CBCA 3354

Brasfield & Gorrie, LLC

Apr 7, 2014Judge DanielsDEPARTMENT OF VETERANS AFFAIRS
Not published in the listingRuled on a motion

Key Facts

Appellant
Brasfield & Gorrie, LLC
Respondent agency
DEPARTMENT OF VETERANS AFFAIRS
Judge
Daniels
Case number
CBCA 3354
Decided
Apr 7, 2014The decision states Apr 7, 2014 on its own face, which agrees with the listing.
Decision type
Not published in the listingThe Board's year tables for 2007 through 2014 carry no Type column, so no disposition was published for this decision. It is not missing data and nothing is inferred from the document.
Law firm for the appellant
Asmar, Schor & McKenna, Bradley Arant Boult & Cummings, LLP
Outcome
Ruled on a motion
B&G's motion for partial summary relief is DENIED.
Read from the shouted disposition line the Board prints above this decision's own date, and quoted from its operative sentence above. No model is involved.

Topics

Delay, suspension and accelerationChanges and equitable adjustment

Topics are derived from each decision's own text by keyword rules, not a classification by the Board. A decision matching several topics carries all of them, so topic counts sum above the number of decisions. They are ordered strongest first.

Appearances

For the appellant
Laurence Schor and Dennis C. Ehlers and Robert D. Pratt
Asmar, Schor & McKenna
Washington, DC
For the appellant
Axel Bolvig III
Bradley Arant Boult & Cummings, LLP
Birmingham, AL
For the respondent
Stacey North-Willis and Beth Chesney and Ogochukwu Ekwuabu and Benjamin Diliberto and Charlma Quarles
Office of the General Counsel, Department of Veterans Affairs
Washington, DC
Decision PDF (cbca.gov) Civilian Board of Contract Appeals, Contract Disputes Act casesThe Board's year listing this row was read fromThe decision document is hosted by the Board itself, so it is an official copy, and the Board's own Contract Disputes Act case listing is the citable source. The topics, the disposition and the appearances above are read deterministically from the decision's own words; no model is involved.

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Full Decision

Full text of the decision3 pages, 4,745 characters, read from the Board's own documentDecided Apr 7, 2014 on its own faceRespondent DEPARTMENT OF VETERANS AFFAIRS Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Cases cited

3 cases this decision cites, grouped by the forum that decided each, in the order it first names them. 3 of them open at a publisher.

Read from the decision's own words with no model involved: the party names and the citation are as the decision prints them. A case cited to a reporter is not held here, so where it opens was confirmed one citation at a time against an outside database and is labelled as leaving this app; a citation that database could not place, or matched to more than one case, is shown without a link rather than guessed at. A case named without a citation of any kind carries nothing to read, so it is left out rather than guessed at, and this is a floor on what the decision cites.

MOTION FOR PARTIAL SUMMARY RELIEF DENIED: April 7, 2014

CBCA 3354

BRASFIELD & GORRIE, LLC,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.

Laurence Schor, Dennis C. Ehlers, and Robert D. Pratt of Asmar, Schor & McKenna, PLLC, Washington, DC; and Axel Bolvig III of Bradley Arant Boult & Cummings, LLP, Birmingham, AL, counsel for Appellant.

Stacey North-Willis, Beth Chesney, Ogochukwu Ekwuabu, Benjamin Diliberto, and Charlma Quarles, Office of the General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent.

Before Board Judges DANIELS (Chairman), HYATT, and VERGILIO.

DANIELS, Board Judge.

Many disputes have arisen during performance of the contract between the Department of Veterans Affairs (VA) and Brasfield & Gorrie, LLC (B&G) for the build-out of the hospital and clinic at the VA’s Medical Center in Lake Nona, Florida. Among those disputes is one involving B&G’s Claim 2, for damages the contractor and its subcontractors allegedly incurred as a result of a suspension of work directed by the VA. This claim is for eighty-five days of compensable delay and associated costs in the amount of $5,046,738. The VA contracting officer granted the claim in part, concluding that “B&G and its subcontractors are entitled to 56 calendar days of additional contract time and additional compensation as identified in Change Order (CO) -16L and Settlement by Determination (SD) 351.” B&G appealed this decision, asserting that it is entitled to an additional twenty-nine days of compensable delay and those costs which it earlier claimed but the contracting officer did not agree to pay.

B&G has now submitted a motion for partial summary relief in the appeal. The contractor notes that through SD 351, the VA has paid it $1,687,100 for extended general conditions costs it incurred. The motion addresses $2,084,917 in costs allegedly incurred by B&G’s subcontractors during the fifty-six days of delay allowed by the contracting officer, plus $97,829 in B&G markups on those costs. The contractor maintains: B&G submitted, on behalf of its subcontractors, detailed cost requests . . . in the 56 Day Cost Proposal expressly requested by the VA. VA has had these cost proposals for more than a year and has not audited the subcontractor cost requests or expressed any disagreement with them. B&G submits that this constitutes an admission that B&G’s subcontractors are entitled to costs in the amount submitted in the 56 Day Cost Proposal.

In response, the VA maintains that B&G has not shown “that claimed costs for the 56 days of compensable delay were actually incurred, that they were properly allocable to the delay, and that they were otherwise reasonable.” For each and every one of the subcontractors whose costs are sought, the VA has made specific objections to the claimed costs. For example, for the first subcontractor, the VA says that B&G has not demonstrated that the subcontractor acted prudently in keeping both a project manager and a superintendent on the job during the period of delay, or in having manufactured items stored during the period (rather than ordering those items only when ready for installation); that the claim preparation costs sought were necessary; or that the cost of the time of the company’s accountant was appropriately billed as a direct cost rather than assigned to overhead. Resolving a dispute on a motion for summary relief is appropriate when the moving party is entitled to judgment as a matter of law, based on undisputed material facts. The moving party bears the burden of demonstrating the absence of genuine issues of material fact. All justifiable inferences must be drawn in favor of the nonmovant. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In our view, the objections made by the VA show that genuine issues of material fact suffuse this case. B&G’s filing of the motion for summary relief has served to smoke out the VA’s position on the various elements of the claim. The motion cannot be granted, however. At the parties’ request, the Board has authorized discovery to continue in this case and associated cases for nearly a year. We expect that the parties will use this time to develop and address the matters the VA has raised in opposing the motion. See Burnside-Ott Aviation Training Center, Inc. v. United States, 985 F.2d 1574, 1582 (Fed. Cir. 1993); CB&I Federal Services LLC v. Department of Homeland Security, CBCA 3112, et al. (Mar. 26, 2014).

Decision

B&G’s motion for partial summary relief is DENIED. _________________________ STEPHEN M. DANIELS

Board Judge

We concur:

CATHERINE B. HYATT

Board Judge

JOSEPH A. VERGILIO

Board Judge

This is a verbatim capture of the text layer of the Board's own document in Brasfield & Gorrie, LLC, CBCA 3354. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.

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