ASBCA 59809

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Relyant, LLC ) ASBCA No. 59809 ) Under Contract No. W91B4N-08-D-0011 ) APPEARANCE FOR THE APPELLANT: James H. Price, Esq. Lacy, Price & Wagner, PC Knoxville, TN APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Jason W. Allen, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PROUTY The dispute before us, 1 which was aired in a three-day hearing, is centered upon the government's acceptance of certain pre-fabricated relocatable buildings (RLBs) for use at two different sites in Afghanistan. As will be described in far greater detail below, different government contracting officer representatives (CORs) at the two different locations had diverging views regarding whether the RLBs initially provided by appellant, Relyant, LLC (Relyant), should be permitted under the contract specifications that applied to both locations. In particular, the RLBs delivered to the first site passed a First Article Test (FAT) at that site, but were deemed to be out of compliance with the contract's statement of work (SOW) by the contracting officer (CO), and were not permitted at the second site. To get around the problem, Relyant shipped the RLB components first delivered to second site to the first site, where the local accepting authority (not the CO) apparently turned a blind eye to the RLBs' failure to comply with the SOW2 ; Relyant then revamped its means of manufacturing the RLBs to provide RLB components that satisfied the CO (and contract) at the second site. Yet, despite the equities of the matter superficially weighing in favor of Relyant for having had some units accepted, we find that we cannot grant it the relief 1 We granted summary judgment in favor of the government in the related appeal of ASBCA No. 58172. See Relyant, LLC, ASBCA No. 58172, 16-1 BCA ,r 36,228, aff'd, 683 F. App'x 960 (Fed. Cir. 2017). Citations to the Rule 4 file herein refer to a single Rule 4 file that was originally submitted for that first appeal and later supplemented for this one. 2 To be clear, there was only one CO at a time on the contract. As noted, though, there was more than one COR. sought. The CO was within her rights to hold Relyant to the specifications contained within the contract's SOW, and the evidence does not support a finding of superior knowledge on the part of the government. Moreover, the doctrine of good faith and fair dealing does not override the express terms of the contract; however, in the circumstances presented here, it does impose upon the government certain obligations with regard to timeliness of government responses to Relyant's request to amend the SOW, for which Relyant is entitled to certain relief. 3 FINDINGS OF FACT I. The Contract The idea behind the RLB is rather clever: standard sized steel shipping containers - ubiquitous in the modem world and designed to be easily transported - would be modified to be used as modular building blocks to make larger buildings for use in contingency operations (tr. 1/195-96, 201-04). On 15 May 2008, the Bagram Regional Contracting Center in Afghanistan (the Army or the government} solicited proposals for the above-captioned contract (the contract), which was a multiple award, indefinite-delivery/indefinite-quantity (IDIQ) contract for the manufacture, delivery, and installation ofRLBs in Afghanistan (R4, tab 1). The seeds of the dispute that are now before us were sown in Relyant' s4 proposal in response to this solicitation. The SOW accompanying the solicitation for the contract required the installation of gypsum interior drywall to the interior of the shipping containers that would cover fiberglass insulation that was a minimum of three inches thick (R4, tab 1 at 17, 1 4.1.1.1 ). Relyant proposed a different configuration: this was the use of a sandwich panel, including Styrofoam5 as the insulator, instead of separate insulation and drywall (R4, tab 243 at 11-12 6 ; see also tr. 2/124-26). This configuration made all the difference in the world to how Relyant 3 We also resolve a number of motions regarding the entitlement of Relyant to amend its complaint; the government's entitlement to amend its answer; and whether an adverse inference should be drawn against the government due to certain discovery hiccups.