ASBCA 61157

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Family Entertainment Services, Inc. ) ASBCA No. 61157 ) Under Contract No. W91248-15-D-0008 ) APPEARANCE FOR THE APPELLANT: Mr. William Johnson President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Bruce L. Mayeaux, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT This appeal challenges deductions in the amount of $81,692.34 by the Army on a grounds maintenance contract for 3,897 acres at Fort Campbell, Kentucky, and the Fort Campbell cantonment area which was geographically located in Tennessee. Family Entertainment Services, Inc. 1 claims that the government improperly reduced the amount it paid based on two arguments: 1) the period of performance should have been measured in work days but was instead measured in calendar days; and 2) the government improperly applied the terms of the contract relating to inspections under technical exhibit one of the contract and deducted the wrong amount. The Army responds that the term "day" means calendar day unless otherwise specified and explained the reasons for the deductions from the contract. 2 For the reasons set forth below, we deny the appeal. 1 This appeal was docketed as Family Entertainment Services, Inc. D/B/A IMC, however, the contract was issued to Family Entertainment Services, Inc., and for purposes of this decision we refer to appellant as Family Entertainment Services, Inc. or FES. 2 In its brief, the government also addresses what it interprets as appellant's constructive acceleration argument. Because FES did not brief this argument, it is deemed abandoned. See States Roofing Corp., ASBCA No. 54860 et al., 10-1 BCA ii 34,356 at 169,664 (failure to address claimed contentions in brief equated to abandonment of the issue).  SUMMARY FINDINGS OF FACT 1. On 26 May 2015, the Mission and Installation Contracting Command-Fort Campbell (the government), awarded Contract No. W91248-15-D-0008 (the contract), a firm-fixed price contract to provide grounds maintenance services on Fort Campbell, Kentucky, to Family Entertainment Services, Inc. (appellant or FES) (R4, tab 1). 2. The contract incorporates Federal Acquisition Regulation (FAR) 52.212-4 by reference (R4, tab 1at1, block 27b). FAR 52.212-4(e) incorporates FAR 52.202-1, DEFINITIONS (Nov 2013). FAR 52.202-1 states: (a) When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless- ( 1) The solicitation, or amended solicitation, provides a different definition; (2) The contracting parties agree to a different definition .... 3. FAR 2.101, both currently and at the time of solicitation and award states, "Day means, unless otherwise specified, a calendar day." 4. The contract also specifically references days in paragraph 5.3.1 of the Performance Work Statement (PWS) where the government outlines the scope of work for the mowing and ground maintenance contract. For Schedule B, the following is included in the contract: 5.3.1.1 Level II, Kentucky Normal Visibility Areas (CLIN x002AA, x002AB). Mowing: Approximately 1, 118 acres of grass to be cut between 2" to 4" height. Estimated once every 21 days. As a possible option, the contractor shall mow at least once every 14 days. The government retains the option to award the contract for mowing the same 1,159 acres on a 14 day cycle, depending on availability of funds. [3J 3 The differing number of acres is in the original and is unexplained. 2  5.3.1.3 Level III Airfield & trimming around runway lights. (CLIN x002AC). Mowing: Cut approximately 887 acres at 6", plus an area 12' in diameter (6' radius) shall be cut around all taxiway lighting at 3'' height. Locations as indicated on maps.