### ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) 

### Thorington Electrical and Construction Company ) ASBCANo. 60476 ) 

### Under ContractNo. FA3300-05-C-0015 )
APPEARANCES FORTHE APPELLANT: Deitra Crawley, Esq. Natalie Mark, Esq.

TaylorEnglish DumaLLP Atlanta, GA
APPEARANCES FORTHE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy ChiefTrial Attorney Lawrence M. Anderson, Esq.

Trial Attorney
OPINION BYADMINSTRATIVE JUDGE PROUTY ON THE GOVERNMENT'S MOTION FOR SUMMARYJUDGMENT
Before us is the government's motion for summaryjudgment, which argues that the claim appealed here by appellant, Thorington Electrical and Construction Company 1 

### (Thorington), is time-barred underthe ContractDisputes Act of 1978 (CDA), 41 U.S.C. 

### §§ 7101-7109. Thorington opposes the government's motion, arguing that its claim was timely because it is an amendment ofan earlier claim ofwhichthe governmentwas on notice. Forthe reasons stated herein, we conclude that the claim is time-barred underthe CDA and enterjudgmentin favor ofthe government.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION

1. 

### On 30 September 2005, the United States Air Force (government) awarded ContractNo. FA3300-05-C-0015 (the contract) to Thorington for the construction ofa new entry control facility atthe Bell Street Gate at Maxwell AirForce Base, Alabama (R4, tab 1).
2. The construction ofthe facility was substantially completed by 11 August 2008, when the government determined that it was "fully operational" (compl.**~~** 

### 32, 34).

1 

### Contract was awarded to "ThoringtonElectrical/Construction Company" but the claim and correspondence herein replaces the backslash (/) with "and."

### 3. On 28 April 2009, Thorington submitted a letterto the contracting officer (CO) seeking $764,813 in compensation from the government (R4, tab 48). The letter was labeled as a "claim" and was certified by Thorington's general manager and owner, Mr. Kelvin R. Thorington (id.). 

### The letterprovided that, "[t]he items that [Thorington] is making a claim [upon] are associated with workthat was performedbut was neverpaid and material cost for items increased since submitting the original cost estimate in 2005" (id. 

### at 1 ). 

### Thorington also stated, in relevantpart:

(Id. 

### at 6) In Addition, the claim does not include cost that TECC [Thorington] has acquired orprojects that TECC could have obtained overthe last six months. The delay inpaying the modifications has caused TECC to lose several projects over the pastyear. As stated in several letters to the CO, the impact ofnonpayment towards these modifications has caused delays in TECC paying our sub-contractors in a timely
manner. This delay in paymenthas also caused the subcontractors and venders [sic] to file claims againstthe surety company. If

### all modifications had beenpaid in a timely manner, TECC couldhave paidthe sub-contractors and venders [sic] which would have eliminated any intervention by the surety company. Once the surety company pays any claims it is detrimental to your company's future ability to bond. The extended performance time occupied ourbonding because the government delayed the project for approximately 1 

### Yi years and continues to occupy our bonding capabilities until the modifications are settled. These additional claims will be submitted through the legal system at a later date butwith-inthe next few months.

4. By letter dated 14 August 2009, the CO issued a final decision partially granting and partially denying Thorington's claim dated 28 April 2009 (R4, tab 49).
5. Thorington appealed the CO's decision to this Board, and the appeal was docketed on 17 November 2009 as ASBCANos. 56987, 56988, 56989, 56990, 56991, 56992, 56993, 56994, 56995, 56996, 56998, 56999 and 57000. These appeals were all resolved when Thorington signed an agreement, dated 18 August 2015, which resolved all ofits claims dated 28 April 2009 (gov'tmot., attach. 1 ). The agreement

2

### stated that "[t]he only claimthat is not discharged is Contractor's 17 July 2015£21

### claim for $20 million" (id. 

### at 2). At the parties' request, the Board subsequently dismissed with prejudice ASBCANos. 56987, 56988, 56989, 56990, 56991, 56992, 56993, 56994, 56995, 56996, 56998, 56999 and 57000 on 26 August 2015.

6. The July 2015 "claim" excluded bythe August 2015 settlement agreement, originated in a letter dated 16 July 2015, that Thorington submittedto the CO (R4, tab 52). This letter is titled "Amended Claim to the Claim Submitted on 28 April 2009," and seeks $20 million for the value ofthe loss ofbusiness, profit, and income; opportunity costs; damage to business relationships; and irreparable injury on the grounds that the CO's failure to issue timely change orders orto grant its claim destroyed its personal and business finances (id. 

### at 2-3).

7. By letter dated 30 November 2015, the CO issued a final decision denying Thorington's claim dated 16 July 2015 (R4, tab 55). Thorington appealed to the Board
on 26 February 2016, and reduced its amount in dispute to $3.75 million. We have docketed this appeal as the present case.
DISCUSSION Thorington's 16 July 2015 claim was untimely because, as demonstrated by its 28 April 2009 claim letter, Thorington knew or should have known the basis for this claim by 28 April 2009 at the latest, meaning that it fell outside ofthe CDA's six-year statute oflimitations. Thorington's assertion thatthe 2015 claim was merely an amendment to the 2009 claim, permissible under FED. R. CIV. P. 15(c) is misguided, to say the least. Rule 15(c), governing the amendment ofpleadings before federal courts, has no bearing upon the statute oflimitations for filing a claimbefore a CO, and the statute oflimitations may not be evadedby submitting a late "amendment"to a timely claim long since denied.
I. 

### The Standards for Summary Judgment
The standards for summaryjudgmentbefore the Board are well established3 

### and need little elaboration here. Summaryjudgment should be granted ifit has been shown that there are no genuine issues ofmaterial fact and the moving party is entitled tojudgment as a matter oflaw. 

### Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat summaryjudgmentby suggesting conflicting facts

2 

### In the parties' settlement agreement, it states thatthe claim is dated 17 July 2015; however, the document in the record is dated 16 July 2015 (R4, tab 52). 3 

### Board Rule 7(c)(2) provides that the Board looks to FED. R. C1v. P. 56 for guidance in deciding motions for summaryjudgment.



### 3"must set forth specific facts showing that there is a genuine issue for trial." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986) (quoting FirstNational Bankof Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). Put another way, ifthe non-moving party carries the burden ofproofat trial for elements ofits case and fails to provide such proofat the motion for summaryjudgment, the moving party is entitled to summary judgment. DairylandPower Co-op v. UnitedStates, 16 F.3d 1197, 1202 (Fed. Cir. 1994). We do not resolve controversies, weigh evidence, or make determinations ofcredibility. LibertyLobby, 477 U.S. at 255. All reasonable inferences are drawn in favor ofthe non-movant. Id.

II. The CDA Requires the Submission ofa Claim to the CO within Six Years ofits Accrual

It is the government's burden as movant for summaryjudgmentto showby undisputed material facts that Thorington's claim dated 16 July 2015, is time-barred under the CDA. The CDA requires a contract claim to be "submitted within 6 years after the accrual ofthe claim." 41 U.S.C. 

### § 7103(a)(4)(A). A claim accrues under the CDAwhen "all events, that fix the alleged liability

...andpermit assertion ofthe claim,
were known or should have been known." Some injury must have occurred; however "monetary damages need not have been incurred." FAR 33.201. The events fixing liability should have been known when they occurred unless they can be reasonably found to have been either concealed or "inherently unknowable" at that time. Raytheon Missile Systems, ASBCA No. 58011, 13 BCA, 35,241at173,017.

III. The Claim Here Accrued More Than Six Years Before its Submission
It is undisputed that the claim, dated 16 July 2015, accrued at the very latest on 28 April 2009 when Thorington notified the government ofthe potential claim that is at issue in this appeal (SOF, 3). Thorington acknowledges this fact as it repeats the government's argument in its response that 'TECC succinctly stated all its claims against the Air Force in its original claim and the facts that give rise to them, which was filed on or around April 28, 2009" (app. resp. at 3). It is further undisputed that the claim at issue in this appeal was not submitted to the CO until the letter dated 16 July 2015 (SOF , 5). Thus, Thorington's claim dated 16 July 2015, was submitted more than six years after its accrual and is time-barred underthe CDA.

IV. Thorington Provides No Basis to Excuse its Late Submission ofits Claim Thorington asserts that its late submission ofthe present claim is excusable because it is merely an amendment ofits earlier, timely claim, and that, as such, the "amended" claim should relate back in time to the original claim pursuant to operation ofFED. R. CIV. P. 15(c) (app. resp. at 3-6). The problems with this line ofargument are many and reflect a misunderstanding ofthe nature ofa claim before a CO versus an

4appeal at a tribunal. In short, the law cited by appellant is utterly inapplicable to the situationpresented here.

First and foremost, the terms ofFED. R. C1v. P. 15(c) and the case citedby appellant that interprets it, 

### Design andProduction, Inc. v. 

### UnitedStates, 10 Cl. Ct. 80 (1986), referto the amendment ofa complaint that is already before a federaljudicial tribunal. The closest analog tothe situationpresented here (forwe are not a federal court, but are an administrative body and the Federal Rules ofCivil Procedure do not apply to us except to the extent thatwe lookto them for guidance) wouldbe an amendmentto the complaint in the appeal ofa CO's final decision tothe Board. Thorington did not do that here: the purported amendment was to the claim before the CO, not to any complaint before us, and it was submitted to the CO, not to the Board. Beyondthe inapplicability ofFED. R. CIV. P. 15(c),4 there is no provision in the Board'srules orin the CDApermitting an amendment ofa claim in such circumstances, much less allowing it to "relate back" in time to the initial claim. First, Thorington has presented no authority for the notion that it may submit an amendmentto a claim upon which a CO has already issued a final decision. A final decision is, after all, final, unless the CO chooses to amend it and there is no lawrequiring consideration ofan amendment to an already-denied claim. With respectto whetherthere is any basis, outside ofFED. R. CIV. P. 15(c), that would permitrelation back for the amendment ofan already-denied claim (even were the amendment to bepermitted), the law indicates that it would not. As noted above, the case upon which Thoringtonprincipally relies, 

### Design andProduction, involves amending a complaintbefore the Claims Courtto include relief already sought in a timely claim submitted to (and denied by) the CO. 10 Cl. Ct. at 81. The court there made clear, moreover, that, hadplaintiffin that case soughtto addnew claims not already consideredbythe CO, it would not have permittedthe amendment. 

### See id. In a similar case, the Court ofFederal Claims bluntly stated that "Rule 15(b) cannot be invoked to resurrect an otherwise time-barred claim." 

### RendaMarine, Inc. v. 

### UnitedStates, 65 Fed. Cl. 152, 162 (2005). Merely going through the motions of submitting a purported "amendment"to a claimpreviously submitted to the CO, but denied more than five years earlier, does notprovide a back-door means to reset the statute oflimitations.

4 The government implicitly concedes the applicability ofFED. R. CIV. P. 15(c), by arguing that the amendment should notbepermittedbecause the claims were so different (gov'treply at 4-5). The claims were, in fact, different, given Thorington's own statement in its initial claimpromisingthat it would subsequently file the additional claims, which would likelypreclude amendment pursuant to Rule 15(c), even ifit were applicable. Nevertheless, we need not decide that here.

5V. There is No Need for Additional Discovery Thorington's argument that summaryjudgment should be deferred to allow for additional discovery regarding the government's knowledge ofits additional claims (app. resp. at 6-7), is misplaced because such discovery could not conceivably affect any material facts before us. To be sure, under the FED. R. CIV. P. 15 construct, the government's knowledge ofpotential claims may be relevant in a tribunal's evaluation of whether to permit amendment ofa complaint before it, 

### see, e.g., Design andProduction, 10 Cl. Ct. at 82, but that construct has no applicability here. The statute oflimitations decision in the motion for summaryjudgment before us is based upon what Thorington knew and when, not the government's knowledge. Indeed, even ifthe government knew every particular ofThorington's potential claim, and Thorington obtained proofofthat knowledge in additional discovery, it would not change the outcome ofthis case so long
as Thorington failed to file its claim within the time set forth by the CDA, as it did. Accordingly, Thorington has given us no reason to delay deciding the motion before us. 

### See, e.g., Pure Gold, Inc. v. 

### Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984).

CONCLUSION

For the reasons stated herein, we grant summaryjudgment in favor ofthe government. The appeal is denied.

Dated: 16 February 2017

I concur

# ~~~/~**~** 

## N.STEMPLE**~** Administrative Judge Acting Chairman Armed Services Board ofContract Appeals



### 6 J. Administrative Judge Armed Services Board ofContract Appeals

I concur 

# F\··

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract AppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 60476, Appeal ofThorington Electrical and Construction Company, rendered in conformance with the Board's Charter.
Dated:

7 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals