ASBCA 56711

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) Macro-Z-Technology ) ASBCA No. 56711 ) Under Contract No. N44255-04-D-9122 ) APPEARANCES FOR THE APPELLANT: James F. Nagle, Esq. Adam K. Lasky, Esq. Oles Morrison Rinker & Baker LLP Seattle, WA APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Anthony K. Hicks, Esq. Robyn M. McNish, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE PARK-CONROY ON THE GOVERNMENT'S MOTION AND APPELLANT'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT At issue are the parties' cross-motions for partial summary judgment relating to the Order of Precedence clause of the contract. The Navy's motion for partial summary judgment asserts that ten of the claim items sought by appellant Macro-Z-Technology (MZT) in this appeal are subject to the clause. MZT's cross-motion asserts that the clause is void. By a letter dated 26 June 2012, MZT's counsel advised the Board that MZT is no longer pursuing a number of its claim items. These claims, including five that are addressed in the Navy's motion, were dismissed with prejudice. Accordingly, the Navy's motion as to the five claim items we dismissed is moot. For the reasons stated, with respect to the five claim items remaining at issue, the Navy's motion is denied. MZT's cross-motion is also denied. STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS On 15 July 2004, the Engineering Field Activity, Northwest Division, of the Naval Facilities Engineering Command (NAVFAC) issued a Request for Proposals (RFP), Solicitation No. N44255-04-R-9115, for a competitive "LARGE 8(a) MULTIPLE AWARD CONSTRUCTION CONTRACT (MACC)." The design-build seed project was identified as "MCON [Military Construction] P-041 FIRE STATION ADDITION AND RENOVATION" and involved buildings 2526 and 121 at the Naval Air Station, Whidbey Island, Oak Harbor, Washington. (R4, tab 2 at 14) MZT submitted its proposal for the MACC on 19 August 2004. With respect to the Fire Station seed project, the technical proposal narrative stated: After reviewing the proposed scope of work and inspecting the jobsite, our recommendation is to demolish the existing building and construct a new facility. The cost of doing this would be no more than renovating and adding on to [sic] the existing building. (R4, tab 6 at 1065) Drawings for the new facility prepared by Mr. Gregory Benton of Belay Architects were included as part of MZT's proposal (gov't mot. ^ 6 and tabs A, B, C). It is undisputed that the following five design features were included in MZT's proposal for the Fire Station seed project: (a) attic space above the second floor for mechanical and storage area with access stairs (gov't mot., tab A at 75, 77, tab C at 27, 50-52); (b) roof overhang at the equipment bays (gov't mot., tab A at 77, tab C at 48-49); (c) windows for the dormitory rooms on the second floor (gov't mot., tab A at 75, 76, tab Cat 41); (d) first floor window overhang shading device eyebrows and an entry canopy (gov't mot., tab A at 76, tab C at 44-45); and (e) apparatus direct access to Ranger Street through a new gate (gov't mot., tab A at 70, 73, tab C at 27-28). (Gov't mot. at 2-4; app. resp. at 2-4) With respect to (e) above, the drawings also show a relocated gate and relocated offset fence (gov't mot., tab A at 73). The proposal narrative states: Site Constraints ...The apparatus have direct access to Ranger Street through a new gate and the parking has been relocated to the north  opposite the existing parking access off of Ranger Street. The 24 displaced stalls have been replaced with 28 new stalls. This will require repositioning a portion of the standoff fence and the relocation of the existing gate. Access to the building will be through this relocated gate. (Gov't mot., tab A at 70) An Indefinite Delivery, Indefinite Quantity (IDIQ) MACC, No. N44255-04-D- 9122, was awarded to MZT by NAVFAC on 29 September 2004 (R4, tab 10 at 1192-94). Task Order (TO) No.