ASBCA 61118

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Brantley Construction Services, LLC ) ASBCA No. 61118 ) Under Contract No. W912HN-10-D-0056 ) APPEARANCE FOR THE APPELLANT: William A. Scott, Esq. Pedersen & Scott, P.C. Charleston, SC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Laura J. Arnett, Esq. Allie E. Vandivier, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Savannah OPINION BY ADMINISTRATIVE JUDGE PAGE Brantley Construction Services, LLC (BCS or appellant) entered into a contract with the United States Army Corps of Engineers, Savannah District (government or COE) to construct and replace Taxiway Juliet at Mackall Auxiliary Airfield (Mackall AAF) and Taxiway Mike at Pope Army Airfield (Pope AAF). Appellant alleges that the specifications relating to Taxiway Juliet were defective, making it impossible to perform in conformance with the contract. Appellant also alleges that it was delayed in its completion of Taxiway Mike due to issues caused by the government with Taxiway Juliet and that the government constructively changed the contract by failing to provide access to a specific batch plant site during the time of performance. The government denies the allegations, and instead asserts all issues arose due to appellant’s inabilities, lack of experience, and business choices. We deny the appeal. FINDINGS OF FACT (FOF) The Request for Proposal 1. The government issued a Request for Proposal (RFP) for Task Order No. W912HN-09-C-5944, for the repair and replacement of Taxiway Juliet at Mackall AAF and Taxiway Mike at Pope AAF, to the members of the Multiple Award Task Order Contract (MATOC) pool in August 2013 (Joint Stipulation of Facts (JSF) ¶¶ 1-3; R4, tab 3 at 56-57 1). BCS was a member of the MATOC pool, and submitted a bid for the work (JSF ¶¶ 2, 4). 2. The scope of work for the Task Order called for the replacement of both failed taxiways. This included demolishing the existing taxiways and replacing them to meet the current Unified Facilities Criteria (UFC) airfield requirements. The new taxiways work included “plain Portland cement concrete (PCC) airfield pavement, asphalt paved shoulders, replacement of appropriate airfield directional signage, runway/taxiway illumination, taxiway markings, and appropriate erosion and sediment control devices during construction.” Taxiway Juliet was also to include permanent storm water controls. (R4, tab 3 at 57) As explained in greater detail below, the contract allowed the contractor to determine whether it would use the slipform method or the fixed-form method of paving 2 at each of these airfields (JSF ¶ 16). 1 The Board will use the Bates-labeling to identify page numbers for any Rule 4 documents, unless otherwise noted. References to transcripts specify the volume and page number affixed by the court reporter, unless these are evidentiary depositions that have been admitted as part of the Rule 4 file. 2 We distinguish between “ready mix” or “ready mixed” concrete, “Ready Mix Company,” and “Ready Mix Concrete.” “Ready Mixed Concrete Company” (sometimes called “Ready Mix Company”) is the brand name of a commercial enterprise that furnishes ready-mixed concrete. Lower case references to “ready mix” or “ready-mixed” are to a type of concrete which, under the terms of this contract and as explained by testimony, is mixed en route and transported to the placement site in an agitating truck (see, e.g., R4, tab 3 at 826; tr. 1/54-55, 57, 2/15). However, the distinction between the product and the company was not always strictly followed and the proprietary term is sometimes used in the vernacular. For example, T.C.P. Concrete Construction’s (TCP) representative clarified that the “Ready Mix” concrete in that company’s post-award bid to BCS was actually “ready mixed concrete” that it would have obtained from Concrete Services (see, e.g., R4, tab 45 at 225). Sometimes, the agitating trucks that carried the concrete in rotating drums were referred to as “ready mix trucks” even though it was not clear these belonged to the Ready Mixed Concrete Company (see, e.g., R4, tab 11 at 1204 and tab 30 at 3057-58).