ASBCA 63291

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) The Haskell Company ) ASBCA No. 63291 ) Under Contract No. N40085-17-C-8331 ) APPEARANCE FOR THE APPELLANT: James E. Krause, Esq. James E. Krause, PA Jacksonville, FL APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Devin A. Wolak, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE TAYLOR ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT In this appeal, The Haskell Company (Haskell or appellant) seeks payment for costs incurred due to unusually severe weather and seasonal differences allegedly resulting from government project design changes on a joint reserve center that pushed construction into adverse weather periods. The Navy filed a motion for summary judgment asserting the Board should deny Haskell’s claim because the appellant signed Modification No. A00001 (Mod 1) containing a release that resolved all costs, impact effect, and delays and disruptions, arising out of or incidental to the project design changes. Haskell opposes the motion alleging a material factual dispute exists as to whether the parties intended the release to include appellant’s current claim. Haskell also contends the Navy’s subsequent conduct manifested an intent in contradiction of the release terms. Based upon the current record and drawing all reasonable inferences in appellant’s favor, we deny the Navy’s motion since a material factual dispute exists as to whether the parties had a meeting of the minds with regards to the substance of the release. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION The parties filed numerous statements of facts and responses. 1 We set out the relevant facts for the purpose of this motion below. 1 On January 13, 2023, the government filed “Respondent’s Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment.” On February 13, 2023, appellant filed “Appellant’s Response to Respondent’s Statement of I. The Contract and Design Change Modification 1. On September 21, 2017, the Naval Facilities Engineering Systems Command, Mid-Atlantic (NAVFAC or Navy) awarded firm fixed-price Contract No. N40085-17-C-8331 (the contract) to Haskell to design and build a joint reserve center in Des Moines, Iowa. (R4, tab 2.4 at 7614) 2 2. Haskell submitted a proposed design that included a sheet flow drainage system (R4, tab 3.2 at 7752). NAVFAC accepted Haskell’s proposed design and awarded it the contract (R4, tab 2.4 at 7616). The contract included FAR clauses 52.233-1, DISPUTES (MAY 2014), 52.242-14, SUSPENSION OF WORK (APR 1984), 52.243-4, CHANGES (JUN 2007), 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984), and DFARS clause 252.243-7002, REQUESTS FOR EQUITABLE ADJUSTMENT (DEC 2012) (id. at 7623-24). In its original baseline schedule, Haskell indicated it intended to start construction on April 27, 2018 (R4, tab 3.2 at 7896). 3. On April 4-5, 2018, Haskell provided its final completed design drawings to the Navy for review (R4, tab 3.1 at 7723). During the design review process, the Navy decided it wanted a different drainage system than the proposed slope-based site drainage design (id. at 7723-24; app. supp. R4, tab 20 ¶ 7 (supplemental declaration of Mr. Kenneth Duncan)). The parties agreed Haskell would make several design changes and negotiated an estimated price for the changes with a 42-day time extension with 21-days being compensable (id. at ¶ 9). Undisputed Material Facts in Support of Respondent’s Motion for Summary Judgment.” Appellant, however, did not file a “Statement of Genuine Issues of Material Fact” in accordance with Board Rule 7(c)(1).