ASBCA 59983

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Quality Trust Inc. ) ASBCA No. 59983 ) Under Contract No. W912P6-15-C-0002 ) APPEARANCE FOR THE APPELLANT: Mr. Lawrence M. Ruiz President APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Kimberly J. Sabo, Esq. Engineer District Counsel U.S. Army Engineer District, Chicago OPINION BY ADMINISTRATIVE JUDGE PROUTY ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT The government has filed a motion for summary judgment arguing that there are no disputed material facts in this case, which is about the propriety of the government's terminating the contract for default because appellant, Quality Trust Inc. (Quality), did not secure performance and payment bonds and proper insurance for the contract as required. Quality, acting prose through its president, opposes the motion, but does so without disputing the controlling material facts.* The government filed no reply brief in support of its motion. In any event, for the reasons stated herein, we conclude that there are no material facts in dispute, and enter judgment in favor of the government. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION On 19 December 2014, the United States Army Corps of Engineers awarded to Quality Contract No. W912P6-15-C-0002 (the contract) to perform a sewer rehabilitation project at Lake Station, Indiana at Quality's bid price of $368,464 (R4, tab 1 at 1). Ms. Regina Blair, the government's contracting officer (CO) informed Quality of the award through a letter that she sent via email to Mr. Lawrence Ruiz, Quality's president, informing him of the government's award and reminding Mr. Ruiz that the contract * Quality's opposition (app. opp'n) was also captioned as a "Motion to Strike," but the text of the filing gave no basis to strike the motion for summary judgment beyond merely opposing it. Accordingly, we treat Quality's filing as an opposition to the government's motion. required his company to obtain performance and payment bonds at 100% of the contract value within 10 days of the award (R4, tab 1, tab 14 at 1-2, email forwarding letter). Ms. Blair's letter also reminded Mr. Ruiz of the contract's requirement that Quality obtain a "Certificate of Liability Insurance," which included an endorsement stating, "fa}ny cancellation or material change in the coverage adversely affecting the Government's interest shall not be effective unless the insurer or the contractor gives 30 days written notice of cancellation or change as required to the US Army Corps of Engineers," required by the contract's specifications (R4, tab 1 at 1-2). The contract did, in fact, require Quality to obtain performance and payment bonds within 10 calendar days after award (R4, tab 2 at 1, 24), and, before commencing work, to also secure and provide proof of liability insurance to the CO, including an endorsement by the insurer to the effect of the words required by Ms. Blair's letter to Quality, that, any cancellation or material change in the coverage required 30 days written notice to the CO (id. at 20, incorporating Federal Acquisition Regulation (FAR) 52.228-5, INSURANCE-WORK ON A GOVERNMENT INSTALLATION (JAN 1997), paragraph (b)). As will be seen below, Quality did neither although it is not clear that the failure to obtain the insurance had yet ripened into a breach of contract terms. On 28 December 2014, the day before the performance and payment bonds were due, Mr. Ruiz sent an email to Gregory Hermsen, the government contracting specialist working on the contract, requesting more time to provide the bonds (R4, tab 14 at I). Mr. Ruiz explained that, given the holidays, some of his "program people" were out until 5 January, and he requested 10 "working days" after their return on the fifth, and perhaps a longer time because of "year end reports" (id.). The record is devoid of any indication that Mr. Hermsen or anybody else from the government responded to Mr. Ruiz's request before 8 January 2015, when the CO, Ms. Blair, sent Mr. Ruiz a two-page letter captioned as a "Cure Notice" which gave Quality I 0 days to remedy its failure to obtain the contractually-required bonds (R4, tab 13). The cure notice stated that Mr. Ruiz acknowledged receipt of contract award on 28 December 2013 and thus performance and payment bonds and insurance were due on 7 January 2015 (id.