ASBCA 55358

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ADT Construction Group, Inc. ) by Timothy S. Cory, Chapter 7 Trustee ) ASBCA No. 55358 Under Contract No. DACA09-03-C-0009 ) APPEARANCES FOR THE APPELLANT: John W. Rails, Esq. W. Samuel Niece, Esq. Rails & Niece LLP San Mateo, CA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney John F. Bazan, Esq. Engineer Trial Attorney U.S. Army Engineer District, Los Angeles OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD This appeal involves a contract for the design and construction of a munitions maintenance facility. The government terminated the contract for default and the contractor appeals that termination. In addition to a decision on the merits, we also decide appellant's motion for sanctions for spoliation of evidence. The Board has previously decided appeals from affirmative contractor claims under the same contract and some of the findings and decisions made on those claims are relevant to the instant appeal and will be referenced and relied upon herein. In an appeal from the denial of ADT's first claim, the Board ruled that the government did not change the contract when it refused ADT's request to use an on-base site for fill. ADT Construction Group, Inc., ASBCA No. 55125, 06-1 BCA % 33,237 (ADTI), subsequent determination, 06-2 BCA ^ 33,346 (ADTIf), recon. denied, 07-1 BCA \ 33,501 (ADT III), aff'd, ADT Construction Group, Inc. v. Geren, 259 F. App'x 310 (Fed. Cir. 2007) (ADTIV). Following the contracting officer's partial denial of appellant's second claim and appeal, we found that the government had caused delays in ADT's work, that some delays were concurrent, granted time extensions, adjusted the contract completion date, and remanded to the parties for a negotiation of quantum. ADT Construction Group, Inc., ASBCA No. 55307, 09-2 BCA \ 34,200 (ADT V). A quantum appeal, ASBCA No. 57322, has since been filed and also an Equal Access to Justice Act (EAJA) application both related to ADT V.  In addition to our prior decisions, the record in this case consists of the government's Rule 4 file and supplement (R4, tabs 1-361); appellant's Rule 4(b) file (app. supp. R4, tabs 501 to 684); and exhibits introduced at trial by appellant (app. exs. 1-46). An eight-day hearing was held in December 2010 and January 2011 and the transcript of that hearing (tr.) is part of the record. The parties have each filed initial and reply briefs. The record also includes Appellant's Motion for Sanctions for Spoliation of Evidence and Brief in Support along with Respondent's Opposition to Appellant's Spoliation Motion. FINDINGS OF FACT I. Solicitation and Contract 1. In April 2003, the U.S. Army Corps of Engineers (Corps or government) issued Request for Proposal (RFP) No. DACA09-03-R-0004, F-22 Munitions Maintenance Facility (MMF), Nellis Air Force Base, Clark County, Nevada. The solicitation was described as a "100% 8(a) competitive procurement." (R4, tab 7 at 27, 31) The RFP contemplated a firm-fixed price contract (R4, tab 7 at 51). 2. The RFP contained three line items: 0001-design of the new facility; 0002-construction of the facility; and 0003-site work. Also included were two option items: 0004-demolition of the existing building; and 0005-overhead electric cranes. The same line items and option items were included in alternative pricing schedules. Schedule A sought prices for completion of the project in 510 calendar days and Schedule B sought prices for completion in 450 calendar days. (R4, tab 7 at 34-37) 3. ADT Construction Group, Inc. (ADT or appellant) provided the government with a price and technical proposal on 21 May 2003 (R4, tab 10). In the proposal, appellant set out its construction team which included subcontractors, some of whom were deemed "named" and others were deemed "typical trade" subcontractors. They included Southland Industries, Las Vegas Paving, AAA Hoist & Crane, and Eagle Electric, among others. ADT described its approach, in part, as follows: "The expertise of the design team is extensive and will be combined with the construction experts of ADT and its subcontractors (many of whom are 'named subcontractors^)], who have executed agreements for this Project with ADT." (R4, tab 10 at 1076, 1103) 4.