ASBCA 59063

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) AISG, Inc. ) ASBCA Nos. 58696, 59151 ) Under Contract No. W5J9JE-10-C-0039 ) APPEARANCES FOR THE APPELLANT: Karl Dix, Jr., Esq. J. Daniel Puckett, Esq. Steven J. Stuart, Esq. Smith Currie & Hancock LLP Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney James A. Wallace, Esq. Daniel B. McConnell, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON APPELLANT'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT This appeal 1 arises under a contract awarded by the Corps of Engineers (government) to AISG, Inc. (AISG or appellant), for the construction of a secure walled police station in Sar Hawza, Paktika Province, Afghanistan. Appellant has moved for summary judgment, arguing that there are no material facts in dispute and that it is entitled, as a matter of law, to an equitable adjustment for additional costs in the amount of $841,243.39 incurred as a result of the government's alleged failure to provide an appropriate building site for construction of the police station. The government opposes the motion. The record before us on the motion consists of the Rule 4 file and exhibits to the parties' filings on the motion. 1 This appeal is from a deemed denial (SOF if 30). Appellant's initial motion for summary judgement was filed prior to receipt of a contracting officer's final decision (COFD). After receipt of a COFD, appellant requested and, without objection, was granted permission to file this supplemental motion for summary judgement which replaces the original motion.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Firm-fixed-price Contract No. W5J9JE-10-C-0039 was awarded by the government to AISG on 3 September 2010 in the amount of $2,148,243 for the construction of a one-story police station in Sar Hawza, Paktika Province, Afghanistan, and $52,000 for demolition of some existing structures. The period of performance was 365 days plus 65 weather days for a total of 430 days. (R4, tab 2 at 3) AISG was required to commence work under the contract within 10 days after issuance of the Notice to Proceed (id. at 10). 2. The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES (JUL 2002); FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); and FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 2 at 8-9). 3. The record before us on the motion does not contain the Statement of Work (SOW) or more than a very few isolated pages of the contract specifications, either as originally awarded or as modified. It is undisputed that the site upon which the police station was to be constructed was to be provided by the government and that AISG was to adapt the provided site to meet the contract requirements (R4, tabs 4, 7, 12, 14-16, 19, 34, 37, 57; SOF ~ 17). 4. It is also undisputed that, after award of the contract, it was discovered that the adjacent coalition forces installation had encroached on the planned building site (Location #1) (R4, tab 19, see also tab 35). By letter dated 5 November 2010 the government issued a suspension of work notice, citing FAR 52.242-14. You are also hereby restricted from incurring any additional cost against this portion of the contract. It is the intention of the U.S. Army Corps of Engineers to follow up this letter with additional technical direction concerning this project site. The Suspension of Work will end upon written notice from the Contracting Officer or Administrative Contracting Officer. (R4, tab 11, see also tab 35) The notice was acknowledged in writing by AISG. 5.