ASBCA 62127

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Blue Rock Structures, Inc. ) ASBCA No. 62127 ) Under Contract No. N40085-16-D-6300 ) APPEARANCES FOR THE APPELLANT: Mr. Brent Hartness President Mr. Chris Lawson Vice President of Construction APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Daniel J. Monahan, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE EYESTER ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT Blue Rock Structures, Inc. (Blue Rock or appellant) appeals a contracting officer’s final decision (COFD) denying its claim of $73,027.34 for additional steel and 21 days of additional time as a result of a differing site condition for the installation of translucent roof panels on Hanger 250 at Marine Corps Air Station, Cherry Point, North Carolina. The Department of the Navy (Navy or government) filed a motion for summary judgment arguing that the appellant has failed to demonstrate any material facts in dispute to demonstrate that a differing site condition was the sole cause of the need for additional steel and time for installation of the panels. Appellant opposes the motion, arguing that the existing steel in the hangar varied in straightness from the design and was insufficient for fastening the panels. Because we find that a material fact is in dispute, the motion is denied. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On December 18, 2015, the Navy awarded General Multiple Award Construction Contract (MACC) No. N40085-16-D-6300 to Blue Rock (R4, tab 2 at 10, 12). 1 The purpose of the MACC was to provide a range of general construction services that included new construction, demolition, repair, and alteration of buildings, systems and infrastructure (R4, tab 2 at 25). 1 Citations to the Rule 4 file are to the government’s Bates-stamped numbers. Citations to the briefs are to the PDF page numbers.  2. All delivery or task orders issued pursuant to the MACC were subject to the MACC’s terms and conditions (R4, tab 2 at 44). As pertinent here, the MACC incorporated by reference Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES (May 2014); FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); and FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 2 at 30). FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984), states, in pertinent part: (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. 3. On October 28, 2015, the Navy issued a solicitation for repairs and improvements to Hangar 250 to selected MACC holders, including Blue Rock (R4, tab 1 at 1-2). The solicitation included specifications and drawings for the project as attachments (R4, tab 1 at 3). 4. On November 30, 2016, the Navy issued fixed-priced Task Order No. 0005 to Blue Rock for $13,683,510 for repairs and improvements to Hangar 250 in accordance with the issued solicitation, as amended (R4, tab 10 at 1260-62, 1268, tab 11). The agency ultimately issued 13 modifications, which increased the task order award amount to $15,533,529.08 and established a completion date of December 13, 2019 (R4, tab 31 at 1480). 2  5.