ASBCA 59074

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Dyno Group, Inc. ) ASBCA No. 59074 ) Under Contract No. W912P4-11-C-0016 ) APPEARANCE FOR THE APPELLANT: Edward Everett Vaill, Esq. Malibu, CA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Lauren M. Turner, Esq. Assistant District Counsel U.S. Army Engineer District, Buffalo OPINION BY ADMINISTRATIVE JUDGE MELNICK The United States Corps of Engineers withheld liquidated damages due to the late completion of a contract by Dyno Group, Inc. (Dyno). Dyno challenged that assessment in a claim submitted to the contracting officer, which was denied. Dyno has now appealed and elected to proceed under the Board's Expedited Procedure (Rule 12.2). 1 The appeal is denied. FINDINGS OF FACT 1. On 22 September 2011, the United States Army Corps of Engineers awarded Contract No. W912P4-11-C-0016 to Dyno (R4, tab 5). The contract was for the removal and replacement of staircases inside the Mount Morris Dam in Mount Morris, New York. The Scope of Work contained a base bid item that required the removal and replacement of two sections of the south gallery staircase, and five additional optional items, designated A through E, for the removal and replacement of additional staircases and the replacement of stair landings. (!d. at 279) The contract was signed for Dyno by Christopher Wan, its president (id. at 257). 2. Part 1.3 of the section of the contract addressing procedures required Dyno to "complete the entire work ready for use not later than one-hundred eighty ( 180) calendar 1 The Contract Disputes Act, 41 U.S.C. §§ 7101-7109, implemented by Board Rule 12.2, provides that this decision will have no value as precedent, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside. days from the date of receipt by the Contractor of the Notice to Proceed." It added that "[ t]or each Option awarded, the Contractor will be given an additional one hundred fifty (150) days to complete that option." It noted that "[o]ptions may be awarded at any time within one year of original contract award and options may be awarded concurrently." (R4, tab 5 at 324) 3. The contract contained 13 contract line item numbers (CLINs). CLINs 1 through 3 were for the base work. The initial award also exercised Options C through E, reflected in CLINs 8 through 13. (R4, tab 5 at 259-64) The scheduled period of performance for CLINs 1 through 3 was 180 days, and for CLINs 8 through 13 it was 329 days (id. at 265-66). 2 The contract contained the FAR 52.211-12, LIQUIDATED DAMAGES-CONSTRUCTION (SEP 2000) clause. In the event Dyno failed to complete the work within the time specified in the contract, that clause required Dyno to pay $450 in liquidated damages to the government for each calendar day of delay until the work was completed or accepted. (!d. at 275) The contract also incorporated the FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) clause, and the FAR 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK (APR 1984) clause (id. at 268). 4. On 30 September 2011, after the contract was awarded, Mr. Wan sent an email to Brian Steils, the contracting officer representative (COR) (R4, tab 9; compl., tab 17, ,-r 4 ). The email asked whether "the completion timeframe for this job [was] 180 calendar days?" It noted the "[a]ward amount consists of Base bid and Options C, D, and E" and asked "do these options give more time for completion (ie does Dyno have 150 days x 3 = 450 additional days), or is it still180 days?" (R4, tab 9) Mr. Steils's 3 October 2011 response referred Mr. Wan to an email from Mr. Walter Kamad from "Contracting." Mr. Kamad had advised the following: Just looked over the specs, base bid is 180 days. Since options C, D and E are awarded with base bid, the breakdown would be 180 for base bid and an additional 150 days for the options. The NTP would read 180 days for base bid and to complete all options in 330 days[.] (R4, tab 10) Mr. Steils commented that "[t]he contract states 330 days, however USACE would expect Dyno group to complete the project as soon as possible" (id.).