### ARMED SERVICES BOARD OF CONTRACTAPPEALS Petition of

-- Rizzani de Eccher (USA), Inc. Under Contract No. W912ER-ll-C-0001 APPEARANCES FORTHE PETITIONER:

APPEARANCES FORTHE GOVERNMENT:) ) 

### ) ASBCA No. 61584-984 ) ) 

### Jeffrey G. Gilmore, Esq. John M. Neary, Esq. Daniel R. Miktus, Esq.

Akerman LLP Washington, DC Michael P. Goodman, Esq.

Engineer ChiefTrial Attorney Regina L. 

### Schowalter, Esq. Nancy L. 

### Pell, Esq.

EngineerTrial Attorneys U.S. Army Engineer District, Middle East Winchester, VA ORDERPURSUANT TO BOARD RULE l(a)(S) DIRECTING CONTRACTING OFFICERTO ISSUE DECISION The contractor filed, under Rule l(a)(S), a request for an order directing the contracting officer (CO) to render a decision on a December 29, 2017 certified claim in the amount of$10,248,275. The contractor requested that the CO issue a decision by August 2, 2018. The government has advised that a final decision on the claim will be issued by November 16, 2018. We find this date unreasonable and direct the contracting officerto issue a decision by September 12, 2018. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE PETITION 

### 1. On December 16, 2010, the U.S. Army Corps ofEngineers (government or USACE) awarded Contract No. W9l2ER-l l-C-OOO 1to Rizzani de Eccher (USA), Inc. (the contractor) to construct two billets facilities and a subsistence warehouse at Al Udeid Air Base, State ofQatar (pet. at 2). 2. By letter dated December 29, 2017, the contractor submitted a certified claim to the CO for a time extension, compensable delays and costs, and remission of liquidated damages in the amount of$10,248,275. The claim was 80-pages long and contained 108 exhibits. (Pet., ex. 1)3. On January 8, 2018, the CO acknowledged receipt ofthe claim via email (pet., ex. 2). 4. By letter dated February 23, 2018, the CO stated that due to the size and complexity ofthe claim, a final decision wouldbe issued by February 27, 2019.* The CO's letter also requested thatthe contractor submitthe exhibits for the subject claim and certain scheduling files. (Pet., ex. 3) 5. The contractor submitted the exhibits and scheduling files on April 16, 2018 (pet. resp. at 2). 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 (a) issue a decision or (b) notify the contractor ofthe time within which a decision will be issued. 41 U.S.C. § 7103(f)(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 provided by the contractor." 41 U.S.C. § 7103(f)(3). Under the CDA, "[a] contractormay request the tribunal concernedto direct a contracting officerto issue a decision in a specifiedperiod 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 underparagraph (a)(l) or (a)(2) of this Rule, the contractormay petition the Board to direct the contracting officer to 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 mustbe determined on a case-by-case basis. 

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

### Defense Systems Co., ASBCANo. 50534, 97-2 BCA**~** 28,981 (finding nine 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

• The government's response to the petition updated the expected date ofthe final decision to November 16, 2018 (gov't opp'n at 3). 2, 29,778 (finding 14-16 months unreasonable for a small construction claim and an impact claim that had been extensively analyzed and audited). The government and contractor disagree overwhen the contractorprovidedthe CO information necessary to process the claim. The governmentpoints to the CO's February 23, 2018 letterrequesting the contractor "submitthe exhibits for the subject claim, P6/xer files for the approvedbaseline schedule, monthly updates, and final/as-built schedules in orderto analyze time related impacts as soon as possible." The government states that the CO's request wentunanswereduntil afterthe current petition was filed withthe Board. (Gov't opp'n at 2) The contractor acknowledges that it provided the requested documents on April 16, 2018, but also maintains that these documents were already in the possession ofthe government (pet. resp. at 1-2). The contractorsubmitted to the Board a screenshot from the USACE's Resident Management System and Quality Control System programs showingthat the claim and its 108 exhibits were sent to the government on December 31, 2017 (pet. resp., ex. 1 ). Regarding the requested scheduling files, the contractor asserts thatthese were providedto the government during the pendency ofthe contract (pet. resp. at 2). After considering the parties' arguments, we find neitherwholly persuasive. The contractor submittedthe certified claim and exhibits on December 31, 2017. The CO acknowledged receipt ofthe claim onJanuary 8, 2018, but made no mention ofthe allegedly missing exhibits at that time. Itwas not until his February 23, 2018 letter thatthe CO requestedthe exhibits and certain scheduling files. It is not clearwhy the CO requested the claim exhibits whenthey were previously provided. Atthe same time, though, the contractor's lack ofcommunication in response to the CO's letter also contributed to the delay. Finally, the contractor asserts that the requested scheduling files were submitted during the pendency ofthe contract, but does not provide anything to supportthis assertion. Under the circumstances, we find the November 16, 2018 date for issuing a final decision to represent undue delay. We believe that a reasonable time for the CO to issue a final decision is September 12, 2018. CONCLUSION The Board hereby directs the CO to issue a decision on the contractor's claim by September 12, 2018. This Order completes all necessary action by the Board. Ifthe CO fails to comply with this Order, such failure will be deemed a decision by the CO denying the

3claim, and the contractor may appeal to this Board or sue in the United States Court of Federal Claims pursuantto the Contract Disputes Act, 41 U.S.C. §§ 7103(£)(5) and 7104. Dated: July 6, 2018

I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals ~dministrative Judge Chairman Armed Services Board ofContractAppeals



### !co~

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContractAppeals 

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I certify that the foregoing is a true copy ofthe Order Pursuantto Rule l(a)(5) ofthe Armed Services Board ofContract Appeals in ASBCA 61584-984, Petition of Rizzani de Eccher (USA), Inc., rendered in conformance with the Board's Charter. Dated:

4 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals