ASBCA 61189

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) K&K Industries, Inc. ) ASBCA No. 61189 ) Under Contract No. W912HY-ll-C-0009 ) APPEARANCES FOR THE APPELLANT: Terrence Brennan, Esq. Brian S. Schaps, Esq. Deutsch Kerrigan, L.L.P. New Orleans, LA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Clark Bartee, Esq. James Purcell, Esq. P. Alex Petty, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Galveston OPINION BY ADMINISTRATIVE JUDGE PEACOCK This appeal, brought by K&K Industries, Inc. (K&K), challenges the government's failure to pay it the full amount claimed as a result of delays incurred performing the above-captioned contract (the contract) that were admittedly the government's responsibility. We sustain the appeal. FINDINGS OF FACT 1. The government awarded the contract in the amount of $5,648,573.58 to K&K for rehabilitation of the east and west floodgates and guidewalls for the Brazos River floodgates in the Gulf Intracoastal Waterway, Texas. Through modifications and amendments the contract price was adjusted upward to $9,689,562.92.00, including the unilateral modification at issue in this appeal. (Exs. A-20, -22, -24) 2. The contract (or Project) generally involved the inspection, refurbishment, repainting and reinstallation of two sector floodgates on the west side and two sector floodgates on the east side. Each sector gate weighed approximately 88 tons when cleaned and over 120 tons before they were removed and cleaned. (Tr. 23; exs. A-20, -21) 3. K&K removed each gate, one at a time, and transported the gate to a staging area for inspection, cleaning, refurbishment, and repainting. Once that process was completed, K&K reinstalled the gates and had to ensure the gate was fully functional before moving on to the next gate. The installation involved placing the gates into stationary castings at the top and bottom of the gates. The castings were then bolted into the wall and bottom of the canal. This work was all included in the original contract. (Tr. 22-24, 29, 31-32; ex. A-21) 4. K&K completed the work required by the contract on the west side gates and that work is not at issue in this appeal (tr. 23-24). K&K's claim specifically arises from repair work to the east gate, north sector, lower stationary hinge casting as specified under contract line item number (CLIN) 043 - "East Gate Repair Lower Stationary Hinge Castings" for the contract. The unit price for each of the two lower stationary hinge casting on the east gate was $52,933 for a total price of $105,866. (Ex. A-20 at 15-16; tr. 35-37) 5. The contract specifications for the lower stationary casting provide (ex. A-20 at 375, ,r 3.3.3.1): After removal of the sector, the Contractor shall measure the top and bottom rings of the casting.... This will require the services of a diver. The Contracting Officer may direct the Contractor to remove the casting pending the measurements of the upper and lower rings. New anchor bolts shall be provided for the existing bolts and welded studs that are removed, and new key assemblies shall be provided where required. The Lower Stationary Hinge Casting shall be cleaned and painted before reinstallation. 6. K&K performed all of the work provided for in this specification for the east gate north sector lower stationary hinge casting and K&K did not make any claim for work required prior to painting (tr. 37-39). 7. K&K removed the existing east gate north sector lower stationary hinge casting. Once cleaned, K&K discovered cracks in the casting. K&K informed the government of the cracks and the government ultimately decided not to reuse the existing casting and elected instead to use a spare casting. (Tr. 39-40) 8. On June 24, 2013, K&K submitted a request for information (RFI 59) to the government, informing the government that the spare casting was cleaned, measured, and x-rayed and appeared to be fit for use as the north sector east gate.