The government when faced with a complex contractor claim may extend the deadline for the Contracting Officer’s response to a date beyond the original CDA 60-day period. What happens when the CO seeks to extend the deadline a second time? The Court of Federal Claims confirmed that the CO does not get a second bite at the time extension apple.
Under the CDA, if no response is provided within 60 days the claim is deemed denied. But the CO may within the original 60-day period designate a later date by which the response will be provided, and there is no “deemed denial” after the original date in that situation. On a La Jolla lab project, the contractor’s $26.8 million claim was received by the CO on August 23, 2013. On October 21, 2013, the CO notified the contractor that the response would be issued “9 months from the date of this letter.” When the contractor objected to the length of the delay, the CO provided a timeline to justify issuing a decision by July 15, 2014. But then, on July 8, 2014, the CO issued another letter stating that the final decision would be issued by March 15, 2015 – another eight months! The contractor filed suit, and the government moved to dismiss on the grounds that there had been neither a final or deemed decision by the CO, and thus a predicate for the CDA lawsuit had not been met.
The court confirmed that the CO may extend the deadline only once. If the response is not issued by the extended date, the claim is deemed denied under the CDA and the contractor may then proceed to the next step. Quoting from another decision, the court noted: “even if the claim is complex, the contracting officer ‘must choose, within the sixty days, a reasonable due date that he will be able to meet.’”
Thus, the government’s motion to dismiss the claim was denied. However, the court exercised its discretion to stay the case until March 15, 2015, to allow the CO to publish his response and hopefully narrow the issues still in dispute. Now the CO will have a federal court judge looking over his shoulder, waiting for that response. The case is Rudolph and Sletten, Inc. v. U.S., 2015 U.S. Claims LEXIS 165 (Feb. 23, 2015).