ASBCA 61047

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Assessment and Training Solutions ) ASBCA No. 6104 7 Consulting Corporation ) ) Under Contract No. H92240-14-P-0155 ) APPEARANCE FOR THE APPELLANT: James S. DelSordo, Esq. Argus Legal, PLLC Manassas, VA APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Phillip E. Reiman, Esq. Lt Col Nathaniel H. Sears, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE CLARKE This appeal arises out of a Navy contract to lease three boats to be used in maritime training. Assessment and Training Solutions Consulting Corporation (ATSCC) claims $57,596.01 for damage to two of the boats. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We sustain the appeal in the amount of $50,637.08 and deny the rest. Appellant has elected to proceed under Board Rule 12.3. SUMMARY FINDINGS OF FACT 1. Contract No. H92240-14-P-0155, dated 31 March 2014, was awarded by the Naval Special Warfare Command (Navy), Norfolk, Virginia, to ATSCC to lease 3 boats for 12 months with options to extend each by 6 months (R4, tab 1 at 4-10). The base period of performance was from 31March2014 to 30 March 2015 (id. at 12-13). The boats were to be delivered to San Diego Harbor, California, Little Creek Harbor, Virginia, and Pass Christian Harbor, Mississippi (id. at 4-6). The contract value was $718,000.00 (id. at 13). 2. The Performance Work Statement (PWS) stated that the three vessels were to be used "in support of Master Mariner training program" (R4, tab 7 at I). The PWS included the following maintenance requirements: Contractor will perform quarterly preventative maintenance on all three craft to include both hull, mechanical, and electrical systems. The cost of such maintenance shall be borne by the  contractor. Additionally, quarterly maintenance inspections shall be performed on all three craft to identify any actual or pending maintenance failures that could potentially degrade or compromise the safe and efficient operation of the vessel. Identified repairs shall be affected [sic] within a ten day period, pending availability of necessary repair parts. The contractor shall bear the cost of performing repairs unless it can be proven that such repairs were due to negligence or willful damages caused by the government. (Id. at 2) (Emphasis added) The PWS did not require that the Navy fill out pre- and post-operation checklists or engine logs during operation (tr. 1183; R4, tab 7). 3. An engine survey was conducted on 14 April 2014 on one of the boats, the Free Spirit (FS), a 57-foot Viking Yacht Sportfish (R4, tab 84; app. supp. R4, tab 2). Contrary to the Navy's assertion in its reply briefthat ATSCC "never disclosed the 14 April 2014 engine survey" to the Navy (gov't reply br. at 2), the engine survey report was in a "big packet" of material onboard FS when the Navy did its initial walkthrough (tr. 11137-38). The Navy agrees that it inspected the FS before use (gov't br. at 5). The survey indicated that overall performance of the engines was "good" (R4, tab 84 at 7). The survey included a "Test Trial" that indicated the port engine was operating within specified requirements (id. at 8). The survey identified twelve deficiencies in the port engine including "scuffing and scouring present on the random cylinders inspection" and a lack of service history (id. at 10). Mr. Taylor is the Chief Engineer, Special Warfare Group 4 (tr. 11179). The Board recognized Mr. Taylor as an expert in diesel engines (tr. 11182). Mr. Taylor reviewed the survey. He explained that an exhaust manifold directs exhaust from the combustion cylinders to the turbo charger (tr. 11185). The manifold is cooled by treated distilled water or "coolant" (tr. 11186). Mr. Taylor testified that the FS's 25-year old Detroit Diesel engine's condition depends upon the quality of the maintenance over the years (tr. 11197). Concerning the survey and the 25-year old diesels, he testified that "everything wears a little bit" but with proper maintenance the boat should operate normally (tr.