ASBCA 62002

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Sungjee Construction Co., Ltd. ) ASBCA Nos. 62002, 62170 ) Under Contract No. W91QVN-14-D-0050 ) APPEARANCE FOR THE APPELLANT: Yong Eui Song, Esq. Central IP & Law Seoul, Korea APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney CPT Dmitrius Ramon McGruder, JA 1LT Bryan R. Williamson, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE EYESTER PURSUANT TO BOARD RULE 11 This appeal arises from a termination for default by the Department of the Army (Army or government), 411th Contracting Support Brigade (411 CSB), of a task order issued to Sungjee Construction Company, LTD (Sungjee or appellant) for the repair of an officer dormitory on Osan Air Base located in the Republic of Korea. The Army terminated the task order for default due to appellant’s failure to complete the project by the contract completion date (CCD). The Board has jurisdiction over the termination pursuant to the Contract Disputes Act, 41 U.S.C. § 7101. The parties elected to submit the appeal on the record pursuant to Board Rule 11. Because the government has established the validity of the default termination, and appellant has failed to demonstrate the default was excusable and entitlement to its claimed amounts, the appeals are denied. FINDINGS OF FACT 1. On August 14, 2014, the 411 CSB awarded Sungjee indefinite-delivery, indefinite-quantity (IDIQ) Contract No. W91QVN-14-D-0050 to upgrade facilities for the United States Forces Korea (USFK) (R4, tab 1 at 1-3, 11). According to the contract, the contracting officer was “the only person authorized to modify the contract terms or take any action to enter into a change or contractual commitment on behalf of the Government” (id. at 12). In addition, as relevant here, the contract incorporated by reference Federal Acquisition Regulation (FAR) 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION)(APR 1984), and FAR 52.242-14, SUSPENSION OF WORK 1 (APR 1984), and incorporated by full text Defense Federal Acquisition Regulation Supplement (DFARS) 252.201-7000, CONTRACTING OFFICER’S REPRESENTATIVE (DEC 1991) (id. at 23, 43). DFARS 252.201-7000, stated that the contracting officer’s representative (COR) was “not authorized” to make any commitments or changes affecting price, quality, quantity, delivery, or any other contract term or condition (id at 23). All orders issued pursuant to this IDIQ contract were subject to its terms and conditions (id. at 44). 2. Because work was to be performed in Korea, the contract also included Navy Marine Corps Acquisition Regulation Supplement 5152.204-4018, IDENTIFICATION OF CONTRACTOR’S EMPLOYEES. According to this clause, contractors requiring entry to a U.S. Government installation had to be processed through the contracting officer or representative and approved for entry pursuant to USFK Regulation 190-7, which outlines the process for issuance of passes for base access. (R4, tab 1 at 32) USFK Regulation 190-7 (dated Sept. 27, 2017) stated that the sponsoring organization representative, which here was from the requesting or using activity, signs the pass applications, while the COR coordinates pass requests and validates the status of the contract prior to the approving official’s consideration (R4, tab 36 at 24). Passes were valid for a maximum of one year (id. at 59). With respect to renewals of contractor passes, the requesting activity was to submit a memorandum for the renewal month with a list of names, the dates of the contract, and the contract with the extended contract period (id. at 31). The approving authority reviews this information, including the COR’s memorandum, when making his/her decision. Renewal requests were to be submitted at least 30 days prior to the current pass expiration date (id. at 31). 3. On June 30, 2016, the 411 CSB issued fixed-priced Task Order No. W91QVN-14-D-0050, call order No. 0026, to Sungjee in the amount of $3,860,659.26 U.S. dollars for the repair of Officer Dormitory B929 at Osan Air Base (R4, tab 2 at 1-2). The task order, awarded against the above-referenced IDIQ contract, explained that Sungjee was to comply with all the terms and conditions of the contract unless stated otherwise (R4, tab 2 at 4). In addition, the task order set forth the repair work requirements, which included architectural, civil, mechanical, and electrical work (id. at 4-9).