Judges: O'Sullivan
Filed: Jun. 09, 2016
Latest Update: Mar. 02, 2020
Summary: , Under paragraph (a)(2), a Type 2 differing site condition consists of unknown physical, conditions at the site, of an unusual nature, which differ materially from those ordinarily, encountered and generally recognized as inhering in work of the character provided for in, the contract.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Columbia State Bank ) ASBCA No. 59531
(formerly Appeal of Castle-Rose, Inc.) )
)
Under Contract No. W912DW-10-C-0015 )
APPEARANCE FOR THE APPELLANT: Erich M. Paetsch, Esq.
Saalfeld Griggs PC
Salem, OR
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Ian D. Clunies-Ross, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Seattle
OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON APPELLANT'S
MOTION FOR SUMMARY JUDGMENT
This appeal arises from a contracting officer's (CO's) final decision (COFD)
denying the claim of Castle-Rose, Inc. (CRI), for costs of a constructive change, differing
site conditions, government-caused delays, and expert consulting fees incurred on a
contract for construction of new buildings at the Howard Hanson Dam in Cumberland,
Washington. 1 CRI has moved for summary judgment on entitlement as to each claim
item. For the reasons stated below, we deny the motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 19 May 2010, the U.S. Army Corp of Engineers, Seattle District (Corps or
government) awarded Contract No. W912DW-10-C-0015 (contract) to CRI for the
construction of an administration building and an addition to the existing maintenance
building at the Howard Hanson Dam (HHD) Facility in Cumberland, Washington. The
contract included multiple contract line item numbers (CLINs) for a total firm-fixed-price
of $2,288,900. (R4, tab 3 at 3-4, 92) CRI was required to furnish all labor, materials and
1
CRI subsequently entered into Chapter 7 bankruptcy proceedings, and the Bankruptcy
Court assigned its claim to Columbia State Bank, which entered its appearance as
the real party in interest authorized to pursue the appeal on behalf of the
bankruptcy estate (see SOF ~~ 23-24).
2
Citations to the Rule 4 file are to the consecutively-numbered pages unless otherwise
indicated.
equipment on the project in accordance with the drawings and technical specifications
incorporated into the contract (id. at 3).
2. The contract incorporated the following standard Federal Acquisition
Regulation (FAR) clauses: 52.233-1, DISPUTES (JUL 2002); 52.236-2, DIFFERING SITE
CONDITIONS (APR 1984); 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTING
THE WORK (APR 1984); 52.242-14, SUSPENSION OF WORK (APR 1984); and 52.243-4,
CHANGES (JUN 2007) (R4, tab 3 at 24 ).
3. FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) provides, in relevant
part, that:
(a) The Contractor shall promptly, and before the
conditions are disturbed, give a written notice to the
Contracting Officer of ( 1) subsurface or latent physical
conditions at the site which differ materially from those
indicated in this contract, or (2) unknown physical conditions
at the site, of an unusual nature, which differ materially from
those ordinarily encountered and generally recognized as
inhering in work of the character provided for in the contract.
(b) The Contracting Officer shall investigate the site
conditions promptly after receiving the notice. If the
conditions do materially so differ and cause an increase or
decrease in the Contractor's cost of, or the time required for,
performing any part of the work under this contract, whether
or not changed as a result of the conditions, an equitable
adjustment shall be made under this clause and the contract
modified in writing accordingly.
4. FAR 52.243-4, CHANGES (JUN 2007) provides, in relevant part, that:
(b) Any other written or oral order (which, as used in
this paragraph (b ), includes direction, instruction,
interpretation, or determination) from the Contracting Officer
that causes a change shall be treated as a change order under
this clause ....
(d) If any change under this clause causes an increase
or decrease in the Contractor's cost of, or the time required
for, the performance of any part of the work under this
contract, whether or not changed by any such order, the
2
Contracting Officer shall make an equitable adjustment and
modify the contract in writing.
5. FAR 52.242-14, SUSPENSION OF WORK (APR 1984) provides, in relevant part, that:
(b) If the performance of all or any part of the work is,
for an unreasonable period of time, suspended, delayed, or
interrupted ( 1) by an act of the Contracting Officer in the
administration of this contract, or (2) by the Contracting
Officer's failure to act within the time specified in this
contract (or within a reasonable time if not specified), an
adjustment shall be made for any increase in the cost of
performance of this contract (excluding profit) necessarily
caused by the unreasonable suspension, delay, or interruption,
and the contract modified in writing accordingly. However,
no adjustment shall be made under this clause for any
suspension, delay, or interruption to the extent that
performance would have been so suspended, delayed, or
interrupted by any other cause, including the fault or
negligence of the Contractor, or for which an equitable
adjustment is provided for or excluded under any other term
or condition of this contract.
6. The contract also included "SPECIAL CONTRACT REQUIREMENTS"
clauses, denoted by "SC." Clause SC-1, a variation of FAR clause 52.211-10,
COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984), required CRI
to complete work on the project no later than 365 days after receipt of the notice to
proceed (R4, tab 3 at 35).
7. Clause SC-8, substantially similar to FAR 52.236-4, PHYSICAL DATA
(APR 1984), provides, in relevant part, that:
(a) Physical Conditions: The indications of physical
conditions on the drawings and in the specifications are the
result of site investigations by surveys, test holes and soil
exploration data. Soils boring logs are included with the
drawings. This data is furnished for information only.
Variations may exist in the subsurface between sample
locations.
(R4, tab 3 at 37) Paragraph 1.5, of section 02300 of the contract specifications entitled
"EARTHWORK," states that subsurface soil boring logs are depicted in the drawings and
provide the best information available (id. at 296).
3
8. Clause SC-17, entitled "FIELD OFFICE OVERHEAD (Jul 2006)," required
CRI to select an accounting practice in its bid that would be applicable to any change
orders, modifications, and requests for equitable adjustment. CRI was required to select
an accounting practice based upon either a per diem rate in accordance with clause
SC-18, a percentage markup in accordance with clause SC-19, or some other allowable
FAR accounting practice. (R4, tab 3 at 40) Pursuant to clauses SC-18 and SC-19, CRI is
entitled to receive an equitable adjustment "for any change to the contract. .. for which the
Government is responsible, and which causes either an increase or decrease in [CRI's]
costs as to time or performance under the contract. Under such an equitable adjustment,
[CRI's] field office overhead shall be an allowable cost, in accordance with [CRI's]
accounting practice." (Id. at 40-41)
9. In a response, tracked as ID 3211560, to a potential offeror's pre-award
inquiry "Is woody debris noted in the bor[ing] log to be hauled off?," the government
stated that the "[ s]ite consists of spoil material from original Dam construction. There
is no expectation to have significant over-excavation or to haul this material off."
(R4, tab 5 at 1437)
10. On 27 May 2010, a Notice to Proceed (NTP) was forwarded to CRI to begin
work under the contract, effective 1June2010. CRI acknowledged receipt of the NTP on
28 May 2010. (R4, tab 7)
11. On 23 July 2010, the government issued a Request for Proposal (RFP) to CRI,
requesting a proposal to add work to the contract relating to the installation of a domestic
water well and pump. The RFP referenced a statement of work (SOW) entitled "HHD Well
Water." 3 (R4, tab 24 at 2873-96) The scope of work under paragraph 1.1 of the SOW was
summarized, in part as: "The well is to support new dam facilities that will be constructed in
the near future. The well is anticipated to be drilled and installed to 250 ft below ground
surface (bgs). However, the Contractor should have drilling capability to at least 300 ft. One
test hole well. .. will be drilled between 250 - 300 ft, and a capacity test will be performed."
(Id. at 2874) The measurement and payment provisions under paragraph 4.3.2 of the SOW
provided that payment for drilling work under CLIN 0002AA would "be made at the contract
unit price" ($183.00/per linear foot), and "[d]rilling will be measured for payment on the
basis of the linear feet of holes actually drilled from the ground surface through overburden,
and rock to depth" (id. at 2890).
12. It is uncontroverted that CRI submitted a proposal, dated 18 August 2010, to the
government, proposing a total price of $132,366.50 for the requested well and pump
installation work (gov't opp'n, Genuine Issues of Material Fact (GIMF) at 2, ii 1.a.ii.3).
With regard to CLIN 0002AA, CRI proposed a total amount based on a quantity of
250 linear feet, at a unit price of $183 (app. mot., ex. 1; R4, tab 24 at 2897-98).
3
The attached statement of work in the record is entitled, in part, as "Scope of Work" and
dated 23 June 2010 (R4, tab 24 at 2874-95).
4
13. By letter dated 3 September 2010, CRI notified the government that
it encountered a differing site condition that impacted its earthwork activities. CRI
asserted that "[d]uring excavation ... unmarked sensor wires, piping and large boulders
were encountered that constitute a change in site conditions. These conditions are not
shown on the plans, neither are they reasonably verifiable threw [sic] normal methods."
(R4, tab 10 at 1)
14. Effective 1 December 2010, the parties executed a bilateral modification4
adding the installation of the domestic water well and pump work to the contract
(R4, tab 12). The modification added a new CLIN 1002, increasing the total contract
price by $120,383, and did not extend the contract completion date (id. at 2310).
15. Between May and August 2011, the parties executed bilateral modifications,
Reference Nos. R00009, ROOOl l, R00012, and R00013, adding work to the contract,
increasing the total contract price, and extending the contract completion date (R4,
tabs 18-21 ). The Reference No. ROOO 11 modification extended the contract completion
date by 30 calendar days, from 1 June 2011 to 1 July 2011 (R4, tab 19 at 23 77). The
Reference No. R00009 modification extended the extended the contract completion date
by 28 calendar days, from 1July2011to29 July 2011 (R4, tab 18 at 2374-75). The
Reference No. ROOO 12 modification extended the contract completion date by four
calendar days, from 29 July 2011to2 August 2011 (R4, tab 20 at 2379). The Reference
No. ROOO 13 modification stated that "[t]he contract completion date shall be extended by
60 calendar days" and "[t]his modification has a separate completion date of
3 October 2011" (R4, tab 21at2382).
16. By letter dated 2 September 2011, the government communicated to CRI that it
had "fixed the contract's beneficial occupancy date as August 3 1, 2011." The letter also
stated that CRI would be required to complete remaining open items, including final submittal
of Operations & Maintenance (O&M) manuals, final "as-builts" drawing documents, and
remaining modification work, before receiving final payment. (R4, tab 22)
17. By letter dated 19 November 2012, the government enclosed final payment to
CRI and a Release of Claims for the contract (R4, tab 24 at 3196). On or about
7 January 2013, CRI communicated its refusal to sign an unconditional release of claims
and reserved its right to seek an adjustment under the contract (id. at 3197).
4
The index of the government's Rule 4 file identifies this modification as Modification
No. POOOOl (R00002). Upon our review, we note that this document does not
contain this modification number, and several modifications to the contract in the
Rule 4 file do not contain a modification number. Each modification contains a
"Reference No." For the purposes of this motion and clarity, we will refer to a
modification under this contract by its "Reference No."
5
18. On 11April2013, CRI submitted a Request for Equitable Adjustment (REA)
seeking payment in the total sum of $364,694. The REA asserted multiple grounds for
recovery due to delays and impacts on the project leading to increased costs - $128,351
for differing site conditions; $9, 150 for additional drilling work arising under the
Reference No. R00002 modification; $38, 198 for extended field office overhead;
$126,511 for unabsorbed home office overhead; a sum total of $4 7,484 for markups
consisting of direct costs, bonding, insurance, and taxes based on a 29 October 2010
Modification Markup Meeting document; and $15,000 for consulting fees. (R4, tab 23
at 2407, 2415) With regard to differing site conditions that impacted earthwork
activities, CRI alleged that it encountered large rock and boulders and unforeseen utilities
that differed substantially from what was expected based on the geological information
provided in the contract (id. at 2393). With regard to additional drilling, CRI alleged that
it did not receive compensation for drilling 50 feet more in depth beyond the 250 feet on
which its proposal price was based (id. at 2398-99, 2413). With regard to project delays,
although the contract completion date was extended, CRI asserted that total delays on the
project amounted to 300 days, and it was therefore entitled to compensation for
6 additional weeks of extended field office overhead for changed work and 176 days of
unabsorbed home office overhead (id. at 2401, 2403, 2413-14). Lastly, CRI requested
reimbursement for attorney and expert consulting fees incurred as part of contract
administration (id. at 2415).
19. By letter dated 14 June 2013, the CO denied CRl's REA. The CO asserted,
among other things, that the modification adding the well drilling requirements was
awarded as a lump sum and not at CRl's proposed unit pricing, CRI was provided time
extensions under the relevant modifications, and no work under the contract was
suspended. (R4, tab 28)
20. By letter dated 15 August 2013, CRI converted its 11 April 2013 REA into a
certified claim pursuant to the Contract Disputes Act, 41 U.S.C. §§ 7101-7109
(R4, tab 30).
21. On 4 June 2014, a COFD was issued denying CRI's claim, generally for the
same reasons expressed in the government's denial of the REA (R4, tab 2).
22. On 2 September 2014, CRl timely appealed from the COFD to the Board.
CRl filed a motion for summary judgment on entitlement on 25 June 2015. The
government filed in opposition to appellant's motion and did not cross-move for
summary judgment.
23. During the pendency of CRI's motion for summary judgment in this appeal,
the Board was made aware of CRl's pending Chapter 7 bankruptcy proceedings at the
United States Bankruptcy Court for the Western District of Washington (see Bd. corr. ltr.
dtd. 11August2015 from Chapter 7 bankruptcy trustee). By letter dated 26 October 2015,
6
the bankruptcy trustee communicated to the Board that it intended to authorize a creditor of
CRI's bankruptcy estate to continue prosecution of the appeal.
24. By letter dated 25 November 2015, bankruptcy creditor Columbia State Bank
(Columbia Bank or appellant), entered its appearance in this appeal. Pursuant to an Order
issued by the Bankruptcy Court, CRI's claim in the captioned appeal was assigned to
Columbia Bank, and Columbia Bank was authorized to pursue the appeal on behalf of the
bankruptcy estate (see Bd. corr., I 7 December 20 I 5 conference call memo). The appeal
caption was modified accordingly to reflect the appearance of Columbia Bank as the real
party in interest in the appeal.
DECISION
It is well settled that summary judgment is appropriate only where the movant
establishes that there is no genuine issue as to any material fact and that it is entitled to
judgment as a matter of law. A material fact is one which may affect the outcome of the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We do not resolve
controversies, weigh evidence, or make determinations of credibility.
Id. at 255. All
reasonable inferences are drawn in favor of the nonmovant.
Id.
Constructive Change -Additional Drilling Depth of Water Well
Appellant alleges that the government directed it to perform extra work-drill an
additional depth of 50 feet-although the Reference No. R00002 modification that the
parties executed required a 250-foot well depth (app. mot. at I-2). 5 The government
contends that it requested a proposal from appellant for the drilling of a well depth
between 250 and 300 feet, relying on language contained in paragraph I.I of the
statement of work (SOF i! I I; GIMF at I-2, iii! I .a.ii. I, I .a.ii.2). Appellant counters that
the government requested a proposal that specified the drilling depth as a unit rate for
250 linear feet (app. reply at 2).
Generally, an issue of contract interpretation is amenable to summary judgment
where no ambiguity in the contract terms at issue exists requiring the weighing of
extrinsic evidence. ECCI-C Metag, JV, ASBCA No. 5903I, I5-I BCA i! 36,I45 at
I 76,4 I 9. Here we have contradictory contract provisions that create an ambiguity. On
the one hand, the measurement and payment provisions of the contract provide that
payment would be made on a unit price basis and measured on the basis of the linear feet
actually drilled; and appellant proposed a total price of $132,366.50 based on 250 linear
feet at a unit price of$ I 83 per foot (SOF iii! I I- I 2). On the other hand, the resulting
modification added one new CLIN to the contract in a lump sum price and did not
5
We note that appellant's claim demanded a sum certain of $9,I50 which was denied in
the COFD (SOF iii! I 8- I 9). In its complaint, appellant now revises its amount to
$I I,07I.50, enlarging its existing claim to include a markup.
7
expressly incorporate appellant's proposal (SOF ii 14). Moreover, the language in
paragraph 1.1 of the statement of work states that the government anticipated that the
well would be drilled to 250 feet but also that the test hole was to be drilled between
250-300 feet (SOF ii 11 ). Because contradictory provisions exist requiring examination
of extrinsic evidence to determine the parties' intentions, granting of summary judgment
is not appropriate. See AshBritt, Inc., ASBCA Nos. 56145, 56250, 09-2 BCA ii 34,300 at
169,434 ("When the meaning of a contract and the parties' intentions are both relevant
and in dispute, there are mixed questions of fact and law that pose triable issues
precluding summary judgment.").
Differing Site Conditions
In its claim, appellant seeks a contract adjustment for two differing site conditions.
It alleges that it encountered the presence of large rock, boulders, and organic debris
underground that differed substantially from what was represented in the contract
documents while performing earthwork activities on the project. Appellant also alleges
that it encountered underground low voltage sensor wires and related utilities that were
damaged and repaired during excavation. Appellant asserts that these differing site
conditions impacted the project schedule and it incurred additional costs beyond what it
reasonably expected when it submitted its bid.
FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984), recognizes two types of
differing site conditions that entitle a contractor to an equitable adjustment under the
contract. Under paragraph (a)(l), a Type 1 differing site condition consists of
"subsurface or latent physical conditions at the site which differ materially from those
indicated" in the contract. To prevail on a Type 1 differing site condition claim, a
contractor has the burden to show that:
(1) [T]he condition indicated in the contract differs materially
from those actually encountered during performance; (2) the
conditions actually encountered were reasonably
unforeseeable based on all information available to the
contractor at the time of bidding; (3) the contractor
reasonably relied upon its interpretation of the contract and
contract-related documents; and (4) the contractor was
damaged as a result of the material variation between
expected and encountered conditions.
Optimum Services, Inc., ASBCA No. 58755, 15-1 BCA ii 35,939 at 175,654 (citing
Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 (Fed. Cir. 1987);
Comtrol, Inc. v. United States,
294 F.3d 1357, 1362 (Fed. Cir. 2002)). What is indicated
in the contract does not need to be explicit or specific but must contain "reasonably plain
or positive indications in the bid information or contract documents that such subsurface
conditions would be otherwise than actually found in contract performance." P.J Maffei
8
Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984) (quoting
Pacific Alaska Contractors, Inc. v. United States,
436 F.2d 461, 469 (Ct. Cl. 1971)).
Under paragraph (a)(2), a Type 2 differing site condition consists of "unknown physical
conditions at the site, of an unusual nature, which differ materially from those ordinarily
encountered and generally recognized as inhering in work of the character provided for in
the contract." To assert a Type 2 differing site condition, "the unknown physical
condition must be one that could not be reasonably anticipated by the contractor from his
study of the contract documents, his inspection of the site, and his general experience[,] if
any, as a contractor in the area." Randa/Madison Joint Venture Ill v. Dahlberg,
239 F.3d
1264, 1276 (Fed. Cir. 2001) (quoting Perini Corp. v. United States, 381F.2d403, 410
(Ct. Cl. 1967)).
What is indicated in the contract is a matter of contract interpretation. HB. Mac,
Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998). As to its first differing site
condition allegation regarding the large rocks, boulders, and organic debris encountered,
appellant heavily relies on a sentence in the government's response to a pre-award
inquiry that states "There is no expectation to have significant over-excavation or to haul
this material off' (SOF ii 9), and concludes that it is entitled to an equitable adjustment
because significant overexcavation and "haul off' did occur. However, we do not read
this sentence in isolation when interpreting the terms of a contract; instead contract
interpretation involves reading the contract as a whole and giving reasonable meaning to
all of its parts. NVT Technologies, Inc. v. United States,
370 F.3d 1153, 1159 (Fed. Cir.
2004). The preceding sentence in the government's response states that the "[s]ite
consists of spoil material from original Dam construction" (SOF ii 9). These two
sentences were in response to a question that asked whether woody debris noted in the
boring log would require "haul[] off' (id.). Hence, significant overexcavation and "haul
off' were not expected for spoil material at the site indicated in the contract's boring logs.
However, the record does not show, nor can we conclude without further development of
the record, whether the large rocks and organic debris appellant alleges it encountered
differed from "spoil material" as indicated in the contract's boring logs, or were
otherwise not reasonably anticipated, so as to support a Type 1 differing site condition.
Nor does the record before us sustain the conclusion that appellant encountered
conditions of an "unusual nature" so as to support a Type 2 differing site condition.
Therefore, appellant is not entitled to judgment as a matter of law and summary judgment
is denied.
With regard to its second differing site condition allegation regarding underground
sensor wires and utilities, appellant contends that it should not be responsible for the
damage and repair of these wires and utilities it encountered because it relied on a
drawing which did not disclose their presence. Further, appellant alleges that the
government knew the location of the previously installed wires and utilities and failed to
disclose this information to appellant. (App. mot. at 5-6) The government contends that
appellant failed to meet certain contract requirements in connection with locating and
verifying underground utilities when performing excavation activities on the project
9
(gov't opp'n at 10). We cannot conclude, without further development of the record,
what subsurface sensor wires and utilities were indicated in the drawing at issue and
whether the conditions appellant alleges it encountered differed materially, whether the
conditions encountered were "unusual," and whether contract requirements were met by
appellant related to utility location procedures prior to performing excavation activities.
There are genuine issues of material fact precluding entry of summary judgment on this
differing site condition issue. To the extent that appellant seeks recovery on an
alternative theory based upon the doctrine of superior knowledge, the record currently
does not support such a determination.
Delays - Field Office Overhead and Unabsorbed Home Office Overhead Costs
In its motion, appellant alleges that the government is solely responsible for project
delays including, among other things, failing to provide accurate designs, specifications,
and other information necessary for contract performance, and failure to timely approve
contract modifications (app. mot. at 6-7). According to appellant, these impacts entitle it
to field office overhead costs under the contract and unabsorbed home office overhead
costs calculated based upon the Eichleay formula as enumerated in Eichleay Corp.,
ASBCA No. 5183, 60-2 BCA ii 2688. To prove entitlement for a compensable delay,
"appellant must show that the government was responsible for specific delays; overall
project completion was delayed as a result; and any government-caused delays were not
concurrent with delays within appellant's control." Versar, Inc., ASBCA No. 56857 et al.,
12-1 BCA ii 35,025 at 172, 128. Additionally, a contractor must demonstrate that work was
suspended putting it on standby to recover Eichleay damages. P.J. Dick Inc. v. Principi,
324 F.3d 1364, 1371 (Fed. Cir. 2003); KBJ, Inc., ASBCA No. 58512, 16-1BCAii36,289 at
176,983; B. V. Construction, Inc., ASBCA No. 47766 et al., 04-1 BCA ii 32,604 at 161,359.
Appellant asserts that a 13 September 2011 letter from the government establishes
that the government failed to convey certain information to appellant in connection with
work under the Reference No. ROOO 13 modification, causing delays to the project schedule.
According to appellant, this omission created uncertainty as it could not begin the
modification work until November 2011, and actual completion of all contract work did not
occur until 27 March 2012, well beyond the completion date of 3 October 2011 granted in
the modification. (App. mot. at 7, 9) Appellant also asserts that demobilization of its field
office was not completed until 28 November 2011 and that it continued to incur the cost of
on-site management from 28 November 2011to27 March 2012 (app. mot. 10-11). The
government argues that its letter did not acknowledge that it is the sole cause of the alleged
delays and indicated that extra time was already provided in the modification to account for
the omitted information (gov't opp'n at 7-8). The government contends that appellant is not
entitled to field office overhead costs because appellant's quality control reports in the
record only substantiate work on 19 days between 23 August 2011 and 23 March 2012
(GIMF at 8, ii 3.b.iv.1.a).
10
Drawing all reasonable inferences in favor of the nonmovant, here the government,
we conclude that genuine issues of material fact exist both as to the cause(s) and the
duration of the delay. Material facts in dispute include, but are not limited to: whether the
government's actions or inaction surrounding the Reference No. R00013 modification are
the sole cause for the alleged performance delays; whether the government provided
appellant with defective plans and specifications that affected appellant's ability to complete
performance of the modification work within schedule; and whether completion of the
modification work correspondingly delayed completion of other outstanding CLINs in the
contract. Moreover, the record does not contain sufficient evidence that appellant was on
standby throughout the alleged delay period, a required element for recovering Eichleay
damages. Therefore, appellant is not entitled to summary judgment.
Consulting Fees and Miscellaneous
The costs of professional and consultant services are generally allowable when
reasonable in relation to the services rendered and not contingent upon recovery of the
costs from the government. FAR 31.205-33. CRI's REA includes $15,000 in expert
consulting fees (SOF ~ 18). There is not sufficient evidence in the record of either the
services performed or the payment made for these services to allow us to conclude that
CRI is entitled to recover for these costs. Nor are we able to conclude that CRI is entitled
to compensation for markup and bonding costs and taxes without further development of
the record. Therefore, appellant is not entitled to judgment as a matter of law and
summary judgment is denied.
CONCLUSION
For the reasons stated above, CRI's motion for summary judgment is denied.
Dated: 9 June 2016
(Signatures continued)
11
I concur I concur
~~·- N. STEMPLER
~
RicJiw SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59531, Appeal of Columbia
State Bank (formerly Appeal of Castle-Rose, Inc.), rendered in conformance with the
Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
12
