ASBCA 58871

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Environmental Chemical Corporation ) ASBCA No. 58871 ) Under Contract No. FA8903-06-D-8511 ) APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq. Amy M. Kirby, Esq. Justin J. Williams, Esq. Cohen Seglias Pallas Greenhall & Furman PC Philadelphia, PA Kevin J. Kelly, Esq. Corporate Counsel APPEARANCES FOR THE GOVERNMENT: Lt Col Matthew J. Mulbarger, USAF Air Force Chief Trial Attorney Anna F. Kurtz, Esq. Capt Christopher M. Kovach, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT'S MOTION TO AMEND COMPLAINT INTRODUCTION Appellant moves to amend its complaint to add two counts: one alleging unabsorbed overhead resulting from delay to the contract work, and one alleging breaches of the implied duty of good faith and fair dealing. We grant the motion in part, and deny the motion in part. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION In April 2006, Air Force Materiel Command (Air Force) awarded Contract No. F8903-06-D-8511, an indefinite delivery, indefinite quantity Heavy Engineering and Repair (HERC) contract, to Environmental Chemical Corporation (ECC) (R4, tab 9 at 1-2). On 2 September 2011, the Air Force awarded Task Order 81 to the contract to ECC, for the design and construction of buildings and parking lots at Kandahar Air Field (KAF), in Afghanistan, for the fixed price of $22,974,828 (R4, tab 21at1-2). Task Order 81 required the construction of several buildings on KAF by 2 September 2012 (id. at 3). On 23 August 2012, the Air Force unilaterally issued Modification No. 3 to Task Order 81, combining some of the buildings, reducing the size of other buildings, and making other changes to the work (R4, tab 24 at 1, 39-40). Modification No. 3 also increased the contract price by $1,526,345, and extended the construction completion date by 129 days, to 9 January 2013 (id. at 2-3). On 24 January 2013, ECC presented to the contracting officer a claim for $4,363,296, for subcontractor costs associated with Modification No. 3, and for costs incurred during a 174-day period of alleged delay that ECC asserted was caused by the late issuance of Modification No. 3 from 2 March 2012 through 24 August 2012 (R4, tab 81 at 1-2, 13). 1 The claim references "substantial Govt.-initiated changes to the project design which were introduced soon after award of the Task Order on September 2, 2011" (id. at 1). The claim also references specific "design delays," including ( 1) a proposal during a 19 September 2011 "initial design charrette" to combine several buildings into one complex; 2 (2) the issuance by the Air Force on 21September2011 of a new statement of requirements (SOR) for Task Order 81; (3) a delay through 31 October 2011 of the submittal of the 3 5% design due to the new SOR; (4) the approval by the Air Force of the 35% design on 4 November 2011; (5) the issuance by the Air Force of further revisions to the SOR on 19 January 2012, and 23 February 2012; and (6) the issuance of Modification No. 3 and a notice to proceed (NTP) with that modification in August 2012 (id. at 11-13). On 8 March 2013, ECC resubmitted its claim, reducing the claim amount to $4,274,135, and certifying that amount (R4, tab 84 at 3-4). On 28 March 2013, ECC submitted the claim for a third time, increasing the claim amount to $4,282,762 (R4, tab 89 at 8-9). On 25 April 2013, ECC certified the 28 March 2013 claim amount (R4, tab 92 at 6). From 2 April 2013 through 16 October 2013, two Air Force program managers provided the contracting officer a series of advice memoranda regarding the claim (R4, tabs 90, 96, 99, 100); the final memorandum recommended that an award to ECC of 303 days (the 129 days awarded in Modification No. 3 plus the 174 days identified in the claim) was appropriate (R4, tab 100 at 6). On 11 September 2013, ECC filed this appeal from the deemed denial of its claim. On 15 October 2013, ECC filed its complaint, requesting $4,282,762 and a time extension of 181 days. On 6 November 2013, the contracting officer issued a final decision awarding to ECC the $1,526,345 amount set forth in Modification No.