ASBCA 61279

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) OCCI, Inc. ) ASBCA No. 61279 ) Under Contract No. W912BV-11-C-0016 ) APPEARANCE FOR THE APPELLANT: Jordan N. Rowan, Esq. Counsel APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Bryan M. Harrington, Esq. Engineer Trial Attorney U.S. Army Engineer District, Tulsa OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD Appellant, OCCI, Inc. (OCCI), appeals from the assessment of liquidated damages in the amount of $70,148.00 under a contract with the United States Army Corps of Engineers (Corps or government) to construct a bulkhead. Appellant has elected to proceed under the Board's Rule 12.3 Accelerated Procedures and on the record pursuant to Board Rule 11. Accordingly, we make only summary findings of fact. SUMMARY FINDINGS OF FACT 1. On 29 March 2011, the Tulsa District of the Corps issued a Request for Proposals for the "construction, transportation, testing, and final placement of a new floating bulkhead and mooring facilities" (R4, tab 2d at 60). The RFP contemplated award of a firm-fixed-price contract (id. at 9), and was amended four times (R4, tab 2c at 260-94). 2. On 13 June 2011, OCCI was notified that its proposal in the amount of $1,384,700 was accepted and thus it was awarded Contract No. W912BV-11-C-0016. The work required by the contract was to be completed within 347 calendar days after receipt of Notice to Proceed. (R4, tab 2d at 295-99) 3. Several Federal Acquisition Regulation (FAR) clauses were included in the contract pertinently as follows: FAR 52.243-4, CHANGES (JUN 2007); and FAR 52.211-12, LIQUIDATED DAMAGES-CONSTRUCTION (SEP 2000), which provided in part: If the Contractor fails to complete the work within the time specified in the contract, the Contractor shall pay liquidated  damages to the Government in the amount of $988.00 for each calendar day of delay until the work is completed or accepted. (R4, tab 2d at 319) 4. The contract also incorporated by reference FAR 52.233-1, DISPUTES (JUL 2002); FAR 52.246-12, INSPECTION OF CONSTRUCTION (AUG 1996); and Department of Defense FAR Supplement (DFARS) clause 252.243-7002, REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998) (R4, tab 2d at 303-04). 5. Notice to Proceed was issued and acknowledged as received on 8 July 2011 (R4, tab 2e at 331-32), and thus the work was required to be completed within 347 days or by 19 June 2012. Bilateral Modification No. POOOOl extended the contract completion date by 14 days to 3 July 2012 (R4, tab 2h at 344-450). Bilateral Modification No. P00002 extended the contract completion date by 39 calendar days to 11 August 2012 (id. at 346-47). 6. A 24 May 2012 inspection of the bulkhead lead the Corps to inform OCCI that the welds on multiple areas on the bulkhead were not sealed welds as specified by the contract. OCCI was required to make repairs. (R4, tab 9 at 322) Appellant contended that the welds complied with the specifications and also questioned the authority of the person making that determination (R4, tab 3 at 4). 7. The contracting officer confirmed the action of the inspector on 25 May 2012 and directed the repairs to be done (R4, tab 4 at 2). Appellant proceed to make the repairs but considered such work to be a change to the contract (R4, tab 3 at 5). 8. OCCI submitted a Request for Equitable Adjustment (REA) for the seal welds on 22 June 2012 in the amount of $110,440.61 while stating that this amount was for costs incurred from 25 May 2012 to 20 June 2012, with the potential for additional charges that would take the total up to the not exceed amount of$175,000.00. The REA did not include a request for a time extension. (R4, tab 3 at 6-8) 9. Administrative contracting officer Nance denied the REA by letter dated 2 July 2012, advising "[t]here has been no order issued to OCCI for additional welding beyond the contract scope" as "there has only been notification from the Government to OCCI of its failure to complete the seal welds as identified in the contract drawings, specifications and OCCI's shop drawings." The government advised OCCI that if it disagreed with the decision on the REA, it could pursue its rights under the Disputes clause of the contract. (R4, tab Sb at 28-29) 10.