ASBCA 60476

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Thorington Electrical and Construction Company ) ASBCA No. 604 76 ) Under Contract No. FA3300-05-C-0015 ) APPEARANCES FOR THE APPELLANT: Deitra Crawley, Esq. Natalie Mark, Esq. Taylor English Duma LLP Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Lawrence M. Anderson, Esq. Trial Attorney OPINION BY ADMINSTRATIVE JUDGE PROUTY ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT Before us is the government's motion for summary judgment, which argues that the claim appealed here by appellant, Thorington Electrical and Construction Company 1 (Thorington), is time-barred under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Thorington opposes the government's motion, arguing that its claim was timely because it is an amendment of an earlier claim of which the government was on notice. For the reasons stated herein, we conclude that the claim is time-barred under the CDA and enter judgment in favor of the government. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 30 September 2005, the United States Air Force (government) awarded Contract No. FA3300-05-C-0015 (the contract) to Thorington for the construction of a new entry control facility at the Bell Street Gate at Maxwell Air Force Base, Alabama (R4, tab 1). 2. The construction of the facility was substantially completed by 11 August 2008, when the government determined that it was "fully operational" (compl. ~~ 32, 34). 1 Contract was awarded to "Thorington Electrical/Construction Company" but the claim and correspondence herein replaces the backslash (/) with "and."  3. On 28 April 2009, Thorington submitted a letter to the contracting officer (CO) seeking $764,813 in compensation from the government (R4, tab 48). The letter was labeled as a "claim" and was certified by Thorington's general manager and owner, Mr. Kelvin R. Thorington (id.). The letter provided that, "[t]he items that [Thorington] is making a claim [upon] are associated with work that was performed but was never paid and material cost for items increased since submitting the original cost estimate in 2005" (id. at 1). Thorington also stated, in relevant part: In Addition, the claim does not include cost that TECC [Thorington] has acquired or projects that TECC could have obtained over the last six months. The delay in paying the modifications has caused TECC to lose several projects over the past year. As stated in several letters to the CO, the impact of nonpayment towards these modifications has caused delays in TECC paying our sub-contractors in a timely manner. This delay in payment has also caused the sub- contractors and venders [sic] to file claims against the surety company. If all modifications had been paid in a timely manner, TECC could have paid the sub-contractors and venders [sic] which would have eliminated any intervention by the surety company. Once the surety company pays any claims it is detrimental to your company's future ability to bond. The extended performance time occupied our bonding because the government delayed the project for approximately 1 Yi years and continues to occupy our bonding capabilities until the modifications are settled. These additional claims will be submitted through the legal system at a later date but with-in the next few months. (Id. at 6) 4. By letter dated 14 August 2009, the CO issued a final decision partially granting and partially denying Thorington's claim dated 28 April 2009 (R4, tab 49). 5. Thorington appealed the CO's decision to this Board, and the appeal was docketed on 17 November 2009 as ASBCA Nos. 56987, 56988, 56989, 56990, 56991, 56992, 56993, 56994, 56995, 56996, 56998, 56999 and 57000. These appeals were all resolved when Thorington signed an agreement, dated 18 August 2015, which resolved all of its claims dated 28 April 2009 (gov't mot., attach. 1).