December 20, 2002
Petition of
D. L. KAUFMAN, INC.
Under Contract Nos. 059986-92-B-0019; 052571-94-B-0016; 059986-92-B-0076; 052571-95-B-0027; 052571-95-B-0028; 052571-95-B-0029; 052571-95-B-0030
PSBCA No. 4961
APPEARANCES FOR PETITIONER:
David P. Hendel, Esq.
Stephen B. Hurlbut, Esq.
APPERANCE FOR RESPONDENT:
Robert E. O’Connell, Esq.
ORDER OF THE BOARD UNDER 41 U.S.C. §605(c)(4)
On November 15, 2002, D. L. Kaufman, Inc., (Petitioner) filed a Petition requesting that the Board direct the Postal Service (Respondent) to issue a contracting officer’s final decision within 60 days from receipt of the Board’s Order. By Order dated November 22, 2002, the Board directed the contracting officer to
issue the final decision no later than January 22, 2003, unless Respondent showed cause why the contracting officer should not be required to do so. In response to the Board’s Order, Respondent has requested that the Board rescind its direction and, instead, direct that the contracting officer issue the final decision by March 20, 2003, the date originally estimated by the contracting officer.
FINDINGS OF FACT
For the limited purpose of deciding the issues presented by the Petition and Response, we make the following findings of fact:
1. On or about March 7, 2001, Petitioner filed a request for equitable adjustment with the contracting officer. Petitioner sought approximately $5,056,000 in compensation for alleged changes to, and breaches of, a number of contracts with Respondent (Petition, Exh. 1).
2. In a letter dated April 17, 2001, the contracting officer stated that he had concluded that the facts did not justify the payments sought by Petitioner. That letter was not a contracting officer’s final decision. (Petition, Exh. 2).
3. On or about July 30, 2002, Petitioner filed a certified claim with the contracting officer, seeking approximately $5,098,000 for the same changes and breaches (Petition, Exh. 3).
4. By letter dated September 12, 2002, the contracting officer informed Petitioner that he had asked Respondent’s Office of the Inspector General to audit the claim, and that the audit would be completed within six months. The contracting
officer stated that he expected to issue a final decision on the claim by March 20, 2003. (Petition, Exh. 4).
5. On October 28, 2002, the auditor conducted an “entrance conference” at Petitioner’s facility. Later that day, the auditor sent an e-mail message to Petitioner requesting access to certain documents. On November 13, 2002, the auditor returned to Petitioner’s facility and was given access to the documents he had requested. (Declaration of John R. Hinton).
6. On November 19, 2002, the auditor sent another e-mail message to Petitioner, requesting additional documentation and answers to specific questions concerning the claim. As of December 5, 2002, the auditor had not received either the additional documentation or responses to his questions. (Id.).
DISCUSSION
Petitioner points out that the contracting officer initially rejected Petitioner’s request for equitable adjustment less than six weeks after receiving it in March 2001, and argues that the contracting officer should thus be able to issue a final decision on the July 2002 certified claim before March 20, 2003. However, it appears that it is the time necessary to conduct the audit and report the findings that is largely controlling the time for issuing the final decision. Petitioner has not alleged that there are circumstances present that create unusual urgency in this matter, and we note that Petitioner waited well over a year from the time the contracting officer rejected its request for equitable adjustment before filing the certified claim. Under
these circumstances, and given the size of the claim, we do not fault the contracting officer for deciding to have the audit conducted once he received the certified claim.
Part of the premise for the Petition in this case is the assertion that during the auditor’s visit to Petitioner’s facility on November 13, 2002, he secured essentially all the information he needed to complete the audit. However, on November 19, 2002, he requested additional documentary information and asked Petitioner to answer a number of questions about the claim and the related records. The Declaration indicates that at least as of December 5, 2002, the auditor had not received the additional information.
Petitioner also questions the certainty of the contracting officer’s estimate of March 20, 2003, as the date by which the final decision will be issued. However, we read Respondent’s request that the Board direct the contracting officer to issue the final decision by March 20, 2003, as a commitment to issue the decision by that date. Further, under 41 U.S.C. §605(c)(5), if the contracting officer fails to issue the final decision as directed by the Board, Petitioner will be authorized to treat that failure as a deemed denial of its claim and to commence an appeal or suit on the claim. Titan Group, Inc., ASBCA No. 28584-46, 83-2 BCA ¶ 16,803; American Industries, ASBCA No. 26930-15, 82-1 BCA ¶ 15,753.
Under these facts, we are not persuaded that the contracting officer’s estimate of the time necessary to conduct the audit, report the results, and issue the final decision is unreasonable. Accordingly, the Board’s Order of November 22, 2002, is modified to change the date by which the contracting officer is to issue the final decision from January 22, 2003, to March 20, 2003.
The Board will retain this matter on its docket until the parties advise that the final decision has been issued. At that time this matter will be dismissed.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member