CBCA 7751

DENIED: April 17, 2024 CBCA 7751 INDEPENDENCE CONSTRUCTION, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Jay B. Stoddard, President of Independence Construction, Inc., Eureka, MT, appearing for Appellant. Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture, Missoula, MT, counsel for Respondent. Before Board Judges LESTER and O’ROURKE. LESTER, Board Judge. Appellant, Independence Construction, Inc. (ICI), has elected accelerated disposition of this appeal, as permitted by section 7106(a) of the Contract Disputes Act, 41 U.S.C. §§ 7101–7109 (2018), and Board Rule 53 (48 CFR 6101.53 (2023)). Accordingly, this decision is being issued by a panel of two judges. ICI seeks payment for excavation and related work that it performed on a United States Forest Service (USFS) road construction project before a USFS contracting officer terminated the contract for default, as well as reimbursement for the costs of two land surveys that ICI commissioned to demonstrate how much excavation work it had performed. CBCA 7751 2 Although the USFS paid several of ICI’s invoices for excavation work, the USFS contracting officer declined to pay ICI’s last invoice after finding that the excavation work was unacceptable and not in compliance with task order specifications. At a hearing in this matter, which was conducted in Kalispell, Montana, on March 12, 2024, ICI focused more on proving how much excavation work it performed under the task order than on establishing how its work complied with the task order specifications. To the extent that ICI addressed compliance issues, it argued only that the roadway areas and cut slopes that it excavated were as good as if not better than what the task order specified. Despite ICI’s opinions about the quality of its work, the USFS is entitled to strict compliance with the specifications in the parties’ agreement, and ICI failed to establish that the USFS had to accept and pay for something else. Further, the cost of reprocurement work for which the USFS had to pay to have another contractor fix the defects that ICI left behind overwhelms any value that the USFS received from ICI’s work. As discussed further below, ICI has not identified a basis for requiring the USFS to pay additional sums for work that did not satisfy the requirements of its task order. ICI’s appeal is denied. Findings of Fact I. ICI’s Multiple Award Task Order Contract In 2019, the USFS awarded ICI a firm-fixed-price indefinite-delivery-indefinite- quantity (IDIQ) multiple award task order contract (MATOC). See Appeal File, Exhibit 5.1 Under the MATOC, ICI was entitled to compete against other MATOC contractors for task orders involving road and bridge construction services in the northern region of the USFS’s Region 1. Id. at 1, 7; see id. at 13 (“[E]ach task order shall be competed amongst all contract holders.”). The MATOC indicated that “[a]ny supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule.” Id. at 24 (quoting Federal Acquisition Regulation (FAR) 52.216-18(a), Ordering (Oct. 1995) (48 CFR 52.216-18(a) (2018))). Each task order, when awarded, was to identify a project-specific location and include project-specific specifications and drawings. Id. at 7, 10. ICI’s MATOC provided that “[a]ll delivery orders or task orders” issued through the competitive process would be “subject to the terms and conditions of this [MATOC]” and that, “[i]n the event of conflict between a . . . task order and [the MATOC], the [MATOC] 1 Unless otherwise noted, all exhibits cited in this decision are contained in the appeal file. CBCA 7751 3 shall control.” Exhibit 5 at 25 (quoting FAR 52.216-18(b)). The MATOC also incorporated by reference two standard specifications published by the United States Department of Transportation—“‘Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects’ (FP-03, U.S. Customary Units)” and “‘Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects’ (FP-14).” Id.