ASBCA 62201

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) AICI-Archirodon JV ) ASBCA No. 62201 ) Under Contract No. W912ER-17-C-0014 ) APPEARANCES FOR THE APPELLANT: Scott M. Heimberg, Esq. Thomas P. McLish, Esq. Amanda B. Lowe, Esq. Akin Gump Strauss Hauer & Feld LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Rebecca L. Bockmann, Esq. James D. Stephens, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT This appeal involves a contract to replace the Mina Salman Pier in Manama, Bahrain. The contract required appellant to use United States-flagged vessels to transport materials unless it applied for and was granted an exception to use a foreign-flag vessel. The government moves for summary judgment, arguing that appellant failed to properly request an exception and failed to follow the contract by using a foreign-flagged vessel. 1 Appellant cross-moves for summary judgment, alleging that it properly filed a request for exception but the contracting officer failed to respond in a timely manner, and that no harm occurred to the government. We grant the government’s motion, in part, regarding appellant’s failure to properly request an exception and follow the requirements of the 1 The government also filed a motion in limine to exclude appellant’s expert testimony and report. The government argued that the Board should shield the record from the introduction of irrelevant, immaterial, or cumulative matters and that the expert’s opinion included legal conclusions (gov’t mot. at 1, 14). Based on this decision, the risk of appellant’s expert report being irrelevant, immaterial, or cumulative is low. Further, the Board is capable of giving the report and potential testimony the proper weight it deserves. Thus, the government’s motion in limine is denied. contract. We deny the government’s motion as to the amount. Similarly, we deny appellant’s motion, in part, regarding entitlement but grant appellant’s motion, in part, concerning the inability to determine the amount based on the record. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 1. On September 25, 2017, the United States Army Corps of Engineers (USACE or the government) awarded Contract No. W912ER-17-C-0014 (the contract) to AICI-Archirodon JV (AAJV or appellant) to replace the Mina Salman Pier at Naval Support Activity, Manama, Bahrain, at the firm-fixed-price of $48,148,000 (R4, tab 4 at 1-2). 2. The contract incorporated by reference Defense FAR Supplement (DFARS) 252.247-7023, TRANSPORTATION OF SUPPLIES BY SEA (APR 2014) (R4, tab 4 at 14). The clause stated, in part, “(b)(1) The Contractor shall use U.S.-flag vessels when transporting any supplies by sea under this contract.” Further, the clause allowed for exceptions to this requirement and provided a method by which the contractor could request to use a foreign-flag vessel from the contracting officer (CO): (c) The Contractor and its subcontractors may request that the Contracting Officer authorize shipment in foreign-flag vessels, or designate available U.S.-flag vessels, if the Contractor or a subcontractor believes that— (1) U.S.-flag vessels are not available for timely shipment; (2) The freight charges are inordinately excessive or unreasonable; or (3) Freight charges are higher than charges to private persons for transportation of like goods. (d) The Contractor must submit any request for use of foreign-flag vessels in writing to the Contracting Officer at least 45 days prior to the sailing date necessary to meet its delivery schedules.