CBCA 4594(3048)-REM

DENIED: September 28, 2015 CBCA 4594(3048)-REM RELIABLE CONTRACTING GROUP, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Reginald A. Williamson and William E. Dorris of Kilpatrick Townsend & Stockton LLP, Atlanta, GA; and Gregory C. Thomas, General Counsel of Fisk Electric Company, Houston, TX, counsel for Appellant. Benjamin Diliberto and Charlma Quarles, Office of General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), HYATT, and SHERIDAN.1 SHERIDAN, Board Judge. In November 2013, the Board denied the claim of Reliable Contracting Group, LLC (Reliable), seeking additional costs for the Department of Veterans Affairs’ (VA’s) alleged rejection of back-up emergency generators provided for a project at the VA medical center in Miami, Florida. The Board concluded that the generators, which had been in storage for four years, could not be factory-tested and did not meet the requirement of being “new.” We 1 Judge Borwick, an original member of the panel assigned to this appeal, retired after the issuance of the Board’s initial decision. Judge Hyatt was selected at random to replace him as a panel member. CBCA 4594(3048)-REM 2 also found that at the time the units were delivered, and the VA questioned whether the generators were in compliance with the applicable contractual requirements, neither Reliable nor its electrical subcontractor, Fisk Electric Company (Fisk), characterized the generators as “new” or asserted that the units met the specification in response to the VA’s specific request for confirmation that this was the case. Reliable Contracting Group, LLC v. Department of Veterans Affairs, CBCA 3048, 14-1 BCA ¶ 35,475 (2013). Reliable appealed that decision. The United States Court of Appeals for the Federal Circuit, in Reliable Contracting Group, LLC v. Department of Veterans Affairs, 779 F.3d 1329, 1334 (Fed. Cir. 2015), held that Reliable was required to install “new” generators and stated that this term meant that the generators were to be in “fresh condition,” “not be used,” ‘and “free of significant damage, i.e., damage that was not cosmetic.” The Court characterized Reliable’s argument that “the generators were ‘new’ because they were not used,” as incomplete, noting that appellant had failed to provide an industry definition of “new.” Id. at 1332. The Court noted that, because “new” was not defined by the contract and “there is no single plain meaning of the word ‘new’ [the term] is ambiguous.” Id. at 1334. The Court also found that “[t]he record evidence before us is conflicting with respect to the extent of the damage, and there was no express finding by the Board on this issue.” Id. The Court vacated the Board’s decision and remanded the appeal to the Board with instructions “to determine whether the damage to the generators during the four-year period between the original manufacture and the date of delivery to the VA site was significant enough to render the generators not ‘new.’” Id. at 1335. The Court did not address the fact that, at the time the units were delivered, neither Reliable nor Fisk informed the VA of their view that the generators were “new,” much less produced contemporaneous evidence that they were “new” within the meaning of the specification. Nor did the Court comment on the fact that the record contained no evidence that the four-year-old internal components and parts would not need to be replaced or refurbished. The parties in this appeal elected to submit the case for decision on the written record pursuant to Rule 19 of the Board’s Rules of Procedure. 48 CFR 6101.19 (2013). The record consisted of documents provided by the parties under Rule 4, namely, the appeal files and affidavits of various witnesses. Neither party provided additional evidence following the remand of this matter to the Board for further findings.2 Thus, our ability to address the 2 The VA initially expressed an interest in submitting another brief and appellant objected.