ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
ASF A International Construction Industry ) ASBCA No. 57880
and Trade, Inc. )
)
Under Contract No. FA5685-05-C-0004 )
APPEARANCE FOR THE APPELLANT: D. Lee Toedter, Esq.
Attorney at Law & Contract Consultant
Orange Beach, AL
APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF
Acting Air Force Chief Trial Attorney
W. Michael Rose, Esq.
Senior Trial Attorney
Gregory A. Harding, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON BOARD
JURISDICTION AND APPELLANT'S MOTION FOR SUMMARY JUDGMENT
This appeal arises from ASF A International Construction Industry and Trade,
Inc.'s (ASFA's or appellant's) timely appeal of a contracting officer's (CO's) final
decision (COFD) assessing liquidated damages for late completion of the construction
of three environmental facilities at Incirlik Air Base, a Turkish Air Force installation,
in Adana, Turkey. ASF A now moves for summary judgment asserting that the
government improperly assessed liquidated damages because the government waived
the scheduled completion dates for each facility. The Board raised the issue of its
jurisdiction, sua sponte.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. The 39th Air Base Wing of the Department of the Air Force (Air Force or
government) awarded Contract No. FA5685-05-C-0004 (contract) to ASFA 1 on
11 May 2005 to complete construction of three partially constructed environmental
facilities - a hazardous materials storage (HAZMAT) facility, a hazardous waste
1
The contract was originally awarded to ASF A Insaat Pazarlama (1st R4, tabs 4, 6);
however, by novation under Modification No. A00002, the contractor's name
was changed to ASFA International Construction Industry & Trade (1st R4,
tab 6).
f
storage facility (storage), and a pesticide management facility (pesticide)- at Incirlik
Air Base in Adana, Turkey (1st R4, 2 tab 4 at 2-5, 15-19 of 31 3). Contract line item
number (CLIN) 0001 was for the construction of the pesticide facility, CLIN 0002 was
for the construction of the storage facility, and CLIN 0003 was for the construction of
the HAZMAT facility (1st R4, tab 4 at 4-5of31).
2. The contract included the following pertinent Federal Acquisition
Regulation (FAR) clauses by reference: 52.233-1, DISPUTES (JUL 2002); 52.232-5,
PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS (SEPT 2002); and
52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (1st R4, tab 4 at
12-13 of 31 ). The contract also included the following pertinent FAR clauses in full
text: 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK
(APR 1984); and 52.211-12, LIQUIDATED DAMAGES -CONSTRUCTION (SEPT 2000)
(1st R4, tab 4 at 13-14 of 31 ).
3. FAR clause 52.232-5, PAYMENTS UNDER FIXED-PRICE CONSTRUCTION
CONTRACTS (SEPT 2002) provides the following, in part:
(b) Progress payments. The Government shall
make progress payments monthly as the work proceeds, or
at more frequent intervals as determined by the
Contracting Officer, on estimates of work accomplished
which meets the standards of quality established under the
contract, as approved by the Contracting Officer.
4. Under contract clause FAR 52.211-10, COMMENCEMENT, PROSECUTION,
AND COMPLETION OF WORK (APR 1984), the storage facility was to be completed no
later than 131 calendar days from the date of the notice to proceed (NTP); the pesticide
facility was to be completed no later than 152 calendar days from the date of the NTP;
2
The government submitted its Rule 4 files in six separate hard copy submittals. The
first submittal was for ASBCA No. 57773, which is ASFA's related appeal.
The second submittal was for this appeal. ASBCA No. 57773 and this appeal
were consolidated (ASBCA No. 57880, Bd. notice of docketing