                   ARMED SERVICES BOARD OF CONTRACT APPEALS

    Appeal of--                                   )
                                                  )
    Westfield Insurance Company                   )      ASBCA No. 59430
                                                  )
    Under Contract No. W9128F-09-C-0049           )

    APPEARANCE FOR THE APPELLANT:                        Dennis J. Bartlett, Esq.
                                                          Brosseau Bartlett Seserman, LLC
                                                          Greenwood Village, CO

    APPEARANCES FOR THE GOVERNMENT:                      Thomas H. Gourlay, Jr., Esq.
                                                          Engineer Chief Trial Attorney
                                                         James M. Pakiz, Esq.
                                                          Assistant District Counsel
                                                         Thomas J. Tracy, Esq.
                                                          Engineer Trial Attorney
                                                          U.S. Army Engineer District, Omaha

                                     ORDER OF DISMISSAL

            The captioned contract was awarded to MaxF our Engineers and Architects, LLC
    (MaxFour) by the United States Army Corps of Engineers, Omaha District (Corps),
    for the design/build of a child development center at Peterson AFB, CO. By letter dated
    1 May 2014, a Corps contracting officer issued a final decision under the contract
    demanding payment of "$492,246.55 in costs associated with the repair of the defective
    work which is the liability of the Contractor and/or Westfield Insurance as the project
    Surety .... "

          On 18 June 2014, MaxFour appealed from the 1May2014 final decision. The
    Board docketed MaxFour's appeal as ASBCA No. 59372.

           On 22 July 2014, Westfield Insurance Company (Westfield) also appealed from
    the 1 May 2014 final decision. The Board docketed Westfield's appeal as ASBCA
    No. 59430.

           Westfield and the Corps have filed a joint motion to dismiss ASBCA No. 59430
    without prejudice. In the motion, the Corps clarified that the contracting officer's intent
    was to issue a claim against MaxFour, while simultaneously notifying Westfield of the
    claim. The motion included an "Addendum 'A"' to the 1 May 2014 final decision,
    executed by the current Corps contracting officer, that amends the final decision by
    striking the words "and/or Westfield Insurance as the project Surety."




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          Accordingly, ASBCA No. 59430 is dismissed without prejudice. This dismissal
    does not impact MaxFour's prosecution of ASBCA No. 59372.

           Dated: 18 November 2014




                                                     of Contract Appeals


           I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
    Services Board of Contract Appeals in ASBCA No. 59430, Appeal of Westfield
    Insurance Company, rendered in conformance with the Board's Charter.

          Dated:



                                                     JEFFREY D. GARDIN
                                                     Recorder, Armed Services
                                                     Board of Contract Appeals




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