ASBCA 63234

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Pacific Dredge & Construction LLC ) ASBCA No. 63234 ) Under Contract No. W912PL-20-C-0003 ) APPEARANCES FOR THE APPELLANT: W. Samuel Niece, Esq. Michael W. Squeri, Esq. Ralls Gruber & Niece LLP San Mateo, CA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney John F. Bazán, Esq. Engineer Trial Attorney U.S. Army Engineer District, Los Angeles OPINION BY ADMINISTRATIVE JUDGE EYESTER PURSUANT TO BOARD RULE 12.2 Appellant Pacific Dredge & Construction LLC (Pacific Dredge) appeals a contracting officer’s denial of its claim and has elected to proceed under the Board’s Small Claims (Expedited) Procedures, Board Rule 12.2. The Contract Disputes Act, 41 U.S.C. § 7106(b)(4)-(5), as implemented by Board Rule 12.2, provides that this decision shall have no precedential value, and in the absence of fraud, shall be final and conclusive and may not be appealed or set aside. For the reasons stated below, the appeal is denied. SUMMARY FINDINGS OF FACT On October 2, 2019, the U.S. Army Corps of Engineers issued invitation for bids No. W912PL20B0001 for the award of a fixed-priced contract for construction services consisting of maintenance dredging of the federal navigation channels at the Santa Barbra Harbor (R4, tab 4 at 20, 36). Bidders were to submit fixed-prices for all contract line item numbers (CLINs), which included a CLIN for dredging for the first year, first cycle, and optional CLINs for additional cycles and years (id. at 23-24). The solicitation included a “Checklist for the CLIN Schedule,” which set forth the following checklist item for bidders: “Do prices for each bid item include all costs, mark-ups and taxes (if any taxes are imposed)? Y_ NA_” (id. at 25). The solicitation included Federal Acquisition Regulation (FAR) clause 52.222-30, CONSTRUCTION WAGE RATE REQUIREMENTS – PRICE ADJUSTMENT (NONE OR SEPARATELY SPECIFIED METHOD) (AUG 2018), which explained the following to the bidders: (a) The wage determination issued under the Construction Wage Rate Requirements statute by the Administrator, Wage and Hour Division, U.S. Department of Labor [(DOL)], that is effective for an option to extend the term of the contract, will apply to that option period. (b) The Contracting Officer will make no adjustment in contract price, other than provided for elsewhere in this contract, to cover any increases or decreases in wages and benefits as a result of-- (1) Incorporation of the Department of Labor's wage determination applicable at the exercise of the option to extend the term of the contract; * * * * (End of clause) (R4, tab 4 at 115) (emphasis added). We find that the solicitation did not provide “elsewhere” anything setting forth a specific pricing method that permitted a price adjustment to cover increases or decreases resulting from DOL construction wage determinations upon exercise of an option to extend the term of the contract. The government awarded the contract to Pacific Dredge on December 27, 2019, and at the same time exercised the base bid CLINs and one option CLIN (R4, tab 6 at 485, 487). Pacific Dredge priced its option year unit amounts higher than the first- year amounts (id. at 487). The contract included FAR clause 52.222-30, set forth above, as well as FAR 52.243-4, CHANGES (JUNE 2007) (id. at 561-62, 625-26). As with the solicitation, we find the contract did not provide “elsewhere” anything setting forth a specific pricing method that permitted a price adjustment to cover increases or decreases resulting from DOL construction wage determinations upon exercise of an option to extend the term of the contract. On February 26, 2021, the agency issued unilateral Mod. P00003, which exercised the CLINs for the second year, fourth cycle option, with a performance period beginning March 1, 2021 (R4, tab 9 at 776). The modification stated that a new DOL construction wage determination issued on January 1, 2021, applied and superseded the prior one applicable to the contract (id. at 777-78).