CBCA 7233

GRANTED IN PART: March 10, 2022 CBCA 7233 CI-POND SOLUTIONS JV, LLC, Appellant, v. DEPARTMENT OF JUSTICE, Respondent. Kevin H. Hudson and Alexander J. Bell of Hudson Lambert Parrott Walker, LLC, Atlanta, GA, counsel for Appellant. Marc E. Mandel, Office of General Counsel, Federal Bureau of Investigation, Department of Justice, Washington, DC; and Kelli Beene, Office of General Counsel, Federal Bureau of Investigation, Department of Justice, Redstone Arsenal, AL, counsel for Respondent. SHERIDAN, Board Judge. Appellant, CI-Pond Solutions JV, LLC (CPS), was awarded task order 15F067-20-F-0000515 for the construction of the Federal Bureau of Investigation (FBI) Hazardous Devices School Fuselage Training Facility (FTF), located in Huntsville, Alabama. The contract was a firm-fixed-price, design-build type with a value of $1,251,599. CPS is a small business concern, and the amount in controversy is $149,551.33. It elected to pursue the appeal under the Board’s small claims procedure, as permitted by section 7106(b) of the Contract Disputes Act (CDA) (41 U.S.C. § 7106(b) (2018)) and implemented through Board Rule 52 (48 CFR 6101.52 (2020)). A decision issued under that procedure is final and unappealable except for fraud. CBCA 7233 2 Background The contract’s scope of work included all management, labor, equipment, and material necessary for design and construction of a fully operational FTF. Appeal File, Exhibit 5 at 391.1 The contractor was also responsible for site preparation, excavation, and soil investigation. Id. Due to the restrictive nature of the facility, offerors were only permitted a visual inspection of the site and were not allowed to take additional photographs or soil samples. Appellant’s Reply at 4. Offerors did not receive a geotechnical report or topographical survey. Id. The statement of work (SOW) provided a brief description of the existing conditions at the site, including the following description of the soil: “The local overburden is predominantly residual red clays, with some shallow loam or gravel lenses and deeper cherty rubble occurring above the bedrock surface.” Exhibit 5 at 395. CPS requested, but was denied, a follow-up site visit. Complaint at 2. Offerors, including CPS, submitted hundreds of requests for information (RFIs). See generally Exhibit 9 at 475-515. The Government, through responses to the RFIs, informed offerors that the soil bearing conditions, electrical requirements, and other information would be determined during design. Id. To assist offerors in developing their proposals for building the FTF, the Government provided reference drawings of what it considered to be a comparable building at the site. On January 18, 2020, CPS submitted a proposal based on these conditions. On May 20, 2020, the parties executed the contract for design and construction of the FTF in the amount of $1,251,599. The contract incorporated CPS’s proposal, which indicated that it planned to use a pre-engineered building for the FTF. The contract incorporated Federal Acquisition Regulation (FAR) clauses 52.236-2, Differing Site Conditions, and 52.243-4, Changes (48 CFR 52.236-2, .243-4). Exhibit 2 at 36, 37. The contract also included clauses appropriate for design-build contracts: 2.1 Project Description: The intent of this project is to provide all management, labor, equipment and material necessary for design and construction for a new Fuselage Training Facility. The government will entertain pre-fabricated buildings. This project includes all related site preparation and grading, utility relocation, placement, and connections, installation of government-furnished fuselage, architectural, telecommunications, electrical, mechanical, plumbing and fire protection building components and system installations. 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 7233 3 Exhibit 5 at 392. H.14 Design Errors or Deficiencies, Inspection of Existing Work The Contractor shall be responsible for the professional quality, technical accuracy, and coordination of all services required under this contract.