ASBCA 59281

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) South Bay Boiler Repair, Inc. ) ASBCA No. 59281 ) Under Contract No. N55236-09-D-0017 ) APPEARANCES FOR THE APPELLANT: Robert L. Kenny, Esq. Law Office of Robert L. Kenny San Diego, CA James A. Kelley, Esq. James A. Kelley & Associates Washington, DC APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Ellen M. Evans, Esq. Senior Trial Attorney Rawn M. James, Esq. Matthew D. Bordelon, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE WOODROW INTRODUCTION The case involves an appeal from a contracting officer's final decision (COFD) denying the claim of appellant, South Bay Boiler Repair, Inc. (SBBR), for alleged constructive changes and delays. The claim arises under a delivery order (DO) issued by the Navy under a firm-fixed-price, indefinite-delivery/indefinite-quantity contract for boatyard services. The DO was for ship repair and preservation services, including the removal and application of paint and other coatings, on a small vessel identified as Landing Craft Utility (LCU) No. 1631. Appellant maintains that the ship repair contract failed to comply with 10 U.S.C. § 731 l(a)(l) because it did not adequately identify "the types and amounts of hazardous wastes that are required to be removed by the contractor from the vessel." The parties elected to proceed without an evidentiary hearing, via Board Rule 11, with each side relying upon the Rule 4 file and its supplements and submitting opening and reply briefs in accordance with an agreed-upon schedule. For the reasons set forth below, we conclude that the plain language of the ship repair contract - and specifically the requirements of DO 0007 - satisfied the requirements of 10 U.S.C. § 7311 and placed appellant on notice of the presence of toxic heavy metals in the paint and coatings onboard LCU 163 1. We deny the appeal. FINDINGS OF FACT I. The Parties and the Contract 1. Appellant SBBR is a small business ship repair contractor located in National City, California (app. supp. R4, tab 94, Bowen decl. ii 1). 2. SBBR uses subcontractors to perform most of the preservation work required by a Navy ship repair contract. Preservation work involves removing existing coatings from the surfaces of the vessel and applying new coatings to the surfaces. Most preservation subcontractors use a sandblasting process to remove the majority of the existing coatings from the ship (app. supp. R4, tab 94, Bowen decl. ii 4). 3. On 3 June 2009, the Navy's Southwest Regional Maintenance Center in San Diego, California (SWRM or government), awarded a firm-fixed-price, indefinite-delivery/indefinite-quantity (IDIQ) Contract No. N55236-09-D-OO 17 for boatyard services to SBBR (the contract) (R4, tab 1at1-2of121). 4. On 6 September 2012, the government issued Request for Proposal (RFP) No. 0168 for work described in contract line item numbers (CLINs) 0067, 0082, 0083, 0087, and 0088 for LCU 1631 (R4, tab 21 at 1 of 7). 5. At CLIN 0067, the RFP states: "Firm-Fixed Price. Prepare for and accomplish Specification Package SSSD-504-12 for LCU 1631 [the specifications], attached." (R4, tab 21 at 1, 4) 6. While the RFP was pending, the government issued four pre-proposal amendments to RFP 0168 (R4, tabs 23-26). 7. Also while the RFP was pending, SBBR asked a question concerning the government's estimate of hazardous waste set forth in paragraph 3.5 of Work Item 077-01-001. SBBR asked: Since the requirements to accomplish removals differ greatly contractors utilize the government's quantities in generating their estimates of removal costs. If the amounts exceed the government's expectations and a mod is issued to cover the additional disposal costs it is the contractor's 2  . right to include additional expenses for labor, lab fees, analysis, etc. into the contract mod. Please advise. (App. supp.