ASBCA 56769

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Zafer Construction Company ) ASBCA No. 56769 ) Under Contract No. W9 l 7PM-05-C-0005 ) APPEARANCES FOR THE APPELLANT: Sam Zalman Gdanski, Esq. Gdanski & Gdanski, LLP Teaneck, NJ Rebia Unal, Esq. General Counsel APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney James D. Stephens, Esq. Michael A. Rea, Esq. James A. Wallace, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE PAGE This appeal arises from Contract No. W917PM-05-C-0005 (the contract) between appellant, Construction Company' (Zafer or appellant), and the Afghanistan Engineering District (AED) of the U.S. Army Corps of Engineers (Corps or government) for design, renovation, replacement, and repair work on a military hospital campus operated by the Afghanistan National Army (ANA) in Kabul, Afghanistan. After fully performing the work, Zafer now seeks an additional $4, 104,891 (including claim preparation costs) for renovation work in basements, rooftop technical rooms, and other above-grade areas that it contends were not included in its original proposal. Appellant alleges that the omission of this alleged additional work from its proposal constituted a unilateral mistake in its proposal and that the government's acceptance of the proposal was unconscionable. Appellant also suggests in its trial briefthat the various subgrade and above-grade areas constitute differing site conditions. The appeal is denied. 1 This is the name of the contractor as used in the contract and numerous contract modifications (see, e.g., R4, tabs 5-15). We understand that "Zafer Taahhut Insaat ve Ticaret A.S.," as used by the parties, is the Turkish version of the contractor's name.  FINDINGS OF FACT A. The Afghanistan National Military Hospital in Kabul, AFG 1. The Afghanistan National Military Hospital in Kabul, Afghanistan (ANA hospital) is a campus consisting of multiple buildings designed and constructed by the Soviet Union from 1970-1973. The buildings of the ANA hospital campus include a 400-bed patient-care facility, operations and administration buildings, a rehabilitation building, an isolation ward, a polytechnic clinic, a morgue, a kitchen/dining facility, a laundry facility, a water supply facility, a sewage plant, a central heating plant, and quarters for the surgeon general. The ANA hospital has been in continuous use from the time of its construction and, over the course of the ensuing decades, its buildings succumbed to the ravages of armed conflict and the decay of neglect. By March 2004, the buildings on the ANA hospital campus had fallen into varying stages of disrepair, ranging from poor to fair. The condition of the major utilities infrastructure ranged from non-functional to fair: steam heat boilers and the central heat distribution system functioned at reduced capacity; electrical service was deficient; water and sewage services were deficient; and many of the elevators on the campus were non-functional. (Ex. A-7, 1August2012 Dep. of David M. Pecharka (hereinafter ex. A-7) at 91of131) 2. In March 2004, the government dispatched an assessment team comprised of architects, engineers, and a cost estimator, all of whom were contractors employed by Michael Baker Jr., Inc. (Baker), to the ANA hospital to survey the site and assess the condition of the buildings and infrastructure. The Baker team was to prepare a report that would allow the government to adequately budget for and define the work necessary to renovate and rehabilitate the ANA hospital. (Tr. 2/30-31, 34-35, 4/129) The scope of the team's assessment included the following areas and trades: water, sewer, electrical, heating, mechanical, and architectural (ex. A-7 at 91of131). According to Mr. Pecharka, an architect (tr.