Zingеr Construction Company, Inc., appeals the decision of the Armed Services Board of Contract Appeals (boаrd), ASBCA No. 28585,
BACKGROUND
In June 1973 Zinger contracted to construct an incinerator plant at Watervliet Arsenal in Watervliet, New York, for $818,-488. Subsequent modifications increased the total contract price to $963,252. In August 1973 Zinger submitted a value engineering (VE) proposal which it estimated would produce a $50,000 savings. The United States amended the contrаct to take advantage of the proposal.
In September 1974 the United States terminated the contract for its cоnvenience. Zinger submitted a settlement proposal and the parties began a series of negotiating sessions. During the sessiоns, Zinger raised the issue of payment for its VE proposal. Zinger contended that under the contract it was entitled to 50 percent of the savings realized by the United States as a result of its VE proposal. Initially, the United States responded that such payment was inappropriate. When Zinger raised the issue of the VE claim at the final negotiating session, the United States informed Zinger that the proposed settlement accounted for the VE claim. The United States specifically advised Zinger that the contract modification formalizing the settlement would provide that no outstanding liabilities under the contract remained. The pаrties informally agreed to a total settlement of $578,057, of which the United States had previously paid $331,861.30. *1054 Relying on the informal agreement, the United States paid Zinger $246,095.70, withholding $100 pending the execution of a contract modification formalizing the agreement.
On July 15, 1977, Zingеr sent a letter to the contracting officer stating that the issue of payment for the VE proposal was unresolved. Without rеsponding to the letter, the contracting officer sent the contract modification to Zinger in August 1977. Zinger signed the contract mоdification on September 12, 1977, but later refused the final payment of $100 tendered by the United States.
On October 11, 1977, Zinger filed a notice of appeal with the board, alleging that the contracting officer had failed to render a decision on the VE claim. The board determined that the contract modification was an accord and satisfaction which barred Zinger’s claim. Aсcordingly, the board denied Zinger’s appeal. ASBCA No. 22499,
On January 28, 1982, Zinger filed a complaint with the board alleging that the United States had breached the construction contract. The board denied Zinger’s claim, reasoning that Zinger was barred by res judicata frоm asserting a different theory of recovery in an effort to relitigate the same claim. ASBCA No. 26733, 83-1 BCA U 16,438.
On August 5, 1983, Zinger filed yet another complaint with the board in which it alleged that newly discovered evidence proved that the final settlement did not incorporate the VE claim. On February 24, 1984, the board dismissed the complaint, holding that the evidence in question (1) was previously available to Zinger and (2) did not dictate, in any event, a result contrary to the earlier decision of the board.
DISCUSSION
In order for this court to assume jurisdiction over an appeal from a decision of a board of contract appeals, the board must render its decision pursuant to the Contract Disputes Act of 1978, 41 U.S.C. § 607(g)(1) (1982).
Tatelbaum v. United States,
This Act shall apply to contracts entered into one hundred twenty dаys after the date of enactment. Notwithstanding any provision in a contract made before the effective date of this Act, the contractor may elect to proceed under this Act with respect to any claim pending then before thе contracting officer or initiated thereafter.
41 U.S.C. § 601 note. In order for Zinger to “elect to proceed” under the Act, sеction 16 requires that Zinger’s claim must have been pending before the contracting officer on or after the effective date of the Act, March 1, 1979.
Monroe M. Tapper & Associates v. United States,
The contracting officer was under an implied covenant to render a timely decision with respect to Zinger’s claim of July 15, 1977.
Universal Ecsco Corp. v. United States,
With respect to Zinger’s VE claim against the United States, there have been five published opinions: three by the ASBCA, one by the United States Court of Claims, and the present one. It is evident after all of the attention given to Zinger’s claim that there is no merit to it. Pursuant to discretion vested in this court by 28 U.S.C. § 1631 (1982), we should transfer the case to the United States Claims Court if we find that to do so would be in the “interest of justice.” On this record, we cannot so find.
Cf. Brown v. United States,
DISMISSED.
Notes
The legislative history of the Contract Disputes Act of 1978 reveals that this was the rule in еffect at the time Zinger submitted its claim to the contracting officer. 41 U.S.C. § 605(c)(5) merely codifies the prior rules and law concеrning the effect of the failure of the contracting officer to issue a timely decision. Contract Disputes Act of 1978: Joint Hearings on S. 2292, S. 2787, and S. 3178 Before the Subcomm. on Federal Spending Practices and Open Government of *1055 the Senate Comm, on Governmental Affairs and the Subcomm. on Citizens and Shareholders Rights and Remedies of the Senate Comm, on the Judiciary, 95th Cong., 2d Sess. 1, 93 (1978) (statement of Lester A. Fettig, Administrator for Federal Procurement Policy, OMB); id. at 393 (statement of Harold C. Petrowitz, Professor of Law, Washington College of Law, The American University); H.R.Rep. No. 95-1556, 95th Cong., 2d Sess. 52 (1978).