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         RESPONDENT'S MOTION TO DISMISS DENIED:  July 22, 1993
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                              GSBCA 12052
 
 
                        P. J. DICK INCORPORATED,
 
                                           Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                           Respondent.
 
        John T. Flynn  of Smith, Currie & Hancock,  Atlanta, GA; and
   Paul  J. Walstad  of Walstad  & Babcock,  Provo, UT,  counsel for
   Appellant.
 
        Sharon A. Roach, Gerald  L. Schrader, Martin A.  Hom, Robert
   C. Smith, and  M. Leah Wright, Real Property  Division, Office of
   General Counsel, General Services Administration, Washington, DC;
   and  Kenneth  E.  Kendell, Office  of  Regional  Counsel, General
   Services   Administration,   Philadelphia,    PA,   counsel   for
   Respondent.
 
   Before Board Judges DANIELS (Chairman), BORWICK, and NEILL.
 
   BORWICK, Board Judge.
 
        Respondent  has moved  to dismiss  this  appeal for  lack of
   jurisdiction.   The  appeal,  as it  has  evolved,  now  concerns
   interest on the  cost of  maintaining a  fire alarm  system in  a
   building  undergoing renovation.  The claim began with respondent
   directing  appellant to  maintain the fire  alarm system,  a task
   which appellant  performed under protest.   Before the  filing of
   the appeal,  respondent acknowledged that  appellant was entitled
   to  payment  for   maintaining  the  fire   alarm  system  as   a
   constructive  change.   Nineteen  days after  the  filing of  the
   appeal, the  Government issued  a contract  modification for  the
   full amount of quantum sought by appellant.  
 
        Respondent   argues  that   appellant  never   submitted  an
   appealable claim  for quantum under the Contract  Disputes Act of
   1978  (CDA),   41  U.S.C.     601-613  (1988),   or  implementing
   provisions  of  the  Federal Acquisition  Regulation  (FAR).   We
   conclude that appellant submitted an appealable claim for quantum
   to  the contracting  officer  in  January  1991,  when  appellant
   requested  a decision of the contracting officer and submitted an
   invoice for incurred costs of $29,197.01.  Appellant continued to
   submit  incurred-cost  invoices  until November  12,  1991.   The
   negotiations between appellant  and the contracting officer  that
   continued sporadically  in the summer  and fall of 1991  and 1992
   were post-dispute  negotiations and do not taint the existence of
   a dispute.  We deny the Government's motion.  
 
 
                               Background
 
        The contract is  for renovation of the first  five floors of
   the United  States Court House  and Post Office,  Pittsburgh, PA.
   At   a  job  meeting   on  April   20,  1989,   the  Government's
   architect/engineering  firm directed  P.J. Dick  to maintain  the
   existing fire  alarm system in  the construction areas  until the
   Government  accepted the  new fire  alarm system.   Affidavit  of
   Appellant's  Project  Coordinator   Barry  A.  Bandura   (Bandura
   Affidavit),   3 (Appellant's Opposition to Respondent's Motion to
   Dismiss, Exhibit A.)
 
        On April 25,  1989, appellant wrote the  contracting officer
   in pertinent part:
 
        We  are proceeding as  directed, but emphasize  that we
        consider  this  work  as  "extra"  and  unless  we  are
        notified to stop work within 72  hours of the facsimile
        transmission of this  letter, we will presume  that the
        G.S.A. recognizes this work as "extra" and that we will
        be compensated accordingly.
 
   Respondent's Exhibit 1.  
 
        On August 1, 1989, appellant wrote the contracting officer:
 
        We are currently providing  maintenance of the existing
        fire   alarm   system . . . in  accordance   with   the
        direction of the G.S.A.  We are doing so under protest,
        and  fully  expect  to be  reimbursed  for  all related
        costs.
 
        . . . .
 
        Additionally,  we   request  a   Contracting  Officer's
        decision relative  to the  responsibility for  costs of
        maintaining the  existing fire alarm  system, including
        "bagging" and "unbagging."  
 
   Appellant  also  provided  detailed  suggestions  to   respondent
   concerning  the procedures  for maintaining  the existing  system
   during construction.   Appellant  suggested that  it follow  then
   current procedures with  the exception of changing  the automatic
   fire  department call  system to  a manual  system.   Appellant's
   Opposition to Respondent's Motion to Dismiss, Exhibit B.
 
 
        On  May 21, 1990,  appellant wrote again  to the contracting
   officer as follows:
 
        Under previous correspondence  we advised  you that  we
        were  complying   with  your   directive  to   maintain
        operation of the existing  fire alarm system.  We  have
        done so, for more than a year, under protest.  
 
        At this time, we request a formal Contracting Officer's
        decision concerning  the responsibility  of maintaining
        this system.
 
   Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit
   C.
 
        On  January 21, 1991, appellant forwarded to the contracting
   officer an invoice for  incurred costs of $29,197.09.   Appellant
   maintained  that  it   had  submitted  two  requests   for  final
   decisions,  noted  that  the contracting  officer  had  failed to
   respond,  and urged that  the contracting officer  "consider this
   matter  one more time."   Appellant's Opposition  to Respondent's
   Motion to Dismiss, Exhibits D, E.  
 
        On April 4, 1991, the Government advised appellant:
 
        This  office  has  determined   that  Ferry  Electric's
        [appellant's  electrical  subcontractor]   request  for
        additional  compensation  for  the maintenance  of  the
        existing  fire  alarm  initiating   devices  is  valid.
        Please have Ferry Electric prepare a cost proposal.
 
   Respondent's Exhibit E.  
 
        On May 2, 1991, appellant  submitted a quotation for $41,811
   for "all of the presently known costs for the changes referred to
   herein,"  that is,  the  maintenance of  the  fire alarm  system.
   Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit
   F.    This figure  included  incurred  costs  through May  3  and
   projected costs through June 28.  
 
        Appellant and  the Government  negotiated the  cost of  fire
   alarm maintenance during the  late summer of 1991.   Negotiations
   on  the  cost  of  maintaining  a  fire  alarm  system  continued
   sporadically  between   September  1991   and  late   July  1992.
   Affidavit of  Contracting Officer  Mark Lewandowski  (Lewandowski
   Affidavit) (March 11, 1993)    2-3.
 
        On  November 12, 1991,  appellant presented  another invoice
   for $43,586, and  stated that "this proposal reflects  all of the
   presently  known costs  for  the  changes  referred  to  herein."
   Appellant also stated that it reserved the right to bill for "the
   full amount of the contract adjustment, whether more or less than
   the  amount   proposed   above."     Appellant's  Opposition   to
   Respondent's Motion to Dismiss, Exhibit G.
 
 
        On  September 23, 1992, appellant filed an appeal predicated
   upon:
 
        [T]he failure  of the  Contracting Officer  to issue  a
        Contracting   Officer's  final   decision  within   the
        required time  frame, or  alternatively, to  advise the
        contractor when  such final decision  would be  issued.
        More  specifically, by letter  of August 1,  1989, P.J.
        Dick  submitted  a  request for  Contracting  Officer's
        final decision on  P.J. Dick's entitlement to  costs of
        maintaining the existing fire alarm  . . . .  No  final
        decision was issued by the Contracting Officer.
 
   Notice of Appeal.
 
        On  October 12,  1992, respondent issued  Modification A0AU,
   which increased the contract price by $43,586 for  costs incurred
   for  maintenance of existing fire alarm initiating devices during
   project  construction.   Appellant's  Opposition  to Respondent's
   Motion to Dismiss,  Exhibit H.  Appellant considered  itself in a
   "claim situation"  from April 25,  1989, until paid on  March 23,
   1993.   Bandura  Affidavit    12.   Now that  the Government  has
   issued  Modification  A0AU,   appellant  seeks  an   "order  that
   Respondent  pay [appellant] for  all accumulated interest  on the
   principal  sum of $43,586.00 (paid under modification no. A0AU.)"
   Appellant's Opposition to Respondent's Motion to Dismiss at 13.  
 
                               Discussion
 
        The Government argues that appellant never submitted a claim
   cognizable   under  the  Contract   Disputes  Act  or   the  FAR.
   Respondent's  Motion to  Dismiss at  4.  The  Government suggests
   that appellant  never sought  a "sum certain."   Id.  at 6.   The
   Government  suggests that appellant never manifested an intent to
   seek   an  equitable   monetary   adjustment,  but   was   merely
   negotiating.   Id.  Appellant  maintains that the full  amount of
   the claim was in dispute as early as April 25, 1989.  Appellant's
   Opposition to Respondent's Motion to Dismiss at 12.
 
        A claim is defined as a:   
 
        written  demand  or  written assertion  by  one  of the
        contracting  parties seeking, as a matter of right, the
        payment of  money in a  sum certain, the  adjustment or
        interpretation  of  contract  terms,  or  other  relief
        arising under  or relating to  the contract. .  . .   A
        voucher, invoice, or other routine request  for payment
        that is not in dispute when submitted is not a claim.  
 
   48 CFR 33.201 (1992).
 
        We are  to apply  a "common-sense"  analysis in  determining
   whether  the  contractor  asserted a  proper  claim,  whether the
   Government  disputed  the  right,   and  whether  the  contractor
   communicated  his  desire  for  a  contracting  officer decision.
   Transamerica Insurance Corp. v United States, 973 F.2d 1572, 1579
   (Fed. Cir. 1992).  
 
        On  August  1, 1989,  appellant  had submitted  a  claim for
   relief from the directive of the Government's architect/engineers
   to  maintain the  fire  alarm system,  but  that claim  addressed
   entitlement only.  Clearly,  between August 1989 and  April 1991,
   there  existed a dispute about the responsibility for maintaining
   the fire alarm system.   The Government had directed appellant to
   maintain  the  system  and  appellant  disputed  its  contractual
   responsibility.   In January  1991, appellant  put the  amount of
   payment in  dispute  by forwarding  the  payment request  in  sum
   certain  to the  contracting officer.    A reasonable  contractor
   would not  send a  payment request after  the dispute  had arisen
   solely for the contracting officer's information without at least
   an implicit request that the contracting  officer make a decision
   as to entitlement.  See Transamerica, 973 F.2d at  1578.  Indeed,
   this  case is stronger than Transamerica, as appellant explicitly
   requested that the contracting officer consider the matter in the
   context of an invoice from the electrical subcontractor stating a
   sum certain.  
 
        The  Government's communication  of April 4,  1991, resolved
   the issue of  responsibility, but left the dispute  of the amount
   of payment  unresolved.   The invoices of  May and  November 1991
   merely  supplemented the payment  request dispute which  arose in
   January 1991.  
 
        The Government points to the ensuing negotiations as showing
   that there was no dispute.  The sporadic negotiations between the
   fall of  1991 and summer of 1992  were post-dispute negotiations,
   which do not taint the existence either of a claim or a dispute:
 
        There  is no inconsistency  between the existence  of a
        valid CDA claim and an expressed desire to  continue to
        mutually work towards a claim's resolution.
 
   Transamerica, 973 F.2d at 1578.  
 
        Finally, this  case is  unlike  Santa Fe  Engineers Inc.  v.
   Garrett,  991 F.2d  1579  (Fed.  Cir. 1993).    There, the  Court
   concluded  that  the parties  had  not  reached an  impasse  when
   appellant first submitted a claim to  the contracting officer, as
   it submitted  additional  information  so  the  Government  could
   better  understand  its  proposal.    Id. at  1582.    Here,  the
   appellant and  the Government had  reached an impasse.   From the
   time  of  the  issuance  of  the  directive  in  April  1989  the
   Government thought that maintenance of the fire  alarm system was
   the  contractor's  responsibility.    Conversely,  the  appellant
   maintained  as early as August 1989  that the work was not within
   the scope of the contract and that the Government was required to
   reimburse  all  related  costs.   These  costs  were specifically
   quantified   by  the  contractor  in  January  1991  and  through
   subsequent submissions as costs continued to be incurred.    
 
 
                                Decision
 
        Respondent's  motion  to  dismiss  is  DENIED.    The  Board
   understands that the  parties desire to proceed on  the record on
   the  merits of this appeal.   The parties shall file their record
   submissions  simultaneously  with   previously  scheduled  record
   submissions in other appeal dockets relating to this contract.   
 
 
 
                                      _________________________
                                      ANTHONY S. BORWICK
                                      Board Judge
 
 
   We concur:
   _________________________          _________________________
   STEPHEN M. DANIELS                 EDWIN B. NEILL
   Board Judge                        Board Judge