CBCA 2693

DENIED IN PART; DISMISSED FOR LACK OF JURISDICTION IN PART: March 17, 2015 CBCA 2693 1-A CONSTRUCTION & FIRE, LLP, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Patricia A. Maier, Senior Partner of 1-A Construction & Fire, LLP, Hermiston, OR, appearing for Appellant. Mary E. Sajna, Office of the General Counsel, Department of Agriculture, Portland, OR, counsel for Respondent. Before Board Judges GOODMAN, DRUMMOND, and LESTER. LESTER, Board Judge. Appellant, 1-A Construction & Fire, LLP (1-A Construction), appeals the final decision by a contracting officer for the United States Forest Service (USFS) terminating for default 1-A Construction’s contract for water system upgrades at five locations in the Umatilla National Forest. In its notice of appeal, 1-A Construction also asks the Board to award it monetary damages for various cost increases for which it blames the USFS, and, in turn, the USFS asks the Board to award it excess reprocurement costs associated with CBCA 2693 2 completing the work that was required under 1-A Construction’s contract. For the reasons explained below, in response to the parties’ request for a decision on the record under CBCA Rule 19, 48 CFR 6101.19 (2014),1 we sustain the USFS’s termination for default, but we dismiss for lack of jurisdiction both 1-A Construction’s request for monetary damages and the USFS’s request for excess reprocurement costs. Findings of Fact I. The Terms of 1-A Construction’s Contract On May 28, 2010, the USFS awarded a fixed-price construction contract, contract no. AG-0489-C-10-0304 (the contract), to 1-A Construction for “upgrades to small water systems at five locations throughout the Umatilla National Forest,” at a total price of $262,939.03. Appeal File (AF) at 35, 41, 114. The five project sites, each of which was remotely located in the Blue Mountains of eastern Oregon, were (1) the Fremont Work Center, within the North Fork John Day Ranger District of the Umatilla National Forest; (2) the Umatilla Forks Campground, in the Walla Walla Ranger District; (3) the Woodward Campground, also in the Walla Walla Ranger District; (4) the Ditch Creek Cabin Campground, in the Heppner Ranger District; and (5) the Bull Prairie Campground, also in the Heppner Ranger District. Id. at 41-42, 114-15, 303-04. In describing the contract work, the USFS represented that the existing water systems at the project sites “were built as long as 40 years ago and now have pressure, and sanitary deficiencies.” AF at 41, 114. The contract provided that the contract awardee would have to modify or entirely replace the “[s]upply, storage, and distribution systems . . . as needed to address these issues.” Id. The work was to include, but was not limited to, (1) installation of three utility buildings, which would house a triple pressure tank system, a single pressure tank system, and a gravity fed system; (2) replacement of two 10,000-gallon steel water storage tanks with new fiberglass plastic reinforced tanks; (3) replacement and/or installation of approximately 6360 feet of water line; (4) installation of power, control, and telephone lines; and (5) installation of fourteen hydrant assemblies. Id. The contractor was required to “furnish the necessary personnel, material, equipment, services and facilities (except as otherwise provided), to perform the Statement of Work/Specifications” set forth in the contract. Id. at 42 (incorporating language from 48 CFR 452.211-72). 1 Although the parties originally filed cross-motions for summary relief under CBCA Rule 8(g), they subsequently converted those motions to a request for a decision on the record under Rule 19. CBCA 2693 3 The project specifications for the contract indicated that the contractor would “have full use of premises for construction operations, including use of Project site, during [the] construction period.” AF at 115 (section 5.4.A). Nevertheless, the specifications expressly warned the awardee that, because of the elevation of the project sites, heavy snowfall and cold temperatures could affect them: The elevation of the sites range from approximately 2700-5200 feet above mean sea level. The construction sites may experience heavy snowfall and cold temperatures, with snow on the ground typically from mid-September through June. Id.