ASBCA 60436

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) BAE Systems San Francisco Ship Repair ) ASBCA No. 58809 ) Under Contract No. W912SU-04-U-0005 ) APPEARANCE FOR THE APPELLANT: Peter B. Jones, Esq. Jones & Donovan Newport Beach, CA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Tyler L. Davidson, JA CPT Harry M. Parent, III, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE TING BAE Systems San Francisco Ship Repair (BAE) was awarded a Delivery Order under an existing Multiple Award Task Order Contract for the programmed drydocking, cleaning, painting and repair to the U.S. Army vessel LSV-5. Four weeks before the contract completion date, the contracting officer (CO) directed BAE to replace 24 tie-down sockets known as "cloverleafs" on the main deck of the vessel. The parties were unable to agree on the appropriate price for the additional work. The CO issued a unilateral modification (Modification No. 6) directing BAE to proceed with the work. The government acknowledged that BAE is entitled to an equitable adjustment. The parties remain in dispute on the quantum of adjustment. BAE submitted a certified claim and the CO issued a decision granting an adjustment based upon an estimate prepared by the government's Ship Surveyor. We have jurisdiction pursuant to the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. FINDINGS OF FACT 1. In April 2004, the U.S. Army's Northern Region Contracting Center (NRCC) Mission Contracting Division at Fort Eustis, Virginia (the government) awarded an indefinite-delivery, indefinite-quantity (IDIQ) contract- Contract No. W912SU-04-D-0005 (Contract 0005) - to San Francisco Drydock, Inc. 1 (R4, tab 1). The contract, in the estimated amount of over $22 million, was for the programmed and unprogrammed 1 San Francisco Drydock, Inc., became a part of BAE Systems in 2005 and changed its name to BAE Systems San Francisco Ship Repair (tr. 1/106, 3/203). drydocking, cleaning, painting, repairs and/or modifications of active Army vessels such as Logistics Support Vessels or LSVs stationed on the West Coast of the United States or Hawaii (id. at 4). Work would be ordered as task or delivery orders under Contract 0005 (R4, tab 137 at 1). 2. The base period of Contract 0005 ran from the date of award until 30 November 2004. The contract provided for five one-year option periods ending on 30 November 2009. (R4, tab 1 at 2) The events in this appeal occurred during option period two from 1December2006 through 30 November 2007 (id.). The contract provided that "[t]ask orders under this contract will be issued by the Contracting Officer" (id., note 6), and liquidated damages of $3,626 per day would be assessed if the contractor fails to deliver the supplies or to perform services within the time specified in the delivery order (id., note 8). 3. Section C.0.1.4, Contracting Officer, of Contract 0005 provides: "Contracting Officer is a person with the authority to enter into, administer, and/or terminate contracts, make related determinations and findings and issue delivery/task orders. Only the Contracting Officer has the authority to extend the performance period of the contract and/or delivery/task orders." (R4, tab 1 at 24) CO Kathleen H. Panton (CO Panton) awarded Delivery Order No. 0002 (DO No. 2) to BAE on 27 December 2006 for the programmed docking, cleaning, painting and repairs ofLSV-5. The DO was in the amount of $4,889,413.73. (R4, tab 3 at 1, 3) Amendment No. 01 of DO No. 2 established a 120 calendar day performance period from 30 March through 27 July 2007 (R4, tab 6 at 1, 3). DO No. 2 required BAE to perform numerous "Definite" and "Indefinite" items: Definite items were work known to be required; indefinite items were pre-priced items "but it was not known how much of the work would be required" (R4, tab 1at24, §§ C.0.1.7, C.0.1.12, tab 137 at 3). DO No. 2, Item 2030 pertained to "Fuel Tanks Cleaning/Inspection"; as bid, it was a $129,338.91 item (R4, tab 3 at 5). DO No. 2, Item No. 2033 pertained to "Hull Cleaning and Painting (Main Deck and Above, External Areas)"; as bid, it was a $430,035.05 item (id.). 4. The contract contained the DFARS 252.217-7028, OVER AND ABOVE WORK (DEC 1991) clause.