ASBCA 61802

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Maruf Sharif Construction Company ) ASBCA No. 61802 ) Under Contract No. N33191-14-D-1053 ) APPEARANCE FOR THE APPELLANT: Mr. Mohammad Asif Stanekzai President APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Rawn M. James, Jr., Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE THRASHER This appeal involves a contract for renovation of an entry control point (ECP) and quarter deck of a building on a naval facility in Bahrain. The government found that appellant finished the contract 131 days late and assessed liquidated damages (LDs) in the amount of $26,200.00, later reduced by the contracting officer's (CO's) decision to $17,000. Appellant elected to proceed under the Board's Small Claims (Expedited) procedures, Board Rule 12.2. The Contract Disputes Act, 41 U.S.C. § 7106(b)(4)(5), as implemented by Board Rule 12.2, provides that this decision shall have no precedential value, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside. The parties have jointly agreed that the appeal shall be heard on the record, per Board Rule 11. SUMMARY FINDINGS OF FACT 1. On September 7, 2016, Naval Facilities Engineering Command, Europe, Africa, Southwest Asia (the government) competitively awarded Maruf Sharif Construction Company (MACEC), 1 Task Order No. 0010, under an indefinite-delivery/indefinite-quantity (ID/IQ), design/build contract, No. N33 l 91-14-D-1053 for the renovation of the ECP and quarter deck of Building 262, on NSA-1 Bahrain. The task order was a firm-fixed-price contract in the amount of$286,750.00. (Compl. ,r,r 1-4) 1 MACEC is located in Kabul, Afghanistan.  2. The contract's Statement of Work described the Project Objectives as: Objective of the project is to ensure that personnel do not access the building without a badge/proper authorization. This project will create an ECP that meets security criteria by locating cell phone storage outside of the existing quarter deck area and creates defined entrance and exit system while still allowing for emergency egress. (R4, tab 4 at 54, 12) 3. The Request for Proposal (RFP) included Federal Acquisition Regulation (FAR) clause 52.211-12, LIQUIDATED DAMAGES - CONSTRUCTION (SEP 2000). The LDs amount stated in the RFP and included in the executed task order is $200.00 for each calendar day until the work is completed or accepted. (R4, tab 4 at 9) Late Completion, Government Assessment of LDs and Appellant's Response 4. The combined design and construction period totaled 276 calendar days from task order award date with a contract completion date (CCD), as awarded, of June 10, 2017 (R4, tab 4 at 9). On August 9, 2017, the government issued a letter of concern stating appellant had only completed 45% of the project by the CCD, the government would begin assessing LDs from the day after CCD, June 11, 2017, and would begin withholding 10% on progress payment invoices (R4, tab 8). Appellant responded by letter on August 19, 2017. The body of the letter alleged two instances of government-caused excusable delay. Additionally the letter included six attachments, one of which was a Project Narrative Report including a Detailed Schedule, dated August 18, 2017. This project narrative asserted five instances of government-caused delays and stated the project was at 87. 76% complete as of the date of the schedule. (R4, tab 15) 5. On December 11, 2017, the government forwarded a letter to MACEC stating: A final inspection of the reference[ d] contract work was conducted on October 19, 2017 .... [N]o discrepancies remain to be corrected by your firm and no punch list is required. Since there are no remaining discrepancies that significantly impact the use of the facility, the Government accepts the facility for beneficial occupancy as of October 19, 2017. (R4, tab 5) 2  6. The government issued a notice of assessment of LDs to appellant on January 5, 2018, for 131 calendar days in the amount of $200 per day in the amount of $26,200.00 (R4, tab 2).