_________________________________________________ MOTION TO QUASH SUBPOENA DENIED: February 9, 1994 _________________________________________________ GSBCA 12642 SINGLETON CONTRACTING CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Wayne Singleton, Corporate Secretary, Singleton Contracting Corporation, Senoia, GA, appearing for Appellant. Kenneth E. Kendell, Assistant Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. DEVINE, Board Judge. Parties entered into a contract under which appellant was to renovate a federally-owned building. Upon completion of performance, appellant signed a general release of all claims arising under the contract, as required under the contract. Shortly thereafter, appellant filed its notice of appeal. Appellant has alleged that respondent failed to make timely payments, and thus is required to pay appellant an interest penalty under the Prompt Payment Act. Appellant has filed a motion to quash a subpeona requested by respondent. We deny the motion. Background By letter dated October 7, 1992, appellant, Singleton Contracting Corp. (Singleton), was notified that it was awarded a contract by respondent, General Services Administration (GSA), to renovate a portion of the Federal Executive Institute in Charlottesville, Virginia. Appeal File, Exhibit 2. As modified, the period of performance was to commence in December of 1992 and was to be completed August 13, 1993. Id., Exhibit 1. Under the original contract, the address of the contractor is Senoia, Georgia. Appeal File, Exhibit 1. The contract requires that if a separate address is to be used for Government remittances, it must be stated in the contract. Id. Until modified, the contract did not list a separate remittance address. Id. In a letter dated December 8, 1992, appellant advised respondent that a Mr. Chambers would be appellant's project manager and gave an address for the project manager in Farmville, Virginia. Appeal File, Exhibit 5. The letter also states that the manager is authorized to act for appellant on all administrative matters relative to the contract. Id. No other matters are addressed in the letter. Id. The letterhead is different than the letterhead of appellant's previous correspondence in that a Troy, Virginia address is inserted instead of the Senoia, Georgia address. Id. There is no mention in the body of the letter to the changed address nor is attention drawn to it in any manner. Id. After contract performance had begun, appellant submitted an invoice for payment number 01. Appeal File, Exhibit 9. It is not possible to tell from the invoice the date of submission. However, appellant's letter demanding a final decision states that the invoice was "forwarded to [GSA] on 11 January 1993, and was received . . . on or about 14 January 1993." Id., Exhibit 4. The invoice simply refers to the contract number and requests payment of $19,000. Id. The letterhead address shown is Troy, Virginia. Id. The request is signed by Robert E. Chambers, Project Manager. Id. Apparently the invoice was routinely routed to the GSA finance center in Ft. Worth, Texas for payment. According to appellant, the finance center returned the invoice on February 1, 1993, stating that "the contract must be modified to reflect the `remit to' address to be the same as that stated in the contract." Appeal File, Exhibit 4. A unilateral contract modification was issued by the contracting officer on February 8, 1993, changing contractor's remittance address to the Virginia address. Id., Exhibit 1. According to appellant, the "exact same proper invoice" was then resubmitted. Id., Exhibit 4. According to respondent, a "proper payment receipt was not received until March 3, 1993." Id., Exhibit 5. Respondent issued a check dated March 22, 1993, which was received by appellant sometime between April 10-13, 1993. Id. The Prompt Payment Act, 31 U.S.C.A. 3901 et seq., is applicable to this contract. Section 3903 of the Act directs that regulations shall be prescribed to carry out the provisions of the statute. Id. Consequently, the payment terms of the contract reflect the provisions of the statute. Appeal File, Exhibit 1. Per Federal Acquisition Regulation (FAR) 52.232-27 - Prompt Payment For Construction Contracts, the contract requires that an invoice include specific information, such as the address of contractor official to whom payment is to be made. Id. The payment address must be the same as that listed in the contract. Id. Under the terms of FAR 52.232-27, Appeal File, Exhibit 1, and the Prompt Payment Act, 31 U.S.C.A. 3901, a payment is deemed to have been made on the date a check for payment is dated. As noted above, respondent's check was dated March 22, 1993. FAR 52.232-27, as written in the contract, also states that normally the progress "payment due date shall be the 27th day after the date the Contractor's payment request is dated, provided a proper payment request is received . . . ." Appeal File, Exhibit 1. On June 18, 1993, appellant wrote a letter to respondent alleging that respondent owed penalty interest on $19,000 for the period January 29 to April 10, 1993. Appeal File, Exhibit 4. Appellant further asserted that, since interest had not been paid automatically, it was entitled to a penalty in accordance with the Prompt Payment Act. Id. Despite the unequivocal term of the contract (noted above), appellant also asserted that the Act required payment of invoices within fourteen calendar days of the Government's receipt.[foot #] 1 Id. Appellant requested a formal contracting officer's decision on its claim.[foot #] 2 A final decision denying the claim was issued July 12, 1993. Id., Exhibit 5. Appellant filed a notice of appeal with the Board on October 13, 1993. Appeal File, Exhibit 7. The notice takes exception to contracting officer's denial of "appellant's request for payment of interest and penalties under the Prompt Payment Act." Id. In its motion, appellant urges that respondent's subpoena be quashed on the grounds that it is unreasonable, oppressive, and Mr. Chambers' testimony would not be relevant to the issues. Appellant's Motion to Quash Subpoena, dated January 17, 1994. Discussion ----------- FOOTNOTE BEGINS --------- [foot #] 1 The statute does require, in construction contracts, that interest penalty be paid on a progress payment unpaid for a period of more than fourteen days after receipt of a payment request, unless a longer period is specified in the solicitation, as it was in this case. 31 U.S.C.A. 3903, (West 1983 & Supp. 1993); Appeal File, Exhibit 1. [foot #] 2 Appellant's letter, as well as its original complaint, claims interest penalty on all of the invoices it submitted under the contract. Appellant's Complaint, November 15, 1993, and Appeal File, Exhibit 4. Appellant has orally told the Board that, in this appeal, it is only pursuing its claim relative to the first invoice. Appellant's telephone conversation with Board, January 18, 1994. ----------- FOOTNOTE ENDS ----------- Appellant has not shown that requiring Mr. Chambers to testify would be unreasonable or oppressive to appellant or the witness. It is far too premature in the proceedings to determine whether Mr. Chambers' testimony would be relevant. What may be said with certainty is that respondent is entitled to put on its defense as it chooses -- that includes calling Mr. Chambers. It is also certain that Mr. Chambers is a material witness to the facts and circumstances surrounding the dispute. Decision For the above reasons, appellant's motion to quash the subpoena is DENIED. ________________________________ DONALD W. DEVINE Board Judge