ASBCA 62140

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Molly Jessie Company ) ASBCA No. 62140 ) Under Contract No. W912WJ-19-P-0023 ) APPEARANCE FOR THE APPELLANT: Mr. Greg Ryan Principal/Partner APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Jenna N. Gustafson, Esq. Engineer Trial Attorney U.S. Army Engineer District, New England Concord, MA OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD This is an appeal from a termination for default of a purchase order contract. Appellant has elected Board Rule 12.3, Accelerated Procedure, and each party has decided to proceed under Board Rule 11, Record Submission. Each party filed an initial brief and a reply brief. In addition to the briefs, the record includes the government's Rule 4 file, as supplemented, tabs 1-45, appellant's supplement to that file, exs. Al-A4, which it filed as an attachment to its "Reply to Respondent's Answer" on September 16, 2019. Only the termination for default is at issue here. FINDINGS OF FACT 1. On January 4, 2019, the U.S. Army Corps of Engineers, New England District (government or Corps) issued Request for Quotations (RFQ) No. W912WJ19Q0033 to perform the work set forth in an attached schedule. Item No. 0001 of that Schedule described the work as follows: NHL Replace Sanitary Sewer Pipe FFP Contractor shall furnish all labor, materials, equipment, and transportation to remove and replace approximately 320 feet of existing vitrified clay (VC) sanitary sewer piping from the Comfort Station to the existing distribution  box at North Hartland Lake, Hartland, VT in accordance with the Statement of Work. (R4, tab 2 at 1-2) 2. The Schedule further stated that "site visits are highly recommended prior to providing a quote." (Id. at 2) Paragraph 7 of the Quotation Instructions stated: Contractors are not required to submit an Accident Prevention Plan (APP) with their quote. The successful offeror will be required to submit this document at the direction of the Technical Point of Contact. The APP must be accepted by the Government designated Authority prior to the commencement of work. (Id. at 3) 3. Also included with the RFQ was a Statement of Work (SOW), Section A of which gave a more detailed description of the work to be performed (R4, tab 2 at 4). Section D, paragraph 1, Accident Prevention Plan, of the SOW provided in part as follows: The Contractor shall prepare an Accident Prevention Plan (APP) specific to the activities being performed. It shall include an Activity Hazard Analysis (AHA) as described in Paragraph "2. AHA" below. All work shall be conducted in accordance with the APP, the U.S. Army Corps of Engineers Safety and Health requirements Manual (EM 385-1-1, 2014 edition), and all applicable Federal, State, and local safety and health requirements. A copy of EM 385-1-1 can be accessed electronically using the following link: http://www.publications. usace.army .mil/Portals/7 6/Publica tions/EngineerManuals/EM_ 3 85-1-1.pdf The APP shall detail how safety and health will be managed during the project. The APP shall address the requirements of applicable Federal, State and local safety and health laws, rules, and regulations. The Contractor shall comply with Federal Acquisition Regulation Clause No. 52.236-13 for Accident Prevention, which is added by reference. Special attention shall focus on the 2  requirements of EM 3 85-1-1, specifically Section Ol .A.11 through 01.A.18, Figure 1-2 AHA, and Appendix A (Minimum Basic Outline for Accident Prevention Plan). The APP shall be developed by a qualified person. The Contractor shall be responsible for documenting the qualified person's credentials.