ASBCA 57329

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Swinerton Builders Northwest ) . ASBCA No. 57329 ) Under Contract No. NAF26-04-C-0025 ) APPEARANCES FOR THE APPELLANT: Durward E. Timmons, Esq. Milton L. Smith, Esq. Ryan J. Klein, Esq. Sherman & Howard L.L.C. Colorado Springs, CO Arnold R. Hedeen, Esq. Hedeen & Caditz, PLLC Seattle, WA APPEARANCES FOR THE ARMY LODGING FUND: Raymond M. Saunders, Esq. Army Chief Trial Attorney LTC Lawrence P. Gilbert, JA Robert T. Wu, Esq. MAJ John C. Dohn II, JA Erica S. Beardsley, Esq. Trial Attorneys 1 OPINION BY ADMINISTRATIVE JUDGE DICKINSON This appeal arises from a contract awarded by CFSC 2 on behalf of respondent Army Lodging Fund (AL, ALF or Fund), a Nonappropriated Fund Instrumentality (NAFI), to Swinerton Builders Northwest (appellant or SBN) to build a 185-room 1 Mr. Wu and MAJ Dohn represented the Fund at the hearing and Ms. Beardsley represented the Fund at the time the briefs were filed. 2 The U.S. Army Family and Morale, Welfare and Recreation Command, known at all times relevant to the matters before us as the U.S. Army Community and Family Support Center (CFSC), is a field operating activity of the U.S. Army and the organization responsible for contracting on behalf of the Army Lodging Fund (answer~~ 2, 3). lodging facility at Fort Lewis, Washington. 3 Only entitlement is before us for decision. 4 JURISDICTION It is undisputed that CFSC has never issued a contracting officer's final decision addressing SBN's 2005 and 2008 Requests for Equitable Adjustment (REAs) or SBN' s 3 June 2010 certified claim. It is further undisputed that SBN appealed to the Board from a deemed denial on 18 August 2010. Under the Disputes clause of the NAF contract at issue, the Board has jurisdiction over an appeal from the denial of a claim arising under the contract (finding 25). The contract's Disputes clause, however, does not contain a provision for an appeal from a deemed denial of a contractor's claim. Under certain circumstances we have taken jurisdiction in the absence of a final decision under a NAF contract. It is well established that the purpose of the Disputes clause is to provide the parties with a rapid and inexpensive means of resolving disputes between the parties. Mite Corporation, ASBCA No. 18534, 73-2 BCA ,10,312. Prior to the CDA's enactment and under contracts where the CDA does not apply, we have taken jurisdiction over disputes that have existed for lengthy periods without a final decision. See Mite Corp., supra; Atlantis Construction Corp., ASBCA No[s]. 44044, 44860, 96-1 BCA, 28,045. As the Board explained in Mite Corp., supra, at 48,687, failure or r~fusal by the CO to issue a final decision within a reasonable time constitutes a final decision [denying the appeal and] giving jurisdiction to the Board. Charitable Bingo Associates, Inc., d/b/a Mr. Bingo, ASBCA No. 53249, 01-2 BCA, 31,478. The situation before us is even more compelling than the one the Board addressed in Charitable Bingo. From the 3 June 2010 submission of SBN's claim to the September 2012 hearing, not only did CFSC not issue a contracting officer's final 3 Fort Lewis and McChord AFB were combined and became Joint Base Lewis-McChord as of 1 October 2010. http://www.military.com/base-guide/joint-base-lewis-mcchord. 4 The number of days of any delay are considered to be part of entitlement (tr. 119). 2 decision, but the contracting officer never formally acknowledged receipt of SBN's 6,800-page claim, nor did he ever meaningfully respond to the many pleas from SBN and its counsel in letters and phone calls seeking a response to the claim.