ASBCA 60366

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Sauer Incorporated ) ASBCA No. 60366 ) Under Contract No. N69450-09-D-1274 ) APPEARANCE FOR THE APPELLANT: Kevin J. Kelly, Esq. General Counsel APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Richard A. Gallivan, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S MOTION TO DISMISS The United States Navy (government) moves to partially dismiss this appeal alleging that Sauer Incorporated (Sauer) raised a new claim for the first time in its complaint. We treat this as a motion to strike part of the complaint and grant the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The government and Sauer entered into IDIQ Contract No. N69450-09-D-1274 (contract) on 3 June 2009 (R4, tab 1). Task Order 4 was awarded to Sauer on 18 November 2009 for design and repairs to Hangar 1552 at Naval Station Mayport, Florida (R4, tab 3). The contract incorporates by reference FAR 52.233-1, DISPUTES (JUL 2002), ALTERNATE I (DEC 1991) (R4, tab 1at9). 2. By letter 1 dated 18 June 2013, Sauer stated to the contracting officer (CO) that during earlier negotiations regarding compensation for a government suspension of work, Sauer's home office overhead at 6.22% was "inadvertently left out of the settlement" and requested an additional $57,535 be added onto the settlement. The contractor further stated: Sauer's position is that there is entitlement to the standard home office overhead and feels the best way to proceed is to include the [$57,535] overhead into the pending mod. 1 The Board expresses no opinion as to whether this letter is a claim.  By doing so, the Eichleay total [for unabsorbed overhead] will be reduced accordingly and Eichleay negotiations can still proceed at a later time. (R4, tab 8) 3. By letter2 dated 20 June 2013, the CO rejected Sauer's request to add home office overhead to the settlement stating among other things, that "because a fair and reasonable bottom line price was negotiated ... there is no merit to Sauer's request for 'standard overhead rate"' (R4, tab 10 at 1001 ). 4. The government and Sauer entered into Modification No. 17 (Mod 17) of Task Order 4 on 26 September 2013. The stated purpose of the modification was to adjust the task order for time and money due to the government's suspension of work for over a year as referenced in Sauer' s 18 June 2013 letter. The settlement in Mod 17 was for a lump sum of $925,000 and a time extension of 437 days. The modification provides, in relevant part: The negotiated amount incorporates extention [sic] of warranties and escalation of price for labor and material. All changes associated with the susupension [sic] are included in this amount with the exception of consideration for unabsorbed overhead, to which Sauer wishes to reserve the right to request further consideration if they choose. "CONTRACTOR'S STATEMENT OF RELEASE" Acceptance of this modification by the contractor constitutes an accord and satisfaction and represents payment in full for both time and money for any and all costs, impact effect, and for delays and disturptions [sic] arising out of, or incidental to, the work as herein revised. (R4, tab 4 at 140) 5. By letter dated 18 November 2014, Sauer submitted a certified claim to the CO in the amount of $130,899 for unabsorbed home office overhead for the government suspension covered in Mod 17. The certified claim did not mention Sauer's earlier request, dated 18 June 2013, to add $57,535 in home office overhead for the cost increases related to the government suspension of work. (R4, tab 11) 2 The Board expresses no opinion as to whether this letter is a contracting officer's final decision (COFD). 2  6. The government denied Sauer's certified claim by a contracting officer's final decision (COFD), dated 16 September 2015. The COFD did not mention Sauer's earlier request, dated 18 June 2013, to add $57,535 in home office overhead for the cost increases related to the government suspension of work.