ASBCA 63183

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) JE Dunn Construction Company ) ASBCA No. 63183 ) Under Contract No. W9127S-17-D-6003 ) APPEARANCES FOR THE APPELLANT: Nicholas T. Solosky, Esq. Reginald M. Jones, Esq. Morgan M. Tapp, Esq. Fox Rothschild LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Michael T. Geiselhart, Esq. Engineer Trial Attorney U.S. Army Engineer District, Jacksonville Allen S. Black, Esq. Engineer Trial Attorney U.S. Army Engineer District, Little Rock OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S MOTION TO DISMISS The government moves to dismiss this appeal for lack of jurisdiction or failure to state a claim upon which relief can be granted, because, the government alleges, appellant, JE Dunn Construction Company, did not present to the contracting officer separate sums certain for the three components of its claim. We deny the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION JE Dunn filed this appeal on January 27, 2022, concerning a contract for “HVAC replacement at the Guthrie Clinic at Fort Drum, New York,” seeking “damages totaling $949,054.00 and a 57-calendar day compensable time extension arising from the Government-directed changes to the Project’s humidifier sizing and hydronic piping design.” 1 JE Dunn also challenged the government’s alleged direction “to upsize the boilers to comply with a safety factor above the 15% safety factor 1 Notice of appeal and compl. at 1 (emphasis omitted). requirement in the Request for Proposal.” 2 In addition, JE Dunn alleged a government violation of the Prompt Payment Act. 3 On August 19, 2022, the Board scheduled a four-day hearing of the appeal, to commence on February 28, 2023. On February 7, 2023, the government filed a motion for summary judgment and stay of proceedings that also moved to dismiss JE Dunn’s Prompt Payment Act claim including because: it was never presented to the contracting officer in [a Request for Equitable Adjustment] or claim and therefore, the Board does not have jurisdiction over this claim. 4 The government requested that the Board dismiss the Prompt Payment Act claim “for lack of jurisdiction or for failure to state a claim.” 5 The government’s motion did not express any concern that JE Dunn had not presented a claim for a sum certain to the contracting officer. On the same day that it was filed, the Board denied the government’s request for a stay, and deferred consideration of the government’s motion until after the conclusion of the scheduled hearing on the merits. During a February 8, 2023 conference call, the Board denied what it considered were the government’s requests that the Board reconsider its decision to defer the government’s motion and deny the stay request. The Board heard the merits of the appeal from February 28 through March 3, 2023. During the hearing, the Board raised the issue of the Board’s jurisdiction, asking the parties whether the three components of the appeal (hydronic piping, humidifiers, and boilers) were the subjects of separate sums certain in the claim presented to the contracting officer. 6 The government deferred any comment, 7 and, as did JE Dunn, reserved the issue for post-hearing briefing. 8 The Board set a schedule for post-hearing briefing upon the sum certain issue alone, deferring consideration of the merits of the appeal until after resolution of the sum certain issue. 9 JE Dunn filed its post-hearing, sum certain jurisdictional brief on April 24, 2023 (asserting that the Board possessed jurisdiction to entertain the appeal 10), and on 2 Notice of appeal and compl. at 1. 3 Notice of appeal and compl. at 7. 4 Mot. at 2, 25. 5 Mot. at 24. 6 Tr. 1/135-40. 7 Tr. 1/140. 8 Tr. 4/80. 9 Tr. 4/80-82, 84-88. 10 App. br.