ASBCA 59531

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Columbia State Bank ) ASBCA No. 59531 (formerly Appeal of Castle-Rose, Inc.) ) ) Under Contract No. W912DW-10-C-0015 ) APPEARANCE FOR THE APPELLANT: Erich M. Paetsch, Esq. Saalfeld Griggs PC Salem, OR APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Ian D. Clunies-Ross, Esq. Engineer Trial Attorney U.S. Army Engineer District, Seattle OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT This appeal arises from a contracting officer's (CO's) final decision (COFD) denying the claim of Castle-Rose, Inc. (CRI), for costs of a constructive change, differing site conditions, government-caused delays, and expert consulting fees incurred on a contract for construction of new buildings at the Howard Hanson Dam in Cumberland, Washington. 1 CRI has moved for summary judgment on entitlement as to each claim item. For the reasons stated below, we deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 19 May 2010, the U.S. Army Corp of Engineers, Seattle District (Corps or government) awarded Contract No. W912DW-10-C-0015 (contract) to CRI for the construction of an administration building and an addition to the existing maintenance building at the Howard Hanson Dam (HHD) Facility in Cumberland, Washington. The contract included multiple contract line item numbers (CLINs) for a total firm-fixed-price of $2,288,900. (R4, tab 3 at 3-4, 92) CRI was required to furnish all labor, materials and 1 CRI subsequently entered into Chapter 7 bankruptcy proceedings, and the Bankruptcy Court assigned its claim to Columbia State Bank, which entered its appearance as the real party in interest authorized to pursue the appeal on behalf of the bankruptcy estate (see SOF ~~ 23-24). 2 Citations to the Rule 4 file are to the consecutively-numbered pages unless otherwise indicated. equipment on the project in accordance with the drawings and technical specifications incorporated into the contract (id. at 3). 2. The contract incorporated the following standard Federal Acquisition Regulation (FAR) clauses: 52.233-1, DISPUTES (JUL 2002); 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK (APR 1984); 52.242-14, SUSPENSION OF WORK (APR 1984); and 52.243-4, CHANGES (JUN 2007) (R4, tab 3 at 24 ). 3. FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) provides, in relevant part, that: (a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of ( 1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. (b) The Contracting Officer shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the contract modified in writing accordingly. 4.