Judges: Thrasher
Filed: Feb. 14, 2018
Latest Update: Mar. 03, 2020
Summary: 4, In reviewing Mr. Heckman's supplemental report, we note that we failed to, recognize evidence that casts doubt on Mr. Lowe's opinion, i.e., that the government's, delay in approval prevented DACA (Gaskins) from doubling its productivity during the, delay (5 October 2010 thru 24 November 2010).
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
L.C. Gaskins Construction Co., Inc. ) ASBCA Nos. 58550, 59901, 59902
)
Under Contract No. N69450-09-C-5068 )
APPEARANCES FOR THE APPELLANT: Dirk D. Haire, Esq.
Alexa Santora, Esq.
Fox Rothschild LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.
Navy Chief Trial Attorney
Ellen M. Evans, Esq.
David M. Marquez, Esq.
Senior Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE THRASHER
ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION
The government timely moves for reconsideration in part of our entitlement decision
of 9 June 2017. L. C. Gaskins Construction Co., Inc., ASBCA No. 58550 et al.,
17-1 BCA il 36,780. The government requests the Board reconsider our entitlement
decision, modify the decision to deny appellant's claims and sustain the government's
claim for liquidated damages. We assume familiarity with our 9 June 2017 decision.
DISCUSSION
The Board recently reiterated our reconsideration criteria:
In a motion for reconsideration, the moving party
has the burden of "demonstrat[ing] a compelling reason for
the Board to modify its decision." ADT Construction
Group, Inc., ASBCA No. 55358, 14-1 BCA ,I 35,508 at
174,041 (citations omitted). In particular, it must provide
newly discovered evidence or demonstrate mistakes in the
original decision's findings of fact or conclusions of law. ·
Id. A motion for reconsideration is not the place to present
arguments previously made and rejected. "[W]here
litigants have once battled for the court's decision, they
should neither be required, nor without good reason
I permitted, to battle for it again. Motions for
II reconsideration do not afford litigants the opportunity to
take a "second bite at the apple" or to advance arguments
that properly should have been presented in an earlier
I proceeding." Dixon v. Shinseki, 741 F.3d 1367, 1378
(Fed. Cir. 2014) (citations omitted); see also Avant
I Assessment, LLC, ASBCA No. 58867, 15-1BCA136,137
at 176,383.
Supply & Service Team GmbH, ASBCA No. 59630, 17-1 BCA 136,742 at 179,097.
II The government's motion asserts six grounds for reconsideration and
requests clarification on two issues. We will address each in turn.
I
I 1. Board's Ruling on Gaskins' Entitlement to 25 Days of Compensatory Delay
I
II
Related to the Multiple Containment Request Resulting in Mod. P00009
Our findings established that bilateral Mod. P00009 granted Gaskins a
SO-calendar-day extension related to the review and approval of Gaskins' request to
construct additional containments on the hangar roof. It did not grant any
compensation for the delay but Gaskins, in executing the Mod., reserved the right to
II claim for more time and money. (Findings 102-03) 1 Gaskins ultimately only sought
compensation for the 50-day delay granted in Mod. P00009 (com pl. 1 117). The
I government asserts five reasons why we should reconsider our decision on this issue:
I First, the statement that the Navy's expert, Mr. Heckman,
I "did not analyze this issue" is incorrect. Second,
Mr. Lowe conceded at trial that his finding of 25 days of
I! compensable delay was not tied to any actual analysis.
Third, Mr. Lowe did not analyze contractor delays during
the time period in question. Fourth, there is no objective
I evidence that supports Mr. Lowe's assumption that
Gaskins would have added containments in the fall of
2010 if it had been allowed to do so by October 5, 2010.
I And finally, by considering the time extension in
I modification P00009 as an admission of government fault,
the board followed the "presumption" set out in
Robert McMullan & Son, Inc., ASBCA No. 19023, 76-1
I BCA 1 11,728 at 55,903, which was specifically overruled
II 1
Record citations are from the Board's 9 June 2017 decision.
I
I
I 2
I
I
in England v. Sherman R. Smoot Corp, 388 F.3d 844, 857
(Fed. Cir. 2004) (government's grant of a contract
extension does not indicate government at fault).
(Gov't mot. at 1-2)
A compensable delay is one for which both a time extension and monetary
relief are due and an excusable delay is one for which only a time extension is due.
ME.S., Inc., ASBCA No. 56149 eta!., 12-1 BCA ,r 34,958 at 171,857 n.3. In order
to prove that it is entitled to delay damages in the form of time and/or money,
Gaskins must prove that the government was responsible for specific delays, overall
project completion was delayed as a result of the government-caused delays, and
any government-caused delays were not concurrent with delays within Gaskins'
control. Versar, Inc., ASBCA No. 56857 eta!., 12-1 BCA ,r 35,025 at 172,128.
Proof of damage is also an element of entitlement and, while mathematical certainty
is not required, some proof of damage is required. BAE Systems San Francisco
Ship Repair, ASBCA Nos. 58810, 59642, 16-1 BCA ,r 36,404 at 177,503; Lear
Siegler Services, Inc., ASBCA No. 57264, 12-2 BCA ,r 35,112 at 172,425.
Mr. Heckman 's Analysis and Mr. Lowe's Failure to Consider Concurrent Delay
The government attacks the basis for Mod. P00009 arguing it was a mistake for
which there is no objective factual support in the record (gov't mot. at 9-12).
Mod. P00009 was a bilateral modification executed by the contracting officer,
Ms. Eckert. The government argues:
Ms. Eckert, testified there was no schedule analysis to
support the time extension in this modification, but that she
relied in signing it on a prior ACO's representation that 50
days of excusable delay had been agreed upon with
Gaskins. She testified she disagreed with the time
extension in this modification because she later learned
Gaskins had failed to provide necessary information to the
Navy during this 50-day time period. Tr. 8/108-112.
(Gov't mot. at 12) Despite her testimony, the fact remains that Ms. Eckert signed the
bilateral modification and there is no indication she lacked the authority to bind the
government or other facts that would support a finding of mistake that would render the
modification void or voidable. Furthermore, this argument was raised during the
hearing (gov't br. at 59), and we rejected it. The government is not permitted to
reargue this position in a motion for reconsideration.
3
"McMullen presumption"
The government also attacks the legal basis for relying upon the time extension in
Mod. P00009 by arguing Gaskins was obligated to prove liability, causation and resultant
injury for any alleged compensable delay, and should not have been allowed to simply
rely on the time extension in Mod. P00009. Consequently, our decision was in error
because it relied upon the presumption that the grant of the time extension in the Mod.
established the contract was in fact extended by that amount. This presumption, the
government argues, incorrectly relies upon the "McMullen presumption" which was
specifically overruled by England v. Smoot Corp., 388 F.3d 844, 856-57 (Fed. Cir. 2004).
The government asserts that the grant of a time extension in Mod. P00009 cannot provide
a legal basis for us to conclude the project was actually delayed 50 calendar days or that
the government was responsible for such delay.
The government's reliance upon England v. Smoot is misplaced. That decision
holds that there is no presumption of government fault where the contracting officer
issues an interim (unilateral) decision regarding the extent of a government-caused
delay. The basis for this ruling is grounded in the fact the Contract Disputes Act,
41 U.S.C. § 7104(b)(4), mandates we are not bound by a contracting officer's final
decision and the same principal applies to interim decisions on government fault for
delays. Smoot, 388 F.3d at 856-57. Here, Mod. P00009 was a bilateral agreement that
recognized the contract was delayed 50 calendar days ( 5 October 2010 thru
24 November 2010) as a result of the government's inaction (finding 102). Although
questioning whether there was in fact a basis for recognizing a 50-day delay,
Mr. Heckman, the government's delay expert, based his analysis in his report upon a
finding that there was a binding contractual agreement of 50 days of delay that was the
responsibility of the government based upon the parties' agreement (R4, tab 39(a) at
14, table; finding 103 ). Consequently, we did not decide this issue on the basis of a
presumption but rather recognized that the parties contractually agreed there was a
50-day delay caused by the government and it extended the contract period.
Mr. Heckman 's Analysis
The government asserts our statement that Mr. Heckman did not analyze this
issue is in error (gov't mot. at 2-4). We stand corrected, Mr. Heckman's supplemental
report states, "After the 'delayed' approval, DACA waited more than 4 months to add
additional containments. Thus the approval was not critical, and DACA did not lose an
opportunity to double their productivity due to the delayed approval period." (R4,
tab 39(b) at 3) Therefore, we read Mr. Heckman's opinion to be that DACA (Gaskins)
was not damaged by the delay in approval, a critical element to support a compensable
delay. BAE Systems San Francisco Ship Repair, 16-1 BCA ,r 36,404 at 177,503; Lear
Siegler, 12-2 BCA ,r 35,112 at 172,425.
4
In reviewing Mr. Heckman's supplemental report, we note that we failed to
recognize evidence that casts doubt on Mr. Lowe's opinion, i.e., that the government's
delay in approval prevented DACA (Gaskins) from doubling its productivity during the
delay (5 October 2010 thru 24 November 2010).
Mr. Lowe's Conclusion that Productivity would have Doubled
Gaskins' only showing of damages resulting from the government's delay in
approval was Mr. Lowe's testimony (Gaskins' delay expert) that Gaskins would have
been able to double its productivity if approval had been timely (see finding 103 ). The
government argues we erred because the evidence does not support Mr. Lowe's
conclusions, stating:
Mr. Lowe concluded half of the 50-day time extension
in P00009 is compensable based on a "theoretical" doubling
of productivity he felt Gaskins might have experienced if the
Navy's approval to add containments had come earlier. He
did not perform any productivity analysis of Gaskins or its
subcontractors to support this conclusion. Tr. 4/61-68.
[Exhibit 8]. As noted, Mr. Lowe's report does not indicate he
evaluated any contractor delays or inefficiencies, including
DACA's December 7, 2010 assertion that welding delays (not
a lack of approval to add containments) caused it to
experience a "significant loss in overall productivity."
(Gov't mot. at 5)
We agree Mr. Lowe's conclusions were not based upon any formal evaluation of
Gaskins' or its subcontractor's productivity. Instead, his testimony demonstrates his
opinion was based upon the logic that if two more containments were added to the
existing two it would have doubled productivity. (Finding 103; tr. 4/62-68) That logic
might apply in most cases but not all. In fact, on further review, it is doubtful it would
apply under these facts. On further review, it is doubtful additional containments would
have increased productivity, rather it is highly likely they would have contributed to more
delays. The evidence establishes that the process of repairing defective welds by
Gaskins' welding subcontractor and the re-inspection, rather than the government,
hindered DACA's progress during this period. DACA's notice of claim to Gaskins in its
7 December 2010 letter solely blamed the welding subcontractor for its "significant loss
in overall productivity" explaining:
5
Due to the welding rework required by your [Gaskins']
Welding Subcontractor, DACA has incurred delays in
completing their work on Trusses 1 through 6 and has been
required to redo already completed areas of work on all
6 trusses. The start then stop then start, work then rework, then
rework again nature of the welding repairs has also caused
DACA a significant loss in overall productivity.
(Findings 74-75; app. supp. R4, tab 27) The government argues DACA had difficulty
making progress during the fall with two containments and there is no evidence to
conclude additional containments would solved DACA's problems (gov't mot. at 8). On
reconsideration, we find it is more likely that adding two additional containments during
this time frame would probably double the disruption to DACA's work productivity
rather than increase it. The government also argues this conclusion is supported by the
fact that no additional containments were added shortly after approval but instead not
until four or five months later (id. (citing R4, tab 39(b) at 3)). On reconsideration, we
agree. Consequently, we reconsider our decision on this issue and modify our decision to
hold that Gaskins has failed to meet its burden of proof that it was damaged by the delay
in approval and, consequently is not entitled to any compensation for this delay.
Mr. Lowe's Failure to Consider Concurrent Delay
The government also asserts that Mr. Lowe's opinion did not consider possible
concurrent delays on the part of the contractor (gov't mot. at 2-4). To prove
compensable delay, Gaskins must prove that any government-caused delays were not
concurrent with delays within Gaskins' control. Versar, 12-1 BCA ,r 35,025 at 172,128.
Our findings establish there was concurrent delay throughout this period caused by
Gaskins' welding contractor, Garrison Steel, based upon Mr. Heckman's revised report
finding there was concurrent delay from September 2010 through the end of the project
in 2011 (finding 100), as well as other contemporaneous evidence that Gaskins' welding
subcontractor delayed DACA's progress during this period (findings 74-75). Gaskins
did not address such concurrent delay and there is no evidence that Mr. Lowe considered
concurrent delay in his analysis and resulting opinion on this issue. Without such
evidence, Gaskins cannot recover monetary compensation on this portion of its claim.
(Id.) Consequently, we reconsider our decision on this issue and modify our decision to
hold that Gaskins is not entitled to compensation for this concurrent delay.
6
2. Requests for Clarification on Board's Ruling on Gaskins' Entitlement to
48 Days of Excusable Delay Related to the Steel Profile Issue: Mod. P00003
The government asks us for clarification in our decision that Gaskins is entitled
to 48 days of excusable delay related to the Steel Profile issue, referencing our finding
of fact 101, stating:
We have searched the decision to try to understand
the basis for this ruling and for an explanation as to where
on the calendar the board places these 48 days.
Determining when these 48 days occurred would allow for
confirmation that they were actually on the critical path,
that they are not days on which the contractor delayed the
project, and that they are not days for which a time
extension was already granted. From the wording in the
board's decision dealing with this issue, the Navy has been
unable to make these determinations. We ask that the board
reconsider its finding( s) on this issue.
(Gov't mot. at 16)
Our decision was based upon Mr. Lowe's testimony per his report and our
analysis of the contemporaneous evidence referenced within that report. Our analysis is
described in detail within our findings (findings 94-99).
3. Board's Ruling on Additional Costs for Work Covered in Mod. P00003:
The Steel Profile Issue
The government asserts two issues related to this part of our decision. First, it
seeks clarification on the statement in our decision that "Gaskins is entitled to the
proven reasonable incurred cost of additional work that was not included in the amount
reimbursed by Mod. P00003" (gov't mot. at 16-17). Despite our statement in the
opening paragraph of our opinion that we would address entitlement only, the Navy asks
whether this was a statement on quantum. Clearly, it was not. In addition to our statement
that we would address entitlement only, in the last paragraph of the opinion we
expressly stated that we were remanding to the parties for negotiation of quantum.
17-1 BCA, 36,780 at 179,265, 179,294.
7
Second, the government's motion asserts we erred, stating:
Ii [W]e do not believe the question of entitlement to
additional costs for the new work covered under P00003 is
exclusively a matter of quantum because the nature of the
claimed additional damages and the question of whether
i they were incurred was at issue in this entitlement
proceeding. Because we believe these aspects of the claim
I were not proved, we ask that the board reconsider its
finding on this issue.
(Gov't mot. at 18)
Our findings establish that the government agreed there was a differing site
condition and that Gaskins was entitled to the costs of the additional work and
additional time and costs for associated delays. The only point of disagreement was the
amount of additional time and cost resulting from the associated delay (finding 35).
After negotiations, the government issued a notice to proceed, and stated a modification
would be forthcoming. The government agreed with the costs submitted by Gaskins for
the new work but not the costs and time associated with the delays and, as a result, it
stated the modification would include 34 working days until the associated delay and
costs could be negotiated. Mod. P00003 's stated purpose, in part was to, "compensate
the contractor for delays associated with this unforeseen condition" and included
money as compensation for associated delays. (Findings 35-36) The only dispute at
this point is the amount which will be addressed during quantum.
We reaffirm our decision and deny the government's motion on this issue.
4. Board's Ruling on Gaskins' Entitlement to Additional Personal Protective
Equipment (PPE) Costs
The government asks that we reconsider our decision on a portion of Gaskins' PPE
claim involving the government's delay in providing DLA-approved containers.
Specifically, the government asserts there is no evidence in the record establishing that
the government delayed Gaskins by its inability to provide DLA containers, nor when the
delay occurred, or why it necessitated hiring additional workers. (Gov't mot. at 19-20)
Regarding whether the government delayed Gaskins by its failure to provide the
DLA containers and when any such delay occurred, our findings establish that: the
contracting officer (CO) ordered Gaskins to dispose of all hazardous waste through the
Mayport HWSF on 17 February 2011 (finding 59); the government informed Gaskins it
must use DLA-approved containers but then informed Gaskins on 14 March 2011 that
8
the Mayport HWSF could not provide the DLA containers or accept third-party
containers (R4, tab 254; finding 73). Additionally, DACA began demobilizing from the
site on 20 May 2011 and was completely demobilized by 31 May 2011 (finding 80). In
sum, we found that the government was unable to provide the DLA containers in a
timely manner between 14 March 2011 and 20 May 2011.
Regarding the need to hire additional workers, our findings established Mr. Frost
(Gaskins) testified that DACA increased its as-bid 9 workers to-at times -up to
20 workers. This, Mr. Frost testified, was necessitated by the delay resulting from the
CO's order to submit another sampling plan and the inefficiencies in using the DLA
provided containers. (Tr. 3/97-99; see finding 61) Gaskins alleged, and Mr. Frost's
and Mr. Wright's testimony identified, two discrete delays related to the order to use
only DLA approved containers: (1) the alleged inefficiencies resulting from the
transfer of blast debris at the job site from the original containers to the DLA containers
for disposal; and (2) the transfer of blast debris from the original containers for
temporary storage necessitated by the government's delay in providing the approved
containers (findings 61, 73).
The Board found that the government was not responsible for delays resulting
from the CO's order to submit another sampling plan. 17-1 BCA ,r 36,780 at 179,290.
Likewise, we found that the requirement to transfer spent debris from the third-party
containers to DLA-approved containers was not a change to the contract and, as a
result, any inefficiencies that might have resulted from collecting the blast debris in
the original containers at the work site and then transferring the hazardous spent
debris to DLA containers for disposal was not the fault of the government. However,
we did find that Gaskins was entitled to compensation for hiring and equipping
additional workers as a result of the inefficiencies from transferring spent debris to
other containers for temporary storage to keep the work progressing while waiting
for DLA containers. 17-1 BCA ,r 36,780 at 179,289.
Regarding the disposal and repurchase of PPE gear, Mr. Mingle (DACA)
testified that the discovery of hazardous waste in the spent debris required DACA to
dispose of PPE as a hazardous waste and continually purchase new PPE (finding 61).
The government did not present any evidence to contradict Mr. Mingle's testimony on
this issue. Entitlement would also apply to any additional workers hired to transfer
waste for temporary storage as a result of the government's delay in providing DLA
containers.
Our decision concluded that Gaskins was entitled to reasonable, actual damages
incurred as a result of: (a) the cost of disposing of the PPE as a hazardous waste and
9
purchasing replacement PPE for the original nine workers;2 and, (b) the cost of outfitting
any additional workers with PPE incurred in transferring the debris to/from temporary
containers because of the government's delay in providing DLA containers in a timely
manner. 3 17-1 BCA 136,780 at 179,289-90.
We reaffirm our decision and deny the government's motion on this issue.
5. Board's Findings of a Differing Site Condition Related to the Discovery of
Hazardous Waste
Simply put, the government argues there was no differing site condition because
the RFP disclosed the presence of hazardous materials in the paint; and because the total
metal test results provided to the offerors disclosed the presence of chromium and lead
in the existing coatings any reasonable industrial painting contractor should have been
alerted to the risk that hazardous waste might be generated in the spent blast debris as
the paint coating was removed. (Gov't hr. at 78-84; gov't reply br. at 3) This argument
was repeatedly made during the litigation, we considered it and, based upon the facts of
this appeal, rejected it. We found that the discovery of hazardous levels of chromium in
the spent blast debris differed materially from the conditions disclosed in the RFP
related to the risk of encountering hazardous waste. 17-1BCA136,780 at 179,286.
The government argues we erred in failing to recognize the distinction between
"hazardous paint" and "hazardous waste" and inappropriately conflated the two concepts in
our decision (gov't mot. at 21). Contrary to the government's argument, we did
recognize the difference but found the government's arguments lacking. 17-1 BCA
136,780 at 179,286, 179,294 n.16. We found both parties used the terms incorrectly and
interchangeably throughout the appeal but found it did not impact our decision. Id. 4 The
government focuses only upon the disclosure of the test results (presence of hazardous
materials in the existing paint) but ignores that we found a differing site condition related
to the existence of unexpected levels of hazardous waste in the spent debris contrary to
representations made by the government during the source selection. This issue turned
upon the conditions communicated to the offerors during the source selection concerning
2
The nine original workers were impacted as a result of the discovery that spent blast
debris was unexpectedly classified as hazardous waste (differing site condition).
3
The cost of additional worker PPE was caused by the government's inability to provide
DLA containers in a timely fashion necessitating the temporary transfer to other
containers until DLA containers could be acquired.
4
In fact the paragraph quoted in support of our conflating these concepts paraphrases
language in the solicitation (attachment B.2) where the government conflates the
two concepts (gov't mot. at 21). 17-1BCA136,780 at 179,286 (paraphrasing a
quote in finding 7).
10
the possible risk of the existence/generation of hazardous waste after award. 17-1 BCA
,i 36,780 at 179,286-87. Yet the government continues to ignore that the solicitation
provided the offerors with the test results but then went on to indicate, in effect, that the job
should be priced assuming the waste generated would be non-hazardous waste.
The government urges us to consider the testimony of Mr. Pilley, one of the
industrial subcontractors who bid on the job, and our decision in South Bay Boiler
Repair, Inc., ASBCA No. 59281, 17-1 BCA ,i 36,634 (gov't resp. at 6-7). We have
considered both and conclude they do not support the government's argument, but
rather, support appellant's argument and our decision.
The government relies upon the following specific segment of Mr. Pilley's
testimony to support its argument:
As one of the industrial painting subcontractors who bid
the job (Mr. Mike Pilley) testified when asked if he
thought the solicitation directed bidders to assume that the
existing coatings were non-hazardous: "the RFP, second
one, directed us to price it as ifit was a hazardous
coating." [He then clarified that by "second one," he
meant an amendment to the RFP.] Tr. 6/21-22.
(Gov't resp. at 6 n.4) Although the government accurately quotes this particular
segment of Mr. Pilley's testimony, its use in isolation misrepresents Mr. Pilley's
testimony on this issue. He, in fact, testified that he distinguished between the risk of
higher worker protection costs that might result if the existing coatings were hazardous
(the paint before blasting), and the risk of hazardous waste generation in the spent blast
debris. He further testified that he read the solicitation to be a non-hazardous disposal
(waste) job so he priced his bid on the assumption any waste generated would be
non-hazardous. (Tr. 6/28-30)
The decision in South Bay Boiler involved our interpretation of 10 U.S.C.
§ 7311, Repair or maintenance of naval vessels: handling of hazardous waste, that
specifically requires the Navy to disclose the types and amounts of hazardous waste
that are expected to be generated or removed during performance in each contract for
work on a naval vessel. We found this statute imposes a duty on the government to
identify the type and quantity of hazardous waste that is expected to be generated.
The statute at issue in South Bay, and thus the government's duty to disclose
estimated potential hazardous waste after award, does not apply to the contract at
issue in this appeal because it is not a contract for repair or maintenance of a naval
vessel. However, that statute and the South Bay decision illustrate the dilemma faced
by offerors bidding on this contract in trying to weigh the risk of encountering
11
hazardous waste disposal cost. Unlike the facts in South Bay, the government here
communicated to the offerors, as Mr. Pilley testified, that this was a non-hazardous
waste job, i.e., that it did not include any cost for hazardous waste disposal.
Taking a different tack, the government argues, "[i]n concluding that there was a
differing site condition, the board incorrectly compared TCLP results of waste obtained
by Gaskins after award with TCLP results for paint in the solicitation" (gov't resp. at 6).
We disagree. Our findings established, and Gaskins eventually conceded, that the
solicitation did disclose test results indicating the presence of hazardous metals in the
existing paint coating (finding 7; app. br. at 42). But again, the government ignores
the fact that our decision was based upon the direction provided the offerors during the
source selection related to the risk of hazardous waste after award. 17-1 BCA ,r 36,780
at 179,286-87.
Additionally, the government asserts there is no evidence in the record of actual
pre-bid reliance on the TCLP results in the RFP because of statements made in
Gaskins' claim and complaint (gov't mot. at 23). Again, the government ignores the
fact that the issue of reliance (differing site condition) was related to the government's
representations regarding the risk of hazardous waste being generated. Gaskins' claim,
after reciting what it perceived as RFP representations that this was a non-hazardous
job, specifically states, "Gaskins reasonably interpreted these repeated references to
'non-hazardous debris' as consistent with the RFP's specific instruction to bid the
debris removal as non-hazardous." (R4, tab 36 at 1112) Additionally, the government
inexplicably ignores the fact Gaskins specifically enquired during the source selection
about the presence of hazardous materials based upon its reading of the test results,
which the government chose not to answer. Gaskins' question and the internal
government discussion about the question clearly indicate Gaskins' reliance upon the
test results to determine the risk of encountering hazardous waste in the spent debris.
(Findings 9-13) 17-1 BCA ,r 36,780 at 179,286.
We reaffirm our decision and deny the government's motion on this issue.
6. Ruling Denying the Government's Claim for Liquidated Damages
Given our findings that Gaskins is entitled to 48 additional days of excusable delay
related to Mod. P00003, the government cannot support its claim for liquidated damages
based upon 32 days of delay to the contract completion date. Consequently, the
government's motion for reconsideration on this issue is denied.
12
CONCLUSION
We deny the government's motion, except as to our modification of our decision
on entitlement to 25 days of compensable delay related to the multiple containment
request resulting in Mod. P00009.
Dated: 14 February 2018
Administrative Judge
Chairman
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD MICHAEL N. O'CONNELL
Administrative Judge Administrative Judge
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 Nos. 58550, 59901, 59902,
Appeals ofL.C. Gaskins Construction Co., Inc., rendered in conformance with the
Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
13
