              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                   )
                                              )
Hensel Phelps Construction Co.                )      ASBCA No. 61517
                                              )
Under Contract No. N40080-11-C-0154           )

APPEARANCES FOR THE APPELLANT:                       Todd R. Metz, Esq.
                                                     Brian R. Dugdale, Esq.
                                                      Varela, Lee, Metz & Guarino, LLP
                                                      Tysons Corner, VA

APPEARANCES FOR THE GOVERNMENT:                     Craig D. Jens en, Esq.
                                                     Navy Chief Trial Attorney
                                                    Ellen M. Evans, Esq.
                                                     Trial Attorney

               OPINION BY ADMINISTRATIVE JUDGE MCIIMAIL

        In 2010, the government contracted with appellant, Hensel Phelps Construction
Co., for construction work at a naval air station; the project included an aircraft
parking apron and taxiway access (R4, tab 1 at 1, 4). In 2015, the government revoked
its previous acceptance of those parts of the work, citing what it says are defects (R4,
tabs 108, 115). In 2017, the contracting officer issued a final decision stating that
appellant:

              [S]hould consider this a [contracting officer's final
              decision] to assert a demand for the cost to replace the
              concrete apron and asphalt taxiway, currently estimated at
              $2,900,000. If you do not replace the defective pavement
              to a fully usable condition by October 31, 2018, the
              Government intends to fulfill this demand in the form of
              set-off from future payments under other Government
              contracts with Hensel Phelps.

(R4, tab 131 at 4) (Emphasis added) On February 6, 2018, appellant appealed from
the contacting officer's final decision, seeking no damages but a judgment that
appellant "has fulfilled its obligations under the Contract" (compl. ,-i 63 ).

       On July 17, 2018, we issued an opinion finding no jurisdiction over any monetary
claim, but exercising our discretion to decide whether to grant a declaratory judgment that
appellant had fulfilled its obligations under the contract. Hensel Phelps Construction Co.,
ASBCA No. 61517, 18-1BCA137,101 at 180,588. In December 2018, the parties filed
with the Board two settlement agreements, in which, taken together, appellant agrees to
redo the concrete apron at no additional cost to the government, and appellant agrees to
redo the taxiway at an additional cost to the government (settlement agreements 113-4).
Although the parties say that the appeal is not moot Uoint status briefing 1 1), the
settlement agreements together confirm that the agreements resolve the matters at issue in
this appeal; that is, the issues concerning the concrete apron and the asphalt taxiway.
Indeed, in addition to the appellant's agreement to redo the disputed work at an additional
cost to the government (that cost attributable to the taxiway), paragraph 2 of the concrete
apron settlement agreement recites that "[ m ]atters at issue in this Appeal related to the
taxiway are resolved via a separate Agreement of the Parties," and paragraph 2 of the
taxiway settlement agreement recites that "[m]atters at issue in this Appeal related to the
concrete apron are resolved via a separate Agreement of the Parties."

       In exercising our discretion to grant declaratory relief only in limited
circumstances, we are free to consider whether declaratory relief is appropriate,
including whether the claim involves a live dispute between the parties. Alliant
Techsystems, Inc. v. United States, 178 F.3d 1260, 1271 (Fed. Cir. 1999). Given the
parties' settlement agreements, we find no live dispute between the parties, and that
declaratory relief is not appropriate. Consequently, the appeal is dismissed as moot.

       Dated: October 29, 2019
                                                                                  ?




                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

 I concur                                         I concur
                                                        ,-,,,,--,


~CKLEFORD
Administrative Judge
                                                   u~    /




                                                  OWEN C. WILSON
                                                                    '




                                                  Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




                                           2
       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. 61517, Appeal of Hensel
Phelps Construction Co., rendered in conformance with the Board's Charter.

       Dated:



                                                 PAULLA K. GATES-LEWIS
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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