ASBCA 40750

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) WECC, Inc. ) ASBCA No. 60949 ) Under Contract No. 73-0014-1522 ) APPEARANCES FOR THE APPELLANT: G. Scott Walters, Esq. Brian S. Wood, Esq. Alexander Gorelik, Esq. Jacob W. Scott, Esq. Smith, Currie & Hancock LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney LTC Stephen M. Hernandez, JA Harry M. Parent III, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE MELNICK This appeal involves a contract to renovate the exchange at Langley Air Force Base. WECC, Inc. seeks delay damages and other costs. We find that WECC is entitled to recover $546,446.11, plus interest. FINDINGS OF FACT I. The Contract 1. On February 13, 2014, the Army and Air Force Exchange Service (AAFES or government) awarded the contract identified above to WECC to upgrade the Langley Air Force Base Exchange (R4, tab 1). Among other things, the fixed price agreement required WECC to renovate and construct additions to the exchange store, food court, mall, garden area, and shipping areas (R4 tabs 1, 3). 2. The contract drawings identified five separate building areas. They were Administrative, Retail, Mall Shops, Mall Corridor, and Food Court. Each area was then broken into multiple phases reflecting more specific locations in an area. For instance, Phase R-1 in the Retail area was ladies wear and Phase R-8 was menswear, or Phase M-1 in the Mall Shops was the barbershop and Phase M-4 was the beauty salon. WECC was to perform the work in each area in the phased sequences shown on the drawings, which also specified the number of days that WECC was to spend in each phase. (R4, tab 2 at 4, tab 3 at 39, 111; demo. ex. 1; tr. 1/80) WECC was required to start work within 10 days of its receipt of the March 5, 2014 notice to proceed, and finish 240 days after the receipt, or by October 31, 2014 (R4, tab 1 at 1, tab 17 at 1). In the event WECC failed to complete the work on time, the contract imposed $1,500 in liquidated damages for each day of delay (R4, tab 1 at 55). 3. As required by the contract, WECC prepared a baseline schedule that followed the contract’s phase requirements. In accordance with the drawings, the schedule planned for work to proceed in multiple areas concurrently. For each area it established a logical order of specific activities within each phase. (R4, tab 3 at 127, tab 264; demo. ex. 2; tr. 1/88-90, 99-101) Because WECC worked simultaneously in different areas, there were many chains of sequential activities on the project (R4, tab 2 at 4, tab 264). However, the chain with the longest duration was the “critical path.” As the longest chain, it reflected the earliest the project could be completed (tr. 2/44). Any delay of a task on the critical path would delay completion of the overall project. As planned, the critical path started with mobilization and then ran through the Retail phases. (R4, tab 234 at 10-11, tab 264 at 1, 3-10; tr. 1/96-97, 109) 4. This contract with AAFES was not subject to the Federal Acquisition Regulation, but contained several clauses imposing comparable provisions (R4, tab 1 at 7). Thus, it contained Differing Site Conditions, Suspension of Work, Liquidated Damages, Retainage, and Changes clauses. Changes were further governed by General Provision 37 controlling price adjustments. (R4, tab 1 at 12, 19-21, 23, 26-27, 29, 55) II. Performance, Change Orders, and the Claim 5. On March 19, 2014, shortly after receiving the notice to proceed, WECC and its subcontractor encountered unexpected conditions in the floors, which included a second layer of tile beneath the top layer, and an excessively deep mud bed (R4, tab 31 at 3, tab 78 at 11, tab 250; tr. 2/34-35). WECC also discovered that the concrete slab beneath the tile and mud bed was in such poor condition it could not be polished to the glossy surface contemplated by the contract. Instead, WECC had to remove and replace it. (R4, tab 36 at 6; tr. 1/123, 133-34) The government did not approve Change Order No. 11, in Amendment No.