Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Columbia v. District of Columbia Contract Appeals Board

Court of Appeals of Columbia District

August 18, 2016

DISTRICT OF COLUMBIA, Petitioner,
v.
DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD, Respondent, and PRINCE CONSTRUCTION CO., INC., and W.M. SCHLOSSER CONSTRUCTION CO., INC., Intervenors.

          Argued October 6, 2015

         On Petition for Review of an Order of the District of Columbia Contract Appeals Board

         Petition for Review of a Decision of the District of Columbia Contract Appeals Board (CAB Nos. D-1369, D-1419 & D-1420)

          James C. McKay, Jr., Senior Assistant Attorney General for the District of Columbia, with whom Eugene A. Adams, Interim Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for petitioner.

          Richard K. Rothschild, General Counsel for District of Columbia Contract Appeals Board, was on the statement in lieu of brief for respondent.

          Douglas L. Patin, with whom Michael J. Cohen was on the brief, for intervenors.

          Before Blackburne-Rigsby and Easterly, Associate Judges, and Reid, Senior Judge.

         JUDGMENT

         This case came to be heard on the administrative record, a certified copy of the agency hearing transcript and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the order of the Contract Appeals Board ("CAB") is reversed with respect to the intervenors' delay claims related to the storm drainage pipe relocation, the fire pump installation, and the truck scales wiring. The case is remanded to the CAB to adjust the award accordingly. The CAB's decision is otherwise affirmed regarding the claims related to the roof deck modification, subsurface concrete obstruction, fire-suppression system permit, and concrete mix.

          OPINION

          Anna Blackburne-Rigsby. Associate Judge.

         In this case, a contractor seeks compensation for construction work that it completed on the Fort Totten Solid Waste Transfer Facility in Northeast Washington, D.C. for the District of Columbia, which went beyond the initial parameters of the construction contract. The primary question presented in this appeal is whether the contractor's claims for reimbursement are barred because the contractor failed to adhere to certain procedural requirements of the contract.

         The District of Columbia ("Petitioner" or "District") hired joint venturers Prince Construction Co., Inc. and W.M. Schlosser Construction Co., Inc., ("Intervenors" or "Prince/Schlosser"), to complete alterations and repairs to the Fort Totten Solid Waste Transfer Facility. Unexpected and unbudgeted changes during the course of the project caused the project to be delayed by nearly one year, and increased the cost of completing the project by over one-half million dollars. Prince/Schlosser filed claims with the District to be compensated for the indirect costs (such as paying employees and subcontractors to work extended hours, increased overhead, lost profits, and additional bond costs) resulting from the delays ("delay claims"). Prince/Schlosser also filed separate claims for additional uncompensated work it completed during the project. Principally, the District argues that Prince/Schlosser's delay claims are procedurally barred under the terms of the parties' contract because: 1) Prince/Schlosser did not "within [thirty] days after receipt of a written Change Order"[1] give the government written notice that it "intend[ed] to assert a claim, " and 2) Prince/Schlosser did not submit "cost or pricing data and [a] certification that the cost or pricing data submitted was accurate . . . ."[2] On the merits, the District alternatively argues that it is not responsible for the direct or indirect costs associated with the claims.

         The District of Columbia Contract Appeals Board ("CAB") rejected the District's arguments, found in favor of Prince/Schlosser, and awarded the contractor a total of $585, 498.98, plus the interest accrued from the date of the filed claims, pursuant to D.C. Code § 2-359.09 (2012 Repl.). On review of the record and the District's legal arguments, we affirm in part. We hold that Prince/Schlosser's delay claims are not procedurally barred by the contract because the District was on notice of the circumstances giving rise to the claims, and therefore was not prejudiced by the late claims. We also conclude that

         Prince/Schlosser's submission of data reflecting actual expenses already incurred instead of "cost and pricing data" does not bar its claims for reimbursement.

         Regarding the merits, however, we hold that the CAB erred in awarding Prince/Schlosser damages for three of its claims: 1) the delay claim for relocating a storm drainage pipe, 2) the delay claim for installing a fire pump, and 3) the "constructive change" claim seeking compensation for installing wiring to five truck scales. Finally, we affirm the CAB's award to Prince/Schlosser on its remaining four claims relating to: 1) a roof deck modification, 2) subsurface concrete obstruction, 3) obtaining a fire-suppression system permit, and 4) purchasing a sulfate-resistant concrete mix. Thus, we reverse the CAB's decision on three claims, affirm the remaining four claims, and remand to the CAB to adjust the award accordingly.

         I. Factual Background

         On September 13, 2006, the District and Prince/Schlosser entered into a government construction contract, entitled "Contract No. POKT-2005-B-0085-CM for Alterations and Repairs of the Fort Totten Waste Transfer Facility" ("Contract"). "The project included the construction of a new, three-level building addition, including foundations, a 'tipping' floor [a floor where trash from incoming trucks is tipped into tractor trailers on the ramp below], walls, louvers, roofing, truck ramps, five truck scales, compaction cranes, and a truck wash facility." The initial Contract price was $13, 266, 000, and the project was scheduled to be completed within 275 calendar days, with a set completion date of July 17, 2007.

         During the course of construction, however, the District directed Prince/Schlosser to complete additional, previously unbudgeted work due to unanticipated problems and authorized price adjustments to compensate Prince/Schlosser for the additional work, which were reflected in five change orders. Collectively, the five change orders authorized an increase to the Contract price of approximately $1, 028, 178, but only authorized a time extension to the project by one day. The project did not meet the scheduled deadline and concluded on April 4, 2008, 261 days after the planned completion date.

         The five change orders only compensated Prince/Schlosser for the costs directly associated with the unexpected problems, and they did not reimburse Prince/Schlosser for the indirect costs incurred during the additional 261 days of work that were not budgeted for under the contract. These indirect costs included paying employees and subcontractors to work extended hours, increased overhead, lost profits, and additional bond costs. In May 2008, one month after closing the project, Prince/Schlosser submitted written notice to the District that it would be seeking reimbursement for those additional costs. The parties negotiated in May and November of 2008, but failed to reach an agreement.

         Prince/Schlosser then submitted delay claims to the District's contracting officer on April 23, 2009, in an effort to obtain compensation.[3] Prince/Schlosser sought delay claims for indirect costs in the amount of $1, 099, 325. Prince/Schlosser also submitted two additional claims for direct costs on June 24, 2009: 1) $32, 280.67 for the additional cost of wiring five truck scales; and 2) $8, 908.63 for the additional cost of making a concrete solution sulfate-resistant.[4]The District's contracting officer did not approve any of the claims, and Prince/Schlosser appealed to the CAB.

         During a hearing before the CAB, the District argued primarily that Prince/Schlosser's delay claims were barred under the contract and that, in any event, all of the claims lacked merit. Specifically, the District asserted that the delay claims were barred because Prince/Schlosser: 1) failed to submit written notice of its intended claims within "[thirty] days after receipt of a written Change Order, "[5] and 2) failed to submit certified "cost or pricing data, "[6] which prevented the District from properly assessing the merits of Prince/Schlosser's claims.

         The CAB disagreed with the District, and held that Prince/Schlosser's failure to comply with the thirty-day notice requirement was not a violation of the Contract because "[b]oards and courts have generally not strictly enforced such notice requirements absent a finding that the government is prejudiced" by the untimely notice. The CAB concluded that there was no prejudice to the District here because "the District was well aware of the operative facts underlying each of the" delay claims given that Prince/Schlosser "promptly notified the District" of each event leading to the delays. The CAB also held that Prince/Schlosser was not required to submit certified "cost or pricing data" with its delay claims because it filed the claims after it accrued the actual costs associated with the delay, and once Prince/Schlosser incurred "the impact costs by performing changed work, cost or pricing data [was] no longer the basis of negotiation of the adjustment." The CAB determined that Prince/Schlosser complied with the Contract when it provided the actual breakdown of its indirect costs.

         Regarding the merits of the claims, the CAB reviewed the Contract, heard testimony from representatives of both parties as well as an expert witness who evaluated the schedule delays, and found that Prince/Schlosser should be awarded damages. Specifically, the CAB found the District responsible for the contractor's indirect costs resulting from the additional work, including: 1) relocating a storm drainage pipe, 2) installing a fire sprinkler pump, 3) removing a subsurface concrete obstruction, 4) obtaining a fire-suppression system permit, and 5) completing a roof deck modification.[7] It also found the District responsible for the costs incurred from the unanticipated tasks of wiring truck scales and using a sulfate-resistant concrete mix. The CAB calculated the award by adding together Prince/Schlosser's incurred costs for which the CAB concluded the District was responsible, which amounted to $585, 498.98.[8] This petition for review followed.

         II. Discussion

         A. Standard of Review

         Contractual interpretation is a legal question, which this court reviews de novo. Tillery v. District of Columbia Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C. 2006). We nonetheless "accord great weight to the [CAB's] construction of a government contract, so long as that construction is not unreasonable." Id. at 1175 (quoting Unfoldment, Inc. v. District of Columbia Contract Appeals Bd., 909 A.2d 204, 208-09 (D.C. 2006)) (alteration in original). In reviewing the CAB's decision, we "look not only to the case law on which the [CAB] relied but to other decisions of the United States Court of Appeals for the Federal Circuit, the former United States Court of Claims and its successors, and the various federal boards of contract appeals." District of Columbia v. Org. for Envtl. Growth, Inc. ("OFERGO I"), 700 A.2d 185, 198 (D.C. 1997); see also Abadie v. District of Columbia Contract Appeals Bd., 916 A.2d 913, 919 (D.C. 2007).[9]

         B.Prince/Schlosser's Delay Claims ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.