ASBCA 63898

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Jabez-Absher Small Business Joint ) ASBCA No. 63898 Venture ) ) Under Contract No. W912DW-22-C-0011 ) APPEARANCES FOR THE APPELLANT: Mr. Stephen Montalvo Project Executive Kainui M. Smith, Esq. Counsel APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Benjamin T. Townsend, Esq. Anna Astrakhan, Esq. Eric M. Smith, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Seattle OPINION BY ADMINISTRATIVE JUDGE TAYLOR PURSUANT TO BOARD RULE 11 Jabez-Absher Small Business Joint Venture (Jabez-Absher or appellant) seeks an increase in the contract price of $100,865.76 resulting from its decision to change the production facility for certain electrical equipment. Jabez-Absher contends it was required to change the production facility since the lead time for the equipment from the original production facility had increased from 50 to 80 weeks negatively impacting the construction schedule. Jabez-Absher further contends that it provided the U.S. Army Corps of Engineers (USACE or government) with notice of this change and the government acknowledged the change. Jurisdiction is proper pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101–7109. The parties have elected for the Board to decide this appeal pursuant to the Board’s Rule 11 procedures. Board Rule 11 permits the parties to waive a hearing and submit the matter for decision on the written record. Pursuant to Rule 11, the Board decides the weight to be given the evidence and may make findings of fact on disputed facts. Board Rule 11(d). For the reasons stated below, the appeal is denied.  FINDINGS OF FACT I. The Contract On August 23, 2022, the USACE awarded Jabez-Absher a firm-fixed price contract in the amount of $29,004,500 to repair a military barracks on Joint Base Lewis-McChord (R4, tab 3). The contract had a completion date of 720 calendar days from the date of the notice to proceed (id. at 33). 1 The government issued the notice to proceed on September 7, 2022, with an effective date of October 3, 2022, establishing a contract completion date of September 22, 2024 (R4, tab 9). The contract stated the contractor shall supply all supervision, labor, equipment and materials necessary to perform the required work (R4, tab 3 at 33). The contract also specifically notified Jabez-Absher that only a warranted contracting officer had the authority to change the contract’s terms and conditions, and the contractor should not proceed with any attempted changes made by someone other than a warranted contracting officer without first notifying the contracting officer (R4, tab 3 at 37). Proceeding with such unauthorized work would be at the contractor’s own risk (id.). The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.243-4, CHANGES (JUN 2007) which provides, in relevant part: (b) Any other written or oral order . . . from the Contracting Officer that causes a change shall be treated as a change order under this clause; provided, that the Contractor gives the Contracting Officer written notice stating (1) the date, circumstances, and source of the order and (2) that the Contractor regards the order as a change order. (c) Except as provided in this clause, no order, statement, or conduct of the Contracting Officer shall be treated as a change under this clause or entitle the Contractor to an equitable adjustment. (Id. at 45) (emphasis added) 1 The government’s Rule 4 file is Bates numbered with a five-digit number. We omit the leading zeros in our citations to the government’s Rule 4 file. 2 II. The Electrical Subcontract Jabez-Absher issued a subcontract to Danard Electric, Inc. (Danard) to perform the electrical work on the contract (Appellant’s Statement of Facts (ASOF) ¶ 3).