ASBCA 58856

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) ECC International LLC ) ASBCA No. 58856 ) Under Contract No. W912DQ-11-C-4009 ) APPEARANCE FOR THE APPELLANT: R. Dale Holmes, Esq. Amy M. Kirby, Esq. Cohen Seglias Pallas Greenhall & Furman PC Philadelphia, PA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Daniel B. McConnell, Esq. Geoffrey A. Mueller, Esq. Regina L. Schowalter, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This appeal arises from a dispute between the parties over whether the contract required appellant to construct a vehicle refueling point (VRP) as part of the construction of a Military Police School at Camp Shaheen, Afghanistan. The government has moved for summary judgment on this issue. Appellant opposes the government's motion and has cross-moved for summary judgment. For the reasons stated below, we deny both parties' motions. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 1. On 24 February 2011, the U.S. Army Corps of Engineers issued Solicitation No. W912DQ-l l-R-4014 for the design and construction of the Afghan National Army Military Police and Personal Security Training School (MP School) and the Signal Training School (Signal School) at Camp Shaheen, Balkh Province, 1 Afghanistan (Government's Statement of Undisputed Facts (gov't stmt.) ii 1.) 2. The solicitation contemplated a firm-fixed-price contract with four contract line item numbers (CLINs): one for design and construction of the MP School, one for design and construction of the Signal School, and two for Defense Base Act insurance applicable to each project (gov't stmt. ii 2). 3. CLIN 0001, for the MP School, states: The contractor shall provide all Manpower, Materials, Equipment, and Coordination to the Design/Construction of Military Police and Personal Security Training School in accordance to the attached specifications. [See] PRICE 2 PROPOSAL SCHEDULE Military School. r l CLIN 0001 provided a single line for insertion of a lump sum firm fixed price for the entire MP School project. (R4, tab 4 at 39) 4. The solicitation included a price proposal schedule for the MP School and a price proposal schedule for the Signal School. The price proposal schedule for the MP School was broken out by subCLINs (OOOlAl, 0001B2, etc.) that called out most, but not all, of the items of work contained in the specifications referenced in CLIN 0001. (Gov't stmt. ilil 3, 7; R4, tab 4 at 41-42) 5. The price proposal schedules contained the following statement at the top of the first page: "This Price Proposal Schedule is information supplemental to the CLIN and is not part of the contract" (R4, tab 4 at 41 ). The price proposal schedules also contained the following "PROPOSAL SCHEDULE NOTES" on the second page, following the list of bid items: 1 The government has filed a statement of undisputed facts in connection with its motion. Appellant has indicated where it agrees and where it does not agree with the government's statement. Along with its opposition, appellant has also filed a statement of undisputed facts, to which the government has not responded. References in this opinion to either document will be to those paragraphs that are not disputed. 2 By reference to CLIN 0003 for the Signal School, the word "See" was probably intended to precede the words "PRICE PROPOSAL SCHEDULE" in CLIN 0001, but was inadvertently omitted. 2  1. Offeror shall submit prices on all items. Scope of work on each items [sic] are [sic] described in Section 01010 and 01015 [the specifications]. 2.