ASBCA 63457

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Speedway Orion JV ) ASBCA No. 63457 ) Under Contract No. N62473-19-D-1221 ) APPEARANCE FOR THE APPELLANT: Luke E. Thompson, Esq. Thompson Law & Consultation Lakeside, CA APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Lynn A. Long, Esq. David M. Ruddy, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE STINSON Appellant Speedway Orion JV (Speedway), appeals a contracting officer’s denial of its June 30, 2022, claim in the amount of $19,099 (R4, tabs 13-14). Appellant elected to proceed under the Board's Small Claims (Expedited) procedures, Board Rule 12.2, and the parties agreed to submit this appeal for a decision on the record without a hearing pursuant to Board Rule 11. The Contract Disputes Act (CDA), 41 U.S.C. § 7106(b)(4)-(5), as implemented by Board Rule 12.2, provides that this decision shall have no precedential value and in the absence of fraud, shall be final, and conclusive, and may not be appealed or set aside. For the reasons stated below, Speedway’s appeal is denied. FINDINGS OF FACT 1. On June 6, 2019, the Naval Facilities Engineering Systems Command (NAVFAC) Southwest awarded Speedway Contract No. N62473-19-D-1221 (the Contract) a multiple award, Indefinite Delivery, Indefinite Quantity (IDIQ) construction contract 8(a) set-aside for new construction, renovation, and repair of general building construction at various government installations located in California and other western states (R4, tab 1 at GOV0000001). 2. The Contract stated that “[t]he actual amount of work to be performed and the time of such performance will be determined by the Contracting Officer (CO) or his/her properly authorized representative, who will issue written task orders to the Contractor” (R4, tab 1 at GOV0000006).  3. The contract incorporated Defense Federal Acquisition Regulation Supplement (DFARS) 252.216-7006 ORDERING (MAY 2011), which provides, in part, 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 contract schedule” (R4, tab 1 at GOV0000070). 4. The Contract incorporated by reference Federal Acquisition Regulation (FAR) 52.236-15 Schedules for Construction Contracts, which required Speedway to submit a schedule in the form of a progress chart “showing the order in which the Contractor proposes to perform the work, and the dates on which the Contractor contemplates starting and completing the several salient features of the work . . . .” 48 C.F.R. § 52.236-15(a). FAR 52.236-15(b) provides that “[t]he Contractor shall enter the actual progress on the chart as directed by the Contracting Officer.” 5. The Contract included Navy Facilities Acquisitions Standard (NFAS) 5252.211- PHASED CONSTRUCTION SCHEDULE (SEP 1996), which provides that “[w]ithin the overall project schedule, commence and complete the work in phases” (R4, tab 1 at GOV0000075). 6. The Contract incorporated by reference FAR 52.242-14 Suspension of Work (R4, tab 1 at GOV0000028). Neither the Contract nor the Task Order incorporated, either in full or by reference, FAR 52.242-17 Government Delay of Work (R4, tabs 1, 10). 7. On September 13, 2021, NAVFAC issued Speedway Delivery Order No. N62473-21-F-5336 (the Task Order), 1 for multiple office renovation of ten buildings, B20, B76, B77, B91, B123, B3116, B3278, B3338, B3418, and B3602, at the Naval Base, San Diego, California, through the Southwest Regional Maintenance Center (SWRMC) (the Task Order). The Task Order provided that “[a]ll work will be in accordance with REV SOW 06/23/2021, 57 Request for Information (RFI) Government Responses and Latest Davis Bacon Wages CA20210001 Mod 13 dated 09/03/2021.” (R4, tab 10 at GOV0000121) The Task Order contained “no preestablished fixed contract prices,” with a set maximum amount of $947,777 (id.). The contract completion date (CCD) was June 13, 2022 (R4, tab 10 at GOV0000166). 1 The document is identified in block no. 2 as a “delivery order” (R4, tab 10 at GOV0000120), which is defined as “an order for supplies placed against an established contract or with Government sources.” 48 C.F.R. § 2.101, Definitions.