_______________________________________________________ RESPONDENT'S MOTION TO DISMISS DENIED: July 22, 1993 _______________________________________________________ GSBCA 12052 P. J. DICK INCORPORATED, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John T. Flynn of Smith, Currie & Hancock, Atlanta, GA; and Paul J. Walstad of Walstad & Babcock, Provo, UT, counsel for Appellant. Sharon A. Roach, Gerald L. Schrader, Martin A. Hom, Robert C. Smith, and M. Leah Wright, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC; and Kenneth E. Kendell, Office of Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and NEILL. BORWICK, Board Judge. Respondent has moved to dismiss this appeal for lack of jurisdiction. The appeal, as it has evolved, now concerns interest on the cost of maintaining a fire alarm system in a building undergoing renovation. The claim began with respondent directing appellant to maintain the fire alarm system, a task which appellant performed under protest. Before the filing of the appeal, respondent acknowledged that appellant was entitled to payment for maintaining the fire alarm system as a constructive change. Nineteen days after the filing of the appeal, the Government issued a contract modification for the full amount of quantum sought by appellant. Respondent argues that appellant never submitted an appealable claim for quantum under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 601-613 (1988), or implementing provisions of the Federal Acquisition Regulation (FAR). We conclude that appellant submitted an appealable claim for quantum to the contracting officer in January 1991, when appellant requested a decision of the contracting officer and submitted an invoice for incurred costs of $29,197.01. Appellant continued to submit incurred-cost invoices until November 12, 1991. The negotiations between appellant and the contracting officer that continued sporadically in the summer and fall of 1991 and 1992 were post-dispute negotiations and do not taint the existence of a dispute. We deny the Government's motion. Background The contract is for renovation of the first five floors of the United States Court House and Post Office, Pittsburgh, PA. At a job meeting on April 20, 1989, the Government's architect/engineering firm directed P.J. Dick to maintain the existing fire alarm system in the construction areas until the Government accepted the new fire alarm system. Affidavit of Appellant's Project Coordinator Barry A. Bandura (Bandura Affidavit), 3 (Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit A.) On April 25, 1989, appellant wrote the contracting officer in pertinent part: We are proceeding as directed, but emphasize that we consider this work as "extra" and unless we are notified to stop work within 72 hours of the facsimile transmission of this letter, we will presume that the G.S.A. recognizes this work as "extra" and that we will be compensated accordingly. Respondent's Exhibit 1. On August 1, 1989, appellant wrote the contracting officer: We are currently providing maintenance of the existing fire alarm system . . . in accordance with the direction of the G.S.A. We are doing so under protest, and fully expect to be reimbursed for all related costs. . . . . Additionally, we request a Contracting Officer's decision relative to the responsibility for costs of maintaining the existing fire alarm system, including "bagging" and "unbagging." Appellant also provided detailed suggestions to respondent concerning the procedures for maintaining the existing system during construction. Appellant suggested that it follow then current procedures with the exception of changing the automatic fire department call system to a manual system. Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit B. On May 21, 1990, appellant wrote again to the contracting officer as follows: Under previous correspondence we advised you that we were complying with your directive to maintain operation of the existing fire alarm system. We have done so, for more than a year, under protest. At this time, we request a formal Contracting Officer's decision concerning the responsibility of maintaining this system. Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit C. On January 21, 1991, appellant forwarded to the contracting officer an invoice for incurred costs of $29,197.09. Appellant maintained that it had submitted two requests for final decisions, noted that the contracting officer had failed to respond, and urged that the contracting officer "consider this matter one more time." Appellant's Opposition to Respondent's Motion to Dismiss, Exhibits D, E. On April 4, 1991, the Government advised appellant: This office has determined that Ferry Electric's [appellant's electrical subcontractor] request for additional compensation for the maintenance of the existing fire alarm initiating devices is valid. Please have Ferry Electric prepare a cost proposal. Respondent's Exhibit E. On May 2, 1991, appellant submitted a quotation for $41,811 for "all of the presently known costs for the changes referred to herein," that is, the maintenance of the fire alarm system. Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit F. This figure included incurred costs through May 3 and projected costs through June 28. Appellant and the Government negotiated the cost of fire alarm maintenance during the late summer of 1991. Negotiations on the cost of maintaining a fire alarm system continued sporadically between September 1991 and late July 1992. Affidavit of Contracting Officer Mark Lewandowski (Lewandowski Affidavit) (March 11, 1993) 2-3. On November 12, 1991, appellant presented another invoice for $43,586, and stated that "this proposal reflects all of the presently known costs for the changes referred to herein." Appellant also stated that it reserved the right to bill for "the full amount of the contract adjustment, whether more or less than the amount proposed above." Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit G. On September 23, 1992, appellant filed an appeal predicated upon: [T]he failure of the Contracting Officer to issue a Contracting Officer's final decision within the required time frame, or alternatively, to advise the contractor when such final decision would be issued. More specifically, by letter of August 1, 1989, P.J. Dick submitted a request for Contracting Officer's final decision on P.J. Dick's entitlement to costs of maintaining the existing fire alarm . . . . No final decision was issued by the Contracting Officer. Notice of Appeal. On October 12, 1992, respondent issued Modification A0AU, which increased the contract price by $43,586 for costs incurred for maintenance of existing fire alarm initiating devices during project construction. Appellant's Opposition to Respondent's Motion to Dismiss, Exhibit H. Appellant considered itself in a "claim situation" from April 25, 1989, until paid on March 23, 1993. Bandura Affidavit 12. Now that the Government has issued Modification A0AU, appellant seeks an "order that Respondent pay [appellant] for all accumulated interest on the principal sum of $43,586.00 (paid under modification no. A0AU.)" Appellant's Opposition to Respondent's Motion to Dismiss at 13. Discussion The Government argues that appellant never submitted a claim cognizable under the Contract Disputes Act or the FAR. Respondent's Motion to Dismiss at 4. The Government suggests that appellant never sought a "sum certain." Id. at 6. The Government suggests that appellant never manifested an intent to seek an equitable monetary adjustment, but was merely negotiating. Id. Appellant maintains that the full amount of the claim was in dispute as early as April 25, 1989. Appellant's Opposition to Respondent's Motion to Dismiss at 12. A claim is defined as a: written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. . . . A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim. 48 CFR 33.201 (1992). We are to apply a "common-sense" analysis in determining whether the contractor asserted a proper claim, whether the Government disputed the right, and whether the contractor communicated his desire for a contracting officer decision. Transamerica Insurance Corp. v United States, 973 F.2d 1572, 1579 (Fed. Cir. 1992). On August 1, 1989, appellant had submitted a claim for relief from the directive of the Government's architect/engineers to maintain the fire alarm system, but that claim addressed entitlement only. Clearly, between August 1989 and April 1991, there existed a dispute about the responsibility for maintaining the fire alarm system. The Government had directed appellant to maintain the system and appellant disputed its contractual responsibility. In January 1991, appellant put the amount of payment in dispute by forwarding the payment request in sum certain to the contracting officer. A reasonable contractor would not send a payment request after the dispute had arisen solely for the contracting officer's information without at least an implicit request that the contracting officer make a decision as to entitlement. See Transamerica, 973 F.2d at 1578. Indeed, this case is stronger than Transamerica, as appellant explicitly requested that the contracting officer consider the matter in the context of an invoice from the electrical subcontractor stating a sum certain. The Government's communication of April 4, 1991, resolved the issue of responsibility, but left the dispute of the amount of payment unresolved. The invoices of May and November 1991 merely supplemented the payment request dispute which arose in January 1991. The Government points to the ensuing negotiations as showing that there was no dispute. The sporadic negotiations between the fall of 1991 and summer of 1992 were post-dispute negotiations, which do not taint the existence either of a claim or a dispute: There is no inconsistency between the existence of a valid CDA claim and an expressed desire to continue to mutually work towards a claim's resolution. Transamerica, 973 F.2d at 1578. Finally, this case is unlike Santa Fe Engineers Inc. v. Garrett, 991 F.2d 1579 (Fed. Cir. 1993). There, the Court concluded that the parties had not reached an impasse when appellant first submitted a claim to the contracting officer, as it submitted additional information so the Government could better understand its proposal. Id. at 1582. Here, the appellant and the Government had reached an impasse. From the time of the issuance of the directive in April 1989 the Government thought that maintenance of the fire alarm system was the contractor's responsibility. Conversely, the appellant maintained as early as August 1989 that the work was not within the scope of the contract and that the Government was required to reimburse all related costs. These costs were specifically quantified by the contractor in January 1991 and through subsequent submissions as costs continued to be incurred. Decision Respondent's motion to dismiss is DENIED. The Board understands that the parties desire to proceed on the record on the merits of this appeal. The parties shall file their record submissions simultaneously with previously scheduled record submissions in other appeal dockets relating to this contract. _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ _________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge