ASBCA 62683

DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Bullock Construction Inc. ) ASBCA No. 62683 ) Under Contract No. FQ17095 ) APPEARANCES FOR THE APPELLANT: Stephen A. Oberg, Esq. N. Tucker Meneely, Esq. Council, Baradel, Kosmerl & Nolan, P.A. Annapolis, MD APPEARANCES FOR THE AUTHORITY: Jeffrey Weinstein, Esq. Chief Counsel Washington Metropolitan Area Transit Authority Washington, DC Attison L. Barnes III, Esq. Tracye Winfrey Howard, Esq. George E. Petel, Esq. Wiley Rein LLP Washington, DC OPINION BY ADMINISTRATIVE JUDGE ARNETT Bullock Construction Inc. (Bullock or appellant) seeks compensation for two claim issues under its track rehabilitation contract with the Washington Metropolitan Area Transit Authority (WMATA or the Authority). First, Bullock asserts that it incurred additional costs for “lost time” when its crews consistently reported as scheduled but had to wait hours, only to be granted minimal track access to perform production work. Bullock requests hourly compensation for the time its crews were required to be on site but unable to work due to the lack of track access. Second, Bullock contends that its crews were scheduled and paid for lower-skilled hourly labor “assist” work when, in fact, Bullock crews performed higher-skilled Grout Pad Renewal production work at the direction of WMATA personnel on site. Bullock contends it should have been paid for the Grout Pad Renewal work at a production rate under CLIN 10 rather than assist work paid at an hourly rate as Track Labor Support under CLINs 1-7 and seeks the difference between the two rates.  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. WMATA contends that Bullock’s “lost time” claim is a delay claim barred by the express language of the contract. As to Bullock’s second claim issue, WMATA asserts that it ordered and Bullock performed and invoiced for “assist” work, not the tasks required for Grout Pad Renewal production work. Pursuant to the Board’s agreement with WMATA, we have “authority to resolve appeals from the decisions of WMATA contracting officers pursuant to the provisions of the Disputes clause of WMATA contracts.” Transdev Svcs, Inc., ASBCA Nos. 62654, 62655, 21-1 BCA ¶ 37,792 at 183,470, citing Delta Eng’g, ASBCA No. 58063, 14-1 BCA ¶ 35,553 at 174,222. The parties presented their respective cases at a hearing in this matter which addressed both entitlement and quantum. As to Bullock’s “lost time” claim, we grant judgment, in part, in favor of Bullock because WMATA breached the contract by failing to provide track access at the scheduled time, causing Bullock’s crews to be idle waiting for access. As to Bullock’s Grout Pad Renewal claim, judgment is granted in favor of WMATA because the contract allowed WMATA to choose the tasks it ordered and Bullock has failed to demonstrate that it performed work beyond that which WMATA ordered. FINDINGS OF FACT 1 The Contract and Purchase Orders 1. On June 30, 2017, WMATA awarded Contract No. FQ17095 (the Contract) to Bullock to provide “System Wide Track Rehabilitation Services” (stip. ¶ 1). It was a firm fixed unit price, Indefinite Delivery/Indefinite Quantity (IDIQ) contract with one base year period of performance and four option years (stip. ¶ 2). The guaranteed minimum required under the Contract was $100,000 per year, and the maximum which could be ordered was $20,000,000 per year (stip. ¶ 3). The Contract required compliance with the applicable Davis-Bacon Wage Determination (R4, tab 1 at 21, 321; tr. 3/39) 2. 2. The Contract price schedule consisted of sixteen contract line items (CLINs) for possible work on WMATA capital improvement projects across the rail system (stip. ¶ 4).