ASBCA 58242

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) MIC/CCS, Joint Venture ) ASBCA No. 58242 ) Under Contract No. F42650-03-D-0010 ) APPEARANCES FOR THE APPELLANT: Richard C. Johnson, Esq. John S. Pachter, Esq. Smith Pachter Mc Whorter PLC Vienna, VA Patrick Hendrickson, Esq. Hendrickson Law Firm South Jordan, UT APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF Acting Air Force Chief Trial Attorney Jeffrey M. Lowry, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SCOTT ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT MIC/CCS, Joint Venture (MIC/CCS) has appealed under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, from the contracting officer's (CO's) termination of Delivery Order (DO) No. 0383 under the subject contract for default. It moves for summary judgment, converting the default termination to one for convenience, on the basis that the government waived the DO's completion date and appellant was excusably delayed through the termination date. The government opposes. At appellant's request, the Board heard oral argument. For the reasons stated below we deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1 1. On 31 March 2003, pursuant to a Simplified Acquisition of Base Engineering Requirements (SABER) solicitation, the Air Force awarded negotiated Contract No. F42650-03-D-0010, a multiple award Indefinite Delivery, Indefinite Quantity section 1 Appellant presents additional proposed facts (PF) in its redacted 14 June 2013 response to the Air Force's opposition to its motion for summary judgment (app. resp.). We have reviewed them but do not find them necessary to our resolution of the motion. 8(a) set-aside contract for design and construction services at Hill Air Force Base (AFB), Utah, and other sites, to MIC/CCS for a one-year base period with seven option years (R4, tab 1at1-6of33, Description of Work at 5). 2. The contract incorporates by reference or contains numerous Federal Acquisition Regulation (FAR) clauses, including the following: FAR 52.211-12, LIQUIDATED DAMAGES - CONSTRUCTION (SEP 2000), which provides that if the contractor fails to complete the work in the time specified, it "shall pay liquidated damages to the Government in the amount of $162.00 for each calendar day of delay until the work is completed or accepted" (R4, tab 1at10 of33). FAR 52.232-5, PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS (SEP 2002) (R4, tab 1 at 15), which provides in part that the government is to "make progress payments monthly as the work proceeds ... on estimates of work accomplished which meets the standards of quality established under the contract, as approved by the [CO]." FAR 52.233-1, DISPUTES (JUL 2002)-ALTERNATE I (DEC 1991) (R4, tab 1at15 of 33), which provides in part: (i) The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under or relating to the contract, and comply with any decision of the [CO]. FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) (R4, tab 1at15), which provides that the CO is to investigate promptly after receiving notice from the contractor of alleged differing site conditions and, if there are such conditions as defined in the clause, and they cause an increase in the contractor's cost of, or time to perform, the work, an equitable contract adjustment is to be made. FAR52.249-10,DEFAULT(FIXED-PRICECONSTRUCTION)(APR 1984)(R4, tab 1 at 15), which provides in part: (a) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed~...