of the Inspector General (OIG) had declined the contracting officer’s request for an audit of Hawk’s proposal, requiring the VA to search for a private contractor if it wished to have an audit conducted. Subsequently, the VA informed Hawk that an audit had been deemed not to be feasible. After further negotiations did not result in a settlement, Hawk on August 4, 2016, converted its termination settlement proposal into a certified claim and requested that the VA contracting officer issue a decision within sixty days, in accordance with the contract’s Disputes clause. On October 3, 2016, the VA contracting officer notified Hawk that he anticipated a decision on or before January 20, 2017. On October 24, 2016, Hawk filed its current petition with the Board, asking that we direct the contracting officer to issue his decision no later than November 30, 2016. Hawk further requested that, to the extent that the VA contracting officer does not comply with that Board order and issue a decision by November 30, 2016, the Board permit Hawk to appeal the contracting officer’s “deemed denial” immediately thereafter. Finally, Hawk has requested that, to the extent that we do not shorten the contracting officer’s existing deadline of January 20, 2017, we preclude any further extensions beyond that date. Discussion Pursuant to the CDA, within sixty days of receiving a contractor’s written certified claim of more than $100,000, the contracting officer must either issue a decision on the claim or notify the contractor “of the time within which a decision will be issued.” 41 U.S.C. § 7103(f)(2). If the contracting officer fails to issue a decision on the claim “within the required time period,” that failure may be “deemed to be a decision by the contracting CBCA 5527 3 officer denying the claim and authorizes an appeal or action on the claim” before, respectively, a board of contract appeals or the Court of Federal Claims. Id. § 7103(f)(5). Here, before the sixty-day period for issuing a decision on Hawk’s claim had expired, the contracting officer indicated that he anticipated issuing a decision on or before January 20, 2017. We treat this as a commitment to issuing a decision no later than that date. Until there is a decision on Hawk’s claim, or the date for issuance passes, Hawk cannot maintain an appeal with the Board or a suit at the Court of Federal Claims on its claim. See Paragon Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl.