ASBCA 61847

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Sauer, Inc. ) ASBCA No. 61847 ) Under Contract No. N40085-09-D-5026 ) APPEARANCE FOR THE APPELLANT: Jack Rephan, Esq. Pender & Coward, P.C. Virginia Beach, VA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Devin A. Wolak, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE EYESTER Sauer, Inc. (Sauer or appellant) appeals a deemed denial of a certified claim concerning the construction of a multi-story barracks in Hampton Roads, Virginia, pursuant to a task order issued by the Naval Facilities Engineering Command (NAVFAC or government). Sauer submitted the claim on behalf of itself and its subcontractor for money and time delay. The parties have agreed to waive a hearing and have the appeal decided on the written record pursuant to Board Rule 11. Both parties have filed briefs in support of their respective positions. 1 We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. For the reasons set forth below, the appeal is sustained in part and the remainder is denied.2 1 Appellant’s prayer for relief in its opening brief contained a request for attorney’s fees under the Equal Access to Justice Act (EAJA) (app. br. at 44). However, a request for attorney’s fees under EAJA is inappropriate during the briefing stage of the appeal, and would require a separate application pursuant to Addendum I of the Board’s rules after the disposition of the appeal has become final. 2 The parties jointly stipulated entitlement regarding two issues under this appeal. The first issue, for work related to the Condenser Water Loop tie-in (Count IV), the parties agreed that appellant should be awarded $23,000 for this portion of its claim. The second issue, relating to Modification No. 004 (Mod. 004) for Electrical Equipment Change (Count V(b) extended overhead), was also resolved in favor of the appellant in the amount of $62,299.72. Thus, the parties requested that the Board’s final judgment include the previously agreed upon amounts. (Joint status rpt. 1/29/2021 at 1) Accordingly, this decision deals with the remaining issues under the above-captioned appeal.  FINDINGS OF FACT (FOF) Background 1. On December 3, 2008, NAVFAC awarded Contract No. N40085-09-D-5026 to Sauer. The contract was a Design Build/Design Bid Build Multiple Award Construction Contract (MACC) 3 for New Construction, Renovations, Alterations, and Repair Projects for Facilities in Hampton Roads, Virginia. (R4, tab 1 at 1294) 4 2. The MACC included the following clause: 5252.201-9300 CONTRACTING OFFICER AUTHORITY (JUN 1994) In no event shall any understanding or agreement between the Contractor and any Government employee other than the Contracting Officer on any contract, modification, change order, letter or verbal direction to the Contractor be effective or binding upon the Government. All such actions must be formalized by a proper contractual document executed by an appointed Contracting Officer. The Contractor is hereby put on notice that in the event a Government employee other than the Contracting Officer directs a change in the work to be performed, it is the Contractor’s responsibility to make inquiry of the Contracting Officer before making the deviation. Payments will not be made without being authorized by an appointed Contracting Officer with the legal authority to bind the Government. (R4, tab 1 at 1312) The MACC also incorporated by reference Federal Acquisition Regulation (FAR) 52.243-4, CHANGES (JUN 2007), and FAR 52.246-12, INSPECTION OF CONSTRUCTION (AUG 1996) (R4, tab 1 at 1303). 3. On October 31, 2013, NAVFAC issued fixed-price Task Order No. 0005 to Sauer in the amount of $27.406 million and with a completion date of December 16, 2015, for the design and build of a multi-story barracks for enlisted technical training students at the Naval Air Station Oceana, Virginia Beach, Virginia 5 (R4, tab 1.5 at 1193-95, tab 1.6 at 1211-12, tab 1.1 at 1072).