ASBCA 60410

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Coastal Environmental Group, Inc. ) ASBCA No. 60410 ) Under Contract No. N40085-I3-C-6541 ) APPEARANCES FOR THE APPELLANT: John M. Manfredonia, Esq. James Petersen, Esq. Manfredonia Law Offices, LLC Cresskill, NJ APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Matthew D. Bordelon, Esq. Robert R. Kiepura, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE MCILMAIL FINDINGS OF FACT On September 23, 2013, the parties contracted for appellant to make repairs to the Security Boat Marina at Naval Weapons Station Earle, Leonardo, New Jersey (R4, tab 5 at 204, 206). Specifically, the work consisted of work to three in-water features; namely, a "short wall," a "long wall;' and a buoy (id. at 233-34, ,r 6; tr. 3/46). The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984), which provides: (a) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed. (R4, tab 5 at 209) The contract provided 13 5 days from the date of award to complete the work; that is, through February 5, 2014 (see id. at 203).  Unless otherwise indicated, the following events all occurred in 2015. On January 8, the government ordered appellant to stop work, stating that "no work shall commence until you receive further notice from the Government" (app. supp. R4, tab 66 at 1-2 ). On July 31, in Modification No. 5, the parties agreed ( 1) to an increase in the contract price; (2) that "[i]n conjunction with the work specified in the subject contract," appellant would "[r]epair additional damage to the wave screen ... that occurred since contract award"; and (3) that the contract completion date would be November 26, 2015 (R4, tab 7 at 381-82). The modification included the following "Contractor's release": Acceptance of this modification by the contractor constitutes an accord and satisfaction and represents payment in full for both time and money and for any and all costs, impact effect, and for delays and disruptions arising out of, or incidental to, the work as herein revised. (Id. at 382,, 5 (emphasis added)) 1 On September 15, the government requested that appellant provide an updated project schedule by the following day (R4, tab 20 at 428). Two days later, on September 17, the government told appellant that it "must contact this office in writing by 4:00 p.m. today if you plan to meet the terms of your contract by the scheduled completion date" (id. at 427-28). The government stated further that "[i]fthe requested information is not provided today or if you have determined that you are no longer able to meet the obligations within your contract, the Government intends to move forward and terminate your contract for default" (id. at 428). Minutes before the 4:00 p.m. deadline, appellant provided to the government a project schedule that indicated (among other things) that it would take three days to complete the mobilization of equipment and materials to the site, and that if mobilization were complete by September 30, appellant would complete the contract work on November 26, 58 days later (see id. at 429, lines 22-23, 60). On October 5, the government complained to appellant that appellant had not "completed or met one single item" on its September 17, 2015 schedule (R4, tab 22 at 434 ). Appellant responded on the same day, acknowledging that it was "behind schedule" and that it had not yet mobilized to the site, explaining that that it had "intentions of mobilizing within the next two weeks" (id. at 433). Appellant explained that "whaler systems ...