ASBCA 59655

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Islands Mechanical Contractor, Inc. ) ASBCA No. 59655 ) Under Contract No. N69272-06-C-0012 ) APPEARANCE FOR THE APPELLANT: . James E. Krause, Esq. Jacksonville, FL APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Matthew S. Hawkins, Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SWEET This is an appeal of a contracting officer's deemed denial of a claim by Islands Mechanical Contractor, Inc. (IMC). The government has moved to dismiss. We grant the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1 1. In 2006, the Department of the Navy awarded IMC Contract No. N69272-06-C-0012 (contract 0012), a firm-fixed-price contract to provide wastewater treatment system repairs at Naval Station Guantanamo Bay, Cuba (2nd amended compl. ilil 1, 18, 34). 2. IMC began performance in 2006 (2nd amended compI. ii 34 ). 3. IMC alleges that it encountered differing and unforeseen site conditions (2nd amended compl. ilil 19, 35). In particular, IMC alleges that the Naval Facilities Engineering Command (NAVF AC) provided defective plans and specifications, which did not contain correct information on existing electrical supply systems, water lines, and sewer lines (id. ii 28). 4. IMC alleges that it submitted requests for information (RFis) to NAVF AC seeking guidance regarding how to proceed. IMC alleges that NAVF AC did not respond to all of the RFis (2nd· amended compl. ilil 19, 35, 40). Nor has NA VFAC issued a suspension or stop work order (id. ilil 22, 40). Therefore, on 3 April 2009, 1 For purposes of this motion only, we accept the allegations in the second amended complaint as true. IMC placed all of its equipment on stand-by status. IMC alleges that contract 0012 remains in stand-by status. (Id. ilil 38, 43) 5. IMC alleges that the failure to respond to the RFis caused delay and damages (2nd amended compl. ifil 25, 29, 41). In particular, IMC alleges that the uncertainty of not knowing when NA VF AC was going to respond to the RFis forced IMC to maintain equipment on stand-by status (id. if 30). IMC also alleges that, as a result of the delay, the warranties or guaranties on the installed equipment have expired (id. if 45). Further, IMC alleges that some of the installed equipment will need to be replaced, and additional work beyond the scope of work will be required to complete the project (id. ilil 45, 51 ). 6. IMC alleges that NAVF AC provided IMC with a draft modification on 21 September 2009. IMC alleges that the draft modification would have resolved the outstanding RFis. However, IMC refused to sign the draft modification because it contained language waiving IMC's right to seek additional compensation for the damages it incurred. (2nd amended comp I. if 44) 7. In response to the draft modification, IMC submitted a proposal to complete contract 0012 for $373, 121.72. NAVFAC has not accepted that proposal. (2nd amended comp I. if 154) 8. On 11 July 2014, IMC submitted a request for equitable adjustment (REA) (R4, tab 18). 9. On 29 July 2014, IMC resubmitted the REA as a certified claim. In the claim, IMC sought $2, 151,801.86 in direct labor and equipment costs, $2,308,966.96 in indirect overhead costs, and "$373,121. 78 pursuant to its proposal...for the completion of the Contract and to NAVFAC's Draft Modification dated July 31, 2013, once it receives direction from NA VF AC on the outstanding RFI[ s]." (R4, tab 19 at G-662-63) 10. After a deemed denial, IMC filed an appeal and complaint with the Board (compl.). 11. We stayed proceedings, and IMC certified a revised claim with the contracting officer on 30 June 2015. The revised claim sought $1,736,599.39 in direct labor and equipment costs, $1,182,427.45 in indirect overhead costs, and "$373,121.78 pursuant to its proposal...for the completion of the Contract and to NAVFAC's Draft Modification dated July 31, 2013, once it receives direction from NA VF AC on the outstanding RFI[s]." (R4, tab 25 at G-716-18) 12. On 17 May 2016, IMC filed an amended complaint with the Board, and certified a second revised claim to the contracting officer.