ASBCA 59293

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Magwood Services, Inc. ) ASBCA No. 59293 ) Under Contract No. W912PQ-13-C-0016 ) APPEARANCE FOR THE APPELLANT: Mr. Heyward R. Manigault President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Erica S. Beardsley, Esq. MAJ Ildiko Szentkiralyi, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE JAMES This appeal arises from the contracting officer's (CO's) 24 April 2014 decision that denied the $72,283.00 termination settlement proposal of Magwood Services, Inc., (Magwood) under the captioned contract. The Board has jurisdiction of the appeal under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Magwood elected an expedited disposition of the appeal and to submit its case upon the record under Board Rules 12.2 and 11. The government elected a hearing, which was held on 6 August 2014 in West Point, New York. The parties have submitted post-hearing briefs. The Board is to decide both entitlement and quantum (tr. 1110). SUMMARY FINDINGS OF FACT 1. Contract No. W912PQ-13-C-0016 (contract 16) was awarded to Construction Solutions Group, LLC, on 17 July 2013 and was cancelled (Bd. corr. file, app. 21July2014 filing; tr. 1/27). Contract 16 was awarded to Magwood effective 12 September 2013 (R4, tab 1 at 1-2 of 42, tab 3, ex. B). Contract 16 required Magwood to replace two diversion holding tanks at Stratton Air National Guard Base, Scotia, New York, for the fixed-price of $66,496.00 (R4, tab 1 at 1, 3 of 42). 1 The Contract Disputes Act, implemented by Board Rule 12.2, provides that this decision shall have no value as precedent, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside.  2. Contract 16 included the Federal Acquisition Regulation (FAR) 52.249-2, TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT (FIXED PRICE) (APR 2012) clause, which provided in pertinent part: (e) After termination, the Contractor shall submit a final termination settlement proposal to the (CO] in the form and with the certification prescribed by the [CO]. ... (f) Subject to paragraph (e) of this clause, the Contractor and the [CO] may agree upon the whole or any part of the amount to be paid ... because of the termination. The amount may include a reasonable allowance for profit on work done. However, the agreed amount, whether under this paragraph [(f)] or paragraph (g) of this clause, exclusive of costs shown in subparagraph (g)(3) of this clause, may not exceed the total contract price .... (g) If the Contractor and the [CO] fail to agree on the whole amount to be paid because of the termination of work, the [CO] shall pay the Contractor the amounts determined by the [CO] as follows, but without duplication of any amounts agreed on under paragraph (f) of this clause: ( 1) The contract price for completed supplies or services · accepted by the Government ... not previously paid for, adjusted for any saving of freight or other charges. (2) The total of- (i) The costs incurred in the performance of the work terminated, including initial costs and preparatory expense allocable thereto, but excluding any costs attributable to supplies or services paid or to be paid ...