ASBCA 57322

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) ADT Construction Group, Inc. ) ASBCA No. 57322 by Timothy S. Cory, Chapter 7 Trustee ) ) Under Contract No. DACA09-03-C-0009 ) APPEARANCES FOR THE APPELLANT: John W. Ralls, Esq. Aaron R. Gruber, Esq. W. Samuel Niece, Esq. Ralls Gruber & Niece LLP San Mateo, CA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney John F. Bazan, Esq. Engineer Trial Attorney U.S. Army Engineer District, Los Angeles OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD ON THE GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT This quantum appeal arises from our entitlement decision in ADT Construction 1 Group, Inc., ASBCA No. 55307, 09-2 BCA ii 34,200 (ADT V), in which we held that the government was responsible for 218 days of preconstruction delay under the captioned contract, 60 days of which were concurrent with contractor-caused delays. Id. at 169,086. The government moves for partial summary judgment on two issues: ( 1) whether appellant can recover damages due to the escalation of costs without an economic price escalation clause in the contract, and (2) whether our decision in ADT Construction Group, Inc., by Timothy S. Cory, Chapter 7 Trustee, ASBCA No. 55358, 13 BCA ii 35,307 (ADT VJ), recon. denied, 14-1BCAii35,508 (ADT Vil), precludes appellant from seeking such escalation costs in this appeal. 1 The Board had previously denied an appeal involving ADT's claim seeking additional costs for importing fill during the performance of the same contract. ADT Constr. Grp., Inc., ASBCA No. 55125, 06-1BCAii33,237 (ADT I), opinion on post-decision motions, 06-2 BCA ii 33,346 (ADT II), recon. denied, 07-1 BCA ii 33,501 (ADT Ill), aff'd, ADT Constr. Grp., Inc. v. Geren, 259 F. App'x 310 (Fed. Cir. 2007) (ADT IV). I  STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On 21 April 2003, the United States Army Corps of Engineers (Corps), U.S. Army Engineer District, Los Angeles, issued Request for Proposals (RFP) No. DACA09-03-R-0004 requesting proposals for the negotiated procurement of an F-22 Munitions Maintenance Facility on Nellis Air Force Base, Nevada. The project was solicited as a design-build project requiring the contractor to both design and construct the new facility. (ADT V, findings 17-18) The solicitation contemplated a firm-fixed-price contract (ADT VI, finding 1). 2. Early drafts of the solicitation allowed for the use of a "fast track" approach, under which the contractor could begin construction on those portions of the work for which the design was complete while other portions of the work were still under design (ADT V, finding 10). In August 2002, government project managers learned that the required Department of Defense Explosives Safety Board (DDESB) approval of the project would be based on the final design of the entire facility, which was incompatible with a fast track approach (ADT V, findings 11, 13). The government therefore attempted to remove references to a fast track approach from the RFP (ADT V, findings 14-16). Despite the government's efforts, the solicitation that was issued contained references to a fast track approach, and contained both clauses that were consistent with a fast track approach and clauses that were inconsistent with a fast track approach (ADT V, findings 17-27). 3. ADT Construction Group, Inc. (ADT) submitted a pricing and technical proposal on 21 May 2003 indicating that ADT planned to use a fast track approach. After the government conducted in-depth reviews of the offerors' proposals, ADT submitted its final price proposal with no changes to its cost and pricing on 11 June 2003. (ADT V, findings 29, 31-32) 4. On 17 June 2003, the Corps awarded the project to ADT as Contract No. DACA09-03-C-0009. ADT' s proposal was incorporated into the contract. The government issued a Notice to Proceed on 9 July 2003, establishing a contract completion date of 1 October 2004.