CBCA 4377

MOTION TO DISMISS DENIED: August 26, 2016 CBCA 4377 SUFFOLK CONSTRUCTION COMPANY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James R. Newland, Jr., and Anthony J. LaPlaca of Seyfarth Shaw, LLP, Washington, DC, counsel for Appellant. James F.H. Scott and Justin S. Hawkins, Office of General Counsel, General Services Administration, Washington, DC; and Nancy E. O’Connell and Meaghan Q. LeClerc, Office of Regional Counsel, General Services Administration, Boston, MA, counsel for Respondent. Before Board Judges SOMERS, WALTERS, and ZISCHKAU. ZISCHKAU, Board Judge. On December 5, 2014, the Court of Federal Claims (COFC) issued an order transferring to the Board an action filed at the COFC on April 25, 2014, by Suffolk Construction Company, Inc. (Suffolk), challenging a General Services Administration (GSA) contracting officer’s final decision. Suffolk Construction Co. v. United States, No. 12-350C (Fed. Cl. Dec. 5, 2014) (transfer order). GSA at the time concurred in the transfer. The transferred action was docketed at the Board as CBCA 4377 and consolidated with six other appeals Suffolk had previously filed with the Board relating to different claims but involving CBCA 4377 2 the same contract. GSA recently filed a motion to dismiss CBCA 4377, asserting that the Board lacks jurisdiction over the appeal because Suffolk did not initiate its action at the COFC within ninety days of receipt of the contracting officer’s final decision. For the reasons stated below, we deny GSA’s motion to dismiss. Background In 2001, Suffolk and GSA entered into contract no. GS01P05BZC3010 (the contract) for the renovation of the John W. McCormack Building, a twenty-two story “historic art deco structure” located in Boston, Massachusetts. Complaint ¶¶ 10, 31; Answer ¶¶ 10, 31. This firm-fixed-price contract was awarded for $136,153,445 and had a period of performance from October 1, 2006, to April 16, 2009. Complaint ¶ 34; Answer ¶ 34. Under the contract, Suffolk was to renovate the building with an emphasis on “environmental sustainability and historic preservation.” Complaint ¶ 32; Answer ¶ 32. Suffolk renovated the building’s existing entrances, lobbies, stairways, fixtures, libraries, and courtrooms. Complaint ¶ 35. Suffolk also abated hazardous materials, modernized elevator systems, refurbished finishes, accommodated new tenant spaces, and removed existing mechanical and electrical systems. Id. ¶ 36. Suffolk’s Appeals to the Board Following the completion of the contract, Suffolk submitted a number of claims to GSA’s contracting officer (CO) for the contract and appealed six of the CO’s final decisions to the Board. On January 25, 2012, Suffolk submitted its first claim to the CO. Complaint ¶ 16; Answer ¶ 16. The claim sought to recover $3,167,997 for “additional costs incurred [by Suffolk] while performing out-of-scope work.” Complaint ¶ 16. The CO issued a final decision rejecting Suffolk’s claim in full. Id. ¶ 17; Answer ¶ 17. Suffolk appealed the CO’s final decision to the Board, and the appeal was docketed as CBCA 2954 (General Conditions Claim). Suffolk subsequently reduced the amount it is seeking under the General Conditions Claim to $2,966,229. Suffolk submitted a second claim to the CO on April 23, 2012. Complaint ¶ 19; Answer ¶ 19. This claim requested $1,050,957 for additional costs incurred by Suffolk “on account of GSA’s directive to perform post-completion remedial and reconstruction work” on the building to repair damage caused by a major rainstorm. Complaint ¶ 19. The CO’s final decision denied Suffolk’s claim, and Suffolk appealed the final decision to the Board. Id. ¶ 20; Answer ¶ 20. The appeal was docketed as CBCA 2955 (Cistern Leak Claim). CBCA 4377 3 Suffolk subsequently reduced the amount it is seeking under the Cistern Leak Claim to $1,008,638. On May 31, 2012, Suffolk submitted a claim to the CO requesting $5,724,126 in additional compensation for one of Suffolk’s subcontractors, N.B. Kenney Company, Inc. Complaint ¶ 11; Answer ¶ 11. This claim was denied in full by CO final decision. Complaint ¶ 12; Answer ¶ 12. Suffolk appealed the CO’s final decision to the Board, and the appeal was docketed as CBCA 2953 (Kenney Claim). Suffolk subsequently submitted a revised claim to the CO, reducing the amount it was seeking to $5,128,960. Complaint ¶ 13.