                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                               )
                                            )
Herai Alpha Construction Consultancy        )     ASBCA Nos. 59386, 59774
 and Engineering Company                    )
                                            )
Under Contract No. W5J9JE-13-C-0028         )

APPEARANCE FOR THE APPELLANT:                     William J. Spriggs, Esq.
                                                   Spriggs Consulting Services
                                                   Lynchburg, VA

APPEARANCES FOR THE GOVERNMENT:                   Thomas H. Gourlay, Jr., Esq.
                                                   Engineer Chief Trial Attorney
                                                  James D. Stephens, Esq.
                                                   Engineer Trial Attorney
                                                   U.S. Army Engineer District, Middle East
                                                   Winchester, VA

              OPINION BY ADMINISTRATIVE JUDGE DELMAN
           ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT

        Herai Alpha Construction Consultancy and Engineering Company (appellant) has
filed a motion for a summary judgment, seeking reversal of a default termination under
ASBCA No. 59386 and its conversion to a termination for convenience.* The government
has filed in opposition to summary judgment. ASBCA No. 59774 relates to a deemed
denial of appellant's affirmative claim for money and time. While appellant's motion
captions both appeals, the motion does not substantively address appellant's affirmative
claim. Accordingly, we address the motion solely as it pertains to the default termination
under ASBCA No. 59386. We have jurisdiction under the Contract Disputes Act, 41 U.S.C.
§§ 7101-7109.

                STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

       1. On 3 1 May 2013, appellant and the government entered into this contract for
design and construction of a "Forward Area Arming and Refuel Point," in Kunduz
Province, Afghanistan (R4, tab 9). The contract incorporated the following standard
provisions by reference: FAR 52.233-1, DISPUTES (JUL 2002); FAR 52.243-4, CHANGES


* Appellant's motion was dated 23 March 2015. On 24 March 2015, appellant filed a
      revised motion, adding a paragraph to its "Statement of Undisp"uted Material
      Facts" and attaching a declaration of its project manager.
(JUN 2007); FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (R4,
tab 9 at 18-19).

        2. The contract contained a 450-day period of performance (R4, tab 9 at 19). On
24 June 2013, the government issued a notice to proceed to appellant, making the contract
completion date (CCD) 18 September 2014 (supp. R4, tab 49). On 13 April 2014, the
parties agreed to a 34-day time extension for weather and security-related delays, making
the CCD 22 October 2014 (supp. R4, tab 46).

       3. During March-April 2014, the government sent appellant a number ofletters
expressing concern with appellant's quality control, safety, and design implementation
(R4, tabs 27, 28, 33). On 8 March 2014, appellant submitted to the government, by email,
a request for equitable adjustment (REA). The REA sought a 167-day time extension for
various delays for which appellant believed it was not responsible. (App. supp. R4,
tab A-12)

      4. The contracting officer (CO) acknowledged receipt of the REA by email on
10 March 2014. He replied as follows:

              Sir,

              I have received your SL H-0001 requesting 167 days - this
              is surprising to me since we have removed a large portion
              of the contract. You will be receiving a formal reply
              within the next 3 0 days - but based on this new
              information- I'm going to[] recommend to the customer
              that the entire project be terminated.

(App. supp. R4, tab A-14) According to appellant's project manager, appellant did not
receive any reply to its REA from the government (app. revised mot., attach., decl. if 6).

       5. The government issued to appellant proposals for work change on 18 February
2014 (R4, tab 25) and on 22 March 2014 (R4, tab 31 ). Appellant submitted responses to
these proposals but according to appellant's project manager, the government never
responded (app. revised mot., attach., decl. if 7).

       6. The government issued a partial clearance for construction on 27 March 2014,
as per 65% design approval (R4, tab 32). It also issued a partial clearance for
construction on 24 April 2014, as per 95% design approval (R4, tab 34).

      7. On 30 April 2014, the CO issued a written notice to the appellant, suspending all
work on the project. No reason was provided for this suspension. (R4, tab 35)



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       8. By letter to appellant dated 11May2014, the CO issued a final decision (COFD)
terminating the contract for default. Insofar as pertinent, the COFD stated as follows:

             FACTUAL BACKGROUND:



             Currently, this contract is over 300 days into the period of
             performance and according to schedule the project should
             be 64% complete. However, HACC&E has only
             completed 9% of the work to date. HACC&E is still
             missing critical submittals to start construction work. In
             addition, mobilization was slow and the contractor has an
             insufficient workforce to complete the project by the
             required date.

             CONSIDERATION OF THE FACTORS: In
             accordance with FAR 49.402-3 (f), I am required to
             consider the following factors prior to reaching a decision
             as to whether to terminate this contract for default. Below
             is my consideration of each of the factors and my
             termination decision.



             2. The specific failure of the contractor and the excuses
             for the failure:

            i. As outlined above, HACC&E has failed to prosecute the
            work. HACC&C is currently over 300 days into the period
            of performance and has made little progress on this project.
            As noted, the construction as scheduled should be 64%
            complete at this point in the contrac[t]; however,
            HACC&E has only completed 9% of the work. HACC&E
            has been advised by the Government that it is not
            proceeding satisfactorily and has not adequately staffI ed]
            the project.
            Reference Serial letters: C-0006, Letter of Concern dated
            1 March 2014, C0007, Letter of Concern dated 3 March
            2014, al)d COOlO, Corrective Action dated 7 April 2014.

             ii. Given the contractor's lack of responsiveness and
             reliability, I cannot see how HACC(&E] can successfully
             complete this project.

                                          3
              7. Any other pertinent facts or circumstances:

                      Contractor has been slow to mobilize to the project
              site, they were slow to provide a list of government
              furnished material to the point that we were forced into a
              position that would have required the government to
              modify the contract to have the contractor provide the
              material.

                     A partial Termination for Convenience (T4C) was
              issued to remove 6 buildings from the contract to ensure
              completion of the project in the required time frame.
              Instead of speeding up construction the contractor came
              back and asked for additional time to complete less work.

                     An RFP was issued to change many of the facilities
              to a more austere standard, HVAC units were replaced by
              simple wood burning stoves, and roads were left unpaved,
              yet the contractor again requested more time.

                     In conclusion, the acts and omissions constituting
              the default is because of no significant progress on the
              project.

                      Based on the above, the undersigned determines
              that a termination for default of this contract is proper and
              in the best interest of the Government. USACE does not
              intend to reprocure this project.

(R4, tab 2)

        9. The COFD did not expressly address appellant's request for a 167-day time
extension. According to the CO, he did consider the REA and concluded that it was
without merit (gov't reply, attach., decl. ir 4). Appellant challenges whether the CO did
in fact review the matter prior to the default termination decision, and even if he did,
appellant challenges the CO's conclusion, asserting that appellant was in fact entitled to
the 167-day time extension, and was thus entitled to a progress review based upon the
CCD as so extended.

      10. Appellant timely appealed the COFD to this Board, and the appeal was docketed
as ASBCA No. 59386.

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       11. On 30 October 2014, appellant submitted a certified claim to the CO, seeking an
equitable adjustment in the amount of $1,722,800 and a time extension in the amount of
239 days (supp. R4, tab 45). The CO did not issue a decision on this claim. Appellant
appealed the deemed denial of its claim to the Board, and the appeal was docketed as
ASBCA No. 59774. The appeals were consolidated.

                                         DECISION

        It is well settled that in order for a party to obtain summary judgment it must show
that the material facts are undisputed and it is entitled to judgment as a matter of law.
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987).

       Appellant has not shown that the material facts are undisputed here. We find a
number of such fact disputes of record, including ( 1) whether the CO' s decision to terminate
for default was based upon an assessment of appellant's construction progress, taking into
account any of the 167-day excusable delay asserted by the contractor; and (2) ifthe CO
made such an assessment prior to his decision, whether such an assessment was correct.
Given these material fact disputes, summary judgment is not appropriate.

       Appellant's motion for summary judgment is denied.

       Dated: 17 August 2015




                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


I concur                                          I concur

_#_~-/~--'-/,/
           y_.;._;:J_~---1.'----=~------~ ~
MARK N. STEMPL R                                  RICHARD SHACKLEFORD
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals



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      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. 59386, 59774, Appeals of
Herai Alpha Construction Consultancy and Engineering Company, rendered in
conformance with the Board's Charter.

      Dated:



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




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