CBCA 5636

DENIED: May 12, 2017 CBCA 5636 SAVANNAH RIVER NUCLEAR SOLUTIONS, LLC, Petitioner, v. DEPARTMENT OF ENERGY, Respondent. Karen L. Manos and Erin N. Rankin of Gibson, Dunn & Crutcher, LLP, Washington, DC, counsel for Petitioner. Lucy M. Knowles, Ralf Wilms, and Jennifer B. Farmer, Office of Chief Counsel, Department of Energy, Aiken, SC, counsel for Respondent. Before Board Judges DANIELS (Chairman), GOODMAN, and ZISCHKAU. GOODMAN, Board Judge. On February 10, 2017, Savannah River Nuclear Solutions, LLC (SRNS or petitioner) filed a submission which it titled as a “Petition” pursuant to the Contract Disputes Act. The petition stated that SRNS had submitted a claim to the Department of Energy’s contracting officer on November 16, 2016, and attached a copy of the claim to the petition as Exhibit 1. The petition requested two forms of alternate relief–“that the Board direct the Contracting Officer to issue a final decision on the attached claim . . . within thirty days, or treat it as a deemed denial in accordance with 41 U.S.C. § 7103(f)(5)[2012].” According to the petition, the contract at issue is the Management and Operating contract for the Savannah River Site in Aiken, South Carolina (the contract), and “the claim CBCA 5636 2 seeks, as a matter of right, an interpretation of the contract terms determining that . . . [certain] costs being charged by and reimbursed to SRNS under the Contract are allowable.” The petition stated further: The Contract Disputes Act mandates that, within 60 days of receipt of SRNS’s claim, the CO [contracting officer] take one of two actions: (1) issue a final decision, or (2) notify SRNS “of the time within which a decision will be issued.” 41 U.S.C. § 7103(f)(2); see also Whiteriver Constr., Inc. v. Dep’t of Interior, CBCA No. 2349, 12-1 BCA ¶ 34,938 at 171,773 (finding jurisdiction over the deemed denial of a claim and explaining that “[o]nce the claim was submitted, the contracting officer was required to issue a decision on it or notify the contractor of a reasonable time in which the decision would be issued”). The CO failed to take either of those actions by January 9, 2017, the 60th day after receipt of SRNS’s claim. Instead, by letter dated January 9, 2017[1], the CO informed SRNS that “[d]ue to ongoing investigations and in accordance with Federal Acquisition Regulation 33.211(c)(2), the Request for Final Decision will be delayed until August 10, 2017.” The Board docketed the petition and issued an order on proceedings which stated that the panel chair would schedule a conference with counsel after government counsel filed an appearance. The Board did not issue its standard order on proceedings for an appeal which would have established a schedule for the submission of a complaint, answer, and appeal file. Once government counsel filed an appearance, on February 22, 2017, a conference was held to discuss the issues and schedule further proceedings. By order of the Board dated February 23, 2017, the parties were then directed to brief the following issues raised in the petition: 1) [Whether] the contracting officer failed to timely meet the obligation pursuant to the Contract Disputes Act to issue a final decision or notify the contractor of a reasonable time in which the decision would be issued. 2) If the contracting officer is found to have notified the contractor as to a time when the decision would be issued, whether that time is reasonable. 1 A copy of this letter was attached to the petition as Exhibit 2. CBCA 5636 3 The parties filed briefs as directed, and additional reply briefs.2 Discussion Petitioner’s Request to Direct the Contracting Officer to Issue a Decision SRNS’s submission was designated a petition. CBCA Rule 1(b)(7)(48 CFR 6101.1(b)(7) (2016) defines a petition as “request filed under 41 U.S.C. 7103(f)(4) that the Board direct a contracting officer to issue a written decision on a claim.” The provision of the CDA cited in the rule, 41 U.S.C.