ASBCA 59537

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Matcon Diamond, Inc. ) ASBCA No. 59637 ) Under Contract No. W912KC-12-C-0002 ) APPEARANCE FOR THE APPELLANT: David A. Levine, Esq. Blumling & Gusky, LLP Pittsburgh, PA APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney Harry M. Parent, III, Esq. LTC Joseph J. Jankunis, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE STINSON Appellant, Matcon Diamond, Inc. (Matcon or MDI), appeals a contracting officer's final decision dated July 30, 2014, denying appellant's April 29, 2014, certified claim in the amount of $360,742.92 for extended home office overhead costs based upon a modified Eichleay formula. Our previous decision, dated October 21, 2015, denied the government's motion to dismiss for failure to state a claim upon which relief can be granted. Familiarity with that decision is presumed. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. 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 as well as affidavits and deposition transcripts to be considered in deciding this appeal. For the reasons stated below, we deny Matcon's appeal. FINDINGS OF FACT 1. On June 5, 2012, the Pennsylvania Air National Guard 171st Air Refueling Wing (ARW) entered into a fixed price contract, No. W912KC-12-C-0002 (the contract), with Matcon for aircraft apron repair (R4, tabs 1 at 1-2, 2, 4 at 2). The ARW project site, located at the Pittsburgh International Airport, consisted of two aprons, designated East and West, connected to the airport by the East Taxiway and the West Taxiway (R4, tab 4 at 2).  2. Contract work included removal and replacement of concrete slabs, asphalt shoulders, and joint sealant, repair of existing concrete slabs, including cracks in concrete slabs, and removal and painting of airfield lines (R4, tab 1 at 1, 62). The estimated project magnitude was $IM to $5M, with a performance period of"approx. 150 calendar days after receipt of Notice to Proceed" (R4, tab I at 1). 3. Matcon was responsible for coordinating with the government the phasing of the contract work. Specifically, the contract provided that "[p]hasing will be negotiated with the successful contractor based on their capabilities and operational constraints" and that "[w]ork shall be accomplished in phases in order to accommodate the airfield operations of the Base" (R4, tab 1 at 8, 63). Paragraph 1.03 of Section 01 31 10 of the contract, entitled "Coordination," provided: E. The Prime General Contractor is responsible for the overall coordination of the construction work of the Project and shall coordinate the schedules of all Sub-Contractors on this project to the satisfaction of the Contracting Officer or Contracting Officer's Representative. At the beginning of the Project, within 10 days from Contract A ward, the Contractor shall prepare and submit an AF Form 3064 Construction Progress Schedule (bar chart) indicating the phasing [of] all work. (R4, tab 1 at 71) 4. Paragraph 11.3 of Section 00800 of the contract required: [F]or projects exceeding $IM, the contractor shall provide a project plan in the most current version of commercially available software programs to define work tasks and track progress. At least five days prior to work initiation, the contractor shall provide the Contracting Officer a hardcopy CPM and electronic file copy of the plan .... (R4, tab 1 at 32) 5. The contract incorporated by reference FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 1 at 16). Section (f) of that clause provides "[n]o proposal by the Contractor for an equitable adjustment shall be allowed if asserted after final payment under this contract." 48 C.F .R. § 52.243-4(f). 6.