ASBCA 57269

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) ASF A Construction Industry and Trade, Inc. ) ASBCA No. 57269 ) Under Contract No. 000000-00-0-0000 ) APPEARANCE FOR THE APPELLANT: D. Lee Toedter, Esq. Orange Beach, AL APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ John R. Longley, JA CPT Tyler L. Davidson, JA CPT Edward Ahn, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE PAGE ASFA Construction Industry and Trade, Inc. (ASF A), appeals from a deemed denial of its claim seeking a $478,476.02 equitable adjustment or, alternatively, a termination for convenience settlement based upon an alleged implied-in-fact contract with the Joint Contracting Command-Iraq/Afghanistan (JCC-1/A) Regional Contracting Center-Balad (RCC-Balad) to repair an asphalt plant and rock crusher at Logistics Support Area (LSA) Anaconda in Balad, Iraq. Our jurisdiction arises from the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. In a previous decision, ASFA Construction Industry & Trade, Inc., ASBCA No. 57269, 11-2 BCA ~ 34,791, we denied the government's motion to dismiss this appeal for lack of jurisdiction on the basis that the alleged contract did not exist, holding that triable issues remained regarding the parties' respective conduct which precluded dismissal. 11-2 BCA ~ 34,791 at 171,249. The parties have elected to submit the appeal on the written record pursuant to Board Rule 11. We decide entitlement only. We sustain the appeal. FINDINGS OF FACT 1. On 23 August 2007, the JCC-1/A RCC-Balad issued a request for information (RFI) to companies "interested in constructing a concrete batch plant on LSA Anaconda." Potential contractors were asked to respond by 25 August 2007 regarding their planned approach for the construction and operation of the concrete batch plant. Among other questions, the RFI asked potential contractors if they could "bring a batch plant onto LSA Anaconda at your own cost and the possibility of no work to start with." (R4, tab 1) At the time, only one concrete contractor was on Balad Air Base and the government did not want to bring in concrete from outside the base due to security concerns regarding the potential for explosives to be hidden within the concrete. Through the RFI, the government was attempting to increase contracting capability operating inside the base to meet its concrete requirements and also to secure more competitive prices. (R4, tab 50 (Berg dep.) at 16-18) 2. ASF A responded to the RFI by letter dated 25 August 2007 (R4, tab 2). 3. By memorandum dated 5 September 2007, contracting officer (CO) Chad D. Miller notified potential contractors that they would "be given the opportunity to present their plan of constructing a [concrete] batch plant" during a one-hour oral presentation on 19 September 2007. Topics to be addressed included equipment, set-up, barrier material, raw materials, labor, delivery and security, quality of concrete work, and financial resources. Potential contractors were directed to submit a "read ahead packet" to the government by 14 September 2007. (R4, tab 3) 4. ASF A provided the required read ahead packet to the government prior to its oral presentation (R4, tab 22). ASF A outlined by brand name, model designation, and (where appropriate) capacity of the concrete batch plant, stone crusher plant, mixer truck, and other pieces of equipment and vehicles that ASF A intended to provide (id. at 5). ASFA stated that "[a]ll equipment is ready to be shipped to Anaconda at the ASFA warehouse in Turkey," and that "delivery to Anaconda can be completed within 45 days." ASF A further stated that installation "can be compl[ e]ted within 30 days upon arrival of all the equipment in Anaconda." (Id. at 7) 5. By memorandum dated 31 October 2007, Lt Col Todd M. Burkhardt, USAF, Chief, RCC-Balad, notified ASF A that it had been selected to build a concrete batch plant on Balad Air Base, stating: 1. Congratulations! ASFA Group has been selected as the contractor to build a batch plant on Balad Air Base, Iraq. This award is based on your verbal presentation for the construction of a concrete batch plant on Balad Air Base, Iraq. 2.