ASBCA 60625

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) General Dynamics Information Technology ) ASBCA No. 60625 ) Under Contract No. W91QUZ-06-D-0025 ) APPEARANCES FOR THE APPELLANT: Thomas L. McGovern III, Esq. Nicole D. Picard, Esq. Hogan Lovells US LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Dana J. Chase, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGED' ALESSANDRIS Appellant, General Dynamics Information Technology (GDIT) was awarded a contract to upgrade the communications network at Fort Drum, New York. During performance of the contract, GDIT's subcontractor severed an existing communications cable duct bank. GDIT appeals from a contracting officer's final decision denying its claim for reimbursement of its costs incurred in repairing the cable strike. GDIT asserts that respondent, the Department of the Army (Army or government) is liable for the repair costs because it failed to mark the existing utility as required by the contract. Conversely, the Army asserts that GDIT is liable for the repair costs because it failed to follow the contractually-required permitting process for excavating on the base. For the reasons stated below, we deny GDIT's appeal. FINDINGS OF FACT GDIT is a business unit of General Dynamics Corporation ( compl. ,i 1). GDIT is the prime contractor under Contract No. W91QUZ-06-D-0025, an indefinite-delivery, indefinite-quantity (IDIQ) contract for the U.S. Army's Infrastructure Modernization (IMOD) Acquisition supporting the Installation Information Infrastructure Modernization Program (I3MP) (R4, tab 35)'. The IMOD I3MP contract incorporates by reference Federal Acquisition Regulation (FAR) clauses 52.243-1, CHANGES-FIXED-PRICE (APR 1984), ALTERNATE II; and contains FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) clause (R4, tab 35 at 918, 920-21).  On 18 July 2012, the Department of the Army, Army Contracting Command-Rock Island, issued Delivery Order No. BAO 1 under the IMOD I3MP contract on a firm-fixed-price basis for the performance of the I3MP Unified Capabilities Network Architecture upgrade at Fort Drum, New York (R4, tab 1 at 1-2). Pursuant to the delivery order, GDIT was to "provide all effort to engineer, furnish, install, secure, test, document, migrate and cutover a tum-key solution to upgrade the existing infrastructure and facilities at Fort Drum New York" (id. at 2). GDIT subcontracted with InterCounty Excavation (ICE) to perform the excavation work required by the delivery order (tr. 1/28, 186). The delivery order and Fort Drum policy required GDIT, as the contractor, to obtain approved excavation permits from Fort Drum prior to performing excavation work (R4, tab 1 at 74, 134; supp. R4, tab 36 at 2). It also required, independent of the excavation permit process, that GDIT generate a "profile," which is a document that shows the depth and location of underground utilities in the area GDIT planned to excavate, and to submit the profile to Fort Drum for review and approval (R4, tab 1 at 134). Contractual Requirements Regarding Excavation Permits Delivery Order No. BAO 1 included as attachments a Performance Work Statement (PWS), and a Technical Data Package (TDP). Relevant to this appeal, the PWS contains a section entitled "Government Furnished Information" providing that: "Site-specific documentation represents the Government's best effort to capture existing requirements and conditions at time of collection and is believed to be accurate" (R4, tab 1 at 69). The PWS likewise contains provisions regarding Excavation Permits, specifically, section 4.2.2., Utilities, that provides: The contractor shall coordinate all utility locates and procedures in accordance with the Ft Drum Civil Site Design Guidelines[.] The contractor shall apply for, obtain, and comply with all local guidance and procedures concerning utility locates prior to digging at any location of the project area.