ASBCA 61093

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Fluor Federal Solutions, LLC ) ASBCA No. 61093 ) Under Contract No. N69450-12-D-7582 ) APPEARANCES FOR THE APPELLANT: John S. Pachter, Esq. Gregory A. Smith, Esq. Jennifer A. Mahar, Esq. Kathryn T. Muldoon Griffin, Esq. Smith Pachter Mc Whorter PLC Tysons Comer, VA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Russell A. Shultis, Esq Julie Ruggieri, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE CLARKE ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Fluor Federal Solutions, LLC (Fluor) appeals the Navy's decision to require Fluor to provide onsite manning at the Naval Station Mayport Water Treatment Plant 24 hours per day, 7 days per week. Both parties have moved for summary judgment. Fluor asks the Board to find the Navy's interpretation to be unreasonable and order the Navy to compensate it $934,426.47 for amounts withheld and operating costs. The Navy contends that the Contract clearly required 24/7 manning. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. In accordance with the decision below, we sustain the appeal. STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTIONS FDEP Permit No. 0146801-012-WC 1. Florida Department of Environmental Protection (FDEP) issued Permit No. 0146801-012-WC, dated November 6, 2006, to Navy Public Works Center Jacksonville; it includes the following: Enclosed is permit 0146801-012-WC, dated November 6, 2006, to convert from gaseous chlorine disinfection to  liquid sodium hypochlorite. This permit is issued pursuant to Section(s) 403.087, Florida Statutes (F.S.). This permit is issued under the provisions of Chapter 403, Florida Statutes (F.S.), and Florida Administrative Code (F.A.C.) Chapter 62-555 (formerly 17-22). The above named Permittee is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the Department and made a part hereof and specifically described as follows: Description: Conversion from gaseous chlorine disinfection to liquid sodium hypochlorite [hypochlorination]. The system will have two 2500 gallon storage tanks with room for more, three chemical feed pumps at 30 gph each and a new chlorine analyzer. The permitted maximum capacity of the plant will remain at 5.7 MGD. (App. supp. R4, tab 222 at 1, 3 1) Permit "Specific Condition" No. 9 states that the permittee (Navy Public Works Center Jacksonville) "shall follow the guidelines of Chapters 62-550, 62-555, and 62-560, [FL Admin Code], regarding public drinking water system standards, monitoring, reporting, permitting, construction, and operation." (App. supp. R4, tab 222 at 9) The permit had an expiration date of November 5, 2011 (id.). The permit requires that the project "shall be completed prior to the expiration date of this permit" (id. at 10). Requests for Information Nos. 243 and 550 2. During the solicitation period, potential bidders submitted Requests for Information (RFI) to the Navy. In RFI No. 243, a potential bidder cited Spec. Items 3.1 and 3 .1.5 and asked whether water treatment plants (WTP) "require 24 hr/7 day a week staffing" and that "watchstanding" be defined. The Navy responded: "Permits determine staffing. Permits and requirements for compliance are given by the Florida Department of Environmental Protection (FDEP). Water Permits are available from FDEP." (App. supp. R4, tab 204 at 7) 3. In RFI No. 550 a potential bidder cited Spec. Items 3.1 and 3.1.5 and asked "Do WTP's require 24 hr/7 day a week staffing? Define 'watch-standing.'" The Navy 1 Page numbers refer to PDF page numbers. 2 responded "Water Treatment Plants are to be addended [sic] per the CUP Permit #589 and #829. 'Watch Standing' is the required attendance per the CUP permit." (App. supp. R4, tab 205 at 26) 4.