ASBCA 62607

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Vigor Works, LLC ) ASBCA No. 62607 ) Under Contract No. H92222-11-D-0080 ) APPEARANCES FOR THE APPELLANT: Mark G. Jackson, Esq. Stowell B. Holcomb, Esq. Jackson Holcomb LLP Seattle, WA APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq. Deputy Chief Trial Attorney Maj Danelle McGinnis, USAF Trial Attorney OPINION BY ADMINISTRATIVE JUDGE THRASHER Vigor Works, LLC (Vigor or appellant) appealed under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, from a contracting officer’s final decision (COFD) denying appellant’s certified claim in the amount of $5,213,618. Vigor seeks excess costs incurred from what it describes as the government constructively changing the contract by accelerating the production pace and sequence through the issuance of delivery orders. The parties have elected a written disposition under Board Rule 11. We deny the appeal. FINDINGS OF FACT 1. On September 28, 2011, the United States Special Operations Command (SOCOM or government) awarded Contract No. H92222-11-D-0080 (the contract) to Vigor Works, LLC 1 (R4, tab 9). The contract was for the design, development, and fabrication of Combatant Craft, Medium Mark 1 (CCM Mk 1) systems (compl. ¶ 7; R4, tab 9a at 4). 2. The contract was an indefinite-delivery, indefinite-quantity (IDIQ) contract with firm-fixed-price and cost reimbursable contract line items (CLINs) for a total period of performance of ten years, including option periods (R4, tab 9 at 3). Part I of the contract contained “THE SCHEDULE” (R4, tab 9 at 2). 1 SOCOM awarded the contract to Oregon Iron Works, Inc. (OIW), but OIW later became Vigor Works, LLC (R4, tab 36 at 3; app. supp. R4, tab 25 at 3).  3. The Schedule, Section B, Supplies or Services and Prices, divided the CLINs into four successive periods: • Base Period (CLINs 0001-0008) • If applicable, Test Article Refurbishment (CLINs 0009-0018) • If applicable, Low Rate Initial Production (CLINs 0019-0044) • If applicable, seven Production/Sustainment Ordering Periods (CLINs 1001- 7027) (R4, tab 9 at 3) Each CLIN was to be “set forth under individual delivery order” and performed “in accordance with Sections C 2 and J” of the contract (see R4, tab 9 at 4- 126). 4. The Schedule, Section F, Deliveries or Performance, established delivery information for each CLIN, including delivery dates for CLINs 0001 to 7027 (R4, tab 9 at 1, 133-46). 5. Part III of the contract contained “LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS” (R4, tab 9 at 1). Section J listed the documents, exhibits, and other attachments. The first item listed is Exhibit A, Contract Data Requirements Listings A, E, L, dated August 11, 2011. (R4, tab 9 at 182; see also R4, tab 9k) The contract required the contractor to provide several Contract Data Requirement Lists (CDRLs), including A006 Integrated Program Master Schedule (IPMS) (R4, tab 9 at 6). 6. The Data Description for A006 IPMS provides: 1) The Contractor shall prepare, maintain, and update a CCM Mk 1 Integrated Program Master Schedule (IPMS) that reflects the Contractor’s program and schedule planning. The Contractor shall ensure the IPMS reflects the baseline schedule and all changes thereto and maintain the IPMS throughout the life of the contract. 2 There is no “X” under Part I, Section C, Description/Specs/Work Statement. The contract included the Statement of Work as Attachment 01 under Section J (see R4, tab 9 at 1, 182). 2  2) The IPMS shall contain the networked, detailed tasks necessary to ensure successful program execution. The IPMS is vertically traceable to the Contract Work Breakdown Structure (CWBS), and the Statement of Work (SOW).