____________________________________________ MOTION TO DISMISS DENIED: November 21, 1994 ____________________________________________ GSBCA 12596 ED A. WILSON, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Bonnie Lee Goldstein of Vial, Hamilton, Koch & Knox, Dallas, TX, counsel for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges NEILL, WILLIAMS, and DeGRAFF. DeGRAFF, Board Judge. Pending is the General Services Administration's (GSA's) motion to dismiss or to deny this appeal. The motion is denied, as explained below. Background On October 1, 1992, GSA and Ed A. Wilson, Inc. (Wilson) entered into a fixed price contract to remodel part of the federal building in Dallas, Texas. Two of the contract's provisions are pertinent to the pending motion. First, the contract provides that GSA is required to adjust the contract's price if Wilson's costs increased due to a differing site condition or due to a GSA-directed change in the work required by the contract. Second, the contract provides that Wilson was required to purchase certain amounts of automobile insurance, worker's compensation and employer's liability insurance, and general liability insurance covering bodily injury. Appeal File, Exhibit 1. Wilson purchased several kinds of insurance from Bituminous Casualty Corporation (Bituminous) including policy CLP2097470, issued on October 9, 1992, for general liability insurance. Wilson purchased other policies for automobile insurance, worker's compensation and employer's liability insurance, and builder's risk insurance. The insurance policies do not name GSA as an insured or as a beneficiary. Appeal File, Exhibit 3. On December 23, 1992, while Wilson was performing demolition work, a sprinkler line broke. Appeal File, Exhibit 10. At the direction of GSA, Wilson repaired damage caused by the break. Appeal File, Exhibits 65, 67. On March 19, 1993, Wilson submitted a claim to GSA requesting an adjustment of $22,204 to the contract price, to compensate Wilson for the cost of the repair work. Appeal File, Exhibit 27. GSA's contracting officer issued a decision denying Wilson's claim on June 29, 1993. Appeal File, Exhibit 39. On August 11, 1993, Bituminous wrote a check to Wilson in the amount of $21,445.93 for property damage. The policy number stated on the check is CLP2097470, the general liability policy. Appeal File, Exhibit 75. On August 17, 1993, Wilson and Bituminous signed a loan receipt, which states that Wilson received an interest-free loan of $21,445.93 from Bituminous. The loan is "repayable only in the event and to the extent of any net recovery [Wilson] may make from [anyone] causing or liable for the loss or damage to the property . . . ." Wilson agreed to pursue a claim against anyone who might be responsible for the loss or damage to the property, and also appointed Bituminous as its agent to pursue such a claim. Appeal File, Exhibit 80. On September 27, 1993, Wilson filed this appeal from the contracting officer's June 29, 1993 decision. Discussion GSA moves to dismiss this appeal for lack of jurisdiction and for failure to state a claim upon which relief can be granted.[foot #] 1 GSA argues that Wilson is not a proper party to maintain this appeal because it was paid $21,445.93 by Bituminous and, therefore, incurred no increased costs. GSA also argues that it is an equitable beneficiary of the insurance policy purchased by Wilson from Bituminous, given that GSA indirectly paid the premiums on Wilson's insurance policy when Wilson included those premiums in the amount that it included for overhead expenses in its bid. ----------- FOOTNOTE BEGINS --------- [foot #] 1 GSA asks that we either dismiss or deny the appeal. GSA advances the same arguments in support of its request to deny the appeal as it advances in support of its request to dismiss the appeal. We deny GSA's motion to deny the appeal for the same reasons that we deny GSA's motion to dismiss the appeal. ----------- FOOTNOTE ENDS ----------- We deny GSA's motion to dismiss this appeal for lack of jurisdiction. Wilson, the party that contracted with GSA, submitted a claim for a sum certain to the contracting officer after a dispute developed between the parties. Within ninety days after receipt of the contracting officer's decision denying the claim, Wilson filed this appeal. Thus, Wilson is the proper party to maintain this appeal and the Contract Disputes Act's requirements for jurisdiction have been met. 41 U.S.C. 601- 613 (1988 & Supp. V 1993). We also deny GSA's motion to dismiss this appeal for failure to state a claim upon which relief can be granted. Arguments identical to those made by GSA here have been considered and rejected by the United States Court of Federal Claims and by the United States Court of Claims, and we reject them as well. North Slope Technical, Ltd. v. United States, 27 Fed. Cl. 425 (1992); S.W. Aircraft, Inc. v. United States, 213 Ct.Cl. 206, 551 F.2d 1208 (1977); Container Co. v. United States, 116 Ct. Cl. 706, 90 F.Supp. 689 (1950). According to the terms of the contract, the parties intended that if Wilson encountered a differing site condition that caused its costs to increase, or if GSA changed the work required by the contract and the change caused Wilson's costs to increase, GSA would adjust the contract price. The fact that Wilson obtained a payment from its insurance company does not alter GSA's contractual obligation to adjust the contract price if Wilson can prove that it is warranted. The insurance policy does not name GSA as an insured or as a beneficiary. The insurance coverage pursuant to which the payment was made was purchased by Wilson of its own accord and was not required by Wilson's contract with GSA.[foot #] 2 The risks and responsibilities associated with differing site conditions and changes did not shift from GSA to the insurance company by virtue of the insurance policy, and GSA is not entitled to rely upon Wilson's insurance coverage in order to eliminate GSA's contractual assumption of those risks and responsibilities. ----------- FOOTNOTE BEGINS --------- [foot #] 2 If the contract had required Wilson to insure against the losses that occurred in this case, we might reach a different result. Winston Brothers Co. v. United States, 198 _______________________________________ Ct.Cl. 37, 458 F.2d 49 (1972) (because intent of parties was that contractor either obtain insurance or bear loss of equipment, Government not required to adjust contract price although Government design caused loss of equipment). ----------- FOOTNOTE ENDS ----------- Decision GSA's motion to dismiss or to deny the appeal is DENIED. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ____________________________ ______________________________ EDWIN B. NEILL MARY ELLEN COSTER WILLIAMS Board Judge Board Judge