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Ferguson Electric Co., Inc. v. Dep't of General Services

July 1, 2010

FERGUSON ELECTRIC CO., INC., PETITIONER
v.
DEPARTMENT OF GENERAL SERVICES, RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

ORDER

AND NOW, this 31st day of August, 2010, IT IS HEREBY ORDERED that the above-captioned opinion filed July 1, 2010 shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.

ORDER

AND NOW, this 31st day of August, 2010, IT IS HEREBY ORDERED that the above-captioned opinion filed July 1, 2010 shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.

PATRICIA A. McCULLOUGH, Judge

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

JUDGE McCULLOUGH

Ferguson Electric Co., Inc. (Ferguson) appeals from the September 23, 2009, order of the Board of Claims (Board), which sustained the preliminary objections filed by the Department of General Services (DGS) and dismissed Ferguson's claim for lack of jurisdiction. We affirm.

On January 14, 1994, DGS and Ferguson entered into a contract for the performance of electrical work in the construction of the state correctional institution at Houtzdale, Pennsylvania. The contract provides, among other things, that disputes arising between a contractor and DGS are to be resolved in accordance with the following three-step procedure: (1) a construction conference; (2) a pre-claim hearing, and (3) a claim filed with the Board pursuant to the Act of May 20, 1937, P.L. 728, as amended, formerly 72 P.S. §§4651-1- 45651-10 (the Board of Claims Act). (Reproduced Record (R.R.) at 702a-04a.) This "three- tiered" dispute resolution procedure was in effect until 1998, when the Commonwealth Procurement Code (Code) was enacted.*fn1

During the course of construction, Ferguson sought payment from DGS for the cost of additional work associated with numerous change orders. On December 5, 1996, in accordance with the contract, the parties participated in a construction conference on the outstanding change orders.*fn2 (R.R. at 320a-36a.) At the conclusion of the conference, DGS granted Ferguson the opportunity to submit evidence of the actual costs it incurred in performing the work for each of the change orders. DGS advised Ferguson that it could not address the change orders until evidence of actual costs was submitted. (R.R. at 321a-22a.)

By letter dated September 12, 1997, DGS informed Ferguson that DGS had not yet received any additional information and asked Ferguson to confirm that it still intended to submit evidence of actual costs. (R.R. at 338a.) Ferguson did not respond to the correspondence and did not submit any additional evidence. Believing that it was Ferguson's responsibility to advance its own claim, DGS did not make a second request for additional evidence or initiate any further communication with Ferguson.

Ferguson took no action for approximately five years. Then, on May 20, 2002, Ferguson submitted a claim to DGS, which included a demand for payment of the change orders. (R.R. at 346a -- 58a.) By letter dated May 24, 2002, DGS returned the claim to Ferguson's legal counsel, explaining that the claim should have been filed with the Board, and not DGS. However, Ferguson did not file the claim with the Board; instead, via a series of letters in 2002, Ferguson ultimately informed DGS that it wished to resolve this matter in accordance with the procedures established by the Code. Ferguson promised to provide DGS with supporting documentation but never did.*fn3 (R.R. at 363a, 364a, 371a, and 475a.)

(d) Notice of decision.-A copy of the decision under subsection (c) shall be delivered by registered mail to the contractor.

(e) Finality of decision.-The decision under subsection (c) shall be final and conclusive unless the contractor files a claim with the Board of Claims within 30 days of receipt of the decision.

(f) Failure to render timely decision.--If the contracting officer does not issue the written decision required under subsection (c) within 120 days after written request for a final decision or within a longer period as may be agreed upon by the parties, then the ...


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