              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                       )
                                                  )
Family Entertainment Services, Inc.               )     ASBCA No. 61157
                                                  )
Under Contract No. W91248-15-D-0008               )

APPEARANCE FOR THE APPELLANT:                           Mr. William Johnson
                                                         President

APPEARANCES FOR THE GOVERNMENT:                         Raymond M. Saunders, Esq.
                                                         Army Chief Trial Attorney
                                                        MAJ Bruce L. Mayeaux, JA
                                                         Trial Attorney

              OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT

       This appeal challenges deductions in the amount of $81,692.34 by the Army on
a grounds maintenance contract for 3,897 acres at Fort Campbell, Kentucky, and the
Fort Campbell cantonment area which was geographically located in Tennessee.
Family Entertainment Services, Inc. 1 claims that the government improperly reduced
the amount it paid based on two arguments: 1) the period of performance should have
been measured in work days but was instead measured in calendar days; and 2) the
government improperly applied the terms of the contract relating to inspections under
technical exhibit one of the contract and deducted the wrong amount. The Army
responds that the term "day" means calendar day unless otherwise specified and
explained the reasons for the deductions from the contract. 2 For the reasons set forth
below, we deny the appeal.




1
  This appeal was docketed as Family Entertainment Services, Inc. D/B/A IMC,
         however, the contract was issued to Family Entertainment Services, Inc., and
         for purposes of this decision we refer to appellant as Family Entertainment
         Services, Inc. or FES.
2
  In its brief, the government also addresses what it interprets as appellant's
         constructive acceleration argument. Because FES did not brief this argument, it
         is deemed abandoned. See States Roofing Corp., ASBCA No. 54860 et al.,
         10-1 BCA ii 34,356 at 169,664 (failure to address claimed contentions in brief
         equated to abandonment of the issue).
                            SUMMARY FINDINGS OF FACT

       1. On 26 May 2015, the Mission and Installation Contracting Command-Fort Campbell
(the government), awarded Contract No. W91248-15-D-0008 (the contract), a firm-fixed price
contract to provide grounds maintenance services on Fort Campbell, Kentucky, to Family
Entertainment Services, Inc. (appellant or FES) (R4, tab 1).

       2. The contract incorporates Federal Acquisition Regulation (FAR) 52.212-4
by reference (R4, tab 1at1, block 27b). FAR 52.212-4(e) incorporates FAR 52.202-1,
DEFINITIONS (Nov 2013). FAR 52.202-1 states:

                        (a) When a solicitation provision or contract clause
                uses a word or term that is defined in the Federal
                Acquisition Regulation (FAR), the word or term has the
                same meaning as the definition in FAR 2.101 in effect at
                the time the solicitation was issued, unless-
                        ( 1) The solicitation, or amended solicitation,
                provides a different definition;
                        (2) The contracting parties agree to a different
                definition ....

      3. FAR 2.101, both currently and at the time of solicitation and award states,
"Day means, unless otherwise specified, a calendar day."

        4. The contract also specifically references days in paragraph 5.3.1 of the
Performance Work Statement (PWS) where the government outlines the scope of work
for the mowing and ground maintenance contract. For Schedule B, the following is
included in the contract:

                5.3.1.1 Level II, Kentucky Normal Visibility Areas
                (CLIN x002AA, x002AB). Mowing:
                Approximately 1, 118 acres of grass to be cut between 2" to
                4" height. Estimated once every 21 days. As a possible
                option, the contractor shall mow at least once every 14 days.
                The government retains the option to award the contract for
                mowing the same 1,159 acres on a 14 day cycle, depending
                on availability of funds. [3J




3   The differing number of acres is in the original and is unexplained.

                                              2
              5.3.1.3 Level III Airfield & trimming around runway
              lights. (CLIN x002AC). Mowing:
              Cut approximately 887 acres at 6", plus an area 12' in
              diameter (6' radius) shall be cut around all taxiway lighting
              at 3'' height. Locations as indicated on maps. Airfield to
              be mowed every 14 days[.]

              5.3.1.4 Level IV Landfills and Similar (CLIN x002AD).
              Mow approximately 56 acres of landfills to a grass height
              of 6" as indicated on the maps. Contractor has I 0 days to
              perform this task[.]

(R4, tab 1 at 41 (emphasis added to demonstrate red text in the contract)) Edging and
debris removal was "to be conducted concurrent with the Levels II and III mowing
cycles" (R4, tab 1at41-42, ~~ 5.3.1.1.1, 5.3.1.1.2, 5.3.1.5.1, 5.3.1.5.2). Schedule C
contained the same language, with different acre amounts, throughout the contract. The
contract also contained numerous paragraphs which all reference numbers of days the
contractor is permitted to complete certain tasks. None of these paragraphs otherwise
specified the word "day." (R4, tab 1at41-51)

        5. The contract referenced days in several places: block 12 of the Standard Form
1449 ("Net 30 Days") (R4, tab 1 at l); "7 calendar days" in paragraph (b)(3) of the order
limitations clause (id. at 16); "5 days after issuance" in paragraph (d) of the order
limitations clause id. at 17); "30 days" in the option to extend services clause (id. at 18);
"30 days" and "60 days" in the option to extend the term of the contract clause (id. at 18);
"35 calendar days" in the AMC-level protest program clause (id. at 21); "5 working days"
in the DoD Antiterrorism Standards clause (id. at 23 ); "30 days" in the schedule of
insurance (id. at 26); "71 days" and "79 days" regarding weather (id. at 28); "ten days" and
"five (5) days" regarding quality control plans (id. at 29); "five (5) work days" regarding
contractor discrepancy reports (id. at 29); "ten (10) work days," "30 work days" regarding
key personnel changes (id. at 32); "30 calendar days" to provide a safety plan (id. at 39).

       6. The contract contained a section on hours of operation. Specifically,
paragraph 1.6.4.2 defined the contractor working hours as follows:

              The Contractor shall be responsible for providing services,
              between the hours of 7:30 A.M. to 4:30 P.M., Monday
              through Friday, except federal holidays or when the
              government facility is closed due to local or national
              emergencies, administrative closings or similar government
              directed facility closings. The Contractor may work outside
              of the hours at no additional cost to the Government if
              approved 48 hours in advance by the COR. The contractor


                                           3
                shall inform the Government of the location he plans to work
                for any work performed outside of normal working hours.

(R4, tab 1 at 30)

       7. The contract incorporated FAR 52.246-4, INSPECTION OF SERVICES-FIXED-PRICE
(AUG 1996), which discusses what happens ifthe services do not conform with contract
requirements in subparagraph e:

                       (e) If any of the services do not conform with
                contract requirements, the Government may require the
                Contractor to perform the services again in conformity
                with contract requirements, at no increase in contract
                amount. When the defects in services cannot be corrected
                by re-performance, the Government may ( 1) require the
                Contractor to take necessary action to ensure that future
                performance conforms to contract requirements and
                (2) reduce the contract price to reflect the reduced value of
                the services performed.

(R4, tab 1 at 24)

       8. The contract included Technical Exhibit 1, which outlined performance
requirements, as follows:

                                            Performance
                            Performance                     Method of
    Performance Objective                   Threshold/                     Remedy
                            Standard                        Surveillance
                                            AQL
                                                                           Rework within 24
                            IAWPWS
    Contractor shall                             95%                       hours or CDR may
                            3.3.1.1 and                     Random
    comply with Grass                                                      be issued for not
                            3.3.1.2
    cutting and weeding                                                    meeting AQ04l

    Contractor shall                             95%        Random         Rework within 24
                            IAWPWS
    comply with Raking                                                     hours or CDR may
                            3.3.5.1.8
    Leaves and grass                                                       be issued for not
                                                                           meeting AQL




4
    CDR = Contractor Discrepancy Report.
    AQL = Acceptance Quality Level.

                                             4
  Contractor shall keep
                                              IAWPWS 5.8               95%         Random             Rework within 2
  drainage and asphalt
                                                                                                      hours or CDR may
  areas free of debris at
                                                                                                      be issued for not
  all times
                                                                                                      meeting AQL

(R4, tab 1 at 59)

          9. The contract included Technical Exhibit 8, a sample inspection worksheet.
It included performance criteria of mowing the area, edging, trimming, debris removal,
and repairing damaged areas with pass or fail as possible ratings, as well as an overall
pass or fail rating. (R4, tab 1 at 83)

       10. On 29 May 2015, the government awarded Task Order No. 0001 to FES (the
task order). The task order included Schedule Band Schedule C. Schedule B included
KY Level II, KY Level III, and KY Level IV. Schedule C included TN Level II, TN
Level III, and TN Level IV. The requirements were described in the following charts:

  PRICE SCHEDULE
  SUPPLIES/SERVICES                             ESTIMATED      UNIT      ESTIMAT   ITEM NO   UNIT      PER-CYCLE    BASE PERIOD
                                                QUANTITY                 ED                  PRICE     COST         PRICE
                                                                         CYCLES              BASE
                                                                         PER                 YEAR
                                                                         YEAR




  LINE ITEM 0002 - SCHEDULE B
                                                 BASE PERIOD
  KY Level II - cut between 2" and 4"           1118           Acres     15        0002AB    $35.00    $39,130.00   $586,950.00
  height (includes all vegetation trimming
  IAW PWS). Every 14 days.

 KY Level Ill (Airfield & Trimming around       887            Acres     15        0002AC    $20.65    $18,316.55   $274, 748.25
 Runway Lights) - cut at 6", plus an area
 12' in diameter (6' radius) shall be cut
 around all taxiway lighting at 3" height.
 (IAW PWS). Locations: As indicated on
 maps.
 KY Level IV (Landfills & Similar) - cut to     55             Acres     2         0002AD    $32.00    $1,760.00    $3,520.00
 6" height where indicated on maps.

                                                                                                       Total        $865,218.25




                                                                   5
  SUPPLIES/SERVICES                            ESTIMATE      UNIT        ESTIM    ITEM NO   UNIT     PER-CYCLE    BASE PERIOD
                                               D                         ATED               PRICE    COST         PRICE
                                               QUANTITY                  CYCLES             BASE
                                                                         PER                YEAR
                                                                         YEAR




  LINE ITEM 0003 - SCHEDULE C                  BASE PERIOD


  TN Level II - cut between 2" and 4"          1435          Acres       15       0003AB    $34.93   $50,124.55   $751,868.25
  height (includes all vegetation
  trimming IAW PWS). Every 14 days.



  TN Level Ill (Airfield & Trimming around     286           Acres       15       0003AC    $22.75   $6,506.50    $97,597.50
  Runway Lights) - cut at 6", plus an area
  12' in diameter (6' radius) shall be cut
  around all taxiway lighting at 3" height.
  (IAW PWS). Locations: As indicated on
  maps.




  TN Level IV (Landfills & Similar) - cut to   116           Acres       2        0003AD    $32.00   $3,712.00    $7,424.00
  6" height where indicated on maps.



                                                                                                     Total        $856,889.75




(R4, tab 2 at 5-6)

        11. In the original contract, Level II services were estimated at every 21 days
but the government retained the option to mow at least once every 14 days (R4, tab 1
at 41, 43; finding 4). In the task order, both Schedule Band Schedule C specified that
the Level II mowing services would be completed every 14 days and provided an
estimated cycles per year amount of 15 cycles (R4, tab 2 at 5-6).

       12. On 1June2015, the parties held a post-award conference. During the
conference, the parties discussed how FES could work on weekends, specifically the
requirement that it had to be coordinated with the contracting officer's representative.
FES was reminded that the first cycle would begin on 22 June 2015. FES was further
advised that only William Johnson could sign change orders for FES. (R4, tab 3)

       13. On 6 July 2015, the contracting officer (CO), Jennifer Davis, sent an
electronic mail message to the contracting specialist, SFC Carlet Clark, concerning FES
being behind schedule. SFC Clark forwarded the message to Mr. Johnson. (R4, tab 4)

       14. On 7 July 2015, the parties held another meeting to discuss the status of the
contract and the CO informed Mr. Johnson that he was behind schedule for the
14 calendar day schedule. For the first time, Mr. Johnson raised concerns that the


                                                                     6
period of performance was actually work days not calendar days. Mr. Johnson stated
that he was willing to mow on a 14 calendar day cycle. The parties also agreed that
Tennessee and Kentucky locations were supposed to be mowed concurrently. The CO
clarified that the contractor could work outside of the 0730 to 1630 Monday through
Friday hours if it was approved 48 hours before the work would begin. The
government also informed Mr. Johnson that it was still missing information, such as
contact information, schedules detailing where and when mowing would occur, and
daily reports. During the meeting, Mr. Johnson informed the government of when he
would begin and complete each cycle and the government modified the periods of
performance or set the schedules based on his assertions. (R4, tab 5)

       15. We find that using a "calendar day" calculation, the period of performance for
Cycle 1was22 June 2015 through 5 July 2015; Cycle 2 was 6 July 2015 through 19 July
2015; and Cycle 3 was 20 July 2015 through 2 August 2015. By FES's interpretation, the
period of performance for Cycle 1 would not have ended until 9 July 2015. Using a "work
day" calculation would add four additional days in each cycle to complete the work.

        16. During the meeting referenced in finding 14 and several other meetings
between 7 July 2015 and 14 July 2015, the parties established a schedule that
Mr. Johnson agreed he could meet. He still failed to meet the schedule and the parties
met to reset the schedule again. The parties again discussed the need for FES to submit
daily reports so inspections could be accomplished. (See R4, tab 5 at 10-11, tabs 6, 9)

       17. In total, the government allowed FES four additional days for Cycle 1, nine
additional days for Cycle 2, and five additional days for Cycle 3.

        18. The deficiencies and detailed schedules were reduced to writing by both
parties. The CO again informed Mr. Johnson via electronic mail that he was required
to request approval to work outside of the hours 0730-1630 Monday through Friday.
(R4, tab 8)

       19. The government used the inspection worksheet included as an exhibit in the
contract to notify FES of deficiencies on several occasions, and to specifically detail work
that had not been completed (see R4, tabs 12, 14-15, 17, 23-27, 30-31, 35-37, 40-41).

       20. On 24 July 2015, the parties again met to discuss the incomplete mowing
and the problem with FES not submitting the daily reports so that the contracting
officer's representative could conduct inspections (supp. R4, tab 46).

        21. On 10 August 2015, the CO issued a cure notice (gov't br. at 12; supp. R4,
tab 47 at 3). Also on 10 August 2015, the CO informed Mr. Johnson that the daily reports
he started submitting in August were confusing and inaccurate (R4, tab 32).



                                            7
        22. On 19 August 2015, Mr. Johnson responded to the cure notice. He again
reiterated that he had tried to perform within 14 calendar days but found that FES was
still encountering problems meeting the schedule. He "acknowledge[ d] that the
schedules were initially lacking in detail on planned work and were unclear as to
completed work" but stated that FES should not be penalized ifthe work was 95%
complete. Mr. Johnson included a list of ways FES would correct the deficiencies
going forward, which was similar to the previous times he had submitted solutions to
correct deficiencies. (R4, tab 4 7)

       23. On multiple occasions, Mr. Johnson stated that he agreed with deducting
money for work that was not performed but disagreed with the amounts (see, e.g., R4,
tab 42 at 2 ("We concur with a monetary deduction being taken for areas that were not
mowed, but do not concur or agree with the current dollar amount reflected.")). In
most instances, FES agreed with the government's assessment of what services were
not completed (R4, tab 16; supp. R4, tab 47).

       24. Based on all of the discrepancies, all of which were provided to FES, the
government determined that FES was responsible for maintaining 3,897 acres in Cycle 1
but only completed 3,088.6 acres, which resulted in 79.3% of the work being
accomplished. For Cycle 2, the government determined that FES was responsible to
maintain 3,897 acres but only accomplished 2,792 acres, for a total of 71.7%
accomplished. For Cycle 3, the government determined that FES was responsible to
maintain 3,897 acres but only accomplished 2,636.1 acres for a total of 67 .6%
accomplished. For each area and cycle, the government provided a more detailed
breakdown to properly charge the deductions, based on the number of acres not performed
in each cycle, each schedule, each service, and each level to be performed, which matched
the way the pricing was set forth in the contract. (See gov't hr., attach. at 5-6, 9-11)

       25. On 28 August 2015, the government terminated Schedule B from the
contract for convenience (R4, tab 44).

       26. On 10 January 2017, FES filed a claim with the government in the amount
of $81,692.34 alleging: 1) in "Issue One" that the days were not computed properly
because they should have been work days rather than calendar days; and 2) in
"CLAIM ONE" that too much was deducted for incomplete work (Bd. corr., notice of
appeal (NOA) at 5, 7).

       27. On 1May2017, having not received a CO's final decision, FES filed this
appeal from the deemed denial of the claim, which was docketed as ASBCA
No. 61157 (NOA at 3).

       28. On 24 May 2017, the CO subsequently issued a final decision denying the
claim in its entirety (supp. R4, tab 49).


                                          8
                                     DISCUSSION

        Appellant raises two specific issues. First, FES requests that the Board define
the term "day" in the contract as "work day" instead of "calendar day." Second, FES
requests the Board find that the government improperly inspected the areas where
service was provided and, hence, deducted too much from the contract. While the
claim submitted to the CO focuses more on the definition of "day" than any other
argument, FES did briefly raise issues surrounding inspections and deductions; thus,
we may decide that issue. In contrast, FES did not include claims for weather delays
in its submission to the CO so we may not decide that issue.

I. The Definition ofDay

      Appellant asks the Board to find an ambiguity in the contract and to read the
term "day" as "work day" instead of "calendar day." The Court of Appeals for the
Federal Circuit has provided us with guidance regarding ambiguities in a contract:

             "In resolving disputes involving contract interpretation, we
             begin by examining the plain language of the contract."
             MA. Mortenson [Co. v. Brownlee], 363 F.3d [1203,] 1206
             [(Fed. Cir. 2004)]; see also Gould, Inc. v. United States,
             935 F.2d 1271, 1274 (Fed. Cir. 1991). We construe a
             contract "to effectuate its sprit and purpose giving
             reasonable meaning to all parts of the contract." Hercules,
             Inc. v. United States, 292 F.3d 1378, 1381 (Fed. Cir.
             2002). The threshold question here is whether the plain
             language of the contract "supports only one reading or
             supports more than one reading and is ambiguous," NVT
             Techs. [Inc. v. United States], 370 F.3d [1153,] 1159 [(Fed.
             Cir. 2004], as held by the Board. Ambiguity exists when
             contract language can reasonably be interpreted in more
             than one way. Metric Constructors, Inc. v. NASA, 169
             F.3d 747, 751 (Fed. Cir. 1999).

LAI Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009). Parties having a
differing opinion of contract terms is not enough to show ambiguity. See Metric
Constructors, 169 F.3d at 751 (citations omitted). "Rather, both interpretations must
fall within a 'zone of reasonableness."' Id. (citations omitted).

       Here, there is only one reasonable way to interpret the contract. Appellant's
opinion that "day" should mean "work day" is not a reasonable interpretation of the



                                           9
contract. The contract clearly incorporates FAR 52.212-4, which then incorporates
FAR 2.101 definitions. (Finding 2)

        FAR 2.101 defines "day" as "unless otherwise specified, a calendar day." This
definition is incorporated by reference into the subject contract. (Finding 3) The
places in the solicitation where FES would like to apply the specific term "work days"
only contain the simple word "day" without any specificity. Thus, the days in question
are calendar days, not work days.

        FES argues that paragraphs 2.1.15 and 2.1.21 of the performance work
statement replaced the FAR 52.202-1 definition of "day" because the performance
work statement defines "work day" and "work week." FES' s argument is that because
it was limited to a certain number of hours to work during the week that specificity
should be read into the term "day" to instead include the word "work" in front of the
word "day" (app. br. at 7). However, the definition of "work day" does not extend to
the term "day" but instead only applies to the specific term "work day." Additionally,
FES was not limited to working only during the hours stated in the contract. Instead,
FES was required to give the government written notice and obtain permission
48 hours before working outside of the normal duty day. (See finding 6) IfFES
wanted to work outside of the defined government hours, the government had to
arrange for a government employee to be available to inspect the work, hence the need
for 48 hours of notice. The parties discussed this process on several occasions.
(Findings 12, 14, 18; see also R4, tab 9 at 2, ,-r 11 (meeting minutes))

       Additionally, even if we ignored the FAR definition and accepted appellant's
opinion and decided that "day" meant "work day" then that definition would need to
be applied throughout the entire contract where the term "day" existed, which would
create issues with other clauses. For example, 30 days for payment would not make
sense if defined as work days, nor would 30 days and 60 days for notice for the options
to extend the contract. (See finding 5)

        Further, and perhaps most compelling, even if we agreed with appellant
concerning the application of his definition, the government granted FES more time
via extensions than it would have been allowed even if "work days" had been applied
instead of "calendar days." On several occasions, the government extended the period
of performance for each of the cycles, generally based on when Mr. Johnson stated
FES would be able to complete the work. Based on Mr. Johnson's statements
referenced in the 7 July 2015 meeting regarding when he could complete and start
cycles, it appears that Mr. Johnson believed the Schedule Band Schedule C cycles
could run concurrently (finding 14). If we applied "work days" instead of calendar
days, FES would have had four additional days to complete each cycle. The
government granted FES extensions of at least four days in every cycle (finding 17).
Still, FES failed to complete all of the work on time.


                                          10
        Finally, in its brief, appellant raises for the first time that FES should have been
granted more extensions due to weather and this failure to grant additional extensions
was one of the reasons FES did not complete the work in the required period of
performance (app. br. at 9-11 and attach.). This is a separate argument that is not
precisely related to the definition of "days" as either "work" or "calendar" and is
instead a new claim that has not yet been presented to the CO. In fact, in its claim,
FES explicitly stated, "No Claim is being made for areas FES previously identified as
not being mowed due to having to re-mow areas, weather, and government impact of
performance" (NOA at 7-8; compl. at 5-6 (emphasis added)). However, in its brief
FES argues that it was not granted sufficient time for weather (app. br. at 9-11,
attach.). We need not consider this argument because FES did not raise this issue as
the basis of the claim to the CO. The CO did not have adequate notice of weather as a
basis for this claim. Accordingly, we lack jurisdiction to consider this argument. See,
e.g., Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir.
1987) (citations omitted) (The requirement for a claim "is that the contractor submit in
writing to the contracting officer a clear and unequivocal statement that gives the
contracting officer adequate notice of the basis and the amount of the claim.").

II. Inspections and Deductions

       As its second basis for entitlement, FES disputes the way inspections occurred
and the amount of deductions for nonperformance of work due to exhibit 1 in the
contract which refers to a performance threshold of 95% (app. br. at 11-12). The issue
FES would like us to resolve is whether the inspections and deductions were proper
pursuant to the contract. Upon review of the record, FES largely agreed with the
deficiencies and agreed that some amount should be deducted, but disagreed with the
amount of deductions (finding 23).

       Contract performance was an issue from the beginning of this contract, as
demonstrated in the first issue concerning "days" above. From as early as 14 July 2015,
Mr. Johnson agreed that FES should not be paid for work that was not performed (R4,
tab 9 at 1,, ~ 9). The government tracked what work FES performed by conducting
inspections.

       FES was on notice that inspections would occur because of several clauses in
and exhibits to the contract. The contract contained the Inspection of Services clause
(finding 7), specific performance requirements (finding 8), and a sample inspection
worksheet to demonstrate what would be inspected (finding 9). Thus, the contractor
was sufficiently on notice concerning how its work would be inspected.

       Appellant points to some errors in Technical Exhibit 1 as proof that the
inspections were not permitted by the contract. Appellant is correct that Technical


                                             11
Exhibit 1 references the wrong paragraphs in the performance work statement (app. hr.
at 12); however, it is clear that these inaccurate paragraph numbers were administrative
errors. Further, the rest of the contract demonstrates that inspections would be for
mowing, edging, and the other services in the contract. Even the rest of Technical
Exhibit I demonstrates that inspections would be conducted for grass cutting and
weeding, raking leaves and grass, and keeping drainage and asphalt areas free of debris
(finding 8). Further, Technical Exhibit 8 demonstrates what work would be inspected.

        The government repeatedly informed Mr. Johnson and FES that there were
deficiencies with the services being provided (finding 19). In order to insure inspections
were properly conducted, the government repeatedly requested daily reports to accurately
describe what areas were mowed (see findings 14, 16, 20). Even after FES started
sending daily reports in August, which was after the first cycles should have been
completed, the reports were inaccurate (finding 21). For example, three reports stated
that "North Sod" was completed on three separate days but it was not actually completed
until after the date of the last daily report (R4, tab 32 at 1).

       Even without having daily reports that would allow the government to inspect
what FES stated it had completed, the record demonstrates that the government
inspected the properties and services. On several occasions, the government provided
Mr. Johnson with maps where services had not occurred and detailed explanations of the
missing services (see R4, tabs 7, 39). Further, the government used the inspection
worksheets provided as an exhibit to the contract to document the problems with
performance (see finding 19). The government also used Contract Discrepancy Reports,
DD Form 2772, to document discrepancies in multiple pages of attachments (finding 9).
Mr. Johnson seemed to generally agree with the government's assessment of the missing
services, but disputed the amount the government proposed to deduct (finding 23).

       The government documented each time FES did not complete the services,
without the benefit of having FES's required daily reports (finding 19). Then, the
government determined the number of acres that had not been completed and
multiplied that number by the dollar amount for that service as provided in FES' s
proposal. Finally, the government deducted the resulting amount.

       Based on all of the discrepancies, all of which were provided to FES, the
government determined that FES was responsible for maintaining 3,897 acres in Cycle 1
but only completed 3,088.6 acres, which resulted in 79.3% of the work being
accomplished. For Cycle 2, the government determined that FES was responsible to
maintain 3,897 acres but only accomplished 2,792 acres, for a total of 71.7%
accomplished. For Cycle 3, the government determined that FES was responsible to
maintain 3,897 acres but only accomplished 2,636.1 acres for a total of 67.6%
accomplished. For each area and cycle, the government provided a more detailed
breakdown to properly charge the deductions, based on the number of acres not performed


                                          12
in each cycle, each schedule, each service, and each level to be performed, which matched
the way the pricing was set forth in the contract. (Finding 24)

       The government was actually very generous to FES by limiting the amount of
deductions. The government did not deduct money for FES's failure to submit daily
reports and other written deliverables required by the contract (gov't br., attach. at 12).
The government did not deduct the amount associated with additional hours it spent to
administer the contract based on meeting multiple times for the same discrepancies or the
time government employees spent performing grounds maintenance. The government
allowed multiple extensions and changed the period of performance based on when
Mr. Johnson asserted that FES could complete performance (finding 14). And the
government provided multiple deficiency reports that clearly notified FES of what aspects
of the contract were not being met (finding 19). Yet, FES still failed to meet the
requirements of the contract. Accordingly, we hold that at no time did the government
abuse its right, pursuant to the contract, to inspect the work performed and deduct an
appropriate amount for the work that was not performed.

                                    CONCLUSION

      The appeal is denied.

      Dated: 24 October 2017



                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

I concur




OWEN C. WILSON
Administrative Judge
Vice Chairman
Armed Services Board
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 No. 61157, Appeal of Family Entertainment
Services, Inc., rendered in conformance with the Board's Charter.

      Dated:



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




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