Argued: March 12, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge HONORABLE BONNIE BRIGANCE
LEADBETTER, Senior Judge
HANNAH LEAVITT, PRESIDENT JUDGE
Associates, Inc. (Contractor) petitions for review of an
order of the Board of Claims (Board) that sustained the
preliminary objections of the Pennsylvania Turnpike
Commission (Commission) and dismissed Contractor's claim
for lack of jurisdiction. The Board held that
Contractor's claim was barred by the six-month statute of
limitations set forth in Section 1712.1(b) of the
Commonwealth Procurement Code, 62 Pa. C.S.
§1712.1(b). Contractor argues that the Board erred in
its determination of when Contractor's claim accrued.
Discerning no such error by the Board, we affirm.
18, 2014, Contractor agreed to construct a 2, 431-square-foot
material testing laboratory at mile marker 113.82 of the
Pennsylvania Turnpike (the Somerset Project) for the
Commission. Contractor completed the work in June 2016. On
July 27, 2016, Contractor submitted a "supplemental work
order" to the Commission, requesting additional
compensation of $150, 925.19 for changes to the project made
by the Commission during construction. Reproduced Record at
676a (R.R.__). On September 21, 2016, the Commission
responded that it would pay $35, 233.05 for the supplemental
work. Contractor responded with a request for further review,
which was denied by the Commission on October 17, 2016.
March 27, 2017, Contractor submitted an administrative claim
to the Commission's contracting officer, seeking $418,
767.42 for the supplemental work and delay damages
attributable to the Commission's project design changes.
The Commission conducted an administrative hearing. It denied
Contractor's claim as untimely because it was not
submitted within six months of the Commission's September
21, 2016, determination that it would pay $35, 233.05 for the
on September 14, 2017, Contractor filed a three-count claim
against the Commission with the Board asserting breach of
contract, unjust enrichment, and violation of the Contractor
and Subcontractor Payment Act, 73 P.S.
§§501-516. Contractor sought a judgment in excess of
$418, 767.42, plus interest, costs of suit and attorney fees.
claim stated that the Somerset Project began as a publicly
bid project. However, the Commission then made an
"unwieldy and confusing attempt to convert [the]
publicly bid project into a JOC [job-order contract]
project." Claim, ¶2 at 1; R.R. 8a. The claim alleged
that this conversion resulted in "an incomplete design
to start the [p]roject and thus one that changed and morphed
as the [p]roject proceeded." Claim, ¶3 at 2; R.R.
9a. The design changes required Contractor to perform work
beyond the scope of the contract. Claim, ¶5 at 2; R.R.
9a. In addition, Contractor sought delay damages for expenses
it incurred due to delays caused by the design changes.
Claim, ¶6 at 2; R.R. 9a. Contractor's claim asserted
damages of $150, 925.19 for the supplemental work and delay
damages of $267, 842.23. Claim, ¶7 at 2: R.R. 9a.
Commission filed preliminary objections, asserting that the
Board lacked jurisdiction because Contractor's claim was
barred by the six-month statute of limitations in Section
1712.1(b) of the Procurement Code. The Commission also
asserted that Contractor failed to exhaust its administrative
remedy and failed to state a claim for unjust enrichment. The
Board held an evidentiary hearing on the question of its
presented the testimony of Carl Barker, its project manager
for the Somerset Project. He has worked with hundreds of job
order contracts, but the Somerset Project was his first with
the Commission. The contract established a fixed price for
the completion of the Somerset Project, but it also
authorized supplemental job orders that would add work
credits to, or deletions from, the contract's fixed
contact at the Commission was Robert Kleimenhagen, the
project manager. At the outset, Kleimenhagen instructed
Barker to keep an Excel spreadsheet to document extra work
Contractor performed on the Somerset Project. Rather than
address each project change as it arose, Kleimenhagen
explained that the Commission would review the spreadsheet at
the end of construction. Barker thought this was unusual for
such a large project, but he complied with Kleimenhagen's
directive. At the conclusion of the project, Contractor
submitted a supplemental job order and spreadsheet seeking
$150, 925.19 for additional work.
testified that he sent the supplemental job order request via
email on July 27, 2016, to Gary Madey, the Commission's
construction manager. Barker explained that the spreadsheet
had to be uploaded using the Commission's collaborative
software, known as "Kahua," and Madey was the
person who handled this software. Notes of Testimony,
3/12/2018, at 53 (N.T.__); R.R. 388a. Barker copied
Kleimenhagen on the email to Madey. On August 26, 2016,
Kleimenhagen responded that he hoped to complete the review
by September and requested additional information from
Barker. Barker did not respond to Kleimenhagen's email.
September 21, 2016, Kleimenhagen sent Barker an email with an
attached spreadsheet. The email explained that the
Commission's entire construction management team had
reviewed Barker's spreadsheet and compared it to the
project design drawings, specifications, special provisions
and on-site construction inspections. The email concluded
that Contractor was owed $35, 233.05, and not $150, 925.19.
Contractor was advised to submit a supplemental job order for
the work items for which the Commission was willing to pay.
October 6, 2016, Barker sent Kleimenhagen an email requesting
further review because Contractor did not accept the amount
of $35, 233.05. Barker did not specifically request, but
expected, a meeting. On October 17, 2016, Kleimenhagen
responded with an email that reiterated the line-by-line
account of what the Commission agreed to pay pursuant to the
September 21, 2016, email.
testified that he believed the Commission's October 17,
2016, email was the final determination. He did not believe
the September 21, 2016, email was a final determination
because the job order contract required a "collaborative
process" whereby the parties would "review and
discuss" all supplemental job orders. With the October
17, 2016, email, Barker realized the Commission would not
meet and discuss the supplemental job order at issue.
cross-examination, Barker was asked about Contractor's
delay damages, which were not included in its July 27, 2016,
supplemental job order. Barker explained that he was still
working on the delay claims at that time. Barker acknowledged
that the job order contract required prompt notification of
any claim for delay damages.
was also questioned about a January 5, 2017, letter from the
Commission's counsel to Contractor's counsel. In that
letter the Commission expressed its disagreement with
Contractor's assumption that the deadline for filing an
administrative claim with the Commission was six months after
Kleimenhagen's October 17, 2016, email, i.e.,
April 17, 2017. The letter stated that Kleimenhagen's
earlier email of September 21, 2016, was the final
determination, and Contractor had six months from that date
to file a claim, i.e., March 21, 2017.
Fleming-White, a member of Contractor's legal department,
testified. She reviewed the September 21, 2016, email and
concluded that it did not constitute a final decision. Upon
review of the October 17, 2016, email she prepared a letter
of intent to file a claim, which was sent to Kleimenhagen the
Commission presented the testimony of Kleimenhagen, who
stated that he was the project manager for the Somerset
Project, the contract representative and the contracting
officer. Michael Baker International served as the
construction manager, and it assigned Madey to inspect the
confirmed that he instructed Barker to keep a record of the
work that was deleted or added to the project and to submit
all work changes in a supplemental job order at the
conclusion of the contract. Kleimenhagen's directive did
not relate to the notice of delay damages; the contract
requires that a claim for delay damages be asserted within
ten calendar days of the act that caused the delay. The
contract also required Contractor to file a notice of intent
to submit a delay damages claim to the contracting officer in
writing within ten days of the act or omission.
testified that Contractor submitted the supplemental job
order request on July 27, 2016. On August 24, 2016,
Kleimenhagen emailed Barker requesting additional
documentation to finish the review, but Barker did not
respond. Kleimenhagen then sent the September 21, 2016, email
partially denying the claim. Attached to the email was a
spreadsheet with a line-by-line analysis of costs the
Commission accepted or rejected, followed by a notation
"pay" or "no pay." N.T. 142; R.R. 477a.
noted that Barker's email of October 6, 2016, did not
point out any errors in the Commission's review. It
simply expressed disagreement and requested a further review.
On October 17, 2016, Kleimenhagen responded to Barker,
stating that the review had been completed, as reported in
the Commission's September 21, 2016, email. Contractor
then issued a notice of claim on October 18, 2016.
cross-examination, Kleimenhagen was questioned about his
status as the Commission's contract representative.
Kleimenhagen responded that he was assigned this job by his
supervisor, but he conceded there was no written confirmation
of his appointment. Kleimenhagen was then asked about an
email Madey sent to Barker in 2015 in which Madey identified
himself as the contract representative. Kleimenhagen
explained that he drafted the email for Madey to send, but it
looked, mistakenly, as if Madey was the author.
testified regarding his review of the supplemental job
order.When Contractor submitted the supplemental
job order and spreadsheet, Madey prepared his own
spreadsheet. He looked at each of the 237 line items
submitted and compared each with the terms of the contract
and the construction plans. If the item listed represented
additional work requested by the Commission, he wrote
"pay" on the line. N.T. 212; R.R. 547a. If the item
listed was required under the original contract, he wrote
"no pay." Id. There were items that
Contractor had included in its proposal but did not perform,
which he also listed as "no pay." Madey stated that
the spreadsheet was produced by collaboration between Michael
Baker, Inc., and the Commission. The Commission's
construction management team did one review, and it was
completed by September 21, 2016.
Board sustained the Commission's preliminary objection to
its jurisdiction. The Board found that Contractor's claim
accrued on September 21, 2016. Accordingly, when Contractor
filed its administrative claim to the Commission on March 27,
2017, the six-month statute of limitations in Section
1712.1(b) of the Procurement Code had run.
Board rejected Contractor's contention that Kleimenhagen
was not the contract representative with authority to deny
payment on Contractor's supplemental job order. The
contract defined the Commission's
"representative" as "the authorized
representative acting on behalf of the Director of Facilities
and Energy Management Operations or the Chief Engineer."
R.R. 588a. The contract made the "representative"
the one to "decide differences concerning the
performance of the work covered by the contract." R.R.
598a. Although Madey identified himself in an email as the
Commission's "designated representative" on the
Somerset Project, the Board accepted Kleimenhagen's
testimony that he was the actual contract
"representative." This finding was supported by
example, Contractor sent the supplemental work order to
Madey, but it was Kleimenhagen who responded. It was
Kleimenhagen who advised Barker that if Contractor submitted
a revised proposal, "I will process the supplemental Job
Order ASAP." R.R. 681a. These communications showed that
Kleimenhagen was the contract "representative," and
at no point did Contractor question Kleimenhagen's
authority to so act. Indeed, Contractor sought further review
from Kleimenhagen, and Contractor accepted his October 17,
2016, email as a final determination.
Board rejected Contractor's argument that the September
21, 2016, email was not a final determination. The email
stated that the Commission had "completed the
review" of Contractor's supplemental job order
request and that the "entire construction management
team" had compared the submission with the project
specifications. The email specifically identified what would
not be paid, with line-by-line notations, and this
constituted a denial. The Board also rejected
Contractor's assertion that Kleimenhagen's October
17, 2016, email implied that additional review had been
undertaken by the Commission subsequent to September 21,
2016. Contractor now petitions for this Court's review.
appeal,  Contractor raises several issues, which we
have reordered and combined into three for purposes of our
review. First, Contractor argues that the Board erred in
finding that Kleimenhagen was the contract
"representative" with authority to make a
determination on Contractor's supplemental job order.
Second, Contractor contends that even if Kleimenhagen could
issue a determination, the Board erred in holding that
Contractor's claim accrued on September 21, 2016, because
Contractor reasonably interpreted the email Kleimenhagen sent
on that date as merely starting the contractually mandated
collaborative review process, to which the Commission did not
adhere. Relatedly, Contractor contends that the Board erred
in failing to consider actions by the Commission after
September 21, 2016, indicating that it did not consider
Kleimenhagen's email to be a final determination. Third,
Contractor asserts that the Board erred in finding that any
confusion over the procedure the Commission followed was
cleared up by the January 5, 2017, letter from the
Commission's general counsel; Contractor argues that
letter was misleading.
first issue, Contractor argues the Board erred in finding
that Kleimenhagen was the Commission's named contract
"representative" with authority to make a
determination on Contractor's supplemental job
order.Contractor cites Kleimenhagen's
testimony that there was nothing in writing appointing him as
contract representative. The only person who asserted, in
writing, that he was the Commission's contract
representative was Madey, the Commission's construction
manager. Because Kleimenhagen lacked the requisite authority,