ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) The R.R. Gregory Corporation ) ) Under Contract No. DACA31-00-C-0037 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 58517

Brian Cohen, Esq.

Greenburg & Spence, L.L.C. Gaithersburg, MD Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Richard P. White, Esq. Michael T. Shields, Esq.

EngineerTrial Attorneys U.S. Army EngineerDistrict, Baltimore OPINION BYADMINISTRATIVE JUDGE JAMES ONAPPELLANT'S MOTION FORRECONSIDERATION The Board's 6 February 2014 decision granted respondent's motion to dismiss the captioned appeal for lack ofsubject matterjurisdiction, heldthat appellant's 24 August 2012 certified claim was barredby the Contract Disputes Act (CDA) six-year statute of limitations, 41 U.S.C. § 7103(a)(4)(A), and dismissed the appeal. On 10 February 2014 appellantreceived that decision and on 7 March 2014 timely moved for reconsideration. On 7 April 2014 respondent replied thereto. Appellant responded on 22 April 2014. Movant asserts that our decision "mischaracterizes Gregory's claim" and: [H]as made significant, material mistakes in its findings offact, both in the characterization ofthe findings and the complete omission ofmaterial dispositive facts which the Boardhas chosen to ignore. In addition the Board's legal analysis is erroneous, misstates cases relied on, and fails to consider other significant case law, including cases ofthis Boardwhich clearly dictate a different result. (App. mot. at 1, 13)I. With respect to the assertion that our decision mischaracterized Gregory's claim, we statedthe fact and date ofmovant's claim in SOF 

### ii 15, and set out in fair detail its claim contentions beforeproceeding to our decisional analysis. 14-1 BCA

### ii 35,524 at 174,110. Our statements accurately described, and mischaracterizednothing in, Gregory's 24 August 2012 claim theory and allegations, as appellant now concedes (app. resp. at 8). II. Movant asserts that the Board's SOF 

### ii 13 is incomplete, misleading and erroneous because some documents cited (R4, tabs 48, 49, 52, 54-55; app. opp'n, ex. 13) do not refer specifically to "time extensions for unadjusted change orders"; tab 56 omits the "material facts" ofa "$180,032

...settlement offer" to Gregory for "release ofLD's held onproject" (app. mot. at 2-3); some exhibits (app. opp'n, exs. 13, 14) are outside the "2006 to 2010" period in SOF 

### ii 13; exhibit 13 shows that in July-August 2011 the government was interested in settlingLDs 

### (id., exs. 3-4); andthe decision omitted exhibits (app. opp'n, exs. 6, 7, 9, 11, 12) showingthat Gregory was performing corrective work (app. opp'n at 4-5). Movant's allegation ofomissions of"material" facts is invalid because the contracting officer (CO) didnot agree to an extension ofthe substantial completion date and correlative reduction ofGregory's LD liability; the parties' discussions regarding unadjusted changes and Mr. Andrysiak's 30 September 2010 settlementrecommendation (app. supp. R4, tab 56) did notpostpone the running ofthe six-year CDA statute of limitations, for the reasons stated in our decision, 14-1 BCA

### ii 35,524 at 174,111; and repairwork Gregoryperformed after the date ofsubstantial completion is immaterial to its liability for LDs. Accordingly, to clarify the scope and dates ofthe parties' communications, we revise SOF

### ii 13 to state: "From 2006 to 2011 the parties intermittently discussed, inter 

### alia, time extensions for unadjusted changes, butthey did not agree to adjust such changes or Gregory's liability for LDs (app. supp. R4, tabs 48-56; app. opp'n, exs. 3-4, 11-14)." III. Thepremises ofappellant's August2012 claim andthis motion for reconsideration are that assessment ofLDs is a government claim for whichthe CDArequires a CO's decision, and appellant's claim for remission ofLDs accrued on 3 October2009 whenthe government's LD claimbecametime-barred. Movant's first premise, that assessment ofLDs is a government claim for which the CDArequires a CO's decision, is unsound. Formany decades agency CO's have offset

2LDs from unexpended contractbalances, which LDs remain in agency appropriations. When all LDs are so assessed, the CO has no need to demand payment ofLDs. The ASBCA has so recognized. In April 2007 the CO notified the contractorthat a deduction "of$103,700.00 for 61 calendar days of[LDs] is also retained" from the contractor's invoice; in May 2007 the contractor submitted a $51,393.65 claim for 77 days ofgovernment delay, and in December 2007 the CO's final decision granted a 4-day time extension on the contractor's May claim. While our decision stated that the "assessment of[LDs] is a government claim," despite the absence ofany CO decision assessing LDs, we held thatthe contractor was entitled to recover for 43 days of compensable delay, but was liable for 34 days ofLDs. 

### See HedgecockElectric, Inc., ASBCA No. 56307, 12-2 BCA**~** 35,086 at 172,312, -314, -318. Thus, it is not correct the CO always must issue a final decision expressly assessing LDs. In the example cited by the Court ofFederal Claims, the $303,550 in LDs exceeded the unexpended contract funding, so the government offset $244,035 for LDs from contract funds and issued a 20 December 2002 CO's decision demanding the $59,514 balance ofLDs, onwhichbalance the trial court granted the government summaryjudgment. 

### See M Maropakis Carpentry, Inc. v. UnitedStates, 84 Fed. Cl. 182, 193 (2008), 

### ajf'd, 609 F.3d 1323, 1329-30 (Fed. Cir. 2010). The trial court and the Federal Circuit Court did not hold or state that the government was barred from retaining the additional $244,035 because it was not demanded in the CO's decision. Movant's second argument, appellant's claim for remission ofLDs accrued on 3 October 2009 whenthe government's LD claim was time-barred, is based on the false premise that the government was required to submit a claim for LDs. Moreover, this argument is inconsistent with the CDA statute oflimitations. As 41 U.S.C. 

### § 7103(a)(4)(A), states: 

### "Each claim by a contractor against the Federal Governmentrelating to a contract and 

### each claim by the Federal Government against a contractorrelatingto a contract shall be submitted within 6 years afterthe accrual ofthe claim" (emphasis added). Accordingly, we deny appellant's motion for reconsideration. Dated: 12 May 2014

(Signatures continued)

3 Administr ive Armed**Sert,..·~** ofContractAppealsI concur

Administrative Judge Acting Chairman Armed Services Board ofContract Appeals I concur

Administrative Judge Acting Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 58517, Appeal ofThe R.R. Gregory Corporation, rendered in conformance with the Board's Charter. Dated:

4 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals