ASBCA 59032

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) PHA-JMR JV ) ASBCA No. 59032 ) Under Contract No. FA4686- l O-C-0018 ) APPEARANCES FOR THE APPELLANT: Martin R. Salzman, Esq. Kevin S. Dale, Esq. David M. Gersh, Esq. Hendrick Phillips Salzman & Flatt, P.C. Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF Acting Air Force Chief Trial Attorney Christopher M. McNulty, Esq. Capt Eric J. Singley, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE JAMES ON JURISDICTION On 25 February 2014, the Board, sua sponte, asked the parties to briefthe question whether the 30 April 2013 Contract Disputes Act (CDA) certification signed by Scott Manning, treasurer of subcontractor Progressive Roofing as "Attorney-in-fact for JMR," one of the PHA-JMRjoint venturers, by a limited power of attorney that expired on 31 January 2013, was a valid CDA certification. Both parties submitted briefs. At the parties' request, the Board also heard oral argument. Upon review of the parties' briefs, attached exhibits and the transcript of the oral argument, we refocus the question as follows: whether either appellant's 25 January 2013 claim or 30 April 2013 claim is within the CDA jurisdiction of this Board. STATEMENT OF FACTS (SOF) I. On 11 August 2010, the U.S. Air Force 9th Contracting Squadron entered into Contract No. FA4686-10-C-0018 (the contract) with PHA-JMR JV to construct roof sections A and B for Building No. 1086 at Beale Air Force Base, California (R4, tab 1 at 1-3). 2. For PHA-JMR JV, "PHILIP L. HA WK.INS, MANAGING PARTNER" signed the contract and its bilateral Modification Nos. P00002, P00003 and P00004 (R4, tabs 1, 3-5).  3. "JMR" subcontracted with Progressive Services, Inc. (Progressive) for a portion of the contract roofing work, including demolition (Salzman aff., ex. 1 at 1). As our following Statement of Facts demonstrate, there are many confusing aspects of this appeal. We place "JMR" in quotes for the following reasons, and note that neither the Progressive subcontract nor the Joint Venture agreement is in evidence. The "JMR" citation is to appellant's undated initial "claim" letter (see SOF if 8). The "claim" is on the subcontractor's letterhead and is signed by the subcontractor's treasurer. While it is denominated as PHA-JMR JV's claim, the body of the letter stated: "Please accept the letter as PHA-JMR's (' JMR') certified claim submission and request for a final Contracting Officer's decision on behalf of its subcontractor, Progressive Services, Inc. d/b/a Progressive Roofing." It is unclear in the record what appellant intended by its parenthetical ("JMR") in this sentence. In various documents sometimes PHA-JMR JV is used to refer to the contractor and appellant in this appeal, and sometimes JMR is used. Of course, JMR is only one of the JV partners and not the contractor itself. 4. On 1 November 2010, during the initial roof demolition, Progressive's "Roof Warrior" cutting device struck several metal plates atop the concrete deck underlying the existing roofing. Progressive notified the government of this discovery on the next day. (Salzman aff., ex. 1 at 2, exs. IA, lB) 5. PHA-JMR JV's Request for Information 003 (RFI #3) dated 10 November 2010 was authored by John Morrill of JMR, who provided further information to the government regarding the alleged differing site condition (Salzman aff., ex. lE). 6. On 3 June 2011 Progressive sent JMR a $57,210.00 change request consisting of$51,080 for labor and $6,130 for "Overhead & Profit@ 12%" relating to the metal plates (supp. R4, tab 10 at 4of9). 7. The 16 June 2011 letter of JMR's John Morrill to contracting officer (CO) Pank, on PHA-JMR JV letterhead, forwarded Progressive's 3 June $57,210.00 request, to which was added "MIU $8,582.00" ("Profit overhead=@ 15%") and "Bond $1,144.00" for a total of$66,936.00 (supp. R4, tab 10 at 2-3 of9). 8. The undated letter to CO Pank on the letterhead of Progressive Roofing, signed by Scott Manning, submitted a $240,767 equitable adjustment for "Unforeseen Site Conditions," for the metal plates, and requested a CO's final decision.