ASBCA 61074

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) CDM Constructors, Inc. ) ASBCA No. 61074 ) Under Contract No. W912HN-15-C-OO 15 ) APPEARANCES FOR THE APPELLANT: John T. Flynn, Esq. Joseph J. Minock, Esq. Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Laura J. Arnett, Esq. Engineer Trial Attorney U.S. Army Engineer District, Savannah . OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT CDM Constructors, Inc. (CDM) appeals a contracting officer's (CO's) final decision denying its claim for $3,157,098.58 in increased costs of performing a contract for the construction of dissolved oxygen injection systems at two locations on the Savannah River. CDM claims that the increased costs were the result of a suspension of work from August 14, 2015 to October 14, 2015, pursuant to a bid protest ultimately decided in the government's favor. The government moves for summary judgment on the grounds that ( 1) CDM cannot establish that the delay was unreasonable, which is a requirement for recovery under the Suspension of Work clause, and (2) in any event, CDM's claimed damages were not caused by the suspension. CDM opposes on the ground that there are genuine issues of law and fact regarding both the reasonableness of the suspension and the proximate cause of CDM's damages. We grant the motion for the reasons discussed below. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION Contract No. W912HN-15-C-0015 (the contract) was awarded to CDM on July 31, 2015, by the U.S. Army Corps of Engineers, Savannah District (Corps). The contract, totaling $99,675,591, called for the construction of the Savannah Harbor r  Expansion Project Dissolved Oxygen Injection System (DO project). (Gov't SMF ,r 45) 1 On August 14, 2015, the Corps notified CDM that a protest had been filed with the Government Accountability Office (GAO). The notice further advised CDM as follows: Please be advised that in accordance with 31 U.S.C. § 3553(d), 4 C.F.R. § 21.6, and FAR 33.104(c), performance of the contract is suspended, pending resolution of the protest. Do not begin performance until authorized to do so by the Contracting Officer. (R4, tab 9 at 3) On October 8, 2015, the GAO denied the protest. On October 14, 2015, the Corps lifted the suspension, and on October 21, 2015, at the pre-construction meeting, the Corps issued the notice to proceed (NTP) (gov't SMF ,r,r 69, 71, 74). On December 21, 2015, CDM notified the Corps that the protest delay had caused its contemplated marine construction subcontractor, Cape Romain, to withdraw (R4, tab 17). As a result, CDM stated, it had resumed discussions with · other marine contractors who offered both higher pricing and more extended schedules than Cape Romain had proposed (and on which CDM had based its proposal) (id.). The certified claim eventually submitted by CDM to the Corps on June 27, 2016, claimed increased costs in the amount of $3,157,098.58, allegedly caused by the protest suspension described above (R4, tab 18). CDM's claim was denied by the Corps on December 2, 2016, and CDM thereafter timely filed an appeal to the Board which was docketed on February 27, 2017. The contract contained both the Federal Acquisition Regulation (FAR) 52.242-14, SUSPENSION OF WORK (APR 1984); and FAR 52.233-3, PROTEST AFTER A WARD (AUG 1996) clauses.