ASBCA 58167

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of ~ ) ) Tri-County Contractors, Inc. ) ASBCA No. 5 8167 ) Under Contract No. N69450-10-C-3597 ) APPEARANCE FOR THE APPELLANT: Precious T. Martin, Sr., Esq. Precious Martin, Sr. & Associates, PLLC Jackson, MS APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Pamela J. Nestell, Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE JAMES ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT On 6 June 2012 Tri-County Contractors, Inc. (Tri-County) appealed from the contracting officer's (CO) 30 May 2012 letter denying all aspects of Tri-County's $242,830 claim under the captioned contract. The Board's decision of 13 November 2012, Tri-County Contractors, Inc., ASBCA No. 58167, 12-2 BCA \ 35,184, denied the government's motion to dismiss for lack ofjurisdiction. The Board has jurisdiction of the appeal under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. On 7 February 2013 respondent moved for summary judgment based on release and final payment. Tri-County responded to the motion on 12 March 2013. Respondent replied thereto on 29 March 2013. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 20 July 2010 NAVFAC (Naval Facilities Engineering Command), Southeast, Naval Construction Battalion Center (NCBC), Gulfport, Mississippi, and Tri-County entered into Contract No. N69450-10-C-3597 (the contract) to replace NCBC Building 400's oil and lubricating system for the firm fixed-price of $618,304.00 (R4, tab 1 at 1-2, 4, 191). 2. The contract's Standard Form 1442 SOLICITATION, OFFER, AND AWARD, Block 29, designated "the Government solicitation" (No. N69450-10-R-5093) as part of All Rule 4 page number citations are to Bates numbers. the contract. That solicitation incorporated by reference the FAR 52.232-5, Payments under Fixed-Price Construction Contracts (Sep 2002) clause, which provided in pertinent part: (h) Final payment. The Government shall pay the amount due the Contractor under this contract after— (1) Completion and acceptance of all work; (2) Presentation of a properly executed voucher; and (3) Presentation of release of all claims against the Government arising by virtue of this contract, other than claims, in stated amounts, that the Contractor has specifically excepted from the operation of the release. The contract also incorporated by reference the DFARS 252.243-7002, REQUESTS FOR Equitable Adjustment (Mar 1998) clause (R4, tab 1 at 20); it did not incorporate the FAR 52.243-4, CHANGES (Jun 2007) clause required by FAR 43.205(d)(2) for inclusion in construction contracts exceeding the $100,000 simplified acquisition threshold. 3. On or about 25 February 2011 Tri-County sent a letter to NCBC titled "Equitable Adjustment: Request for Contracting Officer's Final Decision" seeking $156,150.80, including direct material cost and state taxes, and 49 days delay with respect to underground double wall piping, which included a DFARS 252.243-7002 certification that stated: "I certify that the request is made in good faith, and that the supporting data are accurate and complete to the best of my knowledge and belief," but included no CDA certification (R4, tab 6 at 207-11). 4. The 27 June 2011 letter of Renee M. Comfort, NAVFAC Southeast Chief of Contracts, acknowledged receipt on 22 April 2011 of Tri-County's $156,150.80 "claim" (app. supp. R4, tab 1). 5. Ms. Comfort's 24 October 2011 letter, Ser. ACQ/008, to NCBC forwarded Tri-County's claim received 22 April 2011 about ambiguous double walled piping and stated that on her review, "the contractor's position is found to have merit" (R4, tab 8). Her undated letter, Ser. ACQ/009, on or about 24 October 2011, advised Tri-County "that your claim has some merit" and that the claim was "remanded to PWD [Public Works Department] Gulfport to facilitate negotiations regarding the appropriate price adjustment associated with the specification ambiguity" (R4, tab 7). 2 Respondent sent Solicitation No. N69450-10-R-5093 to the Board on 17 April 2013.  6. Tri-County's 8 November 2011 email to Mr.