ASBCA 57831

ARMED SERVICES BOARD OF CONTRACT APPEALS Appe~of-- ) ) BAE Systems San Francisco Ship Repair ) ASBCA No. 58809 ) Under Contract No. W912SU-04-D-0005 ) APPEARANCE FOR THE APPELLANT: Peter B. Jones, Esq. Jones & Donovan Newport Beach, CA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ John R. Longley, JA CPT Tyler L. Davidson, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE TING ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT The Army (government) awarded BAE Systems San Francisco Ship Repair (BAE or BAESFSR) a task order under a multiple-award, task order contract (MATOC) for the programmed maintenance of a Logistics Support Vessel. The parties' disputes relate to the proper equitable adjustment of two items under the task order: (1) the replacement of 24 tie-down features on the vessel's main deck known as "cloverleafs"; and (2) the replacement of the vessel's potable and drain piping systems. BAE moves for summary judgment on its cloverleaf claim contending that, as a matter of law, it is entitled to the $285, 101 claimed because that amount was verified by a Defense Contract Audit Agency (DCAA) report as having been incurred. 1 The Army opposes the motion. For reasons set out below, we deny the motion. Background In 2004, the Mission and Installation Contracting Command at Fort Eustis, Virginia, received a requirement to issue contracts for the maintenance and repair of three classes of landing craft stationed at various ports in the Pacific Ocean (R4, tab 13 7 at 1). The vessels included the Army's Logistics Support Vessels also known as "LSV" - class 1 BAE's motion for summary judgment on the cloverleaf claim was received at the Board on 3 March 2014. Subsequently, BAE filed a second motion for summary judgment on the piping claim received at the Board on 3 April 2014. This decision addresses the first or the cloverleaf motion for summary judgment. vessels. The effort was referred to as the "Programmed Drydocking, Cleaning, Painting, Repairs and Modifications to US Army Active and Reserve Vessels Located on the West Coast of the United States and Hawaii." The work would be executed as a task order under a MA TOC. (Id.) BAE was one of five shipyards on the West Coast that competed for and received the right to bid on task orders issued for the Army's West Coast watercraft. On 2 April 2004, MATOC Contract No. W912SU-04-D-0005 (Contract 0005) was awarded to BAE in the estimated amount of$99,476,431.91. The contract was for a base year and four one-year options. (R4, tab 137 at 2) Each task order under Contract 0005 would identify definite and indefinite work items to be performed. The contract defined "Definite Item" to mean "[k]nown work that shall be diligently prosecuted upon issuance of delivery order." The contract defined "Indefinite Item" to mean "[w]ork to be accomplished only upon the written approval of the Contracting Officer. Activation of an indefinite item does not entitle the Contractor to an extension of the performance period." (R4, tab 1at24, ~~ C.0.1.7., C.0.1.12.) Contract 0005 also addresses situations where the government determines, during the repair of a vessel, that additional replacement parts, materials and installation are required: C.0.2.23.1. In addition to work specified in the specifications the Contractor shall furnish additional replacement parts, materials and installation which are determined to be required by the Government. The Contractor shall purchase additional replacements [sic] parts and materials required under this paragraph at the lowest known cost and shall be paid at cost. "At cost" is defined as the actual net cost of such parts and materials to the contractor including any and all discounts, rebates and allowances thereon (regardless of the date of purchase), material handling costs properly allocable to such parts or materials (if such costs are not reimbursable under any other provision of this contract), and properly identified and supported freight or transportation charges.