_______________________________________________________ MOTION FOR CLARIFICATION GRANTED: February 25, 1994 _______________________________________________________ GSBCA 11029 STROH CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Ronald M. Kaplan, Jeffrey L. Goodman and Jeffrey D. Stone of Shearer, Templer, Pingel & Kaplan, West Des Moines, IA, counsel for Appellant. Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. HYATT, Board Judge. Respondent has moved that the Board reconsider or clarify its decision granting appellant's motion for summary relief as to entitlement. Stroh Corp. v. General Services Administration, GSBCA 11029, 93-2 BCA 25,841. For the reasons stated, we agree that the decision should be clarified.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 This motion has been discussed extensively in conferences with the parties, held for the purpose of permitting the parties to forge ahead with preparation of the remaining issues. In these conferences, the Board and parties reached the understanding that the summary relief decision did not hold that a compensable delay had occurred. Indeed, it was fully recognized by all concerned that the existence and amount of (continued...) ----------- FOOTNOTE ENDS ----------- Background The Board's decision held that the Government had effectively changed the terms of a contract under which Stroh was to remove and replace chillers in a federal building in Des Moines, Iowa. Specifically, after issuance of the notice to proceed in June, respondent informed Stroh that it could not remove the chiller units from the roof until the end of the cooling season on October 15. The Board held that this was not an obvious error or omission that placed on Stroh a duty to inquire as to the Government's intent and found that Stroh had established entitlement to the extent it had shown it was delayed in starting work as a result of the Government's interpretation of the contract. An additional issue has been raised as a result of the briefing process on respondent's motion. In responding to the Government's point that the contract was completed on time, appellant argued that damages for delay would nonetheless be recoverable: "In such case, the delay damages would be in the form of acceleration damages, the other side of the same coin." The Government responded that this was the first time entitlement to acceleration damages had been raised in this proceeding and argued that this assertion constitutes a separate "claim" which must be submitted to the contracting officer for a final decision before this Board has jurisdiction over it. Discussion The Government's principal concern is with the following language in the Board's decision: The Government's order requiring Stroh to wait until October 15 to commence on-site removal of the existing equipment in effect changed the order of work under the contract, entitling Stroh to reasonable compensation and additional time for delay. Respondent is concerned that the Board has prematurely found that in fact Stroh suffered compensable delay and contends that the decision should be modified or clarified to reflect that this issue was not before the Board on summary relief. Respondent correctly points out that this issue, going to the amount of relief, if any, to which Stroh may be entitled, involves contested issues of fact and was not intended to be reached by the Board in its ruling on the contract interpretation issues. ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) compensable delay to which appellant may be entitled are factually disputed matters not suitable for summary disposition. This decision memorializes the guidance provided for the parties in these conferences. ----------- FOOTNOTE ENDS ----------- The Board's decision, in acceding that Stroh was "delayed" by the Government's order that it wait until October 15 to commence removal of existing chillers, simply was intended to hold that no contractual bar would impede Stroh's recovery of damages assuming it could in fact prove that the delay increased its costs of performance. The quoted sentence, to be completely accurate, should have stated that the Government's order entitled Stroh to pursue its claim further and recover damages for any demonstrable delay. Thus, the Board's decision on the cross-motions did not necessarily hold that there was a "delay" in the sense of contract performance being completed outside of the contract completion date. Respondent points out in its motion that, despite the fact that appellant had to await the end of the cooling season to dismantle existing chillers, the work was still finished by the completion date specified in the contract. This does not mean that appellant is precluded from recovering damages under a delay theory. It is still possible for a contractor to recover for delay if it can show that, absent delays, the contract would have been completed at an earlier date. It is the contractor's burden to show this. Wickham Contracting Co. v. Fischer, No. 93-1146 (Fed. Cir. Jan. 6, 1994); Metropolitan Paving Co. v. United States, 325 F.2d 241, 242-43 (Ct. Cl. 1963); Elrich Contracting, Inc. v. General Services Administration, GSBCA 10936, 93-1 BCA 25,316, at 126,142 (1992). As a secondary matter, the Government is also concerned about appellant's statement concerning "acceleration damages," and asks the Board to make clear that this is not an issue that will be litigated in the hearing in this appeal. Respondent contends that appellant's assertion that the work was accelerated constitutes a "new claim" that, under the Contract Disputes Act, must be submitted to a contracting officer for a final decision before this Board can exercise jurisdiction over it.[foot #] 2 Modular Devices, Inc., ASBCA 24198, 82-1 BCA 15,536 (1981). Respondent is correct. A claim for acceleration damages requires different elements of proof than does a delay claim and it has thus been characterized as a different claim, requiring a separate contracting officer final decision. Trepte Construction Co., ASBCA 38555, 90-1 BCA 22,595. If appellant wants to pursue a claim for acceleration damages, as opposed to the delay damages addressed in the claim ----------- FOOTNOTE BEGINS --------- [foot #] 2 Stroh's claim, as formally presented to the contracting officer, alleges that it incurred increased costs of performance as a result of not being able to proceed as planned with the dismantling of the chillers and also seeks an extension of 130 days of contract time, the number of days that elapsed between the date the notice to proceed was received and October 15, 1990. The claim did not allege that acceleration occurred or that any costs resulting from acceleration of the work were being claimed. Appeal File, Exhibits 9, 11. ----------- FOOTNOTE ENDS ----------- it actually submitted to the contracting officer,[foot #] 3 it must submit such a claim to the contracting officer for a final decision before this Board can exercise jurisdiction.[foot #] 4 Decision Respondent's motion for clarification is GRANTED to the extent stated above. _____________________________ CATHERINE B. HYATT Board Judge We concur: _____________________________ ______________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 3 This differs from the case in which an appellant merely makes an additional or alternative theory for recovery. In such a case, if the revised demand arises out of the same set of facts, the new theory does not constitute a "new claim" and another contracting officer final decision is not required. See, e.g., Hyman-White, Joint Venture, GSBCA 9632, 90- ___ ____ __________________________ 3 BCA 23,124. [foot #] 4 In conferences held to discuss respondent's motion, appellant clarified that it does not plan to rely on a constructive acceleration theory of recovery and declined the opportunity to submit a claim for such damages to the contracting officer.