ASBCA 58343

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Environmental Safety Consultants, Inc. ) ASBCA No. 58343 ) Under Contract No. N62470-95-B-2399 ) APPEARANCE FOR THE APPELLANT: Mr. Peter C. Nwogu President APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Ellen M. Evans, Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE FREEMAN Environmental Safety Consultants, Inc. (ESCI), appeals the deemed denial of its settlement proposal/claim for the government's convenience termination of the captioned contract (hereinafter "Contract 2399"). The government contends that ESCI' s claim is not based on its actual incurred costs but on prices, and that it has not proven its actual incurred costs as required by the termination clause of the contract. ESCI responds in pertinent part 1 that (i) the convenience termination did not convert the firm-fixed-price contract into a cost-reimbursement contract, and (ii) the contract changes and costs that were incurred for each of the six Bid Items were negotiated and settled and are not subject to further actual cost determination. We find no merit in appellant's argument. We find that the incurred costs of the terminated work with a reasonable profit thereon are less than the progress payments made by the government, and that the settlement expenses have not been proven in any amount. Accordingly, we deny the appeal. 1 We say in pertinent part because most of ESCI' s brief is devoted to its claims for contract time and price adjustments and for breach of contract damages that were not submitted to the contracting officer for decision within six years of accrual as required by the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 7103(a)(l) and (4)(A), or otherwise were settled by mutual agreement in bilateral Modification No. P00006 to the contract. See Environmental Safety Consultants, Inc., ASBCA No. 58343, 14-1 BCA if 35,681, and finding 3 below.  FINDINGS OF FACT A. Submission of the Termination for Convenience Settlement Claim to the Contracting Officer 1. Contract 2399 was awarded to ESCI on 13 November 1995. The contract required ESCI to remove old and install new underground and above ground fuel storage tanks at the Naval Weapons Station (NWS), Yorktown, Virginia. The total contract price at award was $561,764.25. The specified contract completion date was 16 August 1996. The contract schedule consisted of six priced "Bid Items." Bid Item OOOIA was a firm-fixed-price item in the amount of $358,754 for "the entire work, complete in accordance with the drawings and specifications, but excluding work described in Bid Items OOOIB, OOOIC, OOOID, OOOIE and OOOIF." The Bid Items excluded from the work under Bid Item 000 IA were unit priced items per gallon for removal and disposal of specified quantities of fuel (OOOIB), sludge material (OOOIC), and water contaminated petroleum (OOOID), and per cubic yard for specified quantities of petroleum contaminated soil (OOOIE and OOOIF). (R4, tab I at 15, 16, 29)2 2. ESCI began work on the site on 2 April 1996 and performed the work with its own personnel until I 0 October 1996. At that time ESCI had missed the specified completion date and to avoid a termination for default, it agreed to subcontract the entire completion of the work to a competent subcontractor. From November 1996 to 16 June 1997, Rickmond Environmental, Inc., performed the contract work as a subcontractor to ESCI. Rickmond stopped performance after 16 June 1997 because ESCI failed to pay Rickmond invoices in the amount of $114,239.60. See Environmental Safety Consultants, Inc., ASBCA No. 51722, 11-2 BCA i! 34,848 at 171,429-30, findings 12-19. 3. On 24 June 1997, ESCI and the government, in bilateral Modification No. P00006, agreed to the following changes to the contract: 1. The contractor shall provide all materials, labor, and equipment to accomplish the following: PC0-01: a. Delete Bid Item OOOlB, fuel removal. b. Provide 36,210 gallons of fuel removed. c. Delete Bid Item OOOlE, contaminated soil removal 2 All Rule 4 citations refer to the Rule 4 filed in ASBCA No. 51722. 2  <500 ppm. d.