ASBCA 63240

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) KUNJ Construction Corporation ) ASBCA No. 63240 ) Under Contract No. N40085-16-D-0302 ) APPEARANCES FOR THE APPELLANT: Matthew T. Schoonover, Esq. John M. Mattox II, Esq. Timothy J. Laughlin, Esq. Schoonover & Moriarty LLC Olathe, KS APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Merideth Mendenhall, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MCLISH ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT This appeal involves a contract to replace a central base fire system at the Philadelphia Naval Business Center in Philadelphia, Pennsylvania. The Navy moves for summary judgment on the grounds that the undisputed facts establish that the claims asserted by appellant KUNJ Construction Corporation (KUNJ) are barred by the Navy’s affirmative defenses of accord and satisfaction and release, and also that the claims lack merit. KUNJ cross-moves for summary judgment in its favor on the government’s affirmative defenses and contests the Navy’s position that it is entitled to summary judgment on the merits of the claims. We deny the motions. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION In accordance with Board Rule 7(c)(1), the government included with its motion a Statement of Undisputed Material Facts (NSUMF), with which KUNJ raises no material dispute (app. resp. at 2). KUNJ’s opposition and cross-motion provided a Statement of Further Undisputed Material Facts (KFUMF) (id. at 2-6). The government objects to many of these as legal conclusions or irrelevant but does not dispute their factual content (Navy resp. to KFUMF at 3-10). Below, we summarize the facts that neither party disputes for purposes of these motions. The Contract and Task Order 1. On or about December 7, 2015, the Navy and KUNJ entered into Contract No. N40085-16-D-0302, a firm-fixed price, multiple-award construction contract for “New Construction, Renovation, Alteration and Repair Projects primarily in the state of Pennsylvania” (Contract) (NSUMF ¶ 1; R4, tab 1 at GOV000001-77). 2. On or about August 2, 2016, the Navy awarded KUNJ Task Order 0004 (Task Order 4), a firm fixed-price task order under the Contract, to “Replace the Central Base Fire System @ [Philadelphia Naval Business Center] PNBC Phila. PA,” in the total amount of $2,449,000 (NSUMF ¶ 5; compl. at ¶ 6; R4, tab 6 at GOV000089-105). 3. Task Order 4 required KUNJ to “install a new base radio fire monitoring system and install a fire alarm system in buildings 20 & 1029” (NSUMF ¶ 6; R4, tab 6 at GOV000091). 4. The original contract completion date for Task Order 4 was August 1, 2018 (NSUMF ¶ 7; KFUMF ¶ 63; R4, tab 6 at GOV000098). Modification No. P0001 5. KUNJ and the Navy entered into bilateral Modification No. P0001 (Modification No. 1) to Task Order 4 with an effective date of August 20, 2018. Modification No. 1 was a no-cost modification that extended the completion date to June 14, 2019, and changed various technical aspects of Task Order 4, including installation of transmitters, dialers, master boxes, strobe lights, roving photovoltaic transmitters, and removal of existing transmitters, disconnect switches, and notification devices (NSUMF ¶ 20; KFUMF ¶ 50; R4, tab 7 at GOV000393-94). Several of the technical changes included work in Buildings 20 and 1029 (NSUMF ¶ 20; R4, tab 7 at GOV000393). 6. Modification No. 1 was executed by both parties as of August 22, 2018 (NSUMF ¶¶ 21-22; gov’t reply at 2; 1 R4, tab 7 at GOV000392). 1 The Navy’s Reply in Support of its Motion for Summary Judgment and Response in Opposition to KUNJ’s Cross-Motion is unpaginated. We refer to the page numbers shown in the pdf file containing the document. 2  7. Modification No. 1 included the following language: Acceptance of this modification by the Contractor constitutes an accord and satisfaction and represents payment in full for both time and money and for any and all costs, impact effect, and for delays and disruptions arising out of, or incidental to, the work as herein revised. (NSUMF ¶ 23; R4, tab 7 at GOV000393) Modification No. P0002 8.