ASBCA 58875

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) ECC International, LLC ) ASBCA No. 58875 ) Under Contract No. W917PM-07-D-0015-0006 ) APPEARANCE FOR THE APPELLANT: Michael A. Richard, Esq. Obermayer Rebmann Maxwell & Hippel LLP Philadelphia, PA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Sarah L. Hinkle, Esq. Geoffrey A. Mueller, Esq. Matthew Tilghman, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE STINSON Appellant, ECC International, LLC (ECCI), appeals a contracting officer’s (CO) deemed denial of its June 6, 2013, certified claim in the amount of $925,216.00 (R4, tab 2). The parties agreed to submit this appeal for a decision on the record without a hearing pursuant to Board Rule 11. Each party submitted initial and reply briefs. Also pending are the parties’ cross-motions for summary judgment, as well as respondent’s motion to dismiss for lack of jurisdiction. For the reasons stated below, we deny the government’s motion to dismiss, dismiss the parties’ cross-motions for summary judgment as moot, and deny the appeal. FINDINGS OF FACT The MATOC Contract 1. On August 15, 2007, the Government awarded ECCI Multiple Award Task Order Contract (MATOC) No. W917PM-07-D-0015, an Indefinite-Delivery, Indefinite-Quantity contract, “for general construction and construction related requirements such as repairs, and/or new construction, including the execution of design-build construction work throughout Afghanistan.” The contract anticipated award of task orders in the range of $5 million to $25 million. (R4, tab 3 at 142) 2. Paragraph 1.1 of the MATOC Scope of Work states, in part, that “[t]he vast majority of these projects will be new construction of relatively simple, one-and two-story living and working facilities similar to other ‘normal’ construction in Afghanistan, designed to be simple, durable, and easy/inexpensive to maintain” (R4, tab 3 at 147). 3. MATOC Scope of Work paragraph 1.4 states, in part: Where design-build services are required, the contractor shall employ the services of architect/engineering professional established in coordination with multi-discipline architectural/engineering design efforts. The Contractor’s architect/engineering team shall be responsible for the coordination of all these disciplines in the performance of task order work. (R4, tab 3 at 147) 4. Section 01335 of the MATOC is entitled “SUBMITTAL PROCEDURES FOR DESIGN-BUILD PROJECTS” (R4, tab 3 at 186). Paragraph 1.2.1, “DESIGN SUBMITTALS,” states, in part: Contractor Furnished design submittals are the various design documents which primarily consist of specifications, drawings and design analysis and calculations. The Design-Build Contractor shall not begin construction work until the Government has reviewed the Design-Build Contractor’s final design and has cleared it for construction. Clearance for construction shall not be construed as meaning Government approval.