ASBCA 63001

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Frazier Investments, Inc. d/b/a/ ) ASBCA No. 63001 Optimum Construction ) ) Under Contract No. FA2823-16-C-4036 ) APPEARANCE FOR THE APPELLANT: Mr. John Frazier President APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter III, Esq. Deputy Chief Trial Attorney Nicholas T. Iliff, Jr., Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE HERZFELD Frazier Investments, Inc., which does business as Optimum Construction (Optimum), seeks an equitable adjustment for alleged constructive changes made by the Department of the Air Force (Air Force) during contract performance. The parties have elected to waive a hearing and submit the appeal on the record pursuant to Board Rule 11. For the reasons discussed below, we deny Optimum’s appeal. FINDINGS OF FACT On September 30, 2016, the Air Force awarded contract No. FA2823-16-C-4036 (Contract), to Optimum for $1,946,339.52 to replace the fire alarm control panel and fire suppression system in a building on Eglin Air Force Base (R4, tab 1 at 1-3). On November 1, 2016, the Air Force issued a notice to proceed and the parties held a pre-construction conference (R4, tab 3, tab 16 at 1). At the pre-construction conference, however, the Air Force’s construction team informed Optimum that the building’s tenants anticipated that the work would take place during the night and weekends, not during normal business hours as originally anticipated (R4, tab 16 at 1). Prior to submitting its final proposal revision, Optimum had informed the Air Force that Optimum based its proposal “on being given free access to one floor at a time to install the systems, and offices will have to be unoccupied during the construction” (R4, tab 16 at 4). Given the changed assumptions, the Air Force stopped Optimum from performing (R4, tab 16 at 1). Between November 1, 2016 and April 28, 2017, the parties held “[m]ultiple discussions” to change “all work on the project over to night work to better accommodate the customer[’]s mission” (R4, tab 17 at 1).  On April 28, 2017, the Air Force proposed a new statement of work “regarding the upcoming modification” and stated Optimum should “[d]isregard the previous” statement of work (R4, tab 4 at 1). The proposed new statement of work directly addressed working hours: “Regular working hours shall consist of a period between 7 a.m[.] and 6 p.m[.] Monday thru Friday unless otherwise directed by the Contracting Officer and two 12 hours shifts Saturday and Sunday excluding 3 day holidays” (R4, tab 5 at 1). Also, “[a]fter hour work during the week Monday thru Friday shall consist of a period between 6 p.m[.] and 7 a.m[.] the following day” (R4, tab 5 at 1). The proposed new statement of work also provided a new phased sequence of work with some work “recommended” for “day work” and other work recommended for “nights” (R4, tab 5 at 2, tab 6). The revised statement of work also required Optimum to “submit a schedule room by room as to when work will be executed” per the phased sequence of work (R4, tab 5 at 2). Instead of three phases by each floor, the revised statement of work broke the work into significantly more phases (R4, tab 16 at 2). In response to the revised statement of work, the parties negotiated a modification to pay Optimum additional money based on the proposed changes. On May 12, 2017, Optimum proposed to do the work for an additional $884,130.65, including $243,257.25 for “fire suppression” by its subcontractor, L. Pugh & Associates, Inc. (Pugh) (R4, tab 7 at 1, 3). On August 4, 2017, the Air Force counteroffered $522,945.91 (R4, tab 8 at 1). On August 10, 2017, Pugh wrote Optimum regarding the Air Force’s counteroffer, advocating that it should be paid more for design work, but agreeing to lower its proposed number of hours to meet the new requirements (app. supp. R4, tab 1 at 1). On August 11, 2017, Optimum counteroffered $771,333.33, including $165,578.15 for Pugh (R4, tab 9 at 1, 3). On August 25, 2017, the Air Force responded that it would not move from its $522,945.91 counteroffer (app. supp. R4, tab 3). On September 14, 2017, Optimum countered with $441,312.06, including $137,516.96 for Pugh (R4, tab 10 at 1, 3). After this counteroffer, Optimum alleges that the Air Force asked Optimum to lower its offer below $200,000 or the Air Force would cancel the project (app. br.