ASBCA 63828

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) GSI Construction Corp. ) ASBCA No. 63828 ) Under Contract No. FA4417-23-C-0009 ) APPEARANCE FOR THE APPELLANT: Mr. Josh Owens President APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq. Air Force Deputy Chief Trial Attorney Michael J. Farr, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MELNICK GSI Construction Corporation (GSI) contracted to provide renovation services to the Air Force’s 1st Special Operations Contracting Wing (government). The solicitation requested an initial price valid during a base period, followed by an escalated option price valid during a later period in the event the award was delayed. GSI seeks a recovery that would provide it with the option price because although the government awarded the contract in the initial period, it did not issue the notice to proceed and allow site access until the later period. We find the government unreasonably delayed the notice to proceed and site access, entitling GSI to costs under the terms of the contract’s suspension of work clause. GSI is pro se and elected to proceed under Board Rule 11. The government did not agree. Under hybrid proceedings implemented by the Board, GSI submitted evidentiary materials in support of its case in chief under Rule 11, while the government was allowed to call live witnesses to testify under oath in support of its case. The Board then allowed further briefing by the parties. FINDINGS OF FACT 1. The government originally issued a solicitation in 2022 for renovation, repair, and construction of an addition to a child development center (R4, tab 1). The period of performance was to be 515 days (R4, tab 1 at 8). Because there were no funds for the contract when the solicitation was issued, no award would be made until funds became available (R4, tab 7 at 2). Nevertheless, as amended, proposals were due June 6, 2023 (R4, tab 9 at 2). The amended solicitation recited the work to be performed in two sets of line items. The base set (items one through eight) sought pricing valid through September 30, 2023. (R4, tab 7 at 3-5) The identical option set of line items (1001-08) sought pricing valid from October 1 through December 31, 2023 (R4, tab 7 at 5-7). Prices would be evaluated for the period during which funds became available (R4, tab 7 at 20). GSI’s proposal escalated its option period prices above its base prices by a total of $539,000 (app. supp. R4, tab 1 (Proposal at 4-7)). 2. Funds for the project were certified on August 15, 2023, and on that date the government notified GSI that it was the successful offeror. The notification required GSI to submit a certificate of insurance within 10 days, which GSI did. (R4, tab 15; tr. 15, 150) The awarded contract, dated August 17, accepted GSI’s pricing for line items one through eight (R4, tabs 10, 15). Relevant provisions included the requirement that GSI submit performance and payment bonds, which it did on September 6, 2023, and corrected the next day (R4, tab 10 at 2, tabs 25, 31; tr 31-33). GSI was to begin performing within 10 days of the notice to proceed (R4, tab 10 at 2, 31). GSI could not mobilize to the site and begin construction until it received that notice (tr. 116). Drawing G4 of the contract required GSI to submit a sequence of construction plan (also called a phasing plan) for approval prior to starting construction (R4, tab 10 at 627). Finally, the contract incorporated Federal Acquisition Regulation (FAR) 52.242-14, SUSPENSION OF WORK (APR 1984) (id. at 30). 3. GSI submitted an initial phasing plan on September 4, 2023, which it revised for the final time on September 13 (R4, tabs 22, 39; tr. 105, 122-23, 156). Though the revised plan was acceptable to it, the government failed to issue an express approval (tr. 45-47). 4. Critical to GSI avoiding escalated costs was that it finalize material orders to lock in vendor pricing and commence construction as far in advance of labor cost increases as possible (Owens decl. ¶ 14). 1 Before many materials could be ordered, GSI needed to access the work site to verify conditions and make measurements. However, the government did not allow GSI onto the site until it issued the notice to proceed. (Id.). Similarly, various materials had to be approved by the government through a submittal process (tr. 25). These included items to be selected by the government for color, texture, size, wording, and layout. Other items required customized engineering that had to be approved before manufacture.