ASBCA 59278

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Pro-Built Construction Firm ) ASBCA No. 59278 ) Under Contract No. W5J9JE-10-D-0016 ) APPEARANCE FOR THE APPELLANT: William J. Spriggs, Esq. Spriggs Consulting Services Lynchburg, VA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Pietro 0. Mistretta, Esq. Matthew S. Tilghman, Esq. Michael A. Rea, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS In July 2011, the United States Army Corps of Engineers (Corps) awarded Contract No. W5J9JE- l O-D-0016 to appellant, Pro-Built Construction Firm (Pro-Built) for construction of a police station in Atghar District, Zabul Province, Afghanistan. The Corps did not issue a notice to proceed before terminating the contract for the convenience of the government in March 2012. In March 2012 Pro-Built first submitted a termination for convenience settlement proposal. In March 2014, following several revisions, and a Defense Contract Audit Agency (DCAA) audit, Pro-Built submitted a certified claim of roughly $1.1 million. In a final decision dated 4 April 2014, the Corps' contracting officer issued a unilateral determination that Pro-Built was entitled to $48,972. Pro-Built timely appealed that final decision to this Board. We sustain the appeal in part. FINDINGS OF FACT I. The Contract 1. The U.S. Army Corps of Engineers Afghanistan District North issued a Multiple Award Task Order Contract (MATOC) No. W5J9JE-10-D-0016 to Pro-Built on 18 March 2010 (R4, tab 3). On 31July2011 the Corps awarded Task Order No. 0009 (the contract or task order 9) in the amount of $4,976,022.32 to Pro-Built (R4, tab 16). Pro-Built performed other task orders pursuant to the MA TOC in other parts of Afghanistan (tr. 1144, 60). 2. Task order 9 was a firm-fixed-price contract for the design and construction of an Afghanistan National Police Uniformed Police District Headquarters Compound in Atghar District, Zabul Province (R4, tabs 16-17). The contract required site adaption and construction including an administration building, a well house, guard shacks, guard towers, barracks buildings, women's barracks, a Criminal Investigative Directorate/Family Response Unit building, a water tower and tank, a fuel storage facility, a vehicle refuel point, septic tank, perimeter security wall, and primary and secondary entry control points (R4, tab 1 at 5, tab 13 at 65). The contract required approval of a security plan before the contractor could start work on the project site, and submission of a quality control plan not later than five days after the notice to proceed (R4, tab 13 at 131, 219). 3. The contract had a performance period of 365 days from receipt of the notice to proceed (R4, tab 17 at 14). Although the Corps informed Pro-Built that it planned to issue the notice to proceed at the Pre-construction Conference (R4, tab 16 at 1), the notice was never issued (R4, tab 1 at 5). 4. Relevant to this appeal, the contract contained Federal Acquisition Regulation (FAR) 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984) (R4, tab 17 at 14). 5. The contract also contained FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (MA y 2004) which provides that: (g) If the Contractor and the Contracting Officer fail to agree on the whole amount to be paid because of the termination of work, the Contracting Officer shall pay the Contractor the amounts determined by the Contracting Officer as follows ...