Appealed from: Board of Contract Appeals Armed Services.
Before Newman, Lourie, and Rader, Circuit Judges.
West Coast General Corporation sought an equitable adjustment. The Armed Services Board of Contract Appeals dismissed this claim as untimely. ASBCA No. 44294, 93-3 B.C.A. (CCH) P 26,242 (1993). Because the Board properly determined that West Coast's appeal was untimely, this court affirms.
The Department of the Navy awarded West Coast Contract No. N62474-83-C-2729 to build a Landing Craft Air Cushion Complex at the Marine Corps Base in Camp Pendleton, California. During construction, West Coast encountered a differing site condition that required relocation of a gas line.
On October 7, 1988, West Coast submitted a properly certified claim to the Resident Officer in Charge of Construction (ROICC). West Coast sought an equitable adjustment of $133,213, plus an eighty-two-day time extension, for relocation of the gas line. The ROICC forwarded the claim to a contracting officer (CO), who denied it in a final decision on April 26, 1989. West Coast received the denial on April 28, 1989.
The denial informed West Coast of its appeal rights. West Coast could appeal to the Board within ninety days. Alternatively, West Coast could sue in the United States Court of Federal Claims within one year of receiving the decision. West Coast did neither.
West Coast had earlier submitted a certified claim to a ROICC for an equitable adjustment for extra road paving work. West Coast submitted the road paving claim on March 27, 1987, and the ROICC forwarded it to a CO. The CO issued a final decision denying the road paving claim on June 17, 1987. West Coast then filed a complaint in the Court of Federal Claims challenging the denial of the road paving claim. In a December 18, 1989 decision, the Court of Federal Claims dismissed West Coast's complaint for lack of jurisdiction. West Coast General Corp. v. United States, 19 Cl. Ct. 98 (1989) (West Coast I). The court held that, by submitting the claim to a ROICC instead of a CO, West Coast failed to comply with the requirements for properly submitting a claim. Id. at 101; see 41 U.S.C. § 605(a) (1988). The court also invalidated the CO's final decision on the claim. West Coast I, 19 Cl. Ct. at 101.
On January 4, 1990, West Coast told the Government that West Coast I invalidated the CO's final decision on the gas line claim. West Coast noted that it had submitted the gas line claim, like the road paving claim, to a ROICC. West Coast reasoned that West Coast I had revived the denied gas line claim. In February 1990, the parties discussed the possibility of settling both claims. In those Discussions, the Government agreed that if settlement negotiations failed West Coast might have to resubmit the gas line claim. The parties did not settle.
On June 19, 1990, West Coast resubmitted its gas line claim to a CO. In a letter dated June 28, 1990, the CO responded:
[No one] with appropriate authority ever [agreed] that the subject contracting officer's final decision [became] a nullity as a result of the decision in [West Coast I ]. Accordingly, the 'gas line' claim will not be reconsidered and the previously rendered final decision remains in effect.
In April 1991, the United States Court of Appeals for the Federal Circuit decided Dawco Construction, Inc. v. United States, 930 F.2d 872 (Fed. Cir. 1991). In that case, Dawco sent its claim for an equitable adjustment to a representative of the ROICC. Rejecting the Government's argument that a contractor must address or deliver a claim directly to a CO, this court held that Dawco properly submitted its claim. Id. at 880. Therefore, this court's decision in Dawco overruled the reasoning and result in West Coast I.
On March 20, 1992, West Coast appealed to the Board from the CO's failure to issue a final decision on the June 19, 1990 claim. The Government moved to dismiss, arguing that the April 26, 1989 decision was valid, and, thus, West Coast's January 19, 1990 appeal was untimely. The Board granted the Government's motion to dismiss.
This court reviews decisions of the Board under a statutory standard of review. 41 U.S.C. § 609(b) (1988). This court will not set aside the Board's factual determinations unless they are "fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or . . . not supported by substantial evidence." Id. ; Federal Data Corp. v. United States, 911 F.2d 699, 702 (Fed. Cir. 1990). On questions of law, however, this court reviews the Board's decisions de novo. 41 U.S.C. § 609(b); United States v. DeKonty Corp., 922 F.2d 826, 827 (Fed. Cir. 1991). Although reviewing the Board's legal determinations de novo, this court accords them careful consideration because of the Board's experience in construing Government contracts. See United States v. Lockheed Corp., 817 F.2d 1565, 1567 (Fed. Cir. 1987).
Under the Contract Disputes Act of 1978 (CDA), contract claims must be "submitted to the contracting officer for a decision." 41 U.S.C. § 605(a). A claim sent to a ROICC satisfies this requirement. Dawco, 930 F.2d at 879-80. The CDA sets the time frame for appeal of a CO's final decision to the Board to within ninety days of receipt of the decision. 41 U.S.C. § 606 (1988). The Board may not waive this ninety-day statutory period. Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1391 (Fed. Cir. 1982). Alternatively, the contractor may ...