Free Motion to Transfer - District Court of Federal Claims - federal

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Appeal of SELPA CONSTRUCTION RENTAL CORPORATION Under Contract No. 332495-0g-B-0221 * PSBCANo. 5039

COMPLAINT_ Selpa Construction & Rental Corporation (Appellant), for its Complaint against the United States of Amedce acting through the USPostal Services~ alleges uponinformation and belief as follows: 1. Selpa Const~ruction& Rental Corp. is a domesticcorporation, with its principal place of business at SanJuan, Puerto R~co.At all times relevant hereto, Selpa Construction & Rental, Corp~was engagedin the business of construction and is properly licensed to transact business in Puerto Rico. 2. TheUnited States of Amer~ca this matter Ls the Un|tacl State,,~ Postal in Servlcea;NYFac|lifies Service Office 2 Hudson Place - 5~ Floor, Hoboken,NJ. "

3. Jurisdiction is vested in the United States Po~tal Services Boardof Contract Appealsover this appeal of the Contracting Officer's denial of Appellant's claim i~ aecerdance with the Contract Disputes Ast of 1978, 41 U.S,C. 60"1et seq. 4. Setpa Construction was awardedContract No. 332495~00-B-022"1 on February 14, 200t in the amountof TwoMillion TwoHundredEighty Eight Thousan¢~ Dollars ($2,288,000.00) for the Renova'don& Expansiono~a POSTAL OWNED STRUCTURE into a 17,300 SQ Ft. MAIN POSTOFFiCEFACILITY in Falardo. 5. The Contract incorporates by reference certain FAR clauses for (fixed ~rioa / cost reimbu~ement) contracts as specifically stated in the Contrast.

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6. A dispute between parties arose regarding the following: the A. OnJune t6, 2003 Selpa Construction answered the to Contracting Officer, Mr. DaneWeir a Show Causeletl~r dated May28, 2003 where it explained and demonstrated the elementsand reasons related whySelpa all Constructionshould not be declared In default for the forementioned project. Also, by the facts that there were no negligenceor direct fault on Selpa Construction Corp. The letter finished explaining that Selpa Gonstru~on have. neverabandonedtheprojectsite, butkeptworkingunffithatmomeet. (See E-l)

B. TheContractingOfficer said on his letter that in the last months Selpa Const~uc'don'sprogress on the project has sloweddramatically. Nevertheless, on Sslpa'$ letter dated May27, 2003answeringthe Contracting Officeds Cure Notice Letter it wasdemonsf~ated facts that, from December by 2002thru May2003, the dihrer~nt worksin the project have improved to an 9% almost built percentage 97%,according to the weekly minutesand in the of opinion of the U,S.P.S.representative. (SeeE.3) C. As an add~onalproof of this, Mr. Robert Masksagrees with that fact on s previous visit to Puerto Rico; wherehe noticed the great improvements in the project. (SeeE-4) D. Onletter dated June 24, 2003, Sslpa Cost~uction Corp. made a proposalto the U.S.P.S. ContractingOfficer, wherethe U~;.PoS.,with the permission of the Contractor and his Bank, (Scotiabankof Puerto Rico) would make direct payments the remaining subcontractors and suppliers of the to project, until the workswere finished. TheContracting Officer of U.S.P.S. never answered Selpa Construction'e proposal. All this wasmade with the only purposeto finish the project and to completethe worksthere. (See E-5) E. OnJu~y 3, 2003and after s telephonecortver~ation with Mr. Robert Masks, U~q.P.S.Project representative, wherethe ConUactorasked him for a letter of the financial status of the project, Mr. Masks agreed,and askedfor a written request, that wasquickly delivered to him via Fax. This, because

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$cotiabankagrees to authorize U.S.P.S. to make direct payments finish the to project, and they want a wrilton confirmation of the remainingbalangesfrom U.S.P.S. (See E-6) F. On July 8, 2003and, becauseSelpa doesn't have an answer, since July 3 aboutthe proposal of June24, neither the remainingbalanceletter of July 3; Mr. Menka called again. Healleged that he has not received the was lutt~r. Thelet'mr wasrelaxed, and he promised send it during the day. The to letter wasnot received and on the morning July 9, a balanceletter wassent of and a secondpagewasreceived: A Default Notice. (See Eo7& E-8) G. It is very strange for Selpa Constructionthat wedon't receive any personal nofdficatton about the answerto our propesals; neither a noUficaUon from U.S,P.S. requesUng addifional int~ormation; and a|so the fact that we receiveda barely readableNotice of Terminationfor Default via fax in the morning of July 9 that wasdated July 8, and received one via mail datedJuly 7. (SeeE-8

E-S)
H. Evenafter subsequent letters datedJuly 15, 2003, July 22, 2003, July 25, 2003,end August14, 2003, wedon't receive any calls or isf~ers from the Contracting Officer related to his decision nor about the appealingprocess; even though we hbve sent them VIA CERTIFIED MAIL. (See E;IO, E-11, E-12, E-13, E14, E-t5, E-t6) h Claim fore Compensation Dueto the decision of the U.S.P.S., issuing a NOTICE DEFAULT the OF for forementionedproject (w~out prior notice, without analyzing the proposal from Selpa Consbructionto finish the remainingworks, and without considering the percentageof completion of the project (97%) and knowingthat wehave a claim . in the court against the surety company that moment finish the works)Selps in to ConstruoUo & Rental Corp. has beenaffected in its goo standing name and n d qualifications of 22 years; sfigmatirJng and makingirrecoverable damage them to with the sureties and bonding companies Puerto Rico, avoiding themfrom that in

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moment to get any bondsfor future works; jeopardizing its presencein the on general construction market of Puerto Rico as a reliable company. Amount Claim II, Claim For Requested Worksnot Paid 1. Thefollowing are modifications requestedby the U.S.P,S. or the U.S.P.S.Engineers this project, alreadyfinished and that are still of after the U.S.P.S.gaveSelpaa Notice of Default (SeeExhibit E-t7) A. Construction ofthe frontside canopy B. Modification #7 (Elec~ical Substation) C. Fabrication of 26 special unithrests for installation of lamps AMOUNTCLAIM III. $18,757.00 unpaid;even $5,150,000.00

Claim of Change OrdersAlready Made,Still Unpaid

2. Thesewere changeorders requestedby the U.S.P.S,, its~representatives or their engineers contractedfor this project, and.that after being ~nade still are unpaid. (See Exhibit E-17) A. Change from regular acoustic ceiling (white) tiles to black tiles the Investigative Office. B. Fabrication I Installation of handrails / railings in the Mechanical

C. Constructionof a newfascia in the loading dock to hide an air duct, due to a mistake in the drawings. AMOUNTCLAIM $3,105.88

IV. Claim for a Payment Check OnApril 29, 2003and, without prior notificatio n, Mr. RobertManka from the U.S,P.S. wrote a letter where,and without previous authorization frore the Contractor nor his Bank, changed from that moment to tri-psyment on checks. Because that moment at U.S.P.S. has already received our certification for payment the month April, the content of that letter wouldapply only for of starting in the Maycertification of payments. This action has provoked serious

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problems with the financial institution.

Weare claiming that the checkof

$109,299.50that belongs to April must be z~l~ued with dual payment already approved: ~elpa Const~don& $cotiabank. (See Exhibit E-t8) AMOUNT CLAIM $109,299.50

V..Claim for Unneid Money for the WorksPerformedDurinq the Monthof April & Mid-May The U.S.P.S. has not paid until this moment work performed during the the monthof April t5, 2003thro May15, 2003, even thoughthe Invoice of CertiflCafion for Payment approvedand signed by the A-EERepresentativeof was U.S.P.S. the project. in AMOUNTCLAIM VL Claim for an Extended Overhead Duetoseveral factore out of the control of Selpa Const~'ucfion& Renfal Corp. among others, serious mistakes I differences found in the drawings, exxagarated waiting time from the designers of the project (UR$)to analyze and bring solutious, extended waiting time from U.$.P.S. to approveand later assign the funds to perform some critical changeorders, that were necessaryto $35,920.00

developthe job, the foramentionadproject wasparalyzed for morethan 5-tl2 monthsafter the Contractor receive their Notice to Proceed. AMOUNTCLAIM $387,837,50

This situation involved additional costs and expenses not contemplated / nor figured in the project quotation (SeeExhibit E-19, E-20, E-21, E-22) SelpaCon~fz'u~tiontimely appealed ContractingOfficer's final decision. the Dated: September t8, 2003 Rospecfful,y submitte~/~. ~.

By.g~ule~llJa, #r. Y General Manager

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December 2003 1, Mr, Luis G.Selpa,Jr., General Manager SelpaConatruotlen Rei~tal Equipment & Corp. P.O. Box3089 Carolina, PR00984-3089 RE: Addition~.Work Un-paidWorkClaim and New Construcdion Owned Project Fajard0, PR MainPost Office ContmctNo: 33~.495-00,B,0221 Cefdflad|~alt #7000 0600002214615530

DearMr. This.letter responds your claimdatedOctober 2003.After havinggivenIt thorough to 19; consideration, final derision,asa Contracting my Offloer, is as follows: Yourclaim states that SelpaConstruction performed in gc,:~dfaith for whiohthe USPS work neverissuedthe appropriate modlf=etionsto the c0ntract.for compensation, I have determined that: framingr~vamp the field was in A) Theworkyouclaimfoe the fi'ont side canopy covered the construction by documents wasyourfirm's.responslbilify to and perform. the not B) Theworkyouclaimfor revamping InvestigativeOffice's-flcor was addifionai to the contract.Thefloor as designed bean has previously installed at other Postal ~~'~. ~:. Fuffn. m, ~/our ~-m.~dormadthe.work all~ed to ba extra.

1) The challglng theat~ustlt~altile in the lnsl:~'~or'sOfficefromwhi~ of blaok - ~. 2) ~e ~amp ~ the twan~ (26) ~Unlst~ I~ ~o~ along ~e A-~x W~I Am=- ~30. 3) ~e f~fi~on & in~la~on of railings In ~e M~heni~l R~m $1,7~.~. 4) The In.lisbon of a fas~ ~emin ~e L~ng~k Area - $i,910.33 These changes (1-4 above)do representworkperformed SelpaConstru~'ion whloh by for modification the amount $4,t05.88 appropriate. in of is Thismc~lifi=atlon will be issued based the stated valuesfor the abcr~ewo~.As your SuretyCompany taken over on has the project an¢~ demanded all future payments sent to them,! mustcomply that that be with demand regarding this payment.

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03711/20~4 00;08 7530595

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Page2 of 2 Addftlonai Wo~and Un-paid Work Claim Fajardo, PRMain Post Office

Theclaim f~r payment the w~rk performedto date for which your firm has not beenpaid for bythe USPostalService is denied. Theserelate to the 500 KVAElectrical Substation $3,820 and the work performedfrom April to Mid-MayThe Surety requested.in writing that all future payments because outstandingclaims of against this contract be paid to themand not Selp~Construction. Sines your firm, Scot, shank(financial lender) andthe Suretywerenot able the distribution of s~dcl funds; ~he payn~nt withheld pe~dIP,g s~id ~re~rnent. was SubsecluentJy, your firm wasTerminated-for-Default all contracted for funds will be used and to complete projeot. the This is the final decision of the USPS ContractingOfficer purswant the ContractDispute Act of to the 1978and clauses B-9 of your contract entitled Claims end Disputes. Youmayappeal this decision to the Postal ServiceBoardof Contract Appea~s mailing or otherwisefurnishing written by notice (preferably in triplicate) to the contractingofficer within g0 daysfromthe date youreceive his decision. Thenotice should ldent~ thecontract number, by raters.ca this decision, and indicate that an appealis intended. AYmrn~live[y, maybring an ~mtiondirectly in the United States court you of Fede,-~l Claimswithin 12 mordhs from the date you recek, e this decision If you haveat)y questions, please call meor myC.O.R Robert IVlank~ at #201-71z~-5443. Thank you,

Dane Weir Contracting Officer Robert Manka

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December % 2003 Mr. Luis G~Sefpa, Jr., GeneralManager Selpa Constmotion& Rental Equ~pme,tCorp. P.O. Box 3089 Carolina, PR00984-3089 RE: ExtendedOverhead Profit C~aim & N~v ConstnJctlon OwnsdProject Fajardo, PRMain Post Office Cont]'a~ No: 3324~5-00-B-0221. Cer~fied Mail #7000 0600 0022 9847 0285

Oe~r Mn Seeps, This latter is in response your claim d~ded to October25, 200~Aftra. having given a thorough consideration,myfinal d~¢ls]on,as a Cordraoling Officer, is that your claim is reje"ted in its Your deimI'mts four delay.periods. Thec~aim states that the ~boveproject wasdelayed/ paralyzed due to vario~.~ f~tom (drawing error~, stnm~ral deficienC~s, analysis & msctution ~elays) resulting in prolongedwalling delays, but the USPS gmrded cmr~ensetion and/or time e~tanslons all ttmse delays. AJl wereconcurrentdal~ys ~or ~n ovendlind|~at~d delay for tot~ of 161 days. Your contra~ v~ds ~'~mcledfive hundred-slxty-~ree (~6~) calendar days as documented Inthe attached Modific=etions #M01 through #M08 for thispmject. Mydecision is basedon lh~ following: a) The schedul~ developedby Sslp~ Construction da~d ~JlCt2g01 and approved by myself aslab~hed 11/1 lJ2001.asthe Contract ¢x~mpletion date for this project. b) Theoriginal project compla'don data of 11/11/2001 jeopardizeddue to the site's was poor soil condt~on¢ USPS The issued MocltficatiOn #1~01for the abovesoil remediationwork at a co~t of $99,341.4,¢(inclusive of.an 18 ¢~endardaytime extension changingReproject's completion d~te t~ 1112g/2001).This rnod~calion wass~gned both parlie~ andpmvfi~.escomplete by satisfaction for all direct indirect cos~, lm~ and detay costs. Modffica~on ~ addressed the atruotural andfloor ~oncems and was again mutuab/approved upon at a pr'¢~ of and an additional ~mtz'a~t lima extension of 64 ¢~landardays. To comsctfor ac~u~d,,l~ys affeoting the overall project an addll~nal r~irne extension of three hundred-ChWty4wo (332) ¢~lencisr days was mutua~y =grasd to again compensating for all direct oosts, indirect costs, impactanddelay cost~- Modification Rnally, in a goodfai~ effort an additional nlflety4hme (93) calendardaytime

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Page2 of 2 ExtendedOverhead Profit Claim & Fajardo, PRMain Pest Office

extehs~on grantedto your f{~m to altow you the opportunity to completethe wcs constructionof the facilK~t - Modification#MOB. In conclusionyour ~i'aim for extended Overhead Profit is denied. & This is the flnai decision of the US?S Contracting Officer pursuantto the Contract Dispu~Act of the 1978and clauses B~3of your contract entitled Claimsarid Disputes. Youmayappeal this decision tolhe Postal Serv[~e Board Contact of Appe~s m~ingor othenttlse ~ furnishing written nolJ~e{preferably in tdplicate)t0 the contractingofficer wffhin 90 daysfrom the da~ you receive this decision. Thenotice should identify the contract by number, reference this decision, andtrtdic~te that an appealis |ntended.Altemadk, e~y, youmay bring an actiorl direc~y in ~he Uni~dStates Courtof Feclere] Claimswithin 12 ~nonthsfrom the date you receive this decision If you haveany questions, please call meor my C.O.RRobert Manka #201-714-5443. at Thank you, ~D~neWeir, Contracting Officor co: Robert Mank~

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BEFORE THE UNITES STATESPOSTAL SERVICES BOARDOF CONTRACT APPEALS

A~pea! of SELPACONSTRUCTION & RENTAL CORPORATION UnderConb'act No. 332495-00-B-0221

*

February 2004 25,

PSBCA 5039 No.

NOTICE APPEAL OF (Status Report) SelpaConstruction RentalCo,potation & (Appellant), for ~ts Complaint against the UnPtad States of Ameliaacting throughthe USPostalSe~,ises,alleges upon information belief as foIIows: and 1. SelpaConsb'uction RentalCorp.is a domestic & corpomticm, its with principal placeof business San at Juan,Puerto RicoAt all timesrelavanthereto, Ape,ant engaged the business gener'al contractor andis propedy was in ef licensed ~ transact business PuertoRico. in 2. TheUnitedStatesof Amedce this matteris the Ur~if~dStatesPostal in Services,NYFac;'l~esServ~ce Office -2 Hudson Place- 5th floor- Hoboken, NJ. 3. Jurisdiction is vestedin the Unilz~d StatesPostalSewices Board of ContractAppeals this appeal over efthe Contracting Oftice's denial of Appetlant's claim in accordance the Contrac~ with D~sputes of 1978,41 U.S.C.601et seq. Act 4. Apellant wasawarded Contract No.332495-00-B-0221the date of on FebnJary 14,2001 theamount TwoMiil'ron Two in of Hundred Eighty Eight thousand dollars ($ 2,268,000.00 for the renovation expansion a Poste!Owned ) and of structureit, to a 17,300 sqft. In Fa~rdo, Puerto 5. TheContractincorporatesby referencecertain FAR clausesfor fixed price/costcontracts specificallystatedin the Contract. as 6, A disputebetween parties aroseregarding followieg: the the for wodcsperformed on Apd! I May2003 A.) Unpaid amountof money as percerffflcaffon;AMOUNT .......................................... CI.A~M $ 3,~,9Z0.00

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B) Requested Change Ordain duly carried I. not paid AMOUNT......................................................... CLAIM $18, 757.00

C) Claim for a disburaed paychecldpaymentstopped by USPS AMOUNT........................................................... CLAIM $109,299.50 D) Claimforan Extended Overhead PrOfit & AMOUNT CLAIM ............................................................. $ 424,850.25

7. OnSeptember 18,2003,TheAppeltantsubmitted certified claim end a a detailedrequest all-theseitems. for 8. By final decision deledDecember 1,2003,the ContraclJng Officer denied TheApellards claim on thoseclaims,issuing only a Modification the amount in of $ 4,105.88 {change on:lets in accoustical ceiling tiles, unistructsin the mailboxes area, railings andthe construction a newfascia) of 9. Byall thesefacts, Appellant appealing Contracting is the Officer's final decision, regarding this, ~s dated.December2003 1,

Respeotful~y submitted,

General Manager

cf: Mr. D~neWeir USPSContacting Officer Juan Mendez Solis Attorney at Lsw

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~.pO..~T~UNITED ST,~TES L SERVICE BOARD OF CONTRAC T APPEALS

Appeals of

October5,2004

) ) ) ) ) ) Under Oon~actNo 332495-00-B-0221 )
SELPACONSTRUCTIONRENTAL & CORPORATION

PSBCA Nos. 5039, 5142and 5145 ¯

ORDER

As discussed the telephone in cen~nce Oc~ber 2003, centract of 15, claimssubmitted the contracting to officer that exceed $100,000 be certified as must provided sectiend.(2) of the contract'sClaims Disputes in and clause.Theappeal file reflects that a certification was submitted Appellant's with October 2003 19, claim for the cost of additionalworkallegedlyperformed the Fajardo on PostOfficeproject (Tab204; PSBCA 5142). However, tab for the October 2003 No. the 25, extended overhead claim, whichexceeds $100,000, not containa certification (Tab206; does PSBCA 5145).Thatthe contractingofficer considered denied claim No. and the doesnot give the Board jurisdiction of a claim exceeding $100,000 was that not certified when submitted. TheBoard attempted set up a telephone has to conference discussthis to matterbut hasbeen unable reachMrl LuisSelpa,Jr., Appellant's to representat/ve. Appellantis to contactthe Board ((703) 812-1919) immediately providea and telephone number where Selpacan be reached times when will be Mr. and he

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available for a conference. a certification of the extended If overhead claim was submitted with the claim, a copyof that certification is to be provided the Board to within five daysafter receipt of this Order.

Administrative Judge Board Member

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November 10, 2004. Mr. DaneA. Weir Contracting Officer - U.S.P.S, NYFac. Service Ofc~ TwoHudson Place - 5 th floor Hoboken, J,, 07030 N Re: Claim for an Extended Overhead Profit & Dear Mr WeiF. Accordingto the instructions given by Administrative JudgeNorman Menegat, D. basedon our telephone conferenceheld on October22, 2004, we are sending you again our claim for ExtendedOverhead Profit compensationregardingthe & Fajardo Main Post Office NewConstruction Owned project with Contract Number 332495-00-0221. ]:hat claim wasoriginally submittedfor your considerationon July 2003. Thecontract for the construction of the forementioned.project awarded was to Selpa Construction Corp. on February6, 2001: TheNotice to Proceed (NTP), became effective on February-14, 2001. Nevertheless,anddueto several factors unknown out of the control of the and Contractor (Selpa ConstructionCorp), the FajardoUSPS construction project wasalmost paralyzedfrom the-beginning, allowing Selpato work just on some of the site / building areas, only to be stopped the USPS their representatives by or in those same areasjust weeks later, after finding newproblems those areas. in This situation lasted for morethan 6 months.untilit wasslowly solvedby.phases; after USPS their representatives approved~ or procedures,prices for the change orders and/ or budgetto authorizedthem.

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ExtendedOverhead Profit Claim & (page2) This situation involved time delaysandadditional costs and expenses figured not nor contemplated the project odginal quotation. Some the factors known in of by all the parties involvedin this situationwere : 1. Waiting time to discuss serious mistakesfound by SelpaConstructionCorp. in the drawings the project at the beginning the project andnotified to U.S.P.S. of of or their representatives( Erwfn-Rodriguez A.sso~.- C0ntractedlnspection & ofthe Project in PuertoRicoand/or U.R.S., the designersof the project ) in the weekly meetingsor when Mr. Robert Manka, of the USPS this project, visited the COR for project every month. 2. Problems with the structural drawings designsthat not matched with the existing structure on Site. Those problems werefoundin the first weeks after we.startedthe demolition and excavationprocess. 3. Waiting time from U.S.P.S., U.R,S., and Erwin Rodriguez& Assoc., USPS's contractedinspection for the project, to analyzethose problems found, paralyzing the construction process, 4. Abnomnal waiting time from U.S.P.S., U~R.S.,and Erwin R0driguez& Assoc, to find solutions to those mistakes/ problems found. 5. Af[er that waiting time for possible solutiens suggested SelpaConstructionto by try to restart the workswithoutaffecting the t~me schedule. 6. Waiting time with no answer for.the approval of the Modification Change-Orders onceSelpahas submittedthe cost options to USPS office. 7, Longwaiting time from USP$ the approval of the funds (budget) to perform some for of the critical change orders / modificationsnecessary developthe works to in the forementioned project. 8. Waitingtime from USPS to.authorize,SelpaConstructionCorp..to start the works.

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ExtendedOverhead Profit Claim & (page 3) Enclosed will find copies of documents, you letters, weeklymeetings.minutes and others to supportour claim. Wehopeto hear from you very soonaboutthis issue. Respectfully,

~eneral MaEt~0~=r

..--~" ~"

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