ASBCA 62175

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) BES Construction, LLC ) ASBCA No. 62175 ) Under Contract No. FA4418-12-C-0023 ) APPEARANCES FOR THE APPELLANT: Todd A. Jones, Esq. Raleigh, NC Edward P. Kendall, Esq. Montgomery, AL APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Deputy Chief Trial Attorney Lawrence M. Anderson, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MCILMAIL Appellant, BES Construction, LLC, seeks additional compensation related to its construction of a visitor center at a military base in South Carolina. FINDINGS OF FACT Much of the following is drawn from the parties’ apparent agreement that certain facts are not in dispute (app. br. at 2-8; gov’t br. at 1-12). On September 28, 2012, the parties contracted for BES to construct a visitor center at a military base in Goose Creek, South Carolina (R4, tab 8 at 1-2). The contract provides that “[t]he Notice to Proceed will be issued within 45 days of award,” and that BES “complete the entire work ready for use not later than 270 calendar days” (id. at 1). On or around October 2, 2012, the government received a bid protest from a disappointed bidder (app. br. ¶ 7; gov’t br. ¶ 7). On October 3, 2012, the government directed BES to “[c]ease all work associated with the Construct Visitors Center contract” pending the outcome of the protest (see R4, tab 10). The award protest was resolved on December 6, 2012 (app. br. ¶ 10; gov’t br. ¶ 10). On January 8, 2013 1, the government issued to BES a Notice to Proceed (R4, 1 The record reflects that the Notice to Proceed was dated January 8, 2012 (R4, tab 1). However, based upon the parties’ recitation of the facts and other documents in the record, we conclude that the Notice to Proceed was actually issued on January 8, 2013. tab 1). On July 12, 2013, BES requested of the government “a contract time extension due to excessive rainfall for the Months of February through June” 2013, stating that: There was measurable rainfall for 33 days out of 181 calendar days for January through June including 22 Days in June with a total accumulation that was 7.22 inches (June total) above normal as measured at the NOAA site in Goose Creek. We are asking for 46 days of calendar days of extension time to cover days lost due to weather. ... According to Weather underground.com (NOAA recording Data) there was rainfall from January 1st, 2013 through June 30, 2013 of 36.75". The normal rainfall for this same period is 21.96". Therefore there was a surplus of 14.79" of rain since the project started. (R4, tab 13 at 1-2) On August 8, 2013, the parties entered into Modification No. P0001, which extended the period of performance “by 70 days due to [the award] protest and a 20 day PoP extension was given due to extreme inclement weather in the months of Mar, Jun, and July,” from August 8, 2013, to November 6, 2013; the modification states that “[t]his is a no cost modification,” and that “[a]ll other Terms and Conditions remain unchanged” (R4, tab 15). On August 22, 2013, BES submitted Submittal 48 related to the storefront windows (app. br. ¶ 27; gov’t br. ¶ 27). Submittal 48 was partially approved on September 3, 2013; the submittal was disapproved per a handwritten comment stating “08 41 13, Must provide PE calcs per 1.3.2 structural” (app. br. ¶ 28; gov’t br. ¶ 28). The government omitted or failed to provide the parameters for the calculation in the specifications (app. br. ¶ 29; gov’t br. ¶ 29). Fourteen days later, on September 17, 2013, BES received the design parameter of 1 psi for the storefront windows from the government (app. br. ¶ 30; gov’t br. ¶ 30). Upon receipt of the design parameter for the storefront windows, BES resubmitted Submittal 48 as Submittal 48A on September 17, 2013, and final approval was received on September 18, 2013 (app. br. ¶ 31; gov’t br. ¶ 31). Following approval, the subcontractor reapplied to put the storefront windows into production which took another seven days (app. br. ¶ 31; gov’t br.