ASBCA 57515

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of— ) ) Gargoyles, Inc. ) ASBCA No. 57515 ) Under Contract No. W912ER-11 -C-0012 ) APPEARANCE FOR THE APPELLANT: Kenneth A. Martin, Esq. The Martin Law Firm, P.L.L.C. McLean, VA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Jeremy Becker-Welts, Esq. James A. Wallace, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE THRASHER Appellant, Gargoyles, Inc. (Gargoyles), appeals the termination for cause of its commercial items contract to deliver 56 light armored vehicles (LAVs) to Victory Base Complex (VBC), Camp Wolfe, Baghdad, Iraq, 10 days after award of the contract. Gargoyles requests that we convert the termination for cause to a termination for convenience, alleging the government waived the delivery schedule, failed to issue a 10-day cure notice, and government actions constituted excusable delay. We have jurisdiction under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny the appeal. FINDINGS OF FACT The Solicitation 1. On 24 November 2010, the U.S. Corps of Engineers (USACE) Gulf Region District (GRD) issued Solicitation No. W912ER-1 l-R-0035 (the solicitation) for a firm fixed-price commercial items contract to acquire transportation services for the USACE mission in Iraq.1 The solicitation Performance Work Statement (PWS) stated the 1 The solicitation cover sheet was Standard Form 1449 prescribed by FAR 53.213 for commercial item solicitations. The solicitation also included the FAR commercial item evaluation solicitation clauses and contract clauses, 52.212-1 and 52.212-2 (R4, tab 1 at 66-86 of 168). awardee would provide transportation services to include LAVs, routine maintenance, major, minor and emergency repairs, washing, general cleaning, and recovery and towing services of disabled vehicles throughout Iraq. (R4, tab 1 at 3, 66-86 of 168) In addition, the solicitation PWS required that services were to be provided at five locations in Iraq and that the awardee would provide a fleet of vehicles designated by USACE to execute the transportation services requirements of GRD. The solicitation specified the required vehicle fleet was to consist of 2007 or newer LAVs Sport Utility Vehicle (SUV) style. (Id.) The period of performance was for a three-month base period with one three-month option period (R4, tab 1 at 3, 6 of 168). 2. The solicitation set forth specific performance deadlines. Although the general phase-in period was 30 days, Section 3.0 "REQUIREMENTS" of the PWS specified that the awardee was required to deliver at a minimum, 56 LAVs to VBC 10 days after award of the contract (R4, tab 1 at 4 of 168). Section 7.0 "TRANSPORTATION SERVICES" reiterated that the awardee was required to deliver a minimum of 56 LAVs to VBC within 10 days after award (R4, tab 1 at 6-7 of 168). Section 4.0 "DELIVERABLES" of the PWS specified that the awardee was required to deliver its: Phase-In Plan; Vehicle Operations Plan; and, Quality Control Plan 10 days after award (R4, tab 1 at 6-7 of 168). Ms. Betty Rogers, the contracting officer (CO) who conducted market research and issued the solicitation, testified the 10-day delivery requirement was to ensure continuity of services because of the imminent phase out of the incumbent contract, stating, "it was critical that this 10-day timeline be met in order to ensure that our folks could go to the project sites and utilize the security services provided at this site" (tr. 1/36). Although the 10-day delivery schedule was an aggressive requirement, none of the 16 offerers, including Gargoyles, questioned the requirement (tr. 1/34, 41). 3. Special contract requirement 1.0, "DEPLOYMENT PROCESSING," requires all contractor personnel to process through the CONUS Replacement Center (CRC) or an alternate center approved by the CO before they can deploy to Iraq (R4, tab 1 at 40 of 168). Pursuant to contract requirement 2.0, contractor personnel require issuance of a Letter of Authorization (LOA) to process through the CRC (R4, tab 1 at 41 of 168). Gargoyles Proposal 4. The solicitation was amended four times (R4, tab 1).