ASBCA 61477

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Manhattan Hunt A Joint Venture ) ASBCA No. 61477 ) ) Under Contract No. N40080-13-C-0151 ) APPEARANCES FOR THE APPELLANT: Joseph A. McManus, Jr., Esq. Daniel K. Felsen Esq. David J. Butzer Esq. McManus & F elsen LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Nicole R. Best, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT The government (Navy), seeks partial summary judgment enforcing its interpretation of language relating to work on privatized wet utilities 1 owned by Terrapin Utility Services, Inc. (TUSI), on Joint Base Andrews, Maryland. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant partial summary judgment and deny that portion of Manhattan Hunt A Joint Venture's (MHJV), appeal challenging the Navy's interpretation. MHJV's appeal relating to mistake and reformation is unaffected and remains before the Board. STATEMENT OF FACT (SOF) FOR THE PURPOSE OF THE MOTION Solicitation No. N40080-12-R-0153 & Pre-Proposal Conference 1. On May 18, 2012, the Department of the Navy issued Solicitation No. N40080-12-R-0153 (R4, tab 1). The project was described as construction of a 344,554 square foot Ambulatory Care Center (ACC) and a 23,612 square foot Dental Clinic at Joint Base Andrews, Maryland (id. at 4, 53 2). The price schedule listed two contract line item numbers (CLIN) OOOla-q (ACC) and 0002a-e (Dental Clinic). 1 "Wet" utilities refer to water and sewage. 2 The page numbers refer to the PDF page numbers. I t I CLIN 0001a read, "All work in accordance with drawings and specifications, excluding work indicated in items 0001b thru OOOlq." (R4 tab 1 at 53) CLIN 0002a read, "All work in accordance with the drawings and specifications, excluding work indicated in items 0002b thru 0002e" (R4, tab 1 at 56). Each CLIN had sub-CLINs and options (id. at 53-59). CLINs 0001b to OOOlq provide unit pricing for concrete foundation demolition, lead abatement, asbestos abatement, PCB/Mercury abatement, shaft length, drilled concrete shaft test, steel casing, proof test hole, and removal of hydrocarbons (id. at 53-55). CLINs 0002b to 0002e provide unit pricing for shaft length, drilled concrete shaft test, steel casing, and proof test hole (id. at 56). 2. A pre-proposal conference was held on June 15, 2012 (R4, tab 5 at 69). The sign-in sheets indicate that Mr. Ben Pina and Mr. Jerry Eubank ofMHJV attended (id. at 71, 74). Part of the slide presentation included "SPECIAL ISSUES: 10. Terrapin Existing Wet Utilities, Inspection and Tie In" (id. at 120). Solicitation Amendment No. 0004 3. Solicitation Amendment No. 0004 was signed3 and issued on June 21, 2012 (R4, tab 5). The description of one of the changes read: 3. Incorporate execution requirements associated with privatized wet utilities. a. Terrapin Utility Services, Inc. (TUSI) has exclusive rights to work on all existing wet utilities. Any new facilities/systems expected to connect to existing wet utilities must be coordinated with TUSI. In no event shall the contractor cap, connect to or otherwise touch TUSI's infrastructure with [sic 4 ] TUSI's express written permission. Please refer to Air Force Memorandum dated October 24, 2008, titled "MEMORANDUM FOR 316 CEP, 316 CEA, AND ALL CONSTRUCTION AGENTS" (Attachment 1) regarding requirements associated with the execution of new work. (R4, tab 5 at 2) The referenced Memorandum read: 3 The June 21, 2012, is in Block I6C DATE SIGNED but no actual signature is on the form.