ASBCA 60906

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Merrick Construction, LLC ) ASBCA No. 60906 ) Under Contract No. W912P8-08-D-0038 ) APPEARANCE FOR THE APPELLANT: Michael S. Blackwell, Esq. Shields Mott L.L.P. New Orleans, LA APPEARANCES FOR THE GOVERNMENT: Thomas J. Warren, Esq. Acting Engineer Chief Trial Attorney William G. Meiners, Esq. Engineer Trial Attorney U.S. Army Engineer District, New Orleans OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT Appellant, Merrick Construction, LLC. (Merrick), appeals from a contracting officer's final decision denying its claim in the amount of $203,015.82 for rental costs for a bypass pumping system installed pursuant to a government change order. Respondent, the United States Army Corps of Engineers (government or Corps) moves for summary judgment, asserting that Merrick's claim is precluded by the general release signed by Merrick's vice president. The Corps additionally argues that there is an accord and satisfaction based upon a modification to the contract and that Merrick's claim is precluded because it was filed after final payment on the contract. For the reasons set forth below, we grant the Corps' motion for summary judgment. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION On 8 April 2008, the Corps awarded Multiple Award Task Order Contract (MATOC) No. W912P8-08-D-0038 for construction services to Merrick (R4, tab 17). No construction services were actually procured at the time of award, but, as one of multiple awardees of the MATOC, Merrick was eligible to submit offers in response to subsequent task order solicitations issued under the contract. On 10 April 2009, the Corps awarded MATOC Task Order 0002, to Merrick (R4, tab 16). The task order involved construction work on a hurricane protection levee near New Orleans, Louisiana (id.). The contract contains the Federal Acquisition Regulation (FAR) 52.243-4(f), CHANGES (JUN 2007) clause, providing that "[n]o proposal by the Contractor for an equitable adjustment shall be allowed if asserted after final payment under this contract" (R4, tab 17 at 104-05). On 25 March 2011 the Corps issued a unilateral change order, designated as C0-013 (Modification No. lZ), for the installation of a 300 cubic feet per second bypass pumping system at the construction site. The change order required the installation, operation and monitoring of a temporary "bypass pumping system." The change order provided that the "Bypass Pumping System Rental" would be paid for on a "unit price per month" and, that the contract price was presently unchanged, but that a formal modification would later be issued with an agreed-to price. (R4, tab 8 at 1, 5, 9) The pumping equipment was delivered to the job site on 6 July 2011, and was operational by 18 July 2011 (R4, tabs 9-10). Following testing of the flow rate, the pumps were provisionally accepted on 10 August 2011, and fully accepted on 11 August 2011 (R4, tab 12). On 19 July 2011, the Corps issued Modification No. 03, partially settling the change order for the bypass pumping system. Modification No. 03 included contract line item numbers (CLINs) for Mobilization and First Month's Rent (CLIN 0045), two months rental of the pumping system (CLIN 0046), and provided that the monthly rental for the bypass pumping system, would be $208,015.82 (R4, tab 13). On 30 March 2012, Modification No. 10 (also known as VEQ-004) added seven months rental of the bypass pumping system (gov't mot., ex. A). The rental of the bypass pumping system ended on 11 September 2012, when Merrick was directed by the Corps to shut down the bypass pumping system (R4, tab 3 at 5). On 3 January 2013, the Corps issued Modification No. 18 (VEQ 005). It was signed on behalf of Merrick by Mr. Lemoine, and by Cynthia A. Nicholas, the government contracting officer. Modification No. 18 added an additional three months rental to the bypass pumping system. (R4, tab 14) Modification No.