CBCA 2862

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON MAY 5, 2017 CBCA 2862 GRANTED IN PART; CBCA 4085, 4802 GRANTED: April 14, 2017 CBCA 2862, 4085, 4802 TURNER CONSTRUCTION COMPANY, Appellant, v. SMITHSONIAN INSTITUTION, Respondent. Douglas L. Patin and Michael S. Koplan of Bradley Arant Boult Cummings LLP, Washington, DC, counsel for Appellant. Scott D. Cessar of Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, PA, counsel for Subcontractor March-Westin Company. Lawrence M. Prosen and Christian F. Henel of Kilpatrick Townsend & Stockton, LLP, Washington, DC, counsel for Subcontractors Welch and Rushe, Inc. and M.C. Dean, Inc. Roger C. Jones of Huddles Jones Sorteberg & Dachille, P.C., Columbia, MD, counsel for Subcontractors Stromberg Metal Works, Inc. and Apro Enterprises, Inc. Robert Windus of Moore & Lee, LLP, McLean, VA, counsel for Subcontractor C.J. Coakley Co., Inc. CBCA 2862, 4085, 4802 2 Craig A. Holman and Kara L. Daniels of Arnold & Porter Kaye Scholer LLP, Washington, DC, counsel for Respondent. Before Board Judges KULLBERG, SULLIVAN, and CHADWICK.1 SULLIVAN, Board Judge. Appellant, Turner Construction Company (Turner), filed three appeals from contracting officer decisions issued by respondent, the Smithsonian Institution (Smithsonian or SI), concerning matters arising on its contract to provide design and construction services in a long-term, multiple-phase project entitled “Public Space Renewal Project at the National Museum of American History.” Turner Construction Co. v. Smithsonian Institution, CBCA 2862, 13 BCA ¶ 35,290, at 173,252; see Turner Construction Co. v. Smithsonian Institution, CBCA 2862 et al., 15-1 BCA ¶ 36,139, at 176,388. Turner’s first appeal (docketed as CBCA 2862) was of the contracting officer’s decision denying its claim for approximately $14 million, which included Turner’s claim for general conditions costs of approximately $7 million and subcontractor claims for delay and disruption costs of approximately $7 million. In an initial ruling, the Board held that the parties had failed to agree upon a firm fixed price for the base contract work to be performed by Turner and that Turner was entitled to be paid a reasonable price for that work. Turner Construction, 13 BCA at 173,260. Following that initial ruling, Smithsonian conducted an audit of all the costs incurred by Turner on the project. Based solely upon the results of that audit, the contracting officer issued a second decision, finding that Turner had been overpaid by approximately $40 million. To effect repayment, the contracting officer denied Turner’s claim in its entirety and asserted a claim for an additional $24.5 million paid to Turner on the contract. Turner also appealed that decision to the Board, docketed as CBCA 4085. Turner filed a second claim in 2015, seeking costs of approximately $440,000 that it incurred to install a second steam generator in the museum. The contracting officer denied Turner’s claim, and Turner appealed, docketed as CBCA 4802. The second and third appeals were consolidated with the first appeal when they were filed. 1 When the first appeal was filed, a panel composed of Judges Somers, McCann, and Kullberg was assigned to hear these appeals. The matter was transferred to Judge Sullivan on December 17, 2014. Upon the retirement of Judge McCann, Judge Walters was assigned to the panel. Upon the retirement of Judge Walters, Judge Chadwick was assigned to the panel. CBCA 2862, 4085, 4802 3 The contract between Turner and Smithsonian, by its terms, is not subject to the Contract Disputes Act (CDA). 41 U.S.C.§§ 7101-7109 (2012). Exhibit 1_F at 320.2 Instead, the Disputes clause of the contract provides that a contractor may appeal a contracting officer’s decision to the Secretary of the Smithsonian Institution. Id. at 321. By memorandum of agreement between Smithsonian and the Board, dated June 5, 2012, the Board agreed to hear and decide the appeals arising from this contract. Turner Construction, 13 BCA at 173,258. The Board conducted a hearing in November 2015. The Board heard testimony from thirty witnesses over fourteen days.