ASBCA 62753

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Consorzio Stabile GMG S.c.ar.l. ) ASBCA No. 62753 ) Under Contract No. N33191-14-D-1050 ) APPEARANCE FOR THE APPELLANT: Marc Lamer, Esq. Kostos and Lamer, P.C. Philadelphia, PA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Patricia Walter, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE HERZFELD The Department of the Navy (Navy) awarded a task order to Consorzio Stabile GMG S.c.ar.l. (Consorzio) to design and construct a vestibule and replace the doors at Building 261, NSA-I in Bahrain. The Navy terminated Consorzio’s task order for default and justifies its termination based on Consorzio’s failure to make progress in performing the task order. Consorzio asserts that the Navy wrongfully terminated the contract for default because the Navy waived the performance date and failed to create a new performance date. Consorzio seeks to have the termination converted into a termination for convenience. The parties filed briefs on the record, waived a hearing, and requested the Board issue a decision under Board Rule 11. The Board has jurisdiction of this appeal under the Contract Disputes Act (CDA) of 1978, 41 U.S.C. § 7105(e)(1)(A). We sustain the appeal and convert Consorzio’s default termination to a termination for convenience. FINDINGS OF FACT On September 17, 2014, the Navy, through the Naval Facilities Engineering Command Europe Africa Central, awarded Consorzio an indefinite delivery/indefinite quantity multiple-award construction Contract No. N33191-14-D-1050 (the Contract) to design/build-design/bid/build new construction, renovation, alteration, and repair projects at areas in Bahrain and the United Arab Emirates (R4, tab 36; U.S. Department of Defense, Contract Awards for Sept. 17, 2014). 1 1 https://www.defense.gov/News/Contracts/Contract/Article/606022/ (visited on Apr. 27, 2023).  On July 31, 2018, the Navy awarded Consorzio Task Order No. N3319118F4309 (the Task Order), which called for Consorzio to design and construct a vestibule and repair or replace the doors at Building 261, NSA-I in Bahrain for $853,000 (R4, tab 6 at 404, 409). 2 The Task Order required Consorzio to: (a) commence work under this contract within 15 calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than 425 calendar days of award. The time stated for completion shall include final cleanup of the premises. (R4, tab 6 at 407) (emphasis in original). The Task Order specifically identified September 29, 2019, as the completion date (R4, tab 6 at 406). The Task Order included a Liquidated Damages provision, which set a $400 rate for each calendar day of delay (R4, tab 6 at 407 (incorporating Federal Acquisition Regulation (FAR) 52.211-12, LIQUIDATED DAMAGES – CONSTRUCTION (SEP 2000)). The Task Order required Consorzio to submit its detailed construction phasing plan for the Navy’s approval at the kickoff meeting, which occurred on September 6, 2018 (R4, tab 4 at 267, 11 at 422, 12 at 424). The construction phasing plan would indicate the sequence of work and timeline for the blast-resistant doors, interior doors, and other exterior doors requiring repairs (R4, tab 4 at 267). Consorzio submitted its performance guarantee as required by the Task Order on October 9, 2018, but not its phasing plan (R4 tabs 7 at 411-14, 8 at 415; gov’t br. at 3). The parties held a progress meeting on December 18, 2018, regarding the Task Order (and other projects). During this meeting, Consorzio committed to providing its phasing plan to Navy personnel no later than December 22, 2018 (R4, tab 10 at 420). The Navy emphasized to Consorzio the project’s high visibility and the need for timely completion (R4, tab 10 at 420). Consorzio responded that, if necessary, it would deploy additional workers from Italy to ensure timely completion of the project (R4, tab 10 at 420). On January 27, 2019, the Navy issued a letter of concern for lack of progress on the project (R4, tab 12).