CBCA 5692

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON December 16, 2020 GRANTED: December 7, 2020 CBCA 5692 EAGLE PEAK ROCK & PAVING, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Bennett J. Lee, and Stephen L. Pessagno of Varela, Lee, Metz & Guarino, LLP, San Francisco, CA; and David B. Wonderlick of Varela, Lee, Metz & Guarino, LLP, Tysons Corner, VA, counsel for Appellant. Rayann L. Speakman, Office of the Chief Counsel, Federal Highway Administration, Department of Transportation, Vancouver, WA; and Milton Hsieh, Office of the Chief Counsel, Federal Highway Administration, Department of Transportation, Sterling, VA, counsel for Respondent. Before Board Judges KULLBERG, SULLIVAN, and RUSSELL. RUSSELL, Board Judge. This appeal arises from a contract entered into between Eagle Peak Rock & Paving, Inc. (Eagle Peak) and the Department of Transportation’s Federal Highway Administration CBCA 5692 2 (FHWA) for construction work in Yellowstone National Park. Eagle Peak asserts that FHWA improperly terminated its contract for default, and requests that the termination be converted to one for convenience. The Board conducted a hearing on the appeal, during which the parties presented fact and expert witness testimony, followed by the filing of post- hearing briefs.1 For the reasons provided below, we grant the appeal. Findings of Fact I. The Eagle Peak Contract A. Statement of Work On May 2, 2016, FHWA awarded Eagle Peak a “firm-fixed price with economic price adjustment” task order (the contract) under a multiple award task order contract for construction work to make improvements along approximately 4.7 miles of Grand Loop Road in Yellowstone National Park, Wyoming, as well as nearby parking areas, trails, and overlooks (the Project). The Project consisted of four primary project sites: (1) Grand Loop Road (also known as the Mainline), (2) Inspiration Point, (3) Brink of the Upper Falls, and (4) Uncle Tom’s Point. The Inspiration Point, Brink of the Upper Falls, and Uncle Tom’s Point sites are commonly referred to as the Canyon Rim sites, as each abuts the Yellowstone River and the Grand Canyon of Yellowstone. The Project was scheduled for three construction seasons, with an overall Project completion date of October 5, 2018. The contract included winter shutdown periods. Specifically, no work was permitted during winter periods from November 11, 2016, to April 16, 2017, and from November 15, 2017, to April 15, 2018. The estimated original value for the task order was $28,049,200.62. The solicitation also required Eagle Peak to submit bids for certain options, namely Option W, which included work to reconstruct the entry drive and parking lot at the Brink of the Upper Falls site, and Options X, Y, and Z, which included work at the Uncle Tom’s Point site. The options were exercised by FHWA via unilateral modification on July 14, 2016. The option work totaled $6,536,810.50, increasing the estimated contract value to $34,586,011.12. 1 This appeal was consolidated with CBCA 5955, an appeal in which Eagle Peak challenges FHWA’s withholding of retainage under 48 CFR 52.232-5(e) (2017). A decision in CBCA 5955 will be issued separately. CBCA 5692 3 In order of precedence, the contract was to be governed by (a) the Federal Acquisition Regulation (FAR) (48 CFR ch. 1 (2017)); (b) the Transportation Acquisition Regulations; (c) the Multiple Award Indefinite Delivery Indefinite Quantity Contract under which the task order contract at issue in this appeal was awarded; (d) FHWA Special Contract Requirements (SCRs); (e) the Project plans; and (f) standard specifications. As for the latter, the contract incorporated FHWA’s Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects, FP-14 (Standard Specifications or FP-14), along with certain SCRs which modified the Standard Specifications. Pertinent here, SCR § 155.03 required Eagle Peak to submit an initial construction schedule within twenty days of receiving the notice to proceed under the contract. The schedule was required to show completion of work within the contract time (i.e., by October 5, 2018).