ASBCA 62982

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) APTIM Federal Services, LLC ) ASBCA No. 62982 ) Under Contract No. FA9101-16-D-0006 ) APPEARANCES FOR THE APPELLANT: Robert G. Barbour, Esq. Timothy E. Heffernan, Esq. Joseph Figueroa, Esq. Watt, Tieder, Hoffar & Fitzgerald L.L.P. McLean, VA APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Deputy Chief Trial Attorney Capt Jheremy Perkins, USAF Lt Col Matthew Ramage-White, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE THRASHER APTIM Federal Services, LLC (APTIM or appellant) appeals from a denial of its claim for operational costs incurred for a construction contract during a roughly two- month period of time that the commander of Arnold Air Force Base, TN, closed the base in order to mitigate the spread of SARS-Cov-2 (COVID-19). Appellant elected to proceed under Rule 12.3, Accelerated Procedure, and both parties agreed to waive a hearing and submit their cases on the written record pursuant to Board Rule 11. Only entitlement is before us. The Air Force (AF or government) invokes the sovereign act affirmative defense, and argues that since appellant did not dispute this defense in its initial brief after being made aware of it, it has waived any opposition. While we are not convinced that appellant has waived its opposition, we find the base closure to be a sovereign act and deny the appeal. FINDINGS OF FACT 1. The government awarded Contract No. FA9101-16-D-0006 to CB&I Federal Services LLC, a predecessor in interest to APTIM Federal Services, LLC, located in Alexandria, VA (R4, tab 1 at 2, tab 5 at 1). This contract was for design-build construction work at Arnold Engineering Development Complex at Arnold Air Force Base (AFB), TN, and contained Federal Acquisition Regulation (FAR) 52.242-14, SUSPENSION OF WORK (APR 1984), FAR 52.233-01, DISPUTES (MAY 2014) and FAR 52.243-04, CHANGES (JUN 2007) (R4, tab 1 at 3, 14, 35).  2. On July 15, 2019, the AF issued Task Order 96 for design-build work “for mounting the future AEDC High Pressure Air Bottle Farm” with a period of performance of “180-Calendar Days from issuance of Notice to Proceed” (R4, tab 7 at 1-2). This period of performance was extended through two bilateral modifications to June 25, 2020 (R4, tabs 9-10). 3. Due to the COVID-19 global pandemic, the base’s Commander issued a memorandum on April 3, 2020, closing Arnold AFB to all non-operationally urgent personnel until further notice, effective April 6, 2020 (R4, tab 11 at 2). Appellant was not deemed operationally urgent, and thus was unable to access the base during this period (R4, tab 16). This restriction lasted until the Commander issued a second memorandum on June 3, 2020, which rescinded the previous memorandum as of June 15, 2020, while establishing other mitigation measures that allowed APTIM to enter the base and resume its work (R4, tab 22). 4. APTIM submitted a certified claim on June 23, 2020, for $99,076 for administrative costs it incurred during the roughly two months during which it was not able to access the job site, as well as a day-for-day extension, totaling 59 days (R4, tab 23). The government responded the following day, requesting more documentation justifying the cost, and stated “please be aware that the Sovereign Acts Doctrine establishes that actions taken by the United States in its sovereign capacity shield it from contractual liability for those acts” and that it “intends to invoke the Sovereign Acts defense with regard to any expenses related to actions taken in response to the COVID-19 pandemic” (R4, tab 24). However, the AF expressed willingness to extend the period of performance, which it ultimately did, to November 30, 2020 (id., R4, tab 28 at 3). 5. Appellant provided supplemental information to substantiate its claim on May 5, 2021, reducing the amount requested to $96,033.87 (R4, tab 29). The government then issued a contracting officer’s final decision, denying the monetary portion of the claim on June 24, 2021, recognizing that this was a firm-fixed price contract which “places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss” (R4, tab 31 at 2) (emphasis omitted). 6.