ASBCA 60371

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) John C. Grimberg Company, Inc. ) ASBCA No. 603 71 ) Under Contract No. W912DR-11-C-0023 ) APPEARANCES FOR THE APPELLANT: Kathleen Olden Barnes, Esq. Edward J. Parrott, Esq. Watt, Tieder, Hoffar & Fitzgerald, L.L.P. McLean, VA APPEARANCES FOR THE GOVERNMENT: Thomas J. Warren, Esq. Acting Engineer Chief Trial Attorney William J. Selinsky, Esq. Martin Chu, Esq. David B. Jerger, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Baltimore OPINION BY ADMINISTRATIVE JUDGE WOODROW ON APPELLANT'S MOTION FOR RECONSIDERATION AND LEAVE TO FILE AN AMENDED COMPLAINT Before the Board is a motion for reconsideration of an order rejecting appellant's amended complaint due to the absence of an accompanying motion for leave to amend. Appellant requests that the Board accept its amended complaint "given the Board's liberal policy toward granting amendments and the lack of prejudice to the Government." The government objects to the amended complaint contending, inter alia, that the pleading asserts new theories of liability that were not included in the claim presented to the contracting officer for a final decision. For the reasons stated below, we grant appellant's motion. STATEMENT OF FACTS {SOF) FOR PURPOSES OF THE MOTION 1. This appeal arose under a contract to construct an advanced analytical chemistry wing for work with toxic agents at the Aberdeen Proving Ground in Maryland. On 15 October 2013 John C. Grimberg Company, Inc. (appellant) initially filed a non-monetary claim requesting a final decision to interpret disputed contract terms regarding certain valves it asserts were required by the contract but wrongfully rejected by the U.S. Army Corps of Engineers (government). After the contracting officer (CO) denied the claim, appellant converted its non-monetary claim on 12 December 2014 into a monetary claim in the amount of $727,244.00. One year passed without a final decision on the subsequent claim and appellant filed an appeal with the Board, which was docketed as ASBCA No. 603 71. 2. On 5 January 2018, less than three weeks before the scheduled hearing date, appellant filed in ASBCA No. 60371 1 (Phoenix Valves) a lone document styled "Amended Complaint," which added a new count (Count Ill), based on the government's alleged failure to disclose superior knowledge of the requirement for damper-style air valves in lieu of Phoenix Venturi-style valves. The amended complaint was not accompanied by a motion requesting the Board grant appellant leave to file the aforementioned pleading. We find that the absence of the motion was inadvertent. 3. On 9 January 2018, the government responded with a motion to adjourn the hearing date, or in the alternative, dismiss appellant's amended complaint. The government contended that it would be prejudiced, because it could not prepare a defense to the new claim in the time remaining before the hearing, then scheduled for 23 January 2018. By order dated 11 January 2018, in the absence of a motion for leave to amend, we rejected appellant's "amended complaint" and further denied the government's motion as moot. 4. On 12 January 2018, appellant filed the instant motion for reconsideration of the Board's 11 January 2018 order and for leave to file amended complaint. On 16 January 2018, the Board held a pre-hearing teleconference, at which we recommended that the government file a response to appellant's motion and address whether the Board possesses jurisdiction to entertain appellant's amended complaint. 5. On 18 January 2018, in light of the imminent threat of a government shutdown due to Congress' failure to enact appropriations legislation, we moved the hearing date from 23 January 2018 to 30 January 2018. 6. On 24 January 2018, the government filed its opposition to appellant's motion for leave to amend the complaint, and, on 25 January 2018, appellant filed a reply brief in support of its motion. 7.