ASBCA 61163

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Black Bear Construction Company ) ASBCA No. 61181 ) Under Contract No. W91B4L-12-C-0185 ) APPEARANCE FOR THE APPELLANT: Mr. Samir Corporate Officer APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Elinor J. Kim, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT This is an appeal of a contracting officer's denial of a claim by Black Bear Construction Company (Black Bear or appellant), alleging that it is owed $462,160.00 for settlement costs due to a termination for convenience of runway improvement construction Contract No. W91B4L-12-C-0185 (the contract) through the Kandahar Regional Contracting Office, Kandahar Air Field, Afghanistan (the government). In its complaint, Black Bear states that it incurred costs after receiving a notice to proceed and before the government terminated for convenience. The government filed a motion for summary judgment requesting that we deny the appeal because Black Bear waited more than one year to file its settlement proposal as required by the contract. We agree with the government and deny the appeal. STATEMENT OFF ACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 18 May 2012, the government awarded the contract to Black Bear for runway improvement at the forward operating base Spin Boldak in Kandahar Province, Afghanistan, for $553,150.00 (R4, tab 1). 2. The contract incorporated Federal Acquisition Regulation (FAR) clause 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (APR 2012)-ALTERNATE I, by reference. Specific to this appeal, the clause included language about termination settlement proposals: (e) After termination, the Contractor shall submit a final termination settlement proposal to the Contracting  Officer in the form and with the certification prescribed by the Contracting Officer. The Contractor shall submit the proposal promptly, but not later than I year from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this I-year period. However, if the Contracting Officer determines that the facts justify it, a termination settlement proposal may be received and acted on after I year or any extension. If the Contractor fails to submit the proposal within the time allowed, the Contracting Officer may determine, on the basis of information available, the amount, if any, due the Contractor because of the termination and shall pay the amount determined. G) The Contractor shall have the right of appeal, under the Disputes clause, from any determination made by the Contracting Officer under paragraph ( e ), (g), or (I) of this clause, except that if the Contractor failed to submit the termination settlement proposal or request for equitable adjustment within the time provided in paragraph (e) or (I), respectively, and failed to request a time extension, there is no right of appeaI.[11 3. On 28 June 2012, the government issued the notice to proceed and reminded Black Bear that the period of performance was 90 days, starting on 8 July 2012 (R4, tab 2). 4. On 13 July 2012, the government issued a suspension of work notice (R4, tab 3). 5. On 16 July 2012, the government sent Black Bear a letter terminating the contract for convenience. The government asked that Black Bear submit its termination settlement proposal and documentation within 30 days of the notice. (R4, tab 4) 6. On 12 August 2012, the government executed Modification No. POOOOI, terminating the contract for convenience (R4, tab 6). 1 Paragraph (g) references a situation where the government and contractor do not agree on the settlement price. Paragraph (1) references partial terminations. Neither of these paragraphs apply to this appeal. 2  7. On 25 March 2017, Black Bear submitted its claim letter to the contracting officer. Black Bear requested $462,160.00. (R4, tabs 8, 9; gov't mot., 12; app.