Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________________________ DISMISSED WITHOUT PREJUDICE: July 21, 2000 _________________________________ GSBCA 13884 HERMAN B. TAYLOR CONSTRUCTION CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Gaughan & Stone, Houston, TX, counsel for Appellant. Sharon J. Chen, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Judges BORWICK, NEILL, and HYATT. BORWICK, Board Judge. The termination for default of the construction contract at issue in this appeal has been converted to a termination for convenience of the Government. Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12961-REM (June 20, 2000). Under the Termination for Convenience clause of this contract, the contractor shall submit a final settlement proposal to the Contracting Officer and the Contracting Officer shall pay, among other items, the cost of the contract work performed before termination. Appeal File, Exhibit 1, GSA Form 3506 at 41 ( 98(d),(f)(1)(i) -- FAR 52.249-2--TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (Fixed Price) (Alternate 1) (APR 1984)). The contractor may appeal from the contracting officer's determination of a timely termination settlement proposal. Id. ( 98(i) -- FAR 52.249-2--TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (Fixed Price)(Alternate 1)(APR 1984)). A construction contractor whose contract is properly terminated for default is entitled to the value of the work in place, including any equitable adjustment due. J.F. Whalen & Co., AGBCA 33-160-1, et al., 88-3 BCA 21,066; J.G. Enterprises, Inc., ASBCA 27150, 83-2 BCA 16,808. When a default termination of a construction contract is overturned, however, pending claims for equitable adjustment are subsumed in a potential termination for convenience settlement claim. Decisions on pending equitable adjustment claims in such a case are generally deferred for resolution in connection with a termination for convenience settlement proposal. See SAE Americon-Mid Atlantic, Inc. v. General Services Administration, GSBCA 12294, et al., 98-2 BCA 30,084. This appeal involves an equitable adjustment claim against the contract which is now subsumed in a termination for convenience claim. By letter of June 8, 2000, respondent advised that the parties requested a stay of proceedings pending settlement negotiations. Respondent also stated that the parties: would not object should the Board decide to dismiss GSBCA 13884 without prejudice for the reason that appellant foresees that its termination for convenience proposal would include its request for equitable adjustment as stated in GSBCA 13884. If appellant makes a quantum claim against the termination for convenience settlement to the Board, the parties request that evidence already in the record of GSBCA 13884 be considered and that the parties be allowed to supplement evidence and arguments to the Board for a Board decision. By letter of June 9, appellant agreed with respondent's statements "contingent on the acceptance of all hearings and evidence submitted in [GSBCA] 13884 for use in any case to be filed on the termination for convenience claim." Settlement negotiations were held on June 21, but the parties have not been able to reach a complete settlement. On July 3, appellant submitted a termination for convenience claim to the contracting officer. Pursuant to the agreement of the parties, this appeal is DISMISSED WITHOUT PREJUDICE to appellant's filing an appeal or suit from the contracting officer's decision on a termination for convenience claim which includes the request for equitable adjustment at issue in GSBCA 13884. The record and evidence taken in GSBCA 13884 shall be made part of the record in any appeal of the contracting officer's determination on appellant's termination for convenience settlement proposal. __________________________ ANTHONY S. BORWICK Board Judge We concur: _____________________________ ___________________________ CATHERINE B. HYATT EDWIN B. NEILL Board Judge Board Judge