ASBCA 55905

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of— ) ) Strand Hunt Construction, Inc. ) ASBCA No. 55905 ) Under Contract No. W911KB-04-C-0008 ) APPEARANCE FOR THE APPELLANT: James F. Nagle, Esq. Oles, Morrison, Rinker & Baker, LLP Seattle, WA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Anne L. Burman, Esq. Engineer Trial Attorney U.S. Army Engineer District, Alaska OPINION BY ADMINISTRATIVE JUDGE THOMAS The U.S. Army Corps of Engineers (the Corps or government) awarded Strand Hunt Construction, Inc. (SHC) a contract to design and build a Joint Security Forces Complex (JSFC) for the Air Force at Eielson Air Force Base (AFB), Alaska. SHC claims that the government delayed contract completion by 105 days and is responsible for delay costs of $491,722. It also claims that the government erroneously imposed liquidated damages since any delay was either concurrent or government caused. (R4, tab 10) The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, is applicable. A hearing was held in Seattle, Washington. Only entitlement is before us for decision (tr. 1/183). INTRODUCTION The Corps awarded the captioned contract on 27 February 2004. It took beneficial occupancy of the JSFC on 20 January 2006. The Corps' position at that time was that the contract completion date was 31 August 2005, based on a contract completion date of 1 July 2005 at time of award plus 60 days of time extensions granted by modification.1 It asserted a right to liquidated damages on that basis. SHC's position, set forth in its 14 February 2006 request for equitable adjustment (REA) and subsequent claim, was that the contract completion date was 23 November 2005, based on a contract completion date of 23 September at time of award plus the 60 days reflected in modifications. 1 Sixty days would be 30 August 2005. The parties generally refer, however, to a completion date of 31 August 2005 and we use that date for convenience. Furthermore, it contended that there was a concurrent delay period from 1 September 2005 through 7 October 2005, and that it would have achieved substantial completion on 7 October 2005 but for Corps delays. It claimed that it was entitled to compensatory damages of $491,722 for the 105-day period from 7 October 2005 to 20 January 2006. Prior to the hearing in the appeal, the parties entered into stipulations which resolved some of the issues. The parties continued to disagree about whether the contractual completion date at award was 1 July 2005 or 23 September 2005. They stipulated, however, that the government "was concurrently responsible for delays relating to training extended through September 30, 2005" and for delays in the parking bay resulting from a stop work order (which we find infra was lifted on or about 19 September 2005). They also stipulated that "[t]he substantial completion date was November 1, 2005, and the liquidated damages and Government provided utility costs withheld from the contractor for the period of November 1, 2005 through January 20, 2006 should be and were partially released to the contractor." They also stipulated that the 60 days of time extensions granted by the modifications "should be in addition to whatever the contract completion date is determined to be," whether 1 July 2005 or 23 September 2005 or some other date. (Stipulations dated 2 February 2009) We refer only to liquidated damages rather than liquidated damages and utility costs hereafter for simplicity. Remaining for decision, therefore, is (1) what the original contract completion date was, (2) if the original contract completion date was 1 July 2005, whether the government is entitled to withhold liquidated damages for the period from 30 September 2005 to 1 November 2005, (3) whether appellant has established government-responsible delay such that but for the delay it would have substantially completed the work on 7 October 2005 rather than 1 November 2005, and (4) whether appellant has established further government-responsible delay such that but for the delay it would have completed the remaining work as of 1 November 2005 (other than landscaping and other warm weather work) rather than on 20 January 2006.