ASBCA 63235

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Herman JCG Co. JV 1 ) ASBCA No. 63235 ) Under Contract No. N62473-18-D-5822 ) APPEARANCES FOR THE APPELLANT: Jon G. Lycett, Esq. General Counsel Escondido, CA Steven J. Stuart, Esq. Smith, Currie, & Hancock LLP Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Michael W.S. Hayes, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE ARNETT This appeal arises from a design-build contract awarded by the Department of the Navy (the government or Navy) to appellant Herman JCG Co. JV (Herman) and turns on whether Herman is entitled to share in savings resulting from a proposal that was initially submitted as a change and subsequently submitted as a Value Engineering Change Proposal (VECP). Herman asserts that its proposal was always a VECP and seeks to share the contract savings consistent with a VECP (app. br. at 10-15). The Navy denies that the proposal satisfies the requirements for a VECP and contends that it conditionally accepted the change proposal prior to its disclosure as a VECP (gov’t br. at 21-24; gov’t reply at 7). The Navy denies that it constructively accepted the VECP by allowing Herman to construct the project using its phased approach (gov’t br. at 2, 26-27). 1 Although this matter was originally filed and docketed under the name of Herman Construction Group, Inc., we construe this appeal as filed under the name of Herman JCG Co. JV because the joint venture (JV) is a party to the contract at issue, and appellant’s filings consistently reflect that this matter was brought on behalf of the JV. The case caption has been corrected.  The Board has jurisdiction over this appeal pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. The parties elected to submit this appeal on the record pursuant to Rule 11 and requested that the Board decide entitlement only. Because we conclude that the government constructively accepted Herman’s VECP, the appeal is sustained. FINDINGS OF FACT Background: 1. On October 25, 2017, the Navy awarded an Indefinite Delivery Indefinite Quantity Multiple Award Construction Contract (the Contract) to Herman for new construction, renovation, and repair of general building construction at various installations in the Southwest (see generally R4, tab 1). On September 18, 2019, the Navy awarded a firm-fixed price task order against the Contract for Design-Build Repair MCCES Operation Building 1737, Marine Corps Air Ground Combat Center, Twentynine Palms, California (R4, tab 9 at 113-14). 2 Design and construction of the renovation were to be completed by July 5, 2021 (id. at 115). During construction, the 27,340 SF building was to be “non-operational and vacated,” and the work was not required to be phased (R4, tab 67 at 1823, 405). Thus, the occupants of the administrative/office space (approximately 5,785 SF) and classrooms (approximately 12,633 SF) in Building 1737 would have to relocate to swing space for more than a year while construction was completed (id., R4, tab 47 at 2402). 2. For swing space, the task order required Herman to provide “temporary modular office facilities for the duration of the renovation” and included floor plans for two groups of trailers totaling 7,200 SF (R4, tabs 67 at 556, 135 at 2282-91). The trailers were intended to serve as “admin space and storage only” because the government was “consolidating down” its classrooms (R4, tab 76 at 1950). Floor plans for the trailers indicated the required configuration and furniture for offices, cubicles, work areas, conference rooms, and restrooms (R4, tab 135 at 2283-84). Based upon the size and configuration of the temporary trailers depicted in the floor plans, the trailers do not appear to be sufficient or intended to serve as swing space for the entire building (R4, tab 135 at 2283-84). 2 Documents in the Rule 4 file are numbered using a letter prefix and leading zeros.