Dell-Tech Enterprises, Inc. v. Dep t of Parks & Recreation OATH Index No. 410/16, mem. dec. (Jan. 21, 2016)

Transcription

1 Dell-Tech Enterprises, Inc. v. Dep t of Parks & Recreation OATH Index No. 410/16, mem. dec. (Jan. 21, 2016) Contractor s petition for additional payment dismissed because it was untimely and waived. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS CONTRACT DISPUTE RESOLUTION BOARD In the Matter of DELL-TECH ENTERPRISES, INC. Petitioner - against - DEPARTMENT OF PARKS AND RECREATION Respondent MEMORANDUM DECISION KEVIN F. CASEY, Administrative Law Judge/Chair VICTOR OLDS, ESQ., Mayor s Office of Contract Services GARY ROSENTHAL, ESQ., Prequalified Panel Member Pending Dell-Tech Enterprises, Inc. ( Dell-Tech ), appeals to the Contract Dispute Resolution Board ( CDRB or the Board ), seeking additional compensation under a contract with the Department of Parks and Recreation ( Parks ) for demolition and reconstruction work at Soundview Park in the Bronx. Dell-Tech seeks payment of $40, for removal of contaminated soil from the park to Hazelton, Pennsylvania (Pet. at 1). Opposing the petition, Parks contends that the claim is: (1) untimely, (2) waived, and (3) lacking in merit due to Dell- Tech s failure to provide adequate documentation (Ans. at 1). On October 29, 2014, Parks denied Dell-Tech s request for additional payment. Dell- Tech submitted a Notice of Dispute to the Parks Commissioner on November 12, The Commissioner did not respond to the Notice of Dispute. On November 13, 2014, Dell-Tech submitted a Notice of Claim to the Comptroller. On December 27, 2014, Dell-Tech replied to the Comptroller s request for additional information and on March 5, 2015, the Comptroller denied Dell-Tech s claim. On August 25, 2015, Dell-Tech submitted its petition to the Board (Pet. at 2; Ans. at 2).

2 - 2 - At oral argument on December 17, 2015, the Board re-opened the record to give the parties an opportunity to present additional documents (Tr ). The record was closed on December 31, For the reasons below, the Board denies the petition because the claim is time-barred and waived. ANALYSIS This matter stems from a dispute concerning the recordkeeping for the removal of contaminated soil. According to Dell-Tech, it paid Hazelton Creek Properties, LLC, to haul approximately 150 truckloads of non-hazardous contaminated soil from the job site in the Bronx to a transfer station in New Jersey (Tr. 7). At the transfer station, trucks dumped the soil in bins, reloaded it in different trucks, and hauled it to Pennsylvania (Tr. 7). Dell-Tech sought payment of $163, from Parks for removal of the soil, Parks paid $123,172.18, and Dell-Tech now seeks that balance of $40, (Pet. at 2). On June 2, 2014, Parks returned Dell-Tech s change order request for additional payment for the soil removal (Pet., Attachment 9). Of the 150 truckloads of material that were removed from the job site, Parks noted that claims for almost 30 truckloads had documentation discrepancies and/or inconsistencies (Pet., Attachment 9; Tr. 14, 18). For example, the manifests for four truckloads indicated that the material was disposed of in Pennsylvania before it was removed from the Bronx job site. Parks identified scale issues for 10 other claims and noted that the weight of material removed from the Bronx differed from the weight of material delivered to Pennsylvania. For each of those manifest numbers, Parks also noted that the material was delivered to Pennsylvania on the same day that it was removed from the Bronx (Pet. Attachment 9). On September 4, 2014, Dell-Tech acknowledged that there were some clerical errors in its original request for payment and it submitted a revised claim (Pet., Attachment 10). Dell- Tech denied that there was anything improper about other claims involving removal from the Bronx and delivery to Pennsylvania on the same date (Pet., Attachment 10). On October 29, 2014, Parks denied Dell-Tech s request for additional payment. According to Parks it was inappropriate to modify official waste manifests after they had already

3 - 3 - been submitted. Parks reminded Dell-Tech of its right to file a Notice of Dispute with the Commissioner (Pet., Attachment 12). At oral argument, Dell-Tech stressed that it was difficult to match manifests when trucks dumped material into bins in New Jersey, where they were reloaded into different trucks and hauled to Pennsylvania (Tr. 7, 17). Dell-Tech also alleged that, due to variances in state regulations, the trucks from New York to New Jersey had different capacities than the trucks from New Jersey to Pennsylvania (Tr. 17). As Dell-Tech acknowledges, there were some obvious errors in its original request for payment. For example, Parks had no obligation to make a payment where Dell-Tech s documentation purported to show that material was delivered in Pennsylvania before it was removed from the Bronx. Parks needs to ensure that manifests are accurate, especially when dealing with the removal, transport, and disposal of contaminated material. For some of the other contested documents, the record is inconclusive. It is unclear whether the weight of material should remain the same when it is transferred from one truck to a bin and then loaded on to a different truck. Likewise, it is unclear whether there is a discrepancy in documents simply because they show material received in Pennsylvania on the same day that they were removed from the Bronx. However, the Board may not reach merits of this dispute because Dell-Tech s claim is time-barred and waived. The Board s authority to resolve contract disputes is set forth in the Procurement Policy Board ( PPB ) Rules. 9 RCNY 4-09 (Lexis 2015). Both the contract and the PPB Rules provide specific timeframes for the contractor to submit its dispute to the Agency Head, Comptroller, and the Board (Ans., Ex. B). Among other requirements, the contractor must file its petition with the Board within 30 days of the Comptroller s decision. 9 RCNY 4-09(g) ( In the event the claim has not been settled or adjusted by the Comptroller within the period provided in this section, the vendor, within thirty days thereafter, may petition the CDRB to review the Agency Head determination ). Here, Parks correctly contends that Dell-Tech filed an untimely petition with the Board. The Comptroller denied Dell-Tech s claim on March 5, Dell-Tech had 30 days to file a petition with the Board. Instead of filing the petition by April 5, 2015, as required, Dell-Tech did not do so until August 25, This was more than four months late. Under the contract

4 - 4 - and section 4-09(g) of the PBB Rules, the Board lacks jurisdiction to hear this case. See Start Elevator, Inc. v. City of New York, 104 A.D.3d 488 (1st Dep t 2013) (upholding dismissal of claim where contractor failed to file a timely petition with CDRB); see also Delcor Assoc. v. Dep t of Housing Preservation & Development, OATH Index No. 1872/10, mem. dec. at 3 (Apr. 13, 2010) (petition dismissed as untimely where it was filed more than a month after the deadline); Krisler Borg Florman/L.A. Wenger Contracting Co., Inc. v. Dep t of Design & Construction, OATH Index No. 1088/03, mem. dec. at 6-7 (June 11, 2003) (petition filed with the Board seven months after Comptroller s decision dismissed as untimely). At oral argument, Dell-Tech contended that its initial attempt to file with the Board in May 2015 was rejected on procedural grounds. Dell-Tech asserted that it had records to document its initial attempt to file a petition (Tr. 22). Though the Board gave Dell-Tech two weeks to provide those s, no such documentation was produced. Parks noted that it had no record of any earlier attempt by Dell-Tech to file a petition and even if Dell-Tech had attempted to file a petition with the Board in May 2015, that would have been untimely (Tr. 22, 28-29). The deadline for filing a petition was April 4, Thus, whether the petition was filed in May or August, it was time-barred. Dell-Tech also stressed that the Parks Commissioner and the Comptroller failed to act in a timely fashion. The Parks Commissioner never ruled on the Notice of Dispute and the Comptroller denied the claim more than 45 days after it was submitted. Dell-Tech maintained that it never agreed to give the Comptroller more time to decide the claim as specified in the PPB rules (Tr. 51). See 9 RCNY 4-09(e)(4) (Comptroller has 45 days from receipt of all materials to investigate a claim and that could be extended to 90 days by agreement between the vendor and the Comptroller ). Delay or inaction by the Commissioner or the Comptroller did not cause or excuse Dell-Tech s failure to file a timely petition with the Board. See Worth Construction Co., Inc. v. Dep t of Design & Construction, OATH Index No. 198/15, mem. dec. at 4 (Oct. 9, 2014) (agency s failure to comply with timeframes established by the contract and PPB rules does not excuse untimely filing by contractor). To the extent that Dell-Tech seeks equitable relief, the Board does not have authority to make such findings or grant such relief. See Barbaro Electric Co., Inc. v. Dep t of Environmental Protection, OATH Index No. 1841/14,

5 - 5 - mem. dec. at 7-8 (June 24, 2014); Schlesinger-Siemens Electrical, LLC v. Dep t of Environmental Protection, OATH Index No. 1817/10, mem. dec. at 5 (Apr. 28, 2010); see also 9 RCNY 4-09(g)(4) (the Board s decision must be consistent with the terms of the contract. ). Even if the petition had been timely filed, it should be dismissed because Dell-Tech waived its claim. Section (c) of the contract requires that any application for an extension of time requires a contractor to reserve any potential claims against the City (Ans., Ex. C) (an application for an extension of time must include statement that the Contractor waives all claims except for those delineated in the application ). Courts have repeatedly found that claims are waived if they are not included in requests for extension of time. See Mars Assoc., Inc. v. City of New York, 53 N.Y.2d 627 (1981), aff g, 70 A.D.2d 839 (1st Dep t 1979); Herman H. Schwartz, Inc. v. City of New York, 100 A.D.2d 610 (2d Dep t 1984); see also Commodore Maintenance Corp. v. Dep t of Transportation, OATH Index No. 1118/14, mem. dec. at 7-9 (Apr. 3, 2014). On October 29, 2014, Parks denied Dell-Tech s claim for additional payment for removal of the contaminated soil. On January 6, 2015, Dell-Tech submitted a request for extension of time. In that request, Dell-Tech agreed to waive all claims it had against the City, except for 21 specified claims, which did not include a claim for additional payment for removal of contaminated soil (Ans., Ex. D). On January 7, 2015, Dell-Tech filed another request for a time extension. Once again, Dell-Tech reserved 21 specified claims but did not include the present claim for removal of contaminated soil (Ans., Ex. E). Dell-Tech argued that it made several attempts to obtain a time extension, Parks changed its format for seeking an extension, and the Commissioner had not acted on the claim for additional funding at the time that time extension applications were submitted (Tr ). But those arguments do not change the analysis. Even if it was unfamiliar with the process and had difficulty seeking time extensions, Dell-Tech was able to submit two requests for time extensions in January In each of those applications Dell-Tech reserved 21 claims against the City. The present claim was not included. Moreover, by the time Dell-Tech submitted those extension requests it had already presented the current claim for additional payment to the Comptroller. Indeed, Dell-Tech responded, in December 2014, to the Comptroller s request for more information. Thus, by

6 - 6 - January 2015, Dell-Tech was well aware that it had a claim for additional payment for removal of contaminated soil. To avoid waiving this claim, Dell-Tech should have included it with the 21 other claims that it specifically reserved in its extension requests. See ACS System Assoc., Inc. v. Dep t of Design & Construction, OATH Index No. 2014/14, mem. dec. at 5-6 (Sept. 4, 2014) (dismissing claim as waived due to omission from extension for time request; rejecting claim that Commissioner s failure to act on notice of dispute excused the contractor s waiver of claim); Ferriera Construction Co. v. Dep t of Transportation, OATH Index No. 1619/12, mem. dec. at 13 (Nov. 16, 2012) (same). In sum, Dell-Tech s claim is time-barred and waived. CONCLUSION Dell-Tech s petition is denied. All concur. January 21, 2016 Kevin F. Casey Administrative Law Judge/Chair APPEARANCES: LOUIS DELLAQUILA ANN DELLAQUILA Representatives for Petitioner ZACHARY W. CARTER, ESQ. NEW YORK CITY CORPORATION COUNSEL Attorney for Respondent BY: KENT LANGLOSS, ESQ.