ASBCA 62628

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Central Environmental, Inc. ) ASBCA No. 62628 ) Under Contract No. W9I2DY-15-D-0072 ) APPEARANCE FOR THE APPELLANT: Sarah C. Gillstrom, Esq. Davis Wright Tremaine LLP Anchorage, AK APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Christopher C. Weisenberger, Esq. Margaret P. Simmons, Esq. Engineer Trial Attorneys U.S. Army Engineer & Support Center Huntsville, VA OPINION BY ADMINISTRATIVE JUDGE MELNICK Central Environmental, Inc. (CEI) is a demolition contractor that eliminated unneeded concrete weapons targets at the White Sands Missile Range (WSMR) in accordance with a task order issued under a Multiple Award Task Order Contract (MATOC). During performance, it was often blocked from accessing the worksite or evacuated because of missile testing on the range. It claims the government breached the MATOC by not notifying it that it would encounter these restrictions. We decide entitlement only and conclude the government breached the MATOC. FINDINGS OF FACT 1. The United States Army Corps of Engineers’ (“Corps”) Facilities Reduction Program (“FRP”), operating from Huntsville, Alabama, eliminates unneeded government structures around the country. Through FRP, the Corps awards MATOCs to a pool of demolition contractors who compete for task orders to perform specific projects. (Tr. 2/123-25, 3/7-8) In 2015, CEI was most recently awarded one of the Corps’ FRP MATOCs for firm-fixed price demolition services at various facilities, including WSMR (R4, tab 34 at 932-37, 1035). Section 7 of the MATOC, entitled “Government-Furnished Information,” says the following: The Government shall furnish site-specific information which may include . . . installation policies and procedures  affecting the work. The documents may include items such as . . . site limitations for working hours, travel routes . . . . All such items, when and where available shall be provided with the respective task order RFP. (R4, tab 34 at 1023) 2. WSMR, located in south-central New Mexico, is the largest military installation in the country. Its boundaries extend almost 100 miles north to south and 40 miles east to west, totaling nearly 3,200 square miles. (R4, tab 65 at 2256) Although it is part of the Army Test and Evaluation Command (ATEC), WSMR is a tri-service facility used, among others, by the Army, Navy, and Air Force. It is the largest open-air land range in the Department of Defense for testing, research, and assessment of weapons systems and commercial products. (Id. at 2213) Public roads lead to WSMR, and then non-public internal roads, called range roads, traverse the base (R4, tab 65 at 2256; tr. 1/63). The Air Force and Corps have personnel permanently located at WSMR (R4, tab 65 at 2216, 2248-50; tr. 3/82, 4/6-7, 35). 3. In 2017, the Air Force office at WSMR responsible for research and development testing contacted the Corps to obtain the demolition of weapons target structures and associated cleanup at two different locations within the base. One set of targets was at the Slick City Test Area, which is approximately a one-hour drive through the base from the cantonment area. The other set was at the Burris Wells Test Area, which is about a half-hour drive further away. (R4, tab 17 at 806-07; tr. 3/8-10, 12, 82, 4/36-37) The Air Force developed a scope of work and definition of requirements (R4, tab 36; tr. 4/37, 45-46). Through these engagements, the Corps assumed responsibility to act for the benefit of the Air Force, with the Air Force then reimbursing the Corps for its labor and costs associated with a resulting contract (app. prop. finding ¶ 8; gov’t resp to app. prop. findings ¶ 1; tr. 3/82-83). 4. Upon receipt of the Air Force inquiry for demolition of its targets, the Corps sent an FRP engineer to WSMR to perform a scoping visit, which involved observing and making site notes, drafting a performance work statement (PWS) to be used in a MATOC task order, and developing an independent cost estimate to enable the Air Force to know how much money it would require. (Tr.