CBCA 5800

DENIED: August 22, 2017 CBCA 5800 CTA I, LLC, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ, counsel for Petitioner. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA, counsel for Respondent. Before Board Judges GOODMAN, KULLBERG, and CHADWICK. CHADWICK, Board Judge. CTA I, LLC (CTA) submitted a certified claim to a Department of Veterans Affairs (VA) contracting officer in February 2017. The contracting officer has promised twice to “respond” to CTA’s claim by a date certain, but has yet to do so. In July 2017, CTA filed a petition under 41 U.S.C. § 7103(f)(4) (2012) and Board Rule 2(a)(2) (48 CFR 6101.2(a)(2) (2016)) for an order directing the contracting officer to decide the claim “no later than September 8, 2017.” VA opposes the petition. We deny the petition because CTA already possesses the only effective relief we could grant: the right to file an appeal from a deemed denial. CBCA 5800 2 Background CTA is performing contract VA246-14-C-0030 to construct a dialysis center at a VA medical facility in Richmond, Virginia. On February 15, 2017, CTA submitted a certified claim for $2,023,745.58 for delay, labor inefficiencies, and related costs. Fifty- five days later, on April 11, 2017, the VA contracting officer advised CTA by letter that, “[d]ue to the size and complexity of the claim documentation, our office will respond to your request for a Contracting Officer’s final decision by 10 July 2017. The additional time is required for us to further evaluate the merits of the claim and review the associated documentation you provided.” On May 15, 2017, CTA filed a petition with the Board for an order directing the contracting officer to issue a decision on the claim “no later than June 1, 2017.” We denied the petition because there was insufficient time to resolve the matter by June 1. CTA I, LLC v. Department of Veterans Affairs, CBCA 5748 (May 18, 2017). When July 10 arrived, the contracting officer notified CTA by letter that VA “required a commercial claims consultant” to evaluate CTA’s claim, and that “to allow the claims consultant adequate time to assess the validity of the claim, I will respond to your request for a Contracting Officer’s final decision by 8 September 2017.” VA states in its brief in this matter that the contracting officer has not yet retained the consultant and no longer expects to meet the September 8 deadline. CTA filed the instant petition on July 25, 2017. In it, CTA alleges that VA “is engaged in bad faith delaying tactics,” never intended to issue a decision by September 8, and “has failed to issue a final decision within a reasonable time,” causing CTA and its subcontractors “severe financial hardship.” CTA asks us to direct the contracting officer to decide its claim by September 8. VA responds that the contracting officer’s “need for additional time to review the claim is reasonable,” and that “review by a claims consultant, followed by a final decision, would benefit the Petitioner, the Government, and any tribunal asked to review the claim.” VA adds that the contracting officer will, at some point, “advise [CTA] of a new anticipated date” for a decision. Discussion This case affords the Board an opportunity to clarify the function of the provision of the Contract Disputes Act (CDA) that empowers us “to direct a contracting officer to issue a decision [on a claim] in a specified period of time, as determined by the tribunal concerned, in the event of undue delay on the part of the contracting officer.” 41 U.S.C. § 7103(f)(4). The CDA grants a contracting officer sixty days, after receipt of a certified claim exceeding $100,000, to either decide the claim or notify the contractor “of the time CBCA 5800 3 within which a decision will be issued.” Id. § 7103(f)(2). If the contracting officer does neither of those two things within the sixty days, the contractor may, at its option, appeal from a “deemed” denial of its claim. Id. § 7103(f)(5); ThinkGlobal Inc. v. Department of Commerce, CBCA 4410, 16-1 BCA ¶ 36,489, reconsideration granted in non-relevant part and denied in part, 17-1 BCA ¶ 36,642. Moreover, “no language in the CDA provides the government with the right to a second extension” beyond the sixty days. Rudolph & Sletten, Inc. v.