CBCA 3724-R

Leeward Construction Corporation

Mar 24, 2015Judge McCannDEPARTMENT OF VETERANS AFFAIRS
DecisionRuled on a motion

Key Facts

Appellant
Leeward Construction Corporation
Respondent agency
DEPARTMENT OF VETERANS AFFAIRS
Judge
McCann
Case number
CBCA 3724-R
Decided
Mar 24, 2015The decision states Mar 24, 2015 on its own face, which agrees with the listing.
Decision type
Decision
Law firm for the appellant
The decision's own appearances block names no outside firm, which happens when the appellant appeared pro se, through one of its own officers, or through its in-house counsel.
Outcome
Ruled on a motion
Respondent's motion for reconsideration is GRANTED.
Read from this decision's own closing paragraph, which is what the Board printed where it printed no disposition line, and quoted from its operative sentence above. No model is involved.

Topics

Procedure and sanctionsCosts and quantum

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
Donald R. Adams
Leeward Construction Corporation
Fort Worth, TX
For the respondent
Lindsay C. Roop and Dennis M. McGuire
Office of Regional Counsel, Department of Veterans Affairs
Columbus, OH
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 decision2 pages, 3,067 characters, read from the Board's own documentDecided Mar 24, 2015 on its own faceRespondent DEPARTMENT OF VETERANS AFFAIRS Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Authorities cited

1 authority read from this decision's own text, grouped by the body of law each comes from. 0 open at a publisher or in this app; the rest are shown without a link because no published page for them was confirmed.

Agency FAR supplements1
48 C.F.R. § 852.236-88

Read from the decision's own words with no model involved. Statutes, regulations, the acts these forums argue by name, and cases at the board, this office or the Comptroller General are recognized; any other citation form is left out rather than guessed at, so this is a floor on what the decision cites.

MOTION FOR RECONSIDERATION GRANTED;

DECISION MODIFIED: March 24, 2015

CBCA 3724-R

LEEWARD CONSTRUCTION CORPORATION,

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.

Donald R. Adams, Project Manager of Leeward Construction Corporation, Fort Worth, TX, appearing for Appellant.

Lindsay C. Roop and Dennis M. McGuire, Office of Regional Counsel, Department of Veterans Affairs, Columbus, OH, counsel for Respondent.

Before Board Judges POLLACK, McCANN, and ZISCHKAU.

McCANN, Board Judge.

Respondent has moved for partial reconsideration of the Board’s decision issued on January 26, 2015. Leeward Construction Corp. v. Department of Veterans Affairs, CBCA 3724, 15-1 ¶ 35,861. Respondent contends that the Board, in the quantum portion of its decision, id. at 175,338, incorrectly awarded appellant ten percent for profit and ten percent for overhead and should only have awarded appellant a ten percent fee. Appellant has declined to file a response to the motion.

Respondent is correct. In its initial decision, the Board determined appellant’s fee by incorrectly applying subsection (4), rather than (5), of the Department of Veterans Affairs Acquisition Regulation (VAAR) 852.236-88(b) (48 CFR 852.236-88(b) (2011)). The subsections state:

(4) Allowances not to exceed 10 percent each for overhead and profit for the party performing the work will be based on the value of labor, material, and use of construction equipment required to accomplish the change. As the value of the change increases, a declining scale will be used in negotiating the percentage of overhead and profit. Allowable percentages on changes will not exceed the following: 10 percent overhead and 10 percent profit on the first $20,000; 7-1/2 percent overhead and 7-1/2 percent profit on the next $30,000; 5 percent overhead and 5 percent profit on balance over $50,000. Profit shall be computed by multiplying the profit percentage by the sum of the direct costs and computed overhead costs.

(5) The prime contractor’s or upper-tier subcontractor’s fee on work performed by lower-tier subcontractors will be based on the net increased cost to the prime contractor or upper-tier subcontractor as applicable. Allowable fee on changes will not exceed the following: 10 percent fee on the first $20,000; 7-1/2 percent fee on the next $30,000; and 5 percent fee on balance over $50,000.

VAAR 852.236-88(b).

Since appellant is a prime contractor and the contract work was performed by a subcontractor, VAAR 852.236-88(b)(5) is the provision that applies here. Appellant is entitled to a ten percent fee, rather than ten percent profit and ten percent overhead.

Decision

Respondent’s motion for reconsideration is GRANTED. The first sentence of the final paragraph of the discussion portion of the Board’s decision is modified to read as follows: “Leeward is entitled to an additional ten percent fee.”

______________________________

R. ANTHONY McCANN

Board Judge

We concur:

HOWARD A. POLLACK

Board Judge

JONATHAN D. ZISCHKAU

Board Judge

This is a verbatim capture of the text layer of the Board's own document in Leeward Construction Corporation, CBCA 3724-R. 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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