ASBCA 61407

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Munck Asfalt A/S ) ASBCA No. 61497 ) Under Contract No. W912DS-14-C-0019 ) APPEARANCE FOR THE APPELLANT: Mr. Hans Christian Munck Chief Operations Officer APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Lorraine C. Lee, Esq. Engineer Trial Attorney U.S. Army Engineer District, New York OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN This appeal arises from a contract awarded to Munck Asfalt A/S (Munck or appellant) by the U.S. Army Corps of Engineers (USACE) to perform work on a runway at Thule Air Base in Greenland. Munck appeals the USACE’s final decision denying its claim for extra work to encase in concrete airfield runway edge light cables. Munck asserts that requiring concrete encasement for the installation of conduit on a portion of the runway renovation is a constructive change, since the drawings for this work do not state concrete encasement is required. The USACE maintains that encasing these electrical cables in concrete was always part of the basic contract. The issue before us then is whether the contract requires both duct and conduit to be concrete-encased where specified in the contract. The parties elected to submit the appeal on the record pursuant to Board Rule 11. We decide entitlement only. Appellant did not submit a brief. For the reasons discussed below, we find that the contract uses the terms duct and conduit interchangeably and therefore we deny this appeal. FINDINGS OF FACTS 1. The USACE awarded Contract No. W912DS-14-C-0019 to Munck on August 21, 2014, in the amount of 130,042,220 Danish kroner ($22,782,050.07). Consistent with 10 U.S.C. 2304(c)(4) (International Agreement), the award was limited to Danish and Greenlandic firms only. This was a Design-Bid-Build contract. The contract provided for runway removal and replacement, including runway edge lights & thresholds, and other associated electrical upgrades. All work was to be performed in accordance with the plans and specifications as set forth in the special contract requirements entitled “Commencements, Prosecution and Completion of Work” at paragraph d. The project was to occur in two phases over a performance period of 905 calendar days. (R4, tabs 3a at 1-6, 32-33; 3b; 4) 1 2. A Notice to Proceed was issued on September 10, 2014. Munck acknowledged receipt of the Notice to Proceed the following day. (R4, tab 4) The Dispute 3. A preconstruction conference was held on January 13, 2015. Among the topics discussed during the meeting, was Munck’s request for the government to provide “details of the trench for the runway lighting power cables.” The government responded that the “Cross section of new runway edge lighting trench is detailed on sheet ED103 Concrete Encased Duct – 1 Conduit.” (R4, tab 6 at 1-2) Further written response was provided by the government on January 20, 2015, “[t]he 5kV cables shall be installed in concrete as per the details shown on Sheet ED103. Furthermore, Section 26 56 20, [paragraph] 3.6 and Section 33 70 02, paragraph 2.5 both state that the conduits shall be concrete encased.” (R4, tab 6 at 1-2) 4. On January 20, 2015, Munck responded with a Request for Information “RFI” No. 013. In it, Munck states “[r]egarding the conduit trench we understand that you want the conduits concrete encased, similar to the ducts indicated on drawing ED103. We therefor[e] need a drawing for the conduit trench . . . giving indications on location related to the runway edge line etc.? Please note: The drawings ED101 and ED 102 also need revision to provide the information on concrete encased ducts.” In responding to the government’s previous answer appellant states, “We do not acknowledge your references. The references are referring to ducts yes[,] however the drawings ES 101-107 + ED101 do not specify duct for the work in question.” (R4, tab 7). 1 The government provided a paper Rule 4 file with excerpts from the contract and a CD containing the full contractual documents at tab 3. This CD is not organized in tabs, so we refer here to the relevant file’s name. Drawings ES101-08 apply to Phase 1, while ES108-13 apply to Phase 2. Drawing ES114 appears in different versions in each phase, but the differences are irrelevant for our purposes.