ASBCA 62936

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) JE Dunn Construction Co. ) ASBCA No. 62936 ) Under Contract No. W9127S-17-D-6003 ) APPEARANCES FOR THE APPELLANT: Reginald M. Jones, Esq. David Timm, Esq. Nicholas T. Solosky, Esq. Fox Rothschild LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Michael T. Geiselhart, Esq. Liz K. Harris, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Little Rock OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD PURSUANT TO RULE 12.3 This appeal involves a contract for JE Dunn Construction Company (JE Dunn) to perform design-build construction work for the United States Army Corps of Engineers (USACE or government) at Fort Drum, New York. JE Dunn alleges that USACE changed the contract by implementing COVID-19-related restrictions requiring all personnel arriving at Fort Drum from more than 350 miles away to quarantine for 14 days prior to performing work on-site. USACE argues that the sovereign acts doctrine bars JE Dunn’s claim, that JE Dunn would still have been required to quarantine under New York’s COVID-19 protocols and therefore would have suffered the same damages notwithstanding Fort Drum’s quarantine requirement, and that the risk of costs relating to a pandemic or quarantine under a fixed-price contract rest with the contractor. The Board has jurisdiction over this appeal pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. JE Dunn elected Rule 12.3 disposition, and both parties elected to submit this appeal on the record pursuant to Board Rule 11. We deny the appeal. FINDINGS OF FACT 1. On July 14, 2017, USACE awarded Contract No. W9127S-17-D-6003 (the contract) to JE Dunn for design-build construction work (R4, tab 1 at 1 1). 1 Page number citations refer to the PDF page number, unless otherwise stated.  2. On September 25, 2018, USACE awarded Task Order No. W9127S-18-F-0155 to JE Dunn under the contract. This task order was for heating, ventilation, and air conditioning (HVAC) replacement services at the Guthrie Health Care Clinic at Fort Drum at a total price of $30,428,439. (R4, tab 2 at 46-51) 3. The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (Default Clause) (R4, tab 1 at 9). This clause provides, in part: (b) The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause, if— (1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include . . . (vi) epidemics (vii) quarantine restrictions . . . . (2) The Contractor, within 10 days from the beginning of any delay (unless extended by the Contracting Officer), notifies the Contracting Officer in writing of the causes of delay. The Contracting Officer shall ascertain the facts and the extent of delay. If, in the judgment of the Contracting Officer, the findings of fact warrant such action, the time for completing the work shall be extended. FAR 52.249-10(b)(1-2) 4. On April 22, 2020, Major General Brian Mennes, the Fort Drum Commander, imposed General Order No. 1B. This order—which applied to service members, their dependents, and civilian personnel—outlined prevention and mitigation procedures aimed at slowing the spread of COVID-19. (R4, tab 3 at 102-09) 5. By letter dated May 4, 2020, JE Dunn notified USACE of pandemic-related on- site health and cleaning changes that would increase the cost of performance and cause delays. These changes included conditional or limited jobsite access. (R4, tab 4 at 110) 6.