ASBCA 62592

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Gulf Extreme Engineering & Construction ) ASBCA No. 62592 ) Under Contract No. W5J9JE-16-C-0003 ) APPEARANCE FOR THE APPELLANT: Mr. Mir Sulaiman Amini Chief Executive Officer APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Rebecca L. Bockmann, Esq. Kathryn G. Morris, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE SMITH Appellant Gulf Extreme Engineering & Construction (GEEC or appellant) challenges Respondent U.S. Army Corps of Engineers’ (the government’s) default termination of GEEC’s construction contract for failure to diligently prosecute the work. GEEC contends that the government’s suspension of one of the contract’s line items (CLINs) during the project, along with COVID and other government actions, impeded GEEC’s performance and excused its considerable project delay. But GEEC’s arguments are unsupported or unavailing and they fail to rebut the government’s demonstrated justification for termination. The appeal is denied. FINDINGS OF FACT GEEC was awarded a $7,985,000 design-build contract on April 6, 2016 (R4, tab 6 at 2). The contract was grouped into eight CLINs for design and construction of electric power transmission infrastructure in Baghlan province, Afghanistan (R4, tab 6 at 3-6). CLINs 3, 4, and 5 were geographically discrete work elements that could be performed independently (R4, tab 6 at 3-6, 52-53, tab 14). The government issued notice to proceed on June 10, 2016, establishing a completion date 707-days later on May 19, 2018 (R4, tab 13). During performance, a total of five modifications were issued, two of which bilaterally expanded the period of performance to 1,386 days with a revised project completion date of March 28, 2020 (R4, tabs 7-11).  Although the solicitation and contract included a preliminary conceptual route for the electric transmission lines, the actual route was to be determined by GEEC during the design phase and based upon then-existing conditions, coordination with Afghan utilities, available rights of way, and the contractor’s own design, cost, and construction decisions (R4, tab 6 at 57, 110-11, 355, tab 7 at 2). The contract expressly required GEEC to “. . . investigate other routes for optimization and cost savings . . . .” (compare R4, tab 12 at 3, with R4, tab 6 at 53-54, 57). On July 2, 2016, GEEC’s RFI 1 proposed a route that differed from the conceptual route, calling it a “change request” without cost or schedule impact (R4, tab 139). Even though it was not a change to GEEC’s obligation to propose a route, the government accepted GEEC’s proposal and reiterated the contract requirement that GEEC was responsible for rights-of-way and coordination with the Afghan government, which needed to be finalized in the 35% design submittal (R4, tab 16, tabs 139-140 at 1). GEEC’s design submittals were all late (R4, tab 14 at 3 (activity ID Srvy-15)- 4 (activity IDs Dsgn-11, Dsgn-15, Dsgn-19, & Dsgn-23); tab 20 at 2-3, tab 33 at 1, tab 156 at 1). For example, GEEC’s 99% design was 333 days later than its original schedule, and 200 days later than its May 2017 schedule update (R4, tab 156 at 1). It was also based upon the preliminary route in the contract, not the approved route chosen by GEEC and discussed above (compare R4, tab 153 at 5, with R4, tab 6 at 355). By May 22, 2017, GEEC was 345-days into the 707-day period of performance yet had earned just 25% of the contract value (R4, tab 115 at 1). Nine months after that, in February 2018—626 days into the now-modified 776-day performance period—GEEC had completed just 51% of the work (R4, tab 124 at 1). This left five months to complete the other half of the project and GEEC had achieved, at most, 3.5% progress per month (id.). So, by the end of February 2018, GEEC’s rate of progress suggested at a minimum 14 more months of work. Timely performance was essentially impossible. On April 23, 2018, the government requested a realistic recovery schedule to complete on time (R4, tab 43). The government said that “[i]f you claim uncontrollable delays please provide the reasons and backup documents” (id.). GEEC did not respond with a realistic recovery plan or justification for delays. In fact, GEEC did not respond at all.