ARMED SERVICES BOARD OF CONTRACT APPEALS 

Petition of --

Rizzani de Eccher (USA), Inc. 

Under Contract No. W912ER-l l-C-0001 

APPEARANCES FOR THE PETITIONER: 

APPEARANCES FOR THE 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 Chief Trial Attorney 

Regina L. Schowalter, Esq. 

Nancy L. Pell, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Middle East 

Winchester, VA 

ORDER PURSUANT TO BOARD RULE l(a)(S) 

DIRECTING CONTRACTING OFFICER TO 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 officer to issue a decision by September 12, 2018. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE PETITION 

1. On December 16, 2010, the U.S. Army Corps of Engineers (government or 

USA CE) awarded Contract No. W9 l 2ER- l l-C-OOO 1 to Rizzani de Eccher (USA), Inc. 

(the contractor) to construct two billets facilities and a subsistence warehouse at 

Al Udeid Air Base, State of Qatar (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 of the claim via email 

(pet., ex. 2). 

4. By letter dated February 23, 2018, the CO stated that due to the size and 

complexity of the claim, a final decision would be issued by February 27, 2019.* The 

CO's letter also requested that the contractor submit the 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 Contract Disputes Act 

(CDA), 41 U.S.C. §§ 7101-7109, requires that within sixty days of receipt of the 

claim, the CO shall (a) issue a decision or (b) notify the contractor of the time within 

which a decision will be issued. 41 U.S.C. § 7103(f)(2). 

The CDA also requires that the decision of the CO on a contractor claim "shall 

be issued within a reasonable time ... taking into account such factors as the size and 

complexity of the claim and the adequacy of information in support of the claim 

provided by the contractor." 41 U.S.C. § 7103(f)(3). 

Under the CDA, "[a] contractor may request the tribunal concerned to direct a 

contracting officer to issue a decision in a specified period of time, as determined by 

the tribunal concerned, in the event of undue delay on the part of the contracting 

officer." 41 U.S.C. § 7103(f)(4). Board Rule l(a)(5) implements this section 

providing that "[i]n lieu of filing a notice of appeal under paragraph (a)(l) or (a)(2) of 

this Rule, the contractor may petition the Board to direct the contracting officer to 

issue a decision in a specified period of time as determined by the Board." 

Whether the 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 Contract Services, Inc., 

ASBCA Nos. 52686, 52796, 00-2 BCA ~ 31,039 (finding eight months reasonable 

given the volume of documentation, number of issues and time needed to gather 

information due to relocation of personnel); Defense Systems Co., ASBCA No. 50534, 

97-2 BCA ~ 28,981 (finding nine months reasonable when claimed amount exceeded 

$71 million and narrative portion of the claim alone exceeded 162 pages); 

Dillingham/ABB-SUSA, a Joint Venture, ASBCA Nos. 51195, 51197, 98-2 BCA 

• The government's response to the petition updated the expected date of the 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 over when the contractor provided the 

CO information necessary to process the claim. The government points to the CO's 

February 23, 2018 letter requesting the contractor "submit the exhibits for the subject 

claim, P6/xer files for the approved baseline schedule, monthly updates, and 

final/as-built schedules in order to analyze time related impacts as soon as possible." 

The government states that the CO' s request went unanswered until after the current 

petition was filed with the 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 

of the government (pet. resp. at 1-2). The contractor submitted to the Board a 

screenshot from the USACE's Resident Management System and Quality Control 

System programs showing that 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 that these were provided to the government 

during the pendency of the contract (pet. resp. at 2). 

After considering the parties' arguments, we find neither wholly persuasive. 

The contractor submitted the certified claim and exhibits on December 31, 2017. The 

CO acknowledged receipt of the claim on January 8, 2018, but made no mention of the 

allegedly missing exhibits at that time. It was not until his February 23, 2018 letter 

that the CO requested the exhibits and certain scheduling files. It is not clear why the 

CO requested the claim exhibits when they were previously provided. At the same 

time, though, the contractor's lack of communication 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 of the contract, but does not 

provide anything to support this 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. If the CO fails to 

comply with this Order, such failure will be deemed a decision by the CO denying the 

3 
claim, and the contractor may appeal to this Board or sue in the United States Court of 

Federal Claims pursuant to 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 

of Contract Appeals 

~dministrative Judge 

Chairman 

Armed Services Board 

of Contract Appeals 

!co~ 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

-------

I certify that the foregoing is a true copy of the Order Pursuant to Rule l(a)(5) 

of the Armed Services Board of Contract Appeals in ASBCA 615 84-984, Petition of 

Rizzani de Eccher (USA), Inc., rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals