ASBCA 63630

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Colony Construction ) ASBCA No. 63630 ) Under Contract No. W912WJ-22-P-0131 ) APPEARANCE FOR THE APPELLANT: Mr. Jay Harris President APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Theresa A. Negron, Esq. Engineer Trial Attorney U.S. Army Engineer District, New England OPINION BY ADMINISTRATIVE JUDGE SMITH Proceeding pro se, appellant Colony Construction (Colony) challenges respondent Army Corps of Engineers’ (USACE’s) default termination of Colony’s $156,000 contract. The parties elected to waive a hearing and submit the appeal on the written record pursuant to Board Rule 11. USACE has shown sufficient grounds for termination, and Colony’s arguments do not rebut them. So, for the reasons stated below, we deny the appeal. FINDINGS OF FACT On September 19, 2022, Colony was awarded a $156,000 contract to upgrade the campground electrical system at West Thompson Lake, North Grosvenordale, CT, with a completion date of February 24, 2023 (R4, tab 3; tab 5 at 68). 1 The premise of the contract was to have the on-site work done prior to the 2023 recreation season at the lake, which began on or about April 17, 2023 (R4, tab 2 at 12). The original completion date was extended to require all physical construction to be completed by April 17, 2023 (R4, tab 6 at 70). The contract incorporated by reference clause 52.249-10 Default (Fixed-Price Construction) (APR 1984), which allows the government to terminate the contract if the contractor fails to prosecute the work in a timely manner or fails to complete the 1 The Rule 4 file contains 26 tabs in a single 164-page .pdf document. Our page citations are to the .pdf page numbers 1-164, not the watermarked numbers at the bottom of each page, or the internal pagination of each document. work within the contractually agreed time. The clause further provides that the contractors’ right to proceed will not be terminated if the delays in completing the work “arise[] from unforeseeable causes beyond the control . . . of the Contractor.” (R4, tab 3 at 33). Prior to beginning work in the field, the contract required preconstruction submittals that included an initial progress schedule, quality control plan, accident prevention plan, activity hazard analysis (AHA), construction site plan, work plan, environmental protection plan and waste management plan (R4, tab 4 at 52-60). The name and qualifications of a proposed testing organization and lead engineering technician was subject to USACE approval (R4, tab 4 at 61). USACE’s response to submittals could be, as appropriate, approval, disapproval, or a requirement for revisions to the submittal identified in the government’s review remarks on the submittal form (R4, tab 4 at 59-60). Notice to proceed was issued on October 25, 2022 (R4, tab 5), but by January 18, 2023, after several submittals that required revisions or were disapproved (R4, tabs 7-8, 10-11), USACE summarized six insufficiencies in Colony’s submittals that were delaying the scheduled March 1, 2023, mobilization date (R4, tab 12). Three of the six submittals required revisions and the other three had not been sent to USACE at all (id.). 2 The summary review remarks of January 18 referred to the earlier submittal responses which gave an explanation of each problem and how to solve it (id.). In addition, a product data submittal was still absent (R4, tab 9 at 82). After several more revisions, disapprovals, and comments, with Colony’s submittals still lacking necessary information (R4, tabs 12-17) and timely completion unlikely, USACE issued a cure notice on February 16, 2023, requiring a remedy within 10 days (R4, tab 18). Colony acknowledged the cure notice on February 17, 2023 (R4, tab 19), and revised two submittals that were again insufficient (R4, tabs 20, 23). USACE issued a show cause notice on March 1, 2023, (R4, tab 24) to which Colony again responded without actually fixing the submittals (R4, tabs 22, 25). Colony indicated that it was “too late” for timely performance prior to the summer season. Id.