ARMED SERVICES BOARD OF CONTRACTAPPEALS
Petition of

-- ) ) Volmar Construction, Inc. ) ) Under ContractNo. W912QR-12-C-0074 )
APPEARANCE FORTHE PETITIONER:

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 60710-910

Richard T. Garofalo, Esq.

Garrity, Graham, Murphy, Garofalo

& Flinn EastHanover, NJ Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Carlton A. Arnold, Esq.

Engineer Trial Attorney U.S. Army EngineerDistrict, Louisville
OPINION PURSUANT TO BOARD RULE l(a)(5) DIRECTING CONTRACTING OFFICERTO ISSUE DECISION
Pursuantto Board Rule l(a)(5), Volmar Construction, Inc. (Volmar) petitions the Boardto direct the contracting officer (CO) to issue a decision on its claims in advance ofthe date announced by the CO. In response, the government argues that the CO's decision to issue the final decision no laterthan 31 March 2017 is reasonable because the current CO has no priorknowledge ofthe claims and the government will require an outside scheduling expertto examine the delay and impact damages.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE PETITION
1. On 29 September 2012, the United States Army Corps ofEngineers, Louisville District (government) awarded ContractNo. W912QR-12-C-0074 to Volmar to renovate and repair buildings on Joint Base McGuire-Dix-Lakehurst, NewJersey (gov't ex. 1, contract at 1-6).
2. By letter dated 19 May 2016, Volmar submitted eight claims tothe CO, seeking money and extensions oftime. Volmarpreviously submitted the substance of its claims to the CO as written demands for payment orrequests for equitable adjustment1as follows: $84, 191.11 for additional asbestos abatement, temporary

1The Board expresses no opinion as to whether the previous submittals were claims or requests for equitable adjustment.heating costs, and inadequate water flow conditions dated 29 January 2016; $663,600.00 for extended office overhead dated 11 February 2016; $59,208.28 for kitchen equipment2 dated 12 February 2016; $930,584.74 for canopy modification and loss of electrical subcontractor dated 22 February 2016; extension oftime request for smoke seals dated 29 February 2016; extension oftime request for railings3 dated 15 March 20164; $516,356.63 for additional labor, material testing, and extended office overhead related to impacts and delays with peelingpaint from the ceiling dated 21 March 20165 ; and $41,868.06 and $34,808.08 for additional costs regarding installation ofbooster fans dated 23 February 2016 and 31March20166

. (Gov't ex. 2, claim at 1-3)
3. By letter dated 27 June 2016, Volmar modified its two extension oftime claims by adding extended field office overhead in the amounts of$110,538.00 for the railings claim and $202,756.50 for the smoke seals claim7 (gov't ex. 6).
4. By letter dated 18 July 2016, the CO issued a final decision, granting the

- $59,208.28 claim for kitchen equipment (gov't ex. 7 at 1). The government attorney sent a separate letterto Volmar, dated 18 July 2016, stating thattheremaining seven CO final decisions would be issued on or before 31 March 2017 (gov't ex. 8).
5. Pursuantto BoardRule l(a)(5), Volmarpetitionedthe Board, by letter dated 23 July 2016, for an order directing the CO to issue a decision on its sevenremaining claims no laterthan a reasonable time set bythe Board (pet. at 4).
DECISION
When a CO receives a certified claim over $100,000, the ContractDisputes Act (CDA), 41 U.S.C. §§ 7101-7109, requires that within sixty days ofreceipt ofthe claim, the CO shall either (a) issue a decision or (b) notify the contractor ofthe time

2 Volmar submitted a notice ofappeal regarding the kitchen equipmentto the Board on 17 June 2016 and it was docketed as ASBCA No. 60634. 3 Volmar submitted a notice ofappeal regarding the smoke seals andrailings time extensions on 17 June 2016 and it was docketed as ASBCANo. 60635. 4 In its 19 May 2016 claim, Volmar states thatthis prior submittal was dated 29 February 2016; however, the document inthe record is dated 15 March 2016 (gov't ex. 3). 5 In its 19 May 2016 claim, Volmar states that this prior submittal was dated 15 March 2016; however, the document in the record is dated 21 March 2016 (gov't ex. 3). 6 In its 19 May 2016 claim, Volmar states that this prior submittal was dated 23 February 2016; however, the document in the record is dated 31 March 2016 (gov't ex. 3). 7The Board expresses no opinion as to whether these two claims were properly certified.

2within which a decision would be issued. 41 U.S.C. § 7103(±)(2). When a CO receives a claim under $100,000, the CDArequires the COto issue a decision within 60 days "fromthe contracting officer's receipt ofa written request from the contractor that a decision be rendered within thatperiod." 41 U.S.C. 

### § 7103(±)(1).
In addition to the requirements ofsection 7103(±)(2), the CDA also requires that the decision ofthe CO on a contractor claim "shall be issued within a reasonable time

...taking into account such factors as the size and complexity ofthe claim and the adequacy ofinformation in support ofthe claim providedby the contractor." 41 U.S.C. § 7103(f)(3).
Underthe CDA, "[a] contractormay request the tribunal concerned to direct a contracting officerto issue a decision in a specified period oftime, as determined by the tribunal concerned, in the event ofundue delay on the part ofthe contracting officer." 41 U.S.C. 

### § 7103(f)(4). Board Rule l(a)(5) implements this section providing that "[i]n lieu offiling a notice ofappeal under paragraph (a)(l) or (a)(2) of this Rule, the contractormay petition the Boardto direct the contracting officerto issue a decision in a specifiedperiod oftime as determined by the Board."
Whetherthe time in which a CO states he or she will issue a decision is reasonable must be determined on a case by case basis. 

### Eaton ContractServices, Inc., ASBCA Nos. 52686, 52796, 00-2 BCA**~** 31,039 (finding 8 months reasonable given the volume ofdocumentation, number ofissues and time needed to gather information due to relocation ofpersonnel); 

### Defense Systems Co., ASBCA No. 50534, 97-2 BCA**~** 28,981 (finding 9 months reasonable when claimed amount exceeded $71 million and narrative portion ofthe claim alone exceeded 162 pages);

### Dillingham/ABB-SUSA, aJoint Venture, ASBCANos. 51195, 51197, 98-2 BCA**~** 29,778 (finding 14-16 months unreasonable for a small construction claim and an impact claim that had been extensively analyzed and audited). Here, Volmar objects to the 31 March 2017 date establishedby the CO for issuingher decision as being unreasonable because the date is more than ten months from the submission ofits 19 May 2016 claims and is approximately thirteen months from its original submissions. Volmar instead seeks an order from the Boardto direct the COto issue a decision "within a specified period oftime and well before March 31, 2017." (Pet.at2-4) The government maintains that 31 March 2017 is a reasonable date onwhich to issue a CO decision. The government states that the CO who will issue the decision has had no exposure to the issues raised in Volmar's claims and that an outside scheduling expert will need to be hired to examine the delay and impact damages. (Gov'topp'n at 2)

3We find the government's arguments not wholly persuasive. While bringing on a CO who has had no exposureto the issues can be time-consuming, internal staffing matters are not one ofthe factors used to determine a reasonable time underthe CDA. 

### See Fru-Con Construction Corp., ASBCA No. 53544,**02-1BCA~31,729** (finding the scarcity ofattorneys to assist with the review ofa contracting officer's final decision is a matter wholly and exclusively within the control ofthe government). The government has had Volmar's original submissions for well over seven months and has hadVolmar's claims for well over four months (SOF**~** 2). Furthermore, a report from an outside scheduling expert could be produced by mid-October 2016 by the government's own calculations. The government stated in its response to Volmar's petition that it would take roughly 90 days to execute a contract to fund and obtain the services ofan outside scheduling expert. Then, it would take approximately 60 days or longerto produce the report. (Gov't opp'n at 2) Volmar's claims were dated 19 May 2016, meaning the outside scheduling expert report could be producedby mid-October 2016. The mid-October date does not even factor into accountthatthe governmentreceived all ofthe impact and delay claims in some form before 19 May 2016 (SOF**~** 2). The government statedthat the remaining time after the outside scheduling expert's report completion until 31 March 2017 is necessary to "assemble the supporting documentation, conferwithtechnical experts and issue the decision" (gov'topp'n at 2). We are notpersuaded that such a lengthy time period is required. Accordingly, we find the 31 March 2017 date for issuing a final decision to represent an undue delay. After considering all the arguments, webelievethat a reasonable time for the COto issue a final decision is 13 January 2017.
CONCLUSION
We hereby direct the CO, pursuantto 41 U.S.C. 

### § 7103(f)(4), to issue a decision no laterthan 13 January 2017.

4

### This order completes all necessary action by the Board. 

### Ifthe CO fails to comply with this order, such failure will be deemed a decision bythe CO denying the claims and the contractor may appeal to this Board or sue in the United States Court of Federal Claims pursuant to 41 U.S.C. 

### §§ 7103(f)(5) or7104. Dated: 7 October 2016

I concur

Aaministrative Judge Vice Chairman Armed Services Board ofContractAppeals / MARKN. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

Administrative Judge Armed Services Board ofContractAppeals

I certify thatthe foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 60710-910, Petition of Volmar Construction, Inc., rendered in conformancewith the Board's Charter.
Dated:



### 5 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals