MODIFIED ON RECONSIDERATION: April 13, 2020
CBCA 2953-R, 2954-R, 2955-R, 3596-R, 4175-R, 4377-R, 5006-R
SUFFOLK CONSTRUCTION COMPANY, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
James R. Newland, Jr., 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, counsel for Respondent.
Before Board Judges SOMERS (Chair), DRUMMOND, and ZISCHKAU.
ZISCHKAU, Board Judge.
Appellant, Suffolk Construction Company, Inc. (Suffolk), and respondent, General
Services Administration (GSA), have moved to amend our decision inSuffolk Construction
Co. v. General Services Administration, CBCA 2953, et al., 20-1 BCA ¶ 37,488 (2019). We
treat their motions as motions for reconsideration. The parties do not contest any of the
entitlement determinations of our decision, but seek adjustments to the quantum award. We
grant reconsideration and amend in part our quantum award.


CBCA 2953-R, 2954-R, 2955-R, 3596-R, 4175-R, 4377-R, 5006-R 2
Background
Familiarity with the underlying decision is presumed. This appeal arose from a
contract GSA awarded to Suffolk for the renovation of the McCormack Building, an historic
building located in Boston, Massachusetts. Suffolk filed appeals seeking $22,766,290, plus
interest, while GSA sought $3,196,437 in claims of its own. We found Suffolk entitled to
a net recovery of $12,583,546, plus interest. Suffolk seeks reconsideration (1) of the Board’s
award of $1,135,000 for Suffolk’s general conditions claim, and (2) on the failure of the
Board to award commission and insurance/bonding on portions of two subcontractor claims.
GSA seeks reconsideration of the Board’s jurisdiction to award Suffolk’s contract balance,
and of the award of $314,302 on proposed change order (PCO) 1048 under Suffolk’s PCO
claims.
Discussion
Board Rules 26 and 27 authorize the Board to grant reconsideration or relief for any
reason recognized in Rules 59 and 60 of the Federal Rules of Civil Procedure. See 48 CFR
6101.26(a), 27(a) (2019). These reasons include: justifiable or excusable mistake,
inadvertence, surprise, or excusable neglect; the decision is void, whether for lack of
jurisdiction or otherwise; and any other ground justifying relief from the operation of the
decision or order. See Watermark Environmental, Inc. v. Department of Agriculture, CBCA
2866-R, 15-1 BCA ¶ 36,113. Additionally, Board Rule 29 authorizes the Board to “correct
clerical mistakes while a case is pending, or within 60 days thereafter if a decision has not
been appealed.”
Suffolk’s General Conditions Claim
We found Suffolk entitled to $1,135,000 in general conditions costs related to the
period of government delay from May 29, 2009, through March 31, 2010.We calculated the
amount by dividing the period of delay into four phases and multiplying the duration of each
phase by a daily rate that represented Suffolk’s costs during that period.Prior to arriving at
a final number for each period, we accounted for the costs that GSA had already credited to
Suffolk for the government delay, which we noted Suffolk had excluded from its claim. In
this motion, Suffolk requests that we increase the general conditions award from $1,135,000
to $2,265,986. See Appellant’s Motion at 1. Suffolk suggests that “the Board may have
overlooked the fact that Suffolk had already reduced its claim” by the amount that GSA had
credited to Suffolk. Id. at 2. The Board did not come to its lower award by double-counting
the amount that GSA had already credited to Suffolk for the delay period. Rather, the Board
found Suffolk entitled to general conditions costs at a lower daily rate particularly for the
later delay periods. We determined that the awarded amount of $1,135,000 reasonably

CBCA 2953-R, 2954-R, 2955-R, 3596-R, 4175-R, 4377-R, 5006-R 3
reflected Suffolk’s additional general conditions costs on its contract work. Accordingly, we
deny Suffolk’s motion to amend the general conditions award.
Commission and Bonding Costs for Suffolk’s Subcontractors
In our decision, we found Suffolk entitled to $4,520,133 for costs associated with the
claims of its subcontractors NB Kenney and City Lights. In calculating quantum for these
subcontractors, the Board mistakenly omitted awarding Suffolk’s 10 % commission and
1.362 % insurance and bond mark-up. By subtracting the $772,323 value of PCO 212R and
212Q from the combined subcontractor award of $4,520,133, we now determine that Suffolk
is entitled to $374,781 for its commission on the net award of the subcontractor claims and
$56,150 for its insurance and bonding costs. Suffolk properly excluded the value of PCO
212R and PCO 212Q from this calculation since commission and insurance and bonding
costs were already incorporated into the Board’s award for those change orders. We grant
Suffolk’s motion to increase its subcontractor cost award by $430,931.
GSA’s Motion Regarding Board Jurisdiction
We found Suffolk entitled to $1,264,102 for the balance of the contract and monies
retained by GSA. In its motion, GSA alleges that none of Suffolk’s certified claims “contain
a request that GSA pay the contract balance.” Since the Board’s jurisdiction over contractor
claims for more than $100,000 is limited to claims that were certified and submitted to a
contracting officer, see 41 U.S.C. § 7103 (2018), GSA concludes that the Board lacked
jurisdiction over Suffolk’s claim for the balance of this contract and the contractor’s retained
contract earnings.
GSA misconstrues the contract balance issue as a contractor claim, when in fact it is
a government claim. An agency’s decision to retain money under a contract is a government
claim. See Placeway Construction Corp. v. United States , 920 F.2d 903, 906 (Fed. Cir.
1990) (finding retention of a contract balance to offset costs alleged to relate to late
performance constituted a government claim). A contractor “may appeal a government claim
to the appropriate [board of contract appeals] without having to submit a monetary claim of
its own to the [contracting officer].”Malone v. United States , 849 F.2d 1441, 1443 (Fed.
Cir.), modified, 857 F.2d 787 (Fed. Cir. 1988).
In this case, GSA informed Suffolk that it would withhold $988,482 in addition to the
remaining contract balance in order to offset the Government’s $4,196,437 claim against the
contractor. See General Conditions Contracting Officer Final Decision at GSA00000018.
Suffolk appealed GSA’s decision to the Board on September 5, 2012. Thus, we properly
exercised jurisdiction over GSA’s contract balance claim.

CBCA 2953-R, 2954-R, 2955-R, 3596-R, 4175-R, 4377-R, 5006-R 4
GSA also argues that the Board lacked jurisdiction over PCO 1048 because Suffolk
failed to file a certified claim for that change order. See Respondent’s Motion at 3. PCO
1048 concerned a government claim for the recovery of $314,302 that GSA paid to Suffolk
in contract modification PC-63 before GSA determined that Suffolk ought to have borne the
costs of the modification itself. GSA folded the $314,302 of PCO 1048 into its larger
$3,196,437counterclaim against Suffolk, and explicitly asserted its right to the $314,302 in
the same contracting officer final decision that denied Suffolk’s right to the contract balance.
See General Conditions Contracting Officer Final Decision at Attachment 3,
COFD00000026. When Suffolk appealed GSA’s decision on September 5, 2012, the Board
acquired jurisdiction over GSA’s claim regarding PCO 1048 in the same manner as it
acquired jurisdiction over GSA’s claim to the retained contract balance.
Double-Counting of PCO 1048
In our decision, we found Suffolk entitled to the $314,302 for PCO 1048. However,
we mistakenly included that sum in the PCO claims when this amount was already included
in Suffolk’s $1,264,102 contract balance amount. Suffolk agrees that the $314,302 amount
should be deducted from the PCO claims total. We grant GSA’s request to decrease the total
by $314,302.
CDA Interest
Suffolk is entitled to recover CDA interest for the additional $430,931 it is owed on
its subcontractor claims. Similarly, the amount of CDA interest on Suffolk’s PCO claims
must be reduced to account for the removal of the $314,302 amount.
Decision
The parties’ motions for reconsideration are granted in part and the award is
MODIFIED as stated above.
Jonathan D. Zischkau
JONATHAN D. ZISCHKAU
Board Judge
We concur:
Jeri Kaylene Somers Jerome M. Drummond
JERI KAYLENE SOMERS JEROME M. DRUMMOND
Board Judge Board Judge