ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Fidelity & Deposit Company of Maryland ) ASBCA No. 63278
)
Under Contract No. W912ER-11-D-0010-0006 )
APPEARANCES FOR THE APPELLANT: Robert C. Niesley, Esq.
Rebecca S. Glos, Esq.
Watt, Tieder, Hoffar & Fitzgerald, LLP
Irvine, CA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Michael E. Taccino, Esq.
Rebecca L. Bockmann, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Winchester
OPINION BY ADMINISTRATIVE JUDGE TAYLOR
Fidelity and Deposit Company of Maryland (F&D or appellant) seeks monetary
damages in the amount of $1,604,384.24 from the United States Army Corps of
Engineers (USACE or the government) resulting from the government’s alleged delay of
its completion contractor’s performance under task order Contract No. W912ER-11-D-
0010-0006 (the task order), withheld liquidated damages and certain contractual changes
(compl. ¶ 84). The task order was for the design and construction of transient quarters
and dining facilities at the Naval Support Activity Bahrain (R4, tab 5 at 5-7, 57). The
USACE moves to dismiss the appeal for lack of subject matter jurisdiction contending
appellant failed to submit a sum certain amount for each of its alleged seven separate
claims based on distinct operative facts in accordance with the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7101-7109 (gov’t mot. at 2). For the reasons discussed below, we
deny the motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1
I. The Contract/Task Order
1. On June 16, 2011, the USACE awarded an Indefinite Delivery/Indefinite
Quantity Contract No. W912ER-11-D-0010 (the contract) to ECC CENTCOM
Constructors (ECC) for design-build construction projects in the U.S. Central
Command Area of Responsibility under which firm-fixed price task orders could be
issued (R4, tab 4 at 1).
2. On September 11, 2013, the USACE awarded ECC a fixed-price task order
under the contract for the design and construction of transient enlisted quarters (TEQ)
and an officer dining facility (DFAC) at the Naval Support Activity (NSA) Bahrain
(R4, tab 5 at 1, 5-7).
3. The contract incorporated by reference FAR 52.233-1, DISPUTES (JUL 2002)
(R4, tab 4 at 13), which states in pertinent part:
(c) Claim, as used in this clause, means a written demand
or written assertion by one of the contracting parties
seeking, as a matter of right, the payment of money in a
sum certain, the adjustment or interpretation of contract
terms, or other relief arising under or relating to this
contract.
48 C.F.R. § 52.233-1.
II. Government’s Termination of ECC and F&D Takeover
4. On April 19, 2016, the government terminated ECC’s right to proceed with
the contract work for failing to meet construction progress schedules, failing to
diligently prosecute the work, and failing to complete the work by the required date (R4,
tab 8 at 2-3).
5. Subsequently, the Government and F&D, ECC’s surety on the contract,
entered into a takeover agreement in which F&D agreed to undertake and arrange for the
“performance of the work remaining under the Contract . . .” (R4, tab 6 at 1). F&D
1
Typically, we would not go into such detail about the alleged facts of the merits case
in a motion to dismiss on jurisdictional grounds, but here, the government is
arguing that those facts lead to the conclusion that there are multiple
independent claims, thus, we include them without drawing any conclusions
upon whether they will be proved at the merits stage.
2
selected and the government approved the Vertex Companies, Inc., (Vertex) as the
completion contractor (R4, tab 6 at 3). The completion date for the remaining work
pursuant to the takeover agreement was August 15, 2017 (R4, tab 7 at 3). The project
scope for the remaining work included installing underground site utilities to service the
newly constructed TEQ and DFAC buildings (R4, tab 2 at 2; compl. ¶ 25).
III. Vertex’s Performance of the Remaining Site Utility Work
6. In order to complete the remaining underground site utility work, Vertex was
required to obtain an approved dig permit (R4, tab 2 at 2; compl. ¶ 28).
7. On September 4, 2016, the NAVFAC Public Works Department (PWD)
issued a dig permit to Vertex to complete the remaining site utility work at both the TEQ
and DFAC buildings (app. supp. R4, tab 12). The dig permit included a proposed start
date of September 20, 2016, and a proposed end date of December 10, 2016 (app. supp.
R4, tab 12 at 1; compl. ¶ 30). The dig permit also indicated the traffic on the southeast
side of the project would be closed as per the attached drawings, and the two-way traffic
roads would be fully closed by a Class I type barrier with traffic rerouted (app. supp. R4,
tab 12 at 3).
8. Following its receipt of the approved dig permit, Vertex, through its
subcontractor, began the site utility work (compl. ¶ 32).
9. On December 20, 2016, Mr. Hamsar Manupac, the USACE project engineer,
verbally directed Mr. Joseph House, the Vertex construction manager, to stop the exterior
electrical work on the project (app. supp. R4, tab 14 at 1; compl. ¶ 33).2 Mr. Manupac
further informed Mr. House that discussions were taking place with the base PWD that could
result in changes to the project’s scope of work (app. supp. R4, tab 14 at 1; compl. ¶ 34).
10. Vertex informed the USACE’s contracting officer that it was stopping all
work related to the main electrical service in compliance with the verbal stop work
notice (app. supp. R4, tab 14 at 1; compl. ¶ 35).
11. On January 30, 2017, Mr. Manupac verbally directed Vertex to submit a new
dig permit covering the same scope of work set forth in the September 2016 dig permit.
Mr. Manupac indicated this permit was necessary to document delays caused by PWD.
(Compl. ¶ 36)
2
The Board notes the December 20, 2016, purported stop work direction occurred
after the September 20, 2016, dig permit’s proposed completion date of
December 10, 2016 (app. supp. R4, tab 12 at 1). Apparently, Vertex continued
with the TEQ and DFAC site utility work even though the dig permit’s
proposed completion date had passed.
3
12. On February 15, 2017, Vertex submitted a new dig permit on the project
(app. supp. R4, tab 16 at 1; compl. ¶ 37). The next day, Vertex, at USACE’s direction,
apparently submitted a revised dig permit removing any work related to the site utility
connection to building P22 (app. supp. R4, tab 16 at 6-16; compl. ¶ 38-39).
13. On February 27, 2017, Mr. Manupac informed Vertex that no dig permit for
outside electrical work for the area presented in the request would be approved at that
time, and the government would consider a new separate dig permit only for the
communication work (app. supp. R4, tab 16 at 3; compl. ¶ 41). USACE also allegedly
advised Vertex that the base PWD would allow the road along the north side of the
project site to be closed for a maximum period of two weeks (compl. ¶ 42).
14. On March 9, 2017, Vertex submitted another dig permit (app. supp. R4, tab 17).
Apparently, Vertex submitted this new dig permit to complete the remaining DFAC
exterior electrical distribution system and associated connection work to Building P-22
(compl. ¶ 48). This dig permit indicates a proposed start date of March 25, 2017, and a
proposed completion date of June 25, 2017 (app. supp. R4, tab 17 at 1).
15. On March 15, 2017, Vertex submitted a letter to the USACE contracting
officer entitled “Continuing Dig Permit Delays.” In that letter, Vertex informed the
contracting officer that the government had failed to respond to its March 9th dig permit
request. Vertex also informed the contracting officer that this work was now “the critical
path for completion of the project” and provided an attached critical path schedule.
Vertex further informed the contracting officer that the work could not “begin until an
approved dig permit is received.” Vertex indicated the lack of an approved dig permit
was delaying the work and pushing the completion date until November 14, 2017. (App.
supp. R4, tab 18)
16. In letters dated April 12, 2017, and May 1, 2017, Vertex informed the
USACE contracting officer that it was waiting on the government’s approval of its dig
permit. Both letters were entitled “Continuing Dig Permit Delays and Resulting
Schedule Delays.” In both letters, Vertex reiterated that the lack of approved dig
permits continued to delay the project’s critical path schedule and consequently, the
project completion date. (App. supp. R4, tabs 20, 21; compl. ¶ 54, 56-57)
17. On May 2, 2017, Vertex formally submitted to USACE its redesign for the
electrical and telecommunications manholes to comply with the new requirement that
road closures during the installation of the electrical and telecommunications utility
work not exceed two weeks (app. supp. R4, tab 22; compl. ¶ 58).
4
18. By letter dated May 22, 2017, the USACE contracting officer accepted
Vertex’s redesign proposal for the relocation of the electrical and communication utility
holes and indicated the proposal would result in no additional cost to the government
(app. supp. R4, tab 24).
19. Vertex disagreed with the USACE assertion that the revised project would
not result in additional costs. In a letter, Vertex stated, “there would indeed be both cost
and schedule impacts due to the base Public Works Department not issuing the required
dig permits for this and other electrical and communications duct back work.” (App.
supp. R4, tab 25 at 1)
20. In another letter dated May 22, 2017, the USACE contracting officer
responded to Vertex’s previous letters expressing concern with the delay in the dig
permit approval. In that letter, the government acknowledged the dig permit delay was
impacting the outside cabling installation. The government, however, determined
Vertex’s current schedule and progress on site for the electrical activities did not warrant
an equitable adjustment. The letter stated, “The current progress of the electrical work
inside the building and the critical path analysis as presented did not support the claim
that the delay in dig permit affects the delay on the incomplete electrical installations
inside the building.” (App. supp. R4, tab 26)
21. Vertex responded, indicating there were both cost and schedule impacts “due
to this issue” (app. supp. R4, tab 27).
22. In a letter dated June 18, 2017, the USACE contracting officer responded to
Vertex’s previous letters. The contracting officer referenced the government’s previous
letters in which “the Government had acknowledged the delay on issuing the dig permit
is by the Government.” The contracting officer, however, also indicated the contractor’s
progress and work completion were not affected by the delay since Vertex’s electrical
work inside the building was deficient. The contracting officer referred to the delay
resulting from the dig permit approvals as “this issue.” (App. supp. R4, tab 28)
23. On June 21, 2017, Vertex responded to the contracting officer’s letter
reiterating that the work on the TEQ building’s electrical and communication distribution
systems was delayed “due to dig permit issues.” Vertex also indicated that dig permit
delays continued related to the DFAC building. (App. supp. R4, tab 29 at 1-2)
24. On August 1, 2017, Vertex submitted a new dig permit for the redesigned
TEQ distribution system (app. supp. R4, tab 30; compl. ¶ 70). This permit indicated a
start date of August 22, 2017, and a completion date of September 11, 2017 (app. supp.
R4, tab 30 at 1).
25. The government approved the new dig permit on August 7, 2017 (compl. ¶ 70).
5
Vertex resumed its work on the suspended TQ electrical site utility work on August 22,
2017 (compl. ¶ 82).
26. On September 5, 2017, the government verbally notified Vertex that it would
consider a new dig permit for the remaining DFAC work and directed Vertex to submit
a request for a new permit (compl. ¶ 77).
27. Vertex submitted a new dig permit for that work, which the government
approved on September 9, 2017. The new dig permit included a start date of September 21,
2017, for the DFAC work. (Compl. ¶ 79)
IV. F&D’s Certified Claim and Request for Contracting Officer’s Final
Decision
28. On March 25, 2021, F&D submitted to the contracting officer a certified
claim asserting damages totaling $1,604,384.24 (the claim) (R4, tab 2 at 19). The claim
was entitled, “Request for Contracting Officer’s Final Decision re Dig Permit Delay
Claim” (R4, tab 2 at 1). The claim further indicated it was for “among other things,
146-days of compensable delays under Contract No. W912ER-D-0010-0006” (R4, tab 2
at 1). The claim asserted F&D “suffered these days of delay and corresponding
overhead damages as a result of the United States Army Corps of Engineers’
(“USACE”): (1) issuance of a stop work notice; (2) failure to acknowledge and respond
to compliant permit requests; and (3) introduction of non-contractual duration
restrictions on critical utility work.” (R4, tab 2 at 1)
29. The claim further provided an extensive factual background section setting
forth numerous details regarding Vertex’s efforts to complete the installation of the
underground site utilities to service the newly constructed TQE and DFAC buildings
(R4, tab 2 at 1-8).
30. F&D’s claim concluded with a damages section. In that section, F&D stated
the following: “Due to the above detailed schedule delay of 146 days, F&D requests:
(1) the contract duration be extended by a corresponding 146 days; (2) F&D be
compensated for the following costs as outlined below; and (3) liquidated damages
withheld for this delay period be released.” F&D also provided a chart setting forth its
damages:
6
(R4, tab 2 at 19)
31. F&D calculated its claimed delay damages from the stop work order date
until the new dig permit start date (R4, tab 2 at 11). Specifically, appellant calculated
the delay period as 245-days from December 20, 2016, until August 22, 2017 (R4, tab 2
at 11). Appellant asserted the critical path was delayed a total of 146-days due solely to
the late dig permit approval (R4, tab 2 at 11).
32. F&D’s claim also alleged USACE advised Vertex that the base PWD would
allow the road along the north side of the project site to be closed for a maximum
period of two weeks (R4, tab 2 at 4). F&D alleges this was a change to the contract
under FAR 52.243-4 (R4, tab 2 at 4). As a result of this alleged contract change, Vertex
submitted a new redesign for the electrical and telecommunications manholes to comply
with the new requirement that road closures during the installation of the electrical and
telecommunications utility work not exceed two weeks (app. supp. R4, tab 22; compl.
¶ 58). F&D’s claim included $4,897.00 for redesign costs resulting from this alleged
contract change and $24,405.00 for its subcontractor’s costs incurred relocating the
manholes due to this new contract restriction (app. opp’n at 12-13).
33. F&D’s claim included a contractor certification indicating, among other
things, that “the amount requested accurately reflects the contract adjustment for which
the contractor believes the Government is liable.” (R4, tab 2 at 20)
V. Contracting Officer’s Final Decision
34. The contracting officer, Mr. Kenneth Baker, responded to F&D’s claim with a
contracting officer’s final decision (COFD) dated February 16, 2022 (R4, tab 3). In the
COFD, Mr. Baker determined F&D sought seven different delay claims and one claim
for costs associated with the redesign necessitated by the requirement that road closures
on the north side of the project not exceed two weeks (R4, tab 3 at 1). The contracting
officer concluded F&D failed to set forth a sum certain for each of the different delay
claims, and thus, had failed to provide the necessary information for him to assess each
claim (R4, tab 3 at 1).
7
35. The contracting officer also determined F&D failed to provide the necessary
data assessing the schedule impact from any of the alleged delay claims, sufficient
information to assess the claim for releasing the liquidated damages and information
regarding its attempts to mitigate its own delays (R4, tab 3 at 1-2).
36. F&D filed a timely appeal of the COFD on May 10, 2022.
PARTIES’ CONTENTIONS
The government moved to dismiss the appeal asserting appellant failed to set
forth a sum certain for each of seven separate delay claims (gov’t mot. at 2). The
government noted F&D’s claim falls into three distinct categories or “causes of delay”
including the government’s issuance of a stop work notice, failure to acknowledge and
respond to permit requests, and the introduction of non-contractual duration
restrictions on critical utility work (gov’t mot. at 11). The government further
contends the three causes of delay comprise seven alleged government actions or
inactions each involving their own set of operative facts: (1) the project engineer’s
December 20, 2016, “stop work notice”; (2) the project engineer’s January 30, 2017,
verbal direction to submit another dig permit request; (3) the project engineer’s
direction to modify the February 15, 2017, dig permit request; (4) USACE’s
“additional changes to the scope of work”; (5) USACE’s lack of response to Vertex’s
March 9, 2017, dig permit request; (6) the PWD contract change that road closures on
the north side of the project not exceed two weeks; and (7) lack of USACE direction as
to whether Vertex will be allowed to proceed with the electrical and communication
service work (gov’t mot. at 1). 3 The government concludes each of these seven events
is a separate claim for which appellant should have included a separate sum certain
amount (gov’t mot. at 12).
The appellant responds that these seven events are not separate “claims” but
rather part of a singular set of facts: “USACE’s interference with F&D’s work by
revoking a previously issued dig permit and subsequently issuing a new dig permit,
with new restrictions and a new start date, several months later” (app. opp’n at 1-2).
Appellant further contends the seven different “claims” are “nothing more than
details” surrounding its delay claim (app. opp’n at 2).
In its reply brief, the government responds appellant’s assertion that its claim
involves the government’s revocation of a dig permit and subsequent issuance of a new
permit is a new claim that was never presented to the contracting officer (gov’t reply
3
The government does not articulate how the alleged seven distinct claims fit within
the three identified delay categories.
8
at 2). As such, the government contends F&D’s new claim should be rejected (gov’t
reply at 2).
DECISION
By and large, F&D submitted a garden variety delay claim of the sort that
would typically garner little attention. Nevertheless, the government moves to dismiss
the appeal asserting appellant failed to submit a sum certain amount for each of the
alleged seven distinct separate claims in accordance with the CDA, 41 U.S.C.
§§ 7101-7109 (gov’t mot. at 19). We deny the government’s motion because
appellant’s delay claim, as discussed below, arises from one set of related operative
facts and is not seven distinct separate claims. Moreover, to the extent appellant’s
claimed costs resulting from the redesign necessitated by the alleged changed road
closure requirement is a separate claim, appellant identified a separate sum certain for
those costs (SOF ¶ 32). We find appellant provided a sufficient certified sum certain
for its claim (SOF ¶ 30 & 33).
Standard of Review
As the proponent of the Board’s jurisdiction, F&D bears the burden of proof to
establish our jurisdiction by a preponderance of the evidence. Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); see also BCC-UIProjects-
ZAAZTC Team JV, ASBCA No. 62846, 22-1 BCA ¶ 38,119 at 185,171. That burden
extends to showing any demand for money was stated in a sum certain. Naseem
Al-Oula Co., ASBCA No. 61321 et al., 20-1 BCA ¶ 37,490 at 182,148. In deciding a
motion to dismiss, we also “accept as true all undisputed facts in the complaint and draw
all reasonable inferences in favor of the non-moving party.” BCC-UIProjects-ZAATC
Team JV, 22-1 BCA ¶ 38,119 at 185,171 (citing Estes Exp. Lines v. United States,
739 F.3d 689, 692 (Fed. Cir. 2014)).
F&D Asserted A Single Delay Claim Based Upon the Same Set of
Operative Facts
Under the CDA, our jurisdiction depends upon the contractor’s submission of a
claim to the contracting officer. 41 U.S.C. § 7103(a)(1); See also Naseem Al-Oula
Company, 20-1 BCA ¶ 37,490 at 182,148. The contract incorporated by reference
FAR 52.233-1, DISPUTES (JUL 2002) (SOF ¶ 3). The “Disputes” clause defines a
claim, in part, as “a written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a sum certain.” See FAR
52.233-1, DISPUTES (JUL 2002). While a CDA claim need not be submitted in any
particular form or use any particular wording, it must contain “a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and amount of
the claim.” Contract Cleaning Maint., Inc., v. United States, 811 F.2d 586, 592 (Fed.
9
Cir. 1997); See also Sauer, Inc., ASBCA No. 60366, 16-1 BCA ¶ 36,565 at 178,101
(citing Versar, Inc., ASBCA No. 56857, 10-1 BCA ¶ 34,437 at 169,957 (contracting
officer “must have ‘adequate notice’ of the basis and amount of the claim”)).
One contract may give rise to numerous claims. Placeway Constr. Corp. v.
United States, 920 F.2d 903, 907 (Fed. Cir. 1990). The jurisdictional standard for a
sum certain amount must be applied to each claim and not to the entire case. K-Con
Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015). “Congress did
not intend the word ‘claim’ to mean the whole case between the contractor and the
Government; but, rather, that ‘claim’ mean each claim under the CDA for money that
is one part of a divisible case.” K-Con Bldg. Sys., Inc. at 1005 (quoting Joseph Morton
Co. v. United States, 757 F.2d 1273, 1281 (Fed. Cir. 1985)). The Federal Circuit has
noted that the requirement for each claim to meet the CDA’s jurisdictional
requirements is important to ensure contracting officers are given the opportunity to
rule on individual claims knowing the relief sought and what substantive issues are
raised by that claim. K-Con Bldg. Sys., Inc. at 1006. Accordingly, a contractor must
state and certify a sum certain amount for each separate claim for us to have
jurisdiction over that claim. ECC International Constructors, LLC., ASBCA
No. 59586, 21-1 BCA ¶ 37,862 at 183,855.
In determining whether a single or multiple claims exist, we must examine
whether the claim is based on a common or related set of operative facts. Placeway
Constr. Corp., 920 F.2d at 907 (“To determine whether two or more separate claims,
or only a fragmented single claim exists, the court must assess whether or not the
claims are based on a common or related set of operative facts”). Moreover, if we
must review the same or related evidence to make our decision on the appeal, then
only one claim exists. See Kinetic Builder’s, Inc. v. Peters, 226 F.3d 1307, 1312
(2000) (citing Placeway at 907 (“If the court will have to review the same or related
evidence to make its decision, then only one claim exists.”)).
In its March 25, 2021, claim, appellant sought a contract extension of 146-days
and monetary damages in the amount of $1,604,384.24 resulting from the government’s
alleged delay of its completion contractor’s performance under the task order, withheld
liquidated damages and contract changes (SOF ¶ 30). Specifically, appellant indicated
its completion contractor was unable to make progress on the underground electrical
and communication distribution work for a 245-day period from December 20, 2016,
until August 22, 2017, due to the issues surrounding the dig permit (SOF ¶ 31).
Appellant claimed it suffered these days of delay and corresponding overhead damages
due to the government’s (1) issuance of a stop work notice; (2) failure to acknowledge
and respond to compliant permit requests; and (3) the introduction of non-contractual
duration restrictions on critical utility work (SOF ¶ 28). Appellant quantified its
damages as:
10
Vertex/Surety General Conditions $1,141,225.24
TX ASI-0035 Redesign Costs $ 4,897.00
Kooheji Constructors Costs $ 24,405.00
Withheld Liquidated Damages $ 433,857.00
Total $1,604,384.24
SOF ¶ 30). Appellant provided a contractor certification under 48 C.F.R. § 33.207
(SOF ¶ 33). Appellant also provided numerous exhibits in support of its claim (R4,
tab 2 at 21-3046).
In determining a claim’s scope, we are not limited to the claim document but
can examine the totality of the circumstances. See Sauer, Inc., ASBCA No. 60366,
16-1 BCA ¶ 36,565 at 178,101 (citing Versar, Inc., ASBCA No. 56857, 10-1 BCA
¶ 34,437 at 169,957). While appellant’s delay claim did not explicitly state the
government revoked the dig permit, that claim included numerous facts and events
surrounding the alleged delay associated with the electrical and communications site
utility work. (R4, tab 2 at 2-8). Appellant’s delay claim gave the contracting officer
adequate notice to examine and evaluate the claim.
Appellant’s delay claim covered the period from the USACE’s project
engineer’s December 20, 2016, verbal order to stop all electrical and communications
site utility work until August 22, 2017, the date the appellant was again authorized to
proceed following approval of its new August 1, 2017, dig permit (a 245-day period)
(SOF ¶ 31). 4 Appellant alleges the government project engineer informed Vertex on
December 20, 2016, that the PWD was considering making changes to the scope of the
project, and therefore, Vertex should cease all related work (SOF ¶ 9). Vertex
apparently needed an approved dig permit to complete the site utility and
communications work (SOF ¶ 6). Appellant claims Vertex stopped work on the
project’s exterior electrical scope of work and all work related to the main electrical
service in compliance with the alleged verbal stop work order (SOF ¶ 10).
While the verbal stop work order did not explicitly state the government was
revoking the prior dig permit, the government project engineer’s direction appears to
have had that effect. Vertex apparently performed the site utility work in accordance
with the previously approved September 4, 2016, dig permit (SOF ¶ 8). The stop work
notice directed Vertex to cease all related work on the electrical and communications
site utility work (SOF ¶ 9). The government project engineer further explained the
stop work directive was necessitated by PWD’s contemplated changes to the scope of
4
Appellant’s claim acknowledged the existence of concurrent delays resulting in a
delay to the critical path due solely to the stop work order and late dig permit
approval of 146-days of compensable delay (SOF ¶ 31).
11
work (SOF ¶ 9). The government’s stop work notice clearly implicitly revoked the
prior dig permit.
The appellant’s delay claim then discusses its various attempts to get a new dig
permit approved so that it could continue the site utility work (R4, tab 2 at 3-8). First,
the government directed Vertex to submit another dig permit covering the same scope
of work set forth in the September 4, 2016, permit to document the delays caused by
PWD’s change to the scope of work (SOF ¶ 11). Vertex submitted the requested dig
permit on February 15, 2017, and another revised permit the next day (SOF ¶ 12). The
government then apparently informed Vertex the revised dig permit would not be
approved (SOF ¶ 13). On March 9, 2017, Vertex submitted yet another dig permit
(SOF ¶ 14).
In a letter dated May 22, 2017, the USACE contracting officer acknowledged
the delay in the dig permit was impacting the outside cabling installation (SOF ¶ 20).
The contracting officer, however, determined the dig permit delays did not entitle
Vertex to an equitable adjustment due to the current progress of the electrical work
inside the buildings and the critical path analysis (SOF ¶ 20).
In another letter dated June 18, 2017, the USACE contracting officer again
acknowledged the Government’s delay in issuing the dig permit (SOF ¶ 22). The
contracting officer also determined Vertex’s progress and work completion were not
affected by this delay due to various problems with the electrical work inside the
buildings (SOF ¶ 22).
On August 1, 2017, Vertex submitted a new dig permit for the redesigned TEQ
distribution system (SOF ¶ 24). The permit indicated a start date of August 22, 2017,
and a completion date of September 11, 2017 (SOF ¶ 24). The government approved
the dig permit on August 7, 2017 (SOF ¶ 25), and appellant once again began the
exterior electrical work on August 22, 2017 (SOF ¶ 25). The facts surrounding the
revocation and issuance of the utility work dig permits appear to be part of the
common or related set of operative facts surrounding appellant’s delay claim.
Moreover, appellant calculated its claimed delay damages from the stop work
order date until the new dig permit start date (SOF ¶ 31). Specifically, appellant
calculated the delay period as 245-days from December 20, 2016, until August 22,
2017 (SOF ¶ 31). Appellant asserted the critical path was delayed a total of 146-days
due solely to the late dig permit approval (SOF ¶ 31). Appellant is not seeking
separate delay damages for each of the events that occurred between those two dates.
Rather, any compensable delays associated with those events were subsumed within
appellant’s delay claim resulting from the verbal stop work order until the new start
date set forth in the new dig permit (compl. ¶ 80).
12
In its motion, the government separately discusses each of the seven alleged
separate “claims” and attempts to show how each is different and distinct (gov’t mot.
at 12-17). As discussed above, the government’s alleged seven “claims” are really
seven separate events that are all part of appellant’s single delay claim. The
continuing issue in this appeal appears to be the alleged on-going project delay
resulting from the stop work order and the revocation of the original dig permit until
the government’s approval of the new permit and authorization to complete the work.
The government’s various directions to appellant to submit and modify the dig permit
requests, its alleged failure to respond to various dig permit requests, and its alleged
failure to give Vertex adequate direction, all relate to this common set of operative
facts arising from the original delay. They all arose from essentially interrelated
conduct and the same or closely connected facts. See Jaycor, ASBCA No. 40911,
91-3 BCA ¶ 24,082 at 120,536, (citing Walsky Construction Co. v. United States,
3 Cl. Ct. 615, 619 (1983) (“What is vital is whether the demands arose out of essentially
interrelated conduct and services, and the same or closely connected facts.”).
F&D Included A Sum Certain Amount For Its Contract Change Claim
F&D’s claim also asserted an alleged contract change under FAR 52.243-4
(SOF ¶ 32). F&D alleged USACE advised Vertex that the base PWD would allow the
road along the north side of the project site to be closed for a maximum period of two
weeks (SOF ¶ 32). Previously, the plan was to fully close the road and reroute traffic
until the project was completed (SOF ¶ 7). As a result of this alleged contract change,
Vertex submitted a redesign for the electrical and telecommunications manholes to
comply with the new requirement that road closures during the installation of the
electrical and telecommunications utility work not exceed two weeks (SOF ¶ 17).
In its motion to dismiss, the government contends that an assessment of
entitlement on appellant’s claim for costs associated with the change to the road
closure requirements would be considered under the FAR 52.243-4, Changes clause
(gov’t mot. at 16). A claim based upon the Changes clause would appear to be
separate and apart from a claim for delay damages. See K-Con Bldg. Sys., Inc.
788 F.3d at 1005 (claims are separate if they are based upon a separate basis for relief
and a different legal theory).
Even if the government were correct, which we do not decide here, appellant
set out a separate sum certain for that portion of its claim (SOF ¶ 32). Appellant’s
claim includes two cost items for “Redesign” and “Kooheji Constructors” in the
combined amount of $29,302.00 that are its claimed increased costs resulting from the
relocated manholes due to the alleged road closure contract change (SOF ¶ 32). 5
5
Even though F&D did not total these two amounts in its claim, the sum certain
requirement is met if the amount “is readily calculable by simple arithmetic.”
13
Hence, appellant gave the contracting officer both an adequate basis and amount for
the claim associated with the alleged changed road closure conditions to ensure he was
given the opportunity to consider and rule on it. Cont. Cleaning Maint., Inc. v.
United States, 811 F.2d 586, 592 (Fed. Cir. 1997). As such, the Board has jurisdiction
to consider this claim.
CONCLUSION
We find the “claims” or “events” relating to appellant’s delay claim are all
based on a common or related set of operative facts. In addition, we find appellant has
provided a separate sum certain for its claim resulting from the government’s alleged
contract change to the road closure requirements. We conclude the Board has
jurisdiction over this appeal. The Government’s motion to dismiss is denied.
Dated: April 26, 2023
ARTHUR M. TAYLOR
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD J. REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
See PHI Applied Physical Sciences, Inc., ASBCA Nos. 56581, 58038, 13 BCA
¶ 35,338 at 173,334. Here, the total amount is easily calculated by adding the
two sums together.
14
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 63278, Appeal of Fidelity &
Deposit Company of Maryland, rendered in conformance with the Board’s Charter.
Dated: April 27, 2023
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
15