_________________________________ MOTION TO STRIKE GRANTED IN PART: January 16, 1998 __________________________________ GSBCA 13625 MARON CONSTRUCTION CO., INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Charles S. Kirwan of Charles S. Kirwan & Associates, Pawtucket, RI, counsel for Appellant. Kevin S. Anderson, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and DeGRAFF. DeGRAFF, Board Judge. In May 1993, Maron Construction Co., Inc. (Maron) and the General Services Administration (GSA) entered into a contract that called for Maron to perform construction work at the Pastore Federal Building and Post Office in Providence, Rhode Island. In November 1995, Maron submitted a claim to GSA, asserting that GSA breached the contract and delayed Maronþs completion of its work. In June 1996, GSA denied Maronþs claim. This appeal followed. Pending is GSAþs motion to strike portions of Maronþs amended complaint. GSAþs motion is granted in part. Background Maronþs amended complaint contains 264 numbered factual allegations, three counts for relief (Counts I, II, and IV), and a prayer for relief. Set out below are the relevant portions of the amended complaint. COUNT I GSA FRAUD AND DECEIT 265. Maron hereby realleges in full in this paragraph the allegations set forth in all other paragraphs of this Complaint. 266. For the wrongful purpose of inducing Maronþs reliance and continued contract performance, GSA fraudulently misrepresented to Maron and/or fraudulently concealed from Maron, GSAþs plan to unilaterally repudiate the Contractþs key terms defining the Scope of The Work for the Project, the designated time for Contract performance, and the three-phased Contract Phasing Plan; GSAþs plan to allow hold over tenants to remain in place; and GSAþs plan not to allow Maron to complete the new Second Floor Courthouse build out. 267. Maron to its detriment reasonably relied upon GSAþs fraudulent misrepresentations and/or fraudulent concealments. 268. But for GSAþs fraudulent misrepresentations and/or fraudulent concealments, Maron would not have bid on this Project; Maron would not have accepted Contract award; and Maron would have sooner declared GSA in default. 269. Maron and its impacted subcontractors stand entitled to an appropriate award of fraud damages to provide full compensation for all delay damages and extra costs of performance incurred on this Project caused by GSAþs planning blunders, GSAþs contracting abuses, GSAþs unilateral Contract changes, GSAþs constructive changes, GSAþs denial of reasonable access to the work, GSAþs abiding and multifaceted refusal to cooperate, GSAþs withholding of its superior knowledge regarding Project plan and Project scheduling, GSAþs STOP WORK orders, differing site conditions, GSAþs Project design deficiencies, and GSAþs Project defective specifications, including without limitation increased Davis-Bacon labor costs caused by delayed contract performance, increased cost to complete delayed painting work, loss of superintendentþs labor productivity, loss of labor productivity, extended home office administration expenses, extended site office administrative expenses, delay and disruption damages suffered by Maron and Maronþs expert specialty subcontractors, bond premium increase, attorney fees, and litigations [sic] costs. . . . . COUNT IV DECLARATORY RELIEF (UNLAWFUL FAR DEVIATION) 290. Maron hereby realleges in full in this paragraph the allegations set forth in all other paragraphs of this Complaint. 291. GSA unlawfully included in the partiesþ Contract one or more unlawful deviations from the FAR and GSAR. 292. Without securing the necessary FAR deviation, GSA included in the partiesþ Contract an eight (8) page section describing CPM scheduling requirements, þSection 01311 - Critical Path Method Schedulingþ, which unlawfully purports to limit the normal operation of the þChangesþ clause (Aug 1987) (FAR 52.243-4). 293. Maron identified this unlawful deviation from the FAR Changes clause and GSA admitted that no deviation had been authorized. 294. Despite GSAþs admission that GSA secured no FAR deviation to limit the operation of the þChangesþ clause (Aug 1987) (FAR 52.243-4), GSA has denied Maronþs claim in reliance on GSAþs unlawful FAR deviation. 295. WHEREFORE, Maron requests issuance of a declaratory judgment declaring unlawful, null and void, each portion of the eight (8) page section describing CPM scheduling requirements, þSection 01311 - Critical Path Method Schedulingþ to the extent any such provision limits the normal operation of the þChangesþ clause (Aug 1987) (FAR 52.243-4). PRAYER FOR RELIEF WHEREFORE, Maron prays that the Board of Contract Appeals grant the following relief: . . . . 4. A declaratory judgment declaring unlawful, null and void, each portion of the eight (8) page section describing CPM scheduling requirements, þSection 01311 - Critical Path Method Schedulingþ to the extent any such provision limits the normal operation of the þChangesþ clause (Aug 1987) (FAR 52.243-4). 5. A finding that Maron stands entitled to its reasonable attorneys fees incurred with respect to this appeal because GSAþs position is not substantially justified. 6. A finding that Maron stands entitled to its reasonable costs of this appeal. Complaint at 27-30. Discussion GSA moves to strike Counts I and IV and paragraph 4 of the prayer for relief for lack of jurisdiction, and to strike paragraphs 5 and 6 of the prayer for relief as being premature. We will treat GSA's motion to strike Counts I and IV and paragraph 4 of the prayer for relief as a motion to dismiss, and not as a motion to strike. We grant the motion in part, as explained below. Count I GSA characterizes Count I as a cause of action for misrepresentation, deceit, and fraud in the inducement. GSA asserts that Count I is a tort claim, and points out that we lack jurisdiction to consider tort claims. Maron agrees with GSA that we lack jurisdiction to consider tort claims, but argues that Count I does not state a tort claim. Instead, says Maron, Count I is þan affirmative allegation of wrongful conduct in connection with the formation and administration of the Contract itself.þ Appellantþs Objection at 2. Maron says that the actions about which it complains in Count I constitute a breach of þthe implied covenant of good faith and fair dealing requisite to all contracts . . . and a breach of the contract for failure to disclose superior knowledge.þ Appellantþs Objection at 5. Maron also says that Count I shows that the contract was þdeceptive in its inception denying Maron key information going to the essence of the partiesþ bargained for contract. This is a stark contract violation . . . .þ Appellantþs Objection at 6. The Contract Disputes Act provides us with jurisdiction to resolve appeals from contracting officerþs decisions concerning either Government or contractor claims. 41 U.S.C.A.  605(a), 607(d) (West 1996). According to the parties' contract, a claim is a demand for the payment of money, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. Exhibit 1 at 91. As the parties recognize, there is no doubt that the statute does not grant us jurisdiction to consider tort claims. The issue is whether Count I of Maron's amended complaint states a tort. þ[C]laims based on negligent misrepresentation, wrongful inducement, or the careless performance of a duty allegedly owed, are claims sounding in tort.þ Somali Development Bank v. United States, 508 F.2d 817, 821 (Ct. Cl. 1974). However, a claim is not barred simply because it is stated as a tort if the contractor is actually asserting that the Governmentþs conduct amounted to a tortious breach of contract. Olin Jones Sand Co. v. United States, 225 Ct. Cl. 741 (1980). In order for a contractor to establish that it is complaining of a tortious breach of contract, and not a tort, the contractor must show a connection between the allegedly wrongful conduct of the Government and a contractual obligation owed by the Government to the contractor. It is not sufficient for the contractor to show simply that the Governmentþs conduct is related in some way to the contract between the parties. LþEnfant Plaza Properties, Inc. v. United States, 645 F.2d 886 (Ct. Cl. 1981). Count I of Maronþs amended complaint can be read as asserting that GSAþs actions breached GSAþs implied contractual obligation not to prevent, to interfere with, or to delay Maronþs performance unreasonably. HK Contractors, Inc., DOTBCA 2766, 96- 1 BCA  28,175. Count I can also be read as alleging a breach of duty to disclose superior knowledge. GAF Corp. v. United States, 932 F.2d 947 (Fed. Cir. 1991). Because Count I of Maron's amended complaint can be read as stating a tortious breach of contact, which we have jurisdiction to consider, GSA's motion to dismiss Count I for lack of jurisdiction is denied. Count IV and paragraph 4 of the prayer for relief GSA says that Count IV and paragraph 4 of the prayer for relief are nothing more than requests for declaratory relief. According to GSA, Maron has not asked the Board to determine the proper interpretation of section 01311 of the specifications or to determine the partiesþ obligations pursuant to that section. GSA says that we cannot provide declaratory relief. Maron asserts that, even if the Board cannot grant declaratory relief, we can determine whether contract clauses are þinoperative and illegal.þ Appellantþs Objection at 7. Maron says that Count IV þmerely lays out factual allegationsþ that section 01311 is unlawful, and alleges that GSA cannot rely upon that section to limit Maronþs right to recover for delay caused by GSA. Appellantþs Objection at 8-9. As we stated above, the Contract Disputes Act grants the Board jurisdiction to resolve appeals from contracting officerþs decisions on Government or contractor claims. 41 U.S.C.A.  605(a), 607(d). A claim is a demand for the payment of money, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. Exhibit 1 at 91. In its claim, Maron requested approximately $1.2 million for delay and increased performance costs. Exhibit 217. In the amended complaint, Maron says that GSA denied the claim in reliance on section 01311. In order to determine the amount of Maronþs recovery, if any, we will have to examine the effect of section 01311 and we have the jurisdiction to make such an examination because it is part and parcel of resolving Maronþs claim. The question raised by GSAþs motion is not whether we have the jurisdiction to resolve Maronþs claim. Rather, the question raised by GSAþs motion is whether we have the jurisdiction to entertain Maron's request for declaratory relief. In paragraph 295 of Count IV and in paragraph 4 of the prayer for relief, Maron requests a declaratory judgment. A declaratory judgment is a remedy created by the Declaratory Judgment Act, 28 U.S.C.  2201 (1994), which permits courts to declare the rights and legal relationships of parties. Boards do not have the authority to issue judgments, declaratory or otherwise. Because we do not issue judgments, we grant GSAþs motion in part and dismiss paragraph 295 of Count IV and all of paragraph 4 of the prayer for relief. Paragraphs 290 through 294, however, will remain in the complaint as stating factual allegations. If GSA argues that Maron's right to recover is limited by section 01311, Maron can argue that we should not apply the provisions of that section. Paragraphs 5 and 6 of the prayer for relief GSA says that paragraphs 5 and 6 of the prayer for relief, which ask the Board to find that Maron is entitled to its attorney fees and costs, are premature because a party may submit an application for an award of attorney fees and costs only after it prevails upon the merits of an appeal. Maron counters that, even assuming that its prayer for relief is premature, there is no reason to strike paragraphs 5 and 6. There is no doubt that paragraphs 5 and 6 are premature because we can award fees and costs only to a prevailing party and we have not yet resolved the merits of this appeal. 5 U.S.C.A.  504 (West 1996). If Maron prevails and wishes to recover its fees and costs, it must make a timely application in accordance with our rules. GSA has not established, however, that it is appropriate to strike paragraphs 5 and 6 and so, instead of striking these two paragraphs, we will simply ignore them. GSA's motion to strike paragraphs 5 and 6 of the prayer for relief is denied. Decision GSA's motion is GRANTED IN PART. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ _______________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge