ASBCA 58082

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Alderman Building Company, Inc. ) ASBCA No. 58082 ) Under Contract No. N40085-09-D-5321 ) APPEARANCE FOR THE APPELLANT: Marilyn H. David, Esq. D’Iberville, MS APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Genifer M. Tarkowski, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE YOUNGER In this sponsored appeal regarding a contract for the renovation and interior repair of a building, Alderman Building Co., Inc. (Alderman), seeks unabsorbed home office overhead on behalf of its electrical subcontractor relating to performance delays. The issues are heavily fact-intensive, and we have previously denied motions for summary judgment filed by both parties. After disposition of their summary judgment motions, the parties elected to submit the appeal on the record pursuant to our Rule 11 and supplemented the record with additional documents. Both entitlement and quantum are before us for decision. We sustain the appeal in part. FINDINGS OF FACTS A. Contract and Subcontract 1. By date of March 27, 2009, the Navy awarded a Task Order for supplies or services under Contract No. N40085-09-D-5321 to Alderman for renovations of the interior, repairs to building systems, and incidental related work, on building M403 at Marine Corps Base Camp Lejeune, North Carolina (R4, tab 1 at 1-7). The Task Order provided that “[t]he entire work . . . shall be completed by 3/22/2010” (id. at 7). 2. The contract contained various standard clauses, including Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES (JUL 2002); FAR 52.242-14, SUSPENSION OF WORK (APR 1984); and FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 5.6 at 958).  3. By date of April 8, 2009, Alderman entered into a subcontract with Big John’s Electric Co., Inc. (Big John’s), for labor, equipment, materials, and supplies for specified portions of the interior repairs to the building (R4, tab 5.12 at 995). Big John’s was an electrical subcontractor that performed approximately 90 percent of its work on Federal projects (ex. A-1, tab 40 ¶¶ 2-27). The subcontract provided that “time is of the essence,” and that Big John’s was to “begin work within 7 days after notification” by Alderman (R4, tab 5.12 at 996). B. Delays 4. Approximately two months after award, by email dated May 27, 2009, the Navy directed Alderman to “[c]ontinue to get all of your submittals approved and ready to start construction and we will move the [contract completion date]” accordingly when we have a nailed down work start date” (R4, tab 5.13). We find that the Navy expected the work to be initiated with full force by all parties. 5. While the solicitation provided that the contract start date would be 10 days after award (R4, tab 5.6 at 948), we find that contract performance was characterized by repeated government-caused delays that aggregated to 263 days and pushed the start work date into February 2010. The delays were chiefly caused by the unavailability of new facilities for the existing tenants in building M403 (R4, tab 6 at 1107). The multiple delays to the start date were memorialized as follows: Date Document Start Date Record Citation January 13, 2009 Solicitation 10 calendar days R4, tab 5.6 at 948 after award. March 10, 2009 Solicitation “Work may not R4, tab 1 at 21 Amendment begin . . . until No.