ASBCA 62585

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Central Diversified Contracting, LLC. ) ASBCA No. 62585 ) Under Contract No. W9127N-19-P-0163 ) APPEARANCE FOR THE APPELLANT: Mr. Pete Draganic President APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Nathaniel S. Canfield, Esq. E. Christopher Lambert, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Portland OPINION BY ADMINISTRATIVE JUDGE O’CONNELL Appellant, Central Diversified Contracting, LLC (CDC), has elected the Board’s Rule 12.3 procedures. Under Rule 12.3(c), the Board’s decision “will normally be short and contain only summary findings of fact and conclusions.” The Board conducted a one-day hearing on December 9, 2020, at which appellant’s president, Mr. Pete Draganic, testified as the only witness. Entitlement and quantum are before the Board. The Board grants the appeal in part. FINDINGS OF FACT The facts are largely undisputed. On September 30, 2019, appellant entered into a contract with the U.S. Army Corps of Engineers, Portland District, in the amount of $84,785 for the demolition and disposal of a portable floating fish collector (PFFC) at Cougar Dam and Reservoir in Lane County, Oregon. The PFFC was “a unique, one-of-a-kind facility developed for the purposes of furthering research on the behavior of downstream migrants in the reservoirs found behind the dams . . . .” The work was to be performed between October 14 and November 15, 2019. (R4, tab 9 at 36, 51, 54) CDC did not start work until October 25, 2019. CDC was responsible for the first week of delay (October 14-18) because it failed to gain approval of its submittals. (R4, tab 26 at 196-97, tab 77) The Corps was responsible for delaying the start from October 21 to 25 because its personnel were not available (R4, tab 31 at 229). Despite the late start, Mr. Draganic informed the Corps on November 4 in a text message that CDC was “on track to be wrapped up by or pretty close to Nov 15th” 1 (R4, tab 47). On November 7, 2019, CDC reported to the government that the center section of the PFFC was heavier than represented. The Corps had informed bidders that it weighed 15,000 pounds but it was ultimately found to be 81,000. Among other things, CDC could not use the 180-ton crane it had planned on and had to bring a 400-ton crane to the remote site. (R4, tab 8 at 30, tab 19 at 155, tab 66 at 563) On November 10, 2019, CDC requested $51,546 from the Corps, including $26,330 for increased crane costs based on an estimated three days of use, and $3,200 for a one-week telehandler (a shooting boom forklift) rental. In addition, it requested additional amounts for markup on the equipment, one-week of additional time on the project, and additional per diem expenses. (R4, tab 37 at 242) On November 18, 2019, the parties entered into bilateral modification No. P00001 increasing the contract amount by $29,530. It provided in relevant part: 1. The purpose of this modification is to extend the period of performance end date from 15 November 2019 to 22 November 2019 and to mobilize a 400-ton crane to the site. 2. This modification constitutes compensation in full on behalf of the Contractor and its subcontractors and suppliers for all costs, direct or indirect, attributable to the changes specified herein and for performance within the time stated. (R4, tab 10 at 83-84) The time granted by this modification proved to be insufficient and the CO later extended the completion date to November 25, 2019 (R4, tab 11). On January 21, 2020, CDC submitted a claim to the contracting officer (CO) seeking $71,071.64. This amount included an additional $18,418.68 for the crane because CDC needed it for double the time estimated in the change request; $9,056.25 to cut the metal to a “truckable” size and transport it; and $1,836.71 for 10-days of rental 1 Based on this text, CDC contends that all delay after November 15 was the fault of the Corps.