ASBCA 62395

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Sauer Incorporated ) ASBCA No. 62395 ) Under Contract No. W91278-07-D-0030 ) APPEARANCE FOR THE APPELLANT: Gina P. Grimsley, Esq. Counsel APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Laura J. Arnett, Esq. Engineer Trial Attorney U.S. Army District, Savannah OPINION BY ADMINISTRATIVE JUDGE STINSON ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT Appellant Sauer Inc., (Sauer), appeals a contracting officer’s denial of its September 6, 2019, claim, in the amount of $144,780, seeking remission of liquidated damages (R4, tab 2.01). We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. The parties submitted cross-motions for summary judgment, response and reply briefs, and exhibits, to be considered in deciding this appeal. 1 For the reasons stated below, the government’s motion for summary judgment is denied and appellant’s cross-motion for summary judgment is granted-in-part. 1 We refer to the parties’ motions and briefs as follows: “gov’t mot. ___” refers to the government’s motion for summary judgment; “app. cross-mot. ___” refers to appellant’s memorandum in opposition to respondent’s motion for summary judgment and appellant’s cross-motion summary judgment; “gov’t resp. ___” refers to the government’s response to appellant’s statement of undisputed material facts and opposition to appellant’s cross-motion for summary judgment; “gov’t reply ___” refers to the government’s reply in support of its motion for summary judgment; and “app. reply ___” refers to appellant’s reply in support of its cross-motion for summary judgment.  STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT Unless otherwise noted, the following facts are undisputed or uncontroverted. 1. On August 18, 2006, the U.S. Army Engineer District, Mobile, issued Solicitation No. W91278-06-R-0105, contemplating the award of a Multiple Award Task Order Contract (MATOC), a regional geographic multiple awards indefinite delivery type contract in support of military construction in the South Atlantic Division (R4, tab 3.01 at 0004). In 2007, the government awarded Sauer MATOC No. W91278-07-D-0030.2 2. On January 12, 2011, the government issued a Request for Proposal (RFP), pursuant to the MATOC, for design and construction of the 82nd Airborne Division Headquarters, in Fort Bragg, North Carolina, Project Number 44968 (the Project) (R4, tab 3.02 at 0002). The RFP stated that “[t]he scope of work for this Design Build project includes construction and design of a standard design command and control headquarters building” (R4, tab 3.02 at 0003). 3. The RFP scope of work identified a “primary facility,” which included “command headquarters, a joint operations center, a sensitive compartmented information facility (SCIF), conference rooms, classroom space, equipment storage, general storage, mechanical and communications rooms, installation of intrusion detection system (IDS) and connection to energy monitoring and control system (EMCS)” (id.). 4. The RFP scope of work also identified “supporting facilities,” which included, “water and sewer service, electric service, paving and walks, fire protection and alarm systems, exterior lighting, storm drainage, erosion control measures, asbestos removal & lead-based paint remediation as part of demolition, information systems, parking and site improvements” (id.). 5. Section 3.1.1 of the Task Order Statement of Work provided, in part, “[t]he preferred Command and Control Facility (C2F) is a multi-story stand-alone facility organized around the central core consisting of stairs, elevators, men’s and women’s restrooms, telecommunication rooms and other support spaces such as break rooms, 2 In response to the Board’s request for a copy of the MATOC, the government submitted a copy of the solicitation that resulted in its award (R4, tab 3.01). In the accompanying March 27, 2020 letter, entitled Respondent’s Corrected Rule 4 Submission, the government informed the Board that it “is unable to locate a viable copy of the award document.