The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Patricia I. Romero, Inc. d/b/a Pacific West ) ASBCA No. 63093
Builders )
)
Under Contract No. N62473-08-D-8655 )
APPEARANCE FOR THE APPELLANT: David A. Rose, Esq.
Rose Consulting Law Firm
Valdosta, GA
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
Joshua S. Kauke, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MCLISH ON THE
GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT
This appeal involves disputes arising under a task order issued by the Naval
Facilities Engineering Systems Command Southwest (NAVFAC or the government) to
Appellant Patricia I. Romero Inc. (d/b/a Pacific West Builders) (PWB) for repair work
at Buckley Air Force Base in Aurora, Colorado. PWB asserts that NAVFAC required
extra work without due compensation or time extensions, improperly withheld
superior knowledge, and caused numerous delays that resulted in extra costs to PWB.
PWB also seeks interest under the Prompt Payment Act.
The government moves for summary judgment on each of PWB’s claims on the
grounds that (1) the claims are barred by the applicable statute of limitations, (2)
certain claims are barred by accord and satisfaction, and (3) the claim for interest is
barred by the Prompt Payment Act. We dismiss some of the claims for lack of
jurisdiction and grant summary judgment in the government’s favor except as to two
of the remaining claims.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
I. The Contract
The contract at issue is a task order issued under an indefinite-delivery,
indefinite-quantity, multiple award construction contract. The underlying contract is
Contract No. N62473-08-D-8655, awarded by the NAVFAC to PWB on September 22,
2008. (R4, tab 1 at 1) 1
The task order at issue was awarded on or about September 20, 2011, when
NAVFAC issued PWB Task Order No. 0003 for the Denver NOSC Repair Project at
Buckley Air Force Base in Aurora, Colorado in the amount of $3,431,294.00 (R4, tab
4 at 208-09). The original contract completion date was October 8, 2012, and the task
order included a liquidated damages clause (R4, tab 4 at 225).
Under the task order, PWB was to make renovations and repairs to existing
buildings referred to as Buildings 1301, 1302 and 1304 and associated areas (R4, tab 2
at 118).
II. Contract Modifications
During performance, eight written modifications were made to the
Contract. Seven of them were made bilaterally by both of the parties (Modification
Nos. 1-3, 5-8) (R4, tabs 5-7, 9-12). One the government issued unilaterally
(Modification No. 4) (R4, tab 8).
After performance was completed, on or about November 9, 2015, the
government unilaterally issued Modification No. 9, which assessed liquidated damages
against PWB for alleged late completion of the work (R4, tab 13). Modification
No. 10, discussed below, was issued on September 28, 2021. It, among other things,
rescinded the liquidated damages assessed in Modification No. 9. (R4, tab 14)
III. PWB’s Disagreement with CPARS Evaluation
Meanwhile, on or about September 24, 2015, NAVFAC issued a performance
evaluation under the Contractor Performance Assessment Reporting System (CPARS)
regarding PWB’s performance of the contract. The CPARS evaluation apparently
criticized PWB’s performance of the contract in several respects. 2
PWB submitted a letter to the Contracting Officer dated December 15, 2015,
taking issue with the negative aspects of the CPARS evaluation (R4, tab 18 at 404-28).
1
The government paginated the Rule 4 files with a prefix and several zeroes before
each page number, e.g., “GOV000001.” For ease of reference, we cite only the
page numbers without the prefix and leading zeroes.
2
The CPARS evaluation itself is not in the Rule 4 file or otherwise included in the
parties’ submissions. Our description of the CPARS evaluation is thus based
on references to it in documents that are in the record, primarily PWB’s
December 15, 2015, letter to the contracting officer disputing the accuracy of
the evaluation (R4, tab 18 at 404-28).
2
Attached to the letter were 53 exhibits (id. at 429-606). The December 15, 2015, letter
alluded to PWB’s intent to submit a claim challenging the CPARS evaluation, as well
as the assessment of liquidated damages, and indicated PWB would seek monetary
relief for various acts and omissions by NAVFAC during contract performance (id.
at 404-28).
IV. PWB’s Certified Claim, Contracting Officer’s Final Decision, and
Appeal
As forecast in the December 15, 2015, letter, PWB eventually did submit a
certified claim to the contracting officer, but not until March 23, 2021 (R4,
tabs 17-18). 3 The claim attached and “incorporated . . . by reference for all purposes”
the December 15, 2015, letter from PWB to the Contracting Officer (R4, tab 17 at 396)
PWB’s claim first contended that the CPARS evaluation was unfair and
“substantially incorrect” and should be replaced with a positive or, at a minimum, a
neutral rating (R4, tab 17 at 396, 398). Second, in addition to the CPARS claim, PWB
alleged that “PWB has experienced actual damages and seeks the removal of
liquidated damages and the final payment of the funds due under the contract of
$366,193.48, which includes the additional amount of Modification 08 . . .” (id.
at 398). Modification No. 8 had added a requirement to install a glycol feeder system
and add glycol solution to the air handler system (R4, tab 12).
Third, the claim stated that “PWB also seeks an additional $324,923.72 for
costs due to additional work and delay (See Exhibit 3)” (R4, tab 17 at 398). Exhibit 3
to the claim, entitled “PWB Additional Costs Breakdown,” contained PWB’s
calculation of its claimed additional costs (R4, tab 18 at 611). The claim letter alleged
that NAVFAC caused delays and extra costs in the way it reviewed and commented on
design documents for the SCIF 4; by failing to advise PWB of security requirements in
the SCIF; by failing to disclose that only one source could perform work on the
controls system; and by failing to adequately maintain the existing hot water supply
system, allegedly causing failure of two new air handling units (R4, tab 17 at 397). The
December 15, 2015, letter that PWB incorporated into its claim had raised those same
contentions and also alleged various other instances of delay and uncompensated costs
for which PWB claimed the government was responsible (R4, tab 18 at 404-28), as
summarized here:
3
The Government suggests that the claim may not have been fully submitted until
March 30, 2021, when the contracting officer received the exhibits referenced
in the March 23, 2021, submission. We assume for purposes of this motion that
the claim was submitted on the earlier date.
4
A SCIF is a sensitive compartmented information facility.
3
Event Giving Rise to Claim Date of Alleged Event
1. PWB was directed not to begin December 17, 2012-February 4, 2013 (id. and
work in Enclave on schedule 571-72)
(R4, tab 18 at 423)
2. PWB denied access to begin December 13, 2012– January 3, 2013 (id. and
flooring work in Rooms 1-208, 573-74)
1-212, 1-216 and 3-204 (id. at
423)
3. Work in Room 3-109 stopped January 23, 2013-May 31, 2013 (id. and 575)
for Government to undertake
mold abatement (id. at 423)
4. Subcontractors denied bases March 13-25, 2013 (id. and 577)
access because sponsor’s
authorization expired (id. at
423)
5. Renewal base passes denied for April 1-16, 2013 (id. and 578-80)
drywall crew for unknown
reason (id. at 424)
6. Site work stopped to March 5-11, 2013 (id.)
accommodate an advancement
exam (id. at 424)
7. Delay waiting for Government October 2013 (id. and 581-82)
to clear closet where CRAC
units to be located and to
perform work relating to door
security locks (id.)
8. PWB was asked to re-locate Unstated
ADA/ABA compliant restroom
to different location at no cost,
to which PWB agreed (id.)
9. Escorts into Enclaves not “Frequently” (id.)
available (id. at 424)
PWB also claimed entitlement to Prompt Payment Act interest “on the final
contract amount, beginning at the time of interception [sic], on October 26, 2015, and
prompt payment act interest for the amount of this claim” (R4, tab 17 at 398).
The contracting officer issued a final decision on PWB’s claim on
September 13, 2021, granting it in part and denying it in part (R4, tab 19). Without
addressing the merits of PWB’s challenge to the assessment of liquidated damages, the
4
contracting officer agreed to rescind the liquidated damages via a unilateral contract
modification (R4, tab 19 at 615). In addition, while disagreeing with PWB’s assertions
about the CPARS ratings, the contracting officer agreed to change all “Unsatisfactory”
ratings in the CPARS evaluation to “Satisfactory,” and change the narrative for each
rating (R4, tab 19 at 615).
The final decision went on to deny PWB’s claim for $324,923.72 in costs due to
additional work and delay. The contracting officer found the claims untimely
because they had accrued more than six years prior to submission of the claim (R4,
tab 19 at 615-16). The decision also denied PWB’s claim for Prompt Payment Act
interest and instead agreed to pay interest under the Contract Disputes Act on the
rescinded liquidated damages (R4, tab 19 at 616).
NAVFAC then unilaterally executed Modification No. 10, effective
September 28, 2021. That modification rescinded the assessment of liquidated
damages and added Contract Disputes Act interest on that amount to the total task
order price. With respect to the CPARS evaluations, Modification No. 10 stated that,
despite the contracting officer’s agreement to change PWB’s CPARS ratings and
narratives, doing so was “no longer practical.” Due to their age, the CPARS
evaluations had been automatically archived and were no longer visible or accessible
on the CPARS website. Accordingly, changing the CPARS evaluations would be
“administratively burdensome and result in no harm or benefit to Pacific West
Builders or the government.” (R4, tab 14 at 382)
PWB filed this appeal on December 7, 2021. It seeks relief in the amount of
$324,953.72 in “additional work and delay costs,” $50,419.80 for “interest on withheld
contract balance,” and $46,098.29 for “interest on additional funds expended” (compl.
¶ 106).
V. PWB’s Complaint
PWB’s complaint breaks down PWB’s claims for relief into three categories:
(1) “Unreasonable Delay/Violation of Duty to Cooperate,” (2) “Failure to Disclose
Actual Construction Requirements of SCIFF [sic] Room,” and (3) “Additional Delays”
(compl. ¶¶ 3, 6-7). 5 PWB also contends that NAVFAC is responsible for costs
incurred repairing two air handling units (AHU #2 and AHU #8) (see Board Order dtd.
February 16, 2023 (memorializing conference call with the parties)).
5
After inquiry from the Board, PWB confirmed that it is no longer pursuing its claims
relating to liquidated damages or CPARs evaluations (app. notice dtd.
March 17, 2023).
5
a. Alleged Unreasonable Delay/Violation of Duty to Cooperate
PWB makes two assertions in this category. First, PWB faults NAVFAC for
issuing modifications to the Contract that, in PWB’s view, did not provide for
sufficient time extensions to the contract completion date and did not adequately
compensate PWB for its extended overhead costs (compl. ¶¶ 21-25). Second, PWB
contends that the government is responsible for delays and additional costs resulting
from the alleged failure to disclose that only a single source could perform certain
required work on the Direct Digital Control (DDC) system (compl. ¶¶ 26-35).
i. Modifications
With respect to contract modifications, PWB’s complaint does not make clear
which modifications it contends provided insufficient time extensions or price
increases (see compl. ¶¶ 23-25). PWB’s claim to the contracting officer referred to
certain instances of alleged delay and NAVFAC’s alleged refusal to grant proper time
extensions or reimburse additional costs but did not identify the specific modifications
it disputes (see e.g., R4, tab 18 at 421).
Of the ten contract modifications, Modification Nos. 1-8 were all issued before
2015, with the last one, Modification No. 8, being issued on December 11, 2014.
PWB was aware of the terms of each such modification on or around the date it was
issued. (R4, tabs 5-12) 6
ii. DDC System
With respect to the DDC system, the complaint alleges that the performance
verification testing (PVT); test, adjust and balance (TAB); and commissioning of the
HVAC systems “were significantly delayed because PWB could not complete the
scope of work relative to the DDC Controls” (compl. ¶ 27). PWB contends that
NAVFAC failed to disclose to PWB that work on the DDC system could be performed
only by a single source, to which the system was proprietary (compl. ¶ 28). PWB’s
claim to the contracting officer contained additional information, contending that only
one licensed distributor in the area was authorized to work on the proprietary system,
and PWB found that subcontractor’s work to be unsatisfactory (R4, tab 18 at 406).
This “forced PWB to seek government permission to replace the Solidyne proprietary
system with a Honeywell open license system” (id.). The government gave PWB
6
PWB’s Complaint does not take issue with Modifications No. 9 or 10. Modification
No. 9 assessed liquidated damages. Modification No. 10, which was issued
after the contracting officer’s final decision, rescinded those liquidated damages
and also addressed the CPARS issue, neither of which are the subject of PWB’s
remaining claims.
6
permission to replace the Solidyne system with a Honeywell system in Modification
No. 7, which was executed bilaterally on September 8, 2014 (R4, tab 11). PWB faults
NAVFAC for delay and failing to provide compensation to PWB for the upgraded
DDC controls (compl. ¶¶ 25, 29). PWB also asserts that the alleged failure to disclose
resulted in extensive litigation between PWB and a subcontractor (compl. ¶¶ 27-35).
b. Alleged Failure to Disclose Actual Construction Requirements of
SCIF Room
PWB alleges that, during performance, NAVFAC verbally changed the location
of the Computer Room Air Conditioning (CRAC) units that were to be installed in an
area referred to variably as the SCIF or the Enclave (compl. ¶¶ 36-44). PWB alleges
that, although PWB made its final design submittal on September 25, 2012, NAVFAC
did not provide comments until July 24, 2013, which made “significant changes to the
known scope of work in the [Enclave], pushing the start of that work until 8 November
2013, AFTER the Contract Completion Date” (compl. ¶ 43 (emphasis in original); see
also R4, tab 18 at 412-21).
PWB finds fault with NAVFAC for not earlier disclosing that the change of
location of the CRAC units would result in significant additional work in the SCIF and
then refusing to agree to compensate PWB for its additional costs or extend the
contract completion date to account for the additional work (compl. ¶¶ 36-44).
c. Claims for Additional Delays
PWB’s complaint describes numerous additional events that it contends caused
delay to the completion of the contract (compl. ¶¶ 47-98). It then alleges that these
alleged delays had a cumulative “ripple effect” on the overall project and caused
disruption to “multiple scopes of work, multiple trades and other subcontractors” (id.
¶¶ 99-100). These alleged causes of delay were not raised in PWB’s claim to the
contracting officer (compare compl., with R4, tab 18).
d. Repair of AHU #2 and AHU #8
PWB’s complaint, while making general allegations relating to the hot water
system and glycol, does not make any specific allegations about the causes of damage
to or the repairs of AHUs #2 or #8 (see, e.g., compl. ¶¶ 75-78, 88). PWB’s certified
claim, however, contended that the government was at fault for the failure of two new
air handling units PWB had installed, referred to as AHU #2 and AHU #8 (R4, tab 18
at 406, 409-12). After inquiry from the Board, PWB confirmed that it intends to
pursue the claims relating to AHUs #2 and #8 that were asserted in its certified claim
(see Board Order dtd. February 16, 2023).
7
The claim asserted that the AHUs failed because the government did not
properly and adequately maintain the existing hot water supply system, including
neglecting to add glycol to the system to keep it from freezing. PWB claimed that
NAVFAC improperly required PWB to repair the units at its own expense. (R4,
tab 18 at 406, 409-12)
AHU #2 failed in January 2014. Apparently believing that the failure was a
result of an installation problem caused by its subcontractor, PWB repaired AHU #2 at
its own expense (id.). AHU #8 then failed on or about November 7, 2014. After the
failure, an exterior pipe supplying hot water to AHU #8 froze and burst. This revealed
that the AHU had failed because the water contained little or no glycol, which would
have prevented the pipe from freezing. The absence of sufficient glycol, according to
PWB, was the government’s fault. (R4, tab 18 at 411-12)
By no later than February 2015, PWB had concluded that both AHU #2 and AHU
#8 had failed because of the government’s failure to maintain adequate levels of glycol in
the system. In correspondence dated February 11, 2015, PWB contended to NAVFAC
that “the government’s failure to properly maintain the [heating hot water] system with
an adequate supply of glycol” was responsible for damage to AHU #8 (R4, tab 18
at 475). According to PWB, the government understood and “acknowledged” as early
as December 11, 2014, that insufficient glycol was the cause of the AHU #2 and #8
failures by communicating about and executing bilateral Modification No. 8, which
required installation of a glycol feeder system and glycol (R4, tab 18 at 412). In
discovery, PWB admitted that it had contended by no later than February 11, 2015,
that the government was responsible for the damage to AHU #2 and #8 (gov’t mot.,
ex. 4, responses to interrog. nos. 13-14).
PWB had also incurred costs toward the diagnosis and repair of the AHU
failures by February 2015. PWB’s subcontractor invoiced it for repair work on AHU
#2 on June 1, 2014. (Gov’t mot., ex. 3 at GOV_MSJ_0060 (subcontractor invoice);
ex. 5 at GOV_MSJ_0078-79 (resp. to interrog. no. 6); ex. 6 at GOV_MSJ_0094-95 (2d
resp. to interrog. no. 6)) And by no later than December 11, 2014, PWB had
undertaken steps to repair AHU #8, including having its subcontractor investigate the
cause of the failure, which led to the issuance of Modification No. 8 on December 11,
2014 (gov’t mot., ex. 5 at GOV_MSJ_0082 (resp. to interrogatory no. 12); R4, tab 12
at 373-77)).
8
VI. The Affidavit of Patricia Romero
Appellant’s response to Respondent’s summary judgment motion relies upon an
affidavit of Patricia I. Romero, PWB’s owner and principal (app. resp., ex. 1). 7
Ms. Romero executed each of the bilateral contract modifications on PWB’s behalf
(R4, tabs 5-7, 9-12).
In her affidavit, Ms. Romero testifies that PWB was under economic duress
when she executed Modification No. 7, in that she was told by the contracting officer
that the task order would be terminated for default if she did not execute Modification
No. 7 at no cost (app. resp., ex. 1, ¶ 3). A termination for default would have
devastated the company and most likely bankrupted it (id. ¶ 4). Ms. Romero felt she
also had no choice but to execute Modification No. 8 if it wished to remain in business
(id. ¶ 6).
Ms. Romero further testifies that “the climate . . . under which we were
performing during all this was extremely hostile towards our small economically
disadvantaged business” (id. ¶ 9). NAVFAC employees yelled at her loudly and
called her “ignorant,” and her “perception of all this was it was quite abusive and
derisive” (id. ¶ 10). “The whole atmosphere was one of fear of losing everything if we
did not strictly comply with all demands despite their being in or out of scope. We
were literally at their mercy” (id. ¶ 12). She states that “[w]e simply signed whatever
we were provided to avoid termination” (id. ¶ 13).
Ms. Romero’s affidavit also states that, before PWB submitted its claim, a
NAVFAC contracting officer twice asked her to hold PWB’s claim “in abeyance” (id.
¶ 14). Although not specific as to dates, Ms. Romero testifies that the first such
occasion was “immediately after the government re-posted the original performance
evaluation and I responded, telling them that I had sent a lengthy response to the
original evaluation to the Contracting Officer along with numerous back up documents
and that I intended to file a claim” (id.). As to the second occasion, Ms. Romero
states, again without reference to a particular date, that the contracting officer “called
me and said the matter had been referred to her and asking me to hold everything in
abeyance” (id.). She states that “[w]e were acting in good faith on her requests to stay
7
Appellant’s response to the government’s motion cited to Ms. Romero’s affidavit as
Exhibit 1 to the response, but no Exhibit 1 was included. Government counsel
obtained the affidavit from PWB’s counsel and provided it to the Board when it
filed its reply brief (Bd. corr. email dtd. December 21, 2022). We refer to it as
Exhibit 1 to appellant’s response.
9
our filing” (id. ¶ 15). 8
DECISION
The government moves for summary judgment, contending that (1) PWB’s
claims were not submitted to the contracting officer within six years of when they
accrued, as required by 41 U.S.C. § 7103(a)(4)(A) (“[e]ach claim by a contractor
against the Federal Government relating to a contract . . . shall be submitted within
6 years after the accrual of the claim”), (2) PWB’s claim relating to the DDC Controls
and additional engineering and TAB and commissioning is barred by accord and
satisfaction, and (3) PWB’s claim for Prompt Payment Act interest fails as a matter of
law. Although the government’s motion did not question the Board’s jurisdiction to
entertain PWB’s claims, the Board must satisfy itself that it possesses jurisdiction
before it may adjudicate the claims. 9
I. Jurisdiction
Under the Contract Disputes Act (CDA), we lack jurisdiction to entertain a
claim that has not previously been the subject of a written claim to the contracting
officer. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc);
Madison Lawrence, Inc., ASBCA No. 56551, 09-2 BCA ¶ 34,235 at 169,206. The
proponent of the Board’s jurisdiction bears the burden to establish that this
jurisdictional prerequisite is satisfied as to all elements of its claim. Walsky Constr.
8
In an email exchange with the contracting officer on May 20, 2021 (i.e., after PWB
had submitted its claim on March 23, 2021), Ms. Romero stated “[i]t has been
close to two years since you last asked me to hold the claim in abeyance while
you reviewed the matter to see if it could be resolved at this level” (app. resp.,
ex. 2 at 1). The contracting officer’s response did not take issue with that
statement (id.). We infer that at some point in 2019 the contracting officer
asked PWB to hold its claim in abeyance.
9
By Order dated January 30, 2023, the Board raised with the parties whether it may
lack jurisdiction over the claims asserted in paragraphs 47-98 of PWB’s
complaint because they did not appear to have been asserted in PWB’s certified
claim and subsequently directed the parties to brief the issue (Bd. Order dtd.
February. 16, 2023). PWB submitted a brief on March 9, 2023, that did not
address the jurisdictional issue but instead was an unauthorized sur-reply on the
merits of the government’s summary judgment motion. The government
responded with a brief on March 23, 2023, which contended that we lack
jurisdiction over the claims for “Additional Delay” asserted in PWB’s
complaint and requested that we disregard PWB’s submission. Because our
rules do not permit sur-replies without permission, we have not considered
PWB’s March 9, 2023, brief in our resolution of this motion.
10
Co., ASBCA No. 52772, 01-2 BCA ¶ 31,557 at 155,856. A valid claim must contain
“a clear and unequivocal statement that gives the contracting officer adequate notice of
the basis and amount of the claim.” Northrop Grumman Computing Sys. v. United
States, 709 F.3d 1107, 1112 (Fed. Cir. 2013). We are required to examine whether a
claim submitted to us “is the ‘same claim’ as the one presented to the contracting
officer.” Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 (Fed. Cir. 2021). “The
focus is on whether the contracting officer was given ‘an ample pre-suit opportunity to
rule on a request, knowing at least the relief sought and what substantive issues are
raised by the request.’” Id.
Here, the Board lacks jurisdiction over the claims asserted in paragraphs 47-98
of PWB’s complaint because PWB’s certified claim to the contracting officer did not
give the contracting officer adequate notice of the basis of those claims. The certified
claim did not notify the contracting officer of PWB’s contention that it suffered
compensable or excusable delays because of the events described in those paragraphs
of its complaint. The same is true of paragraphs 99-100 of the complaint, which
appear to assert a cumulative impact or disruption claim arising from the delays
alleged in the preceding paragraphs but were not addressed in PWB’s claim to the
contracting officer. The omission of these allegations from the certified claim
deprived the contracting officer of any meaningful opportunity to address them,
defeating a key purpose of the CDA’s requirement that claims first be submitted to the
contracting officer before the Board may adjudicate them.
Accordingly, the claims asserted in paragraphs 47-100 of PWB’s complaint are
dismissed for lack of jurisdiction.
II. Standard of Review for Summary Judgment
We next address the government’s motion for summary judgment as to the
claims asserted by PWB over which the Board does possess jurisdiction.
“Board Rule 7(c) permits summary judgment motions and ‘looks to Rule 56 of
the Federal Rules of Civil Procedure for guidance.’” Fluor Intercontinental, Inc.,
ASBCA Nos. 62550, 62672, 22-1 BCA ¶ 38,105 at 185,099 (quoting Board
Rule 7(c)(2)). Summary judgment is appropriate when the moving party demonstrates
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Crown Operations Int’l, Ltd. v. Solutia Inc.,
289 F.3d 1367, 1375 (Fed. Cir. 2002). The applicable substantive law identifies which
facts are material and might affect the outcome of the appeal, thus precluding the entry
of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Once the moving party has satisfied its initial burden, the opposing party “‘must set
forth specific facts showing that there is a genuine issue for trial.’” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v.
11
Cities Serv. Co., 391 U.S. 253, 288 (1968)). Our job is not “to weigh the evidence and
determine the truth of the matter, but rather to ascertain whether material facts are
disputed and whether there exists any genuine issue for trial.” Holmes & Narver
Constructors, Inc., ASBCA Nos. 52429, 52551, 02-1 BCA ¶ 31,849 at 157,393
(quoting Liberty Lobby, 477 U.S. at 249). A dispute is genuine only if, on the entirety
of the record, a reasonable factfinder could resolve a factual matter in favor of the
nonmovant. Liberty Lobby, 477 U.S. at 248. On summary judgment, the evidence
must be viewed in the light most favorable to the party opposing the motion. Crown
Operations, 289 F.3d at 1375.
III. The CDA’s Statute of Limitations
The government contends that all of PWB’s claims are time-barred. The
Contract Disputes Act requires in pertinent part that “each claim by the Federal
Government against a contractor relating to a contract shall be submitted within
6 years after the accrual of the claim.” 41 U.S.C. §7103(a)(4)(A). While the CDA
does not define the term “accrual,” the Federal Acquisition Regulation (FAR) defines
“accrual of a claim” as “the date when all events, that fix the alleged liability of either
the Government or the contractor and permit assertion of the claim, were known or
should have been known.” FAR 33.201. A party’s failure to submit a claim within six
years of accrual is an affirmative defense to the claim, for which the party invoking the
defense bears the burden of proof. Kellogg Brown & Root Services, Inc., ASBCA
No. 58175, 15-1 BCA ¶ 35,988 at 175,823.
“[W]hen a claim accrued is determined in accordance with the FAR, the
conditions of the contract, and the facts of the particular case.” Triple Canopy, Inc. v.
Sec’y of the Air Force, 14 F.4th 1332, 1339 (Fed. Cir. 2021) (quoting Kellogg Brown
& Root Servs., Inc. v. Murphy, 823 F.3d 622, 626 (Fed. Cir. 2016)); Elec. Boat Corp.
v. Sec’y of the Navy, 958 F.3d 1372, 1375 (Fed. Cir. 2020). “The issue of ‘whether the
pertinent events have occurred is determined under an objective standard; a plaintiff
does not have to possess actual knowledge of all the relevant facts in order for the
cause of action to accrue.’” FloorPro, Inc. v. United States, 680 F.3d 1377, 1381
(Fed. Cir. 2012) (quoting Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir.
1995)). The events fixing liability should have been known when they occurred unless
it is reasonable to find they have been either concealed or were “inherently
unknowable” at that time. Raytheon Missile Systems, ASBCA No. 58011, 13 BCA
¶ 35,241 at 173,017.
IV. The Claims Accrued More Than Six Years Before PWB Submitted them to
the Contracting Officer
PWB submitted its certified claim to the contracting officer no earlier than
March 23, 2021. To fall within the six-year statute of limitations, therefore, PWB’s
12
claims must have accrued no earlier than March 23, 2015.
As discussed in more detail below, the government’s motion points to record
evidence establishing that the alleged events underlying all but two of PWB’s claims
occurred before March 23, 2015, that PWB was or should have been aware of those
events at or around the time they occurred, and that PWB incurred at least some cost
from each alleged event prior to that date. PWB has not come forward with evidence
to the contrary.
Instead, PWB makes two general arguments going to the accrual date of its
claims. First, PWB argues that its claims accrued after March 23, 2015, because it did
not know the “sum certain” of its claims until after that date (app. resp. at ¶¶ 26-27,
46). PWB emphasizes in particular that it could not submit a claim relating to the
DDC system until litigation with its subcontractor over that issue had been resolved
(id. at ¶ 46). This argument is without merit. We have consistently held that “[w]hen
monetary damages are alleged, some extra costs must have been incurred before
liability can be fixed and a claim accrued, but there is no requirement that a sum
certain be established.” Macro-Z Tech., ASBCA No. 60592, 19-1 BCA ¶ 37,358
at 181,657 (quoting The Boeing Company, ASBCA No. 58660, 15-1 BCA ¶ 35,828
at 175,190); Kellogg Brown & Root Servs., ASBCA No. 58175, 15-1 BCA ¶ 35,988,
175,824 McDonnell Douglas Services, Inc., ASBCA No. 56568, 10-1 BCA ¶ 34,325
at 169,528; Robinson Quality Constructors, ASBCA No. 55784, 09-1 BCA ¶ 34,048,
168,396; Gray Personnel, ASBCA No. 54652, 06-2 BCA ¶ 33,378 at 165,476. It is
enough that some dollar figure can be placed on the claim, even if the total amount
that will eventually be claimed cannot yet be determined. Macro-Z Tech. at 181,657-
58. The amount of the claim can be adjusted as further information is developed, as
“[c]ourts and boards have readily adjudicated properly certified claims that were later
modified in the amount sought, as additional cost information became available.” Id.
at 181,658 (quoting J.S. Alberici Construction Co. & Martin K. Eby Construction Co.
(JV), ENG BCA No. 6179, 97-1 BCA ¶ 28,639 at 143,008). It follows that PWB’s
litigation with its subcontractor, even if it may have eventually affected the final
amount of PWB’s claim, did not delay its accrual.
Second, PWB argues that a single task order cannot give rise to multiple claims,
each separately subject to the CDA statute of limitations (app. resp. at ¶ 48).
Otherwise, PWB contends, a single task order could lead to hundreds of claims,
undermining “judicial economy” and opening the door to “abuse of the system” (id.).
PWB cites no authority for this novel argument. To the contrary, the statute of
limitations runs against each “distinct liability-creating event having its own associated
damages.” Certified Constr. Co. of Ky., LLC, ASBCA No. 58712, 14-1 BCA ¶ 35,662
at 174,571 (quoting Fluor Corporation, ASBCA No. 57852, 14-1 BCA ¶ 35,472
at 173,930). PWB having alleged independent and distinct wrongs arising under
different legal theories, each having its own associated damages, the statute of
13
limitations runs against each of them separately.
Aside from these arguments, PWB has generally not contested the government’s
analysis of when PWB’s claims accrued. We have reviewed the record and conclude
that, with two exceptions explained below, there is no genuine issue of fact that
PWB’s claims accrued before March 23, 2015 and are therefore time-barred.
a. Modifications
PWB’s claims that NAVFAC issued modifications to the Contract that did not
provide for sufficient time extensions to the contract completion date and did not
adequately compensate PWB for its extended overhead costs accrued at the time each
modification was issued. On the date of issuance, PWB knew or should have known
the facts upon which it bases its claim that the modification provided inadequate time
or money. PWB also knew or should have known that it had suffered some injury by
not being adequately compensated, and therefore could have asserted the claim at that
time. While PWB does not make clear which of Modifications Nos. 1-8 are the
subject of this claim, that is of no moment because all of those modifications were
issued before 2015. Therefore, any claims arising from the terms of these
modifications accrued before March 23, 2015.
b. DDC System
PWB contends that NAVFAC failed to disclose that the existing DDC system
was proprietary to a single source and could be worked on by only a single local
distributor. PWB subcontracted with that local distributor, but found its work
unsatisfactory (R4, tab 18 at 406). As a result, PWB alleges, it was forced to replace
the proprietary system with a different system, which caused extensive delay to
completion of the performance verification testing (PVT); test, adjust and balance
(TAB); and commissioning of the HVAC systems (compl. ¶ 29). PWB also asserts
that the alleged failure to disclose resulted in extensive litigation between PWB and a
subcontractor (compl. ¶¶ 27-35).
This claim is in the nature of a “superior knowledge” claim. To prevail on such
a claim, PWB must show by specific evidence that: (1) the contractor undertook to
perform without vital knowledge of a fact that affects performance costs or duration
(sometimes stated as “direction”); (2) the government was aware the contractor had no
knowledge of and had no reason to obtain such information; (3) any contract
specification supplied misled the contractor, or did not put it on notice to inquire; and
(4) the government failed to provide the relevant information. Todd Pac. Shipyards
Corp., ASBCA No. 55126, 08-2 BCA ¶ 33,891 at 167,756.
14
In PWB’s claim, the “vital information” allegedly not disclosed by the
government was that “there was a single source available to work on the Solidyne
proprietary DDC controls” (compl. ¶ 28). PWB discovered this fact when it attempted
to obtain a replacement DDC controls subcontractor to complete the work but could
find no other firm with the license training and certification necessary (R4, tab 18
at 407). That discovery “forced PWB to seek government permission to replace the
Solidyne proprietary system with a Honeywell open license system” (id.). The
government gave PWB permission to replace the Solidyne system with a Honeywell
system in Modification No. 7, which was executed bilaterally on September 8, 2014
(R4, tab 11). Thus, by no later than September 8, 2014, PWB had actual knowledge of
the facts underlying its superior knowledge claim. It is also undisputed that PWB
suffered at least some injury no later than December 11, 2014, when PWB paid its
replacement subcontractor $44,800 (gov’t mot., ex. 3 at GOV_MSJ_0064-65; ex. 6
at GOV_MSJ_0094-95 (2d resp. to interrog. no. 6)). Accordingly, there is no genuine
issue as to the fact that PWB’s DDC system claims accrued before March 23, 2015. 10
c. Failure to Disclose Actual Construction Requirements of SCIF Room
PWB’s claim that NAVFAC verbally changed the location of the Computer
Room Air Conditioning (CRAC) units that were to be installed in the SCIF, and then
failed to compensate PWB for the resulting extra work or extend the contract
completion date, also accrued before March 23, 2015. PWB’s own allegations
establish that NAVFAC’s design comments that made the alleged change were
provided on July 24, 2013 (compl. at ¶ 43). At that time, PWB knew or should have
known of the facts giving rise to its claim for changed work and that it would incur
additional costs as a result.
d. Claims for Additional Delays
PWB’s December 15, 2015, letter to the contracting officer articulated nine
additional alleged causes of delay. PWB’s own allegations show that the events giving
rise to seven of the nine delay claims occurred well before March 23, 2015 (see chart
in Section IV above). The allegations also make clear that PWB was aware of each of
these seven alleged causes of delay at the time they occurred and that PWB would
suffer some injury as a result (id.). Accordingly, these claims accrued more than six
years before PWB submitted its claim to the contracting officer.
For the remaining two alleged delay events ((1) unavailability of escorts into
Enclave and (2) direction to re-locate ADA/ABA compliant restroom to different
10
Because we find that this claim is precluded by the statute of limitations, we need
not address the government’s alternative argument that Modification No. 7 bars
the claim under the doctrine of accord and satisfaction.
15
location at no cost), the dates of the events in question are not clear from the record.
While it appears quite likely that these claims also accrued long before March 23,
2015 (and we note that PWB has made no argument that the events in question
occurred after March 23, 2015), we are unable to discern from the current record that
they definitely did. As a result, the government has failed to meet its burden to
establish that there is no genuine issue of fact as to when these two claims accrued and
is not entitled to summary judgment as to those claims.
e. Repair of AHU #2 and AHU #8
PWB contends that the government was at fault for the failure of AHU #2 and
AHU #8. PWB was aware of the events fixing the government’s alleged liability for
this claim by no later than February 11, 2015, when PWB stated its position that
NAVFAC, rather than PWB, was responsible for the failure of the units and the
resulting additional costs and delays (R4, tab 18 at 475). PWB also incurred expenses
toward the diagnosis and repair of the two AHU failures by February 2015. There is
no genuine dispute, therefore, that PWB’s claim accrued before March 23, 2015.
V. PWB’s Equitable Tolling Argument Lacks Merit
For the reasons explained above, there is no genuine issue of fact that PWB’s
claims (with two exceptions as noted above) accrued more than six years before PWB
submitted its claim to the contracting officer. PWB argues that its claims are
nevertheless not time-barred because it is entitled to equitable tolling of the statute of
limitations. We disagree.
The CDA’s statute of limitations is not jurisdictional and is subject to equitable
tolling. Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315, 1322 (Fed. Cir.
2014); Beechcraft Def. Co., LLC; Textron Aviation Inc.; & Textron Aviation Def.,
LLC, ASBCA No. 61743, 23-1 BCA ¶ 38,283 at 185,884. “[E]quitable tolling against
the federal government is a narrow doctrine.” Martinez v. United States, 333 F.3d
1295, 1318 (Fed. Cir. 2003). Equitable tolling is appropriate “when a litigant has (1)
been pursuing his rights diligently, and (2) some extraordinary circumstance ‘stood in
his way and prevented timely filing.’” Afghan Premier Logistics, ASBCA No. 62938
et al., 22-1 BCA ¶ 38,074 at 184,906 (quoting The Adamant Grp. for Contracting and
Gen. Trading, ASBCA No. 60316, 16-1 BCA ¶ 36,577 at 178,136); see also
Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016));
Kamaludin Slyman CSC, ASBCA No. 62006 et al., 21-1 BCA ¶ 37,849 at 183,794.
“[M]ere excusable neglect is not enough to establish a basis for equitable tolling; there
must be a compelling justification for delay, such as ‘where the complainant has been
induced or tricked by his adversary's misconduct into allowing the filing deadline to
pass.’” Martinez v. United States, 333 F.3d at 1318 (quoting Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 96 (1990)).
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PWB seeks equitable tolling because, at some point in 2019, a NAVFAC
contracting officer requested that PWB hold its claim in abeyance pending efforts to
resolve the issues. Ms. Romero states that PWB was “acting in good faith on her
requests to stay our filing.” (App. resp., ex. 1 ¶ 27)
Under our precedents, PWB cannot prevail on its equitable tolling theory on
these facts. In Globe Trailer Mfg., ASBCA No. 62514, 21-1 BCA ¶ 37,973, the
appellant similarly alleged that the government “employed ‘misleading tactics’ to
extend the parties' settlement negotiations beyond expiration of the statute of
limitations.” Id. at 184,420. We held that Globe had failed to assert facts sufficient to
establish that an extraordinary circumstance prevented it from filing its claim:
“[I]n the absence of trickery, once a claim has accrued and
the statute of limitations begins to run, ‘subsequent
communications between [the contractor] and the
government about the claim's merits and magnitude [do]
nothing to toll it.’” Ford Lumber & Bldg. Supply, Inc.,
ASBCA No. 61617 et al., 19-1 BCA ¶ 37,407 at 181,847
(quoting Raytheon Missile Sys., ASBCA No. 58011,
13 BCA ¶ 35,241 at 173,018). Globe’s allegations of
‘misleading tactics’ pertain to the government's actions in
continuing to negotiate with Globe; however, Globe does
not assert that the government made false statements or
engaged in “trickery[.]”
Id. at 184,420-21. In Kamaludin Slyman, the appellant argued that the government
had failed “to respond to its inquiries over a number of years” and given “assurances
that Kamaludin would be paid.” 21-1 BCA ¶ 37,849 at 183,795. We held that this
was insufficient to establish a fact dispute sufficient to deny summary judgment.
“What Kamaludin has explained here is why it might have thought it did not need to
present a claim, not why something stood in the way, preventing it from doing so, as is
required.” Id.
Likewise here, PWB has not shown that some “extraordinary circumstance”
prevented it from filing a timely claim, nor that it pursued its claim diligently either
before or after NAVFAC asked it to hold its claim in abeyance. PWB argues that we
should infer from the government’s request that PWB hold off on the claim that the
government was attempting “to bait Appellant into losing its substantive right of filing
its claim” (app. resp. ¶ 45). PWB, however, offers no evidence that the government
acted with any duplicitous intent or otherwise engaged in any misconduct that would
justify equitable tolling. While Ms. Romero generally alleges abusive behavior on the
part of the government during the project, that alone does not give rise to an inference
17
that the government engaged in misconduct merely by asking Ms. Romero to forestall
submitting the claim. Even if PWB had evidence that the government intended to trick
PWB into delaying its claim until it was too late, PWB has failed to explain why it
waited more than a year after the request to submit its claim. In short, PWB has
presented no evidence to show that its delay in submitting the claim was anything
other than “‘a garden variety claim of excusable neglect’ for which equitable tolling
provides no relief.” Khenj Logistics Grp. ASBCA, No. 61178, 18-1 BCA ¶ 36,982,
at 180,140 (quoting Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct.
750, 755 (2016)).
VI. Prompt Payment Act Claim
The government is entitled to summary judgment on PWB’s claim for Prompt
Payment Act (PPA) interest. The PPA provides in relevant part, “the head of an
agency acquiring property or service from a business concern, who does not pay the
concern for each complete delivered item of property or service by the required
payment date, shall pay an interest penalty to the concern on the amount of the
payment due.” 31 U.S.C. § 3902(a). The PPA further provides that it “does not
require an interest penalty on a payment that is not made because of a dispute between
the head of an agency and a business concern over the amount of payment or
compliance with the contract.” 31 U.S.C. § 3907(c). PWB’s task order incorporated
FAR 52.232-27, PROMPT PAYMENT FOR CONSTRUCTION CONTRACTS (SEP
2005), which further defines the requirements for entitlement to Prompt Payment Act
interest (R4, tab 1 at 48).
The government argues that PWB is not entitled to PPA interest for two
reasons: (1) PWB never submitted an invoice for the amounts on which it seeks
interest, and (2) PPA interest is not owed on disputed amounts. PWB’s opposition to
the government’s summary judgment motion offered no response to these arguments.
In Dick Pac./ghemm, Jv, ASBCA No. 55829, 08-2 BCA ¶ 33,937, the Board
explained:
Under the contract’s Prompt Payment clause, PPA interest
is to be paid automatically if a proper invoice was
received; payment was not made by the due date;
government documentation authorizing payment was
processed; there was no disagreement over quantity,
quality, contractor compliance with the contract, or the
requested progress payment amount; or, in the case of a
final invoice, the amount was not subject to further
contract settlement actions. FAR 52.232-27(a)(3). Interest
is not required on payment delays due to disagreement
18
between the government and the contractor over the
payment amount or other issues involving contract
compliance, or on amounts temporarily withheld or
retained in accordance with the contract.
Id. at 167,942. It is undisputed that PWB did not submit a proper invoice for the
amounts on which it seeks interest and that those amounts are in dispute. Accordingly,
the claim for PPA interest is without merit. See Amaratek, ASBCA No. 59149, 15-1
BCA ¶ 35,808 at 175,125 n.4; Dillingham Const. Pac. Basin, Ltd., ASBCA No. 53284,
03-1 BCA ¶ 32,098 at 158,664.
CONCLUSION
The claims asserted in paragraphs 47-100 of PWB’s complaint are dismissed
for lack of jurisdiction. The government’s motion for summary judgment is granted as
to all other claims asserted by PWB, except for its delay claims based on the alleged
unavailability of escorts into the SCIF and the government’s direction to re-locate an
ADA/ABA compliant restroom to a different location. The government’s motion for
summary judgment is also granted as to PWB’s claim for interest pursuant to the
Prompt Payment Act.
Dated: May 12, 2023
THOMAS P. MCLISH
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
19
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. 63093, Appeal of Patricia
I. Romero, Inc. d/b/a Pacific West Builders, rendered in conformance with the Board’s
Charter.
Dated: May 16, 2023
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
20