Classic Site Solutions, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )
)
Classic Site Solutions, Inc. ) ASBCA Nos. 58375, 58572
)
Under Contract No. W912DR-l l-C-0022 )

APPEARANCES FOR THE APPELLANT: Mark S. Dachille, Esq.
Nicole L. Campbell, Esq.
Huddles Jones Sorteberg & Dachille, P.C.
Columbia, MD

Drew W. Colby, Esq.
Partridge Snow & Hahn, LLP
Westborough, MA

APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
William J. Selinsky, Esq.
Scott C. Seufert, Esq.
Richard P. White, Esq.
Assistant District Counsel
U.S. Army Engineer District,
Baltimore

OPINION BY ADMINISTRATIVE JUDGE CLARKE
ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

The parties each move for summary judgment in what is referred to as the "soil
treatment" claim, ASBCA Nos. 58375, 58572. The contract involved construction of a
test track for military vehicles, including tanks, at Aberdeen Proving Ground, Maryland.
These particular motions involve questions of contract interpretation relating to whether
appellant's schedule in its proposal is binding on the government. We have jurisdiction
pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We
grant the government's motion in part and deny appellant's motion.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS

1. On 2 February 2011, the U.S. Army Corps of Engineers (COE) issued Request
for Proposals No. W912DR-l l-R-0021 (RFP 0021) for a project entitled "Automotive
Technology Evaluation Facility Phase II" (ATEF Phase II) (R4, tab 5 at 1). The
solicitation was issued on Standard Form (SF) 1442 (id.). The SF 1442 is a pre-printed
form having various blocks with text and, in some cases, blocks to check and blanks to
fill in.

2. SF 1442, Block 11 reads, with blocks checked and blanks filled in, "The
Contractor shall begin performance within 1Q calendar days and complete it within
425 calendar days after receiving [the] notice to proceed. This performance period is
mandatory. (See Section 800)." (R4, tab 5 at 1)

3. SF 1442, Block 12A. reads, "THE CONTRACTOR MUST FURNISH ANY
REQUIRED PERFORMANCE AND PAYMENT BONDS? (If "YES," indicate within
how many calendar days after award in Item 12B.)." The "YES" block was checked.
Block 12B., "CALENDAR DAYS," has the number "10" entered. (R4, tab 5 at 1) The
RFP includes "INFORMATION REGARDING PERFORMANCE AND PAYMENT
BONDS - 8(a)" that likewise includes a ten-day period for submission of bonds (R4,
tab 5 at 30).

4. SF 1442, Block 13 has four subparagraphs, A. - D. (R4, tab 5 at 1).
Subparagraph A. requires that offers be submitted by "O 1:00 PM local time 08 Mar
2011." Subparagraph C. reads, "All offers are subject to the ( 1) work requirements, and
(2) other provisions and clauses incorporated in the solicitation in full text or by
reference." Subparagraph D. reads, "Offers providing less than 120 calendar days for
Government acceptance after the date offers are due will not be considered and will be
rejected" (id.).

5. SF 1442, Block 17 reads:

The offeror agrees to perform the work required at the prices
specified below in strict accordance with the terms of this
solicitation, if this offer is accepted by the Government in
writing within calendar days after the date offers
are due. (Insert any number equal to or greater than the
minimum requirements stated in Item J3D. Failure to insert
any number means the offeror accepts the minimum in Item
13D.).

(R4, tab 5 at 2) The blank was not filled in by appellant.

6. FAR 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF
WORK (APR 1984) is included in full text in the RFP and reads:

The Contractor shall be required to (a) commence work under this
contract within 10 calendar days after the date the Contractor
receives the notice to proceed, (b) prosecute the work diligently,

2
 and (c) complete the entire work ready for use not later than
425 calendar days.

(R4, tab 5 at 67)

7. The Proposal Submission Requirements (R4, tab 5 at 98) includes a project
management plan (id. at 104) that in turn included section 3.5.3, Scheduling, that reads in
pertinent part:

Scheduling: Discuss the Offeror's scheduling capabilities
and procedures to be used for this project to meet the
requirements of Section 01 32 01.00 10 Project Schedule.
Include type of scheduling software proposed and background
of Lead Scheduler. Submit a Pre-Award Project Schedule as
described below and in accordance with applicable provisions
of Section 013201.00 10.

Pre-Award Project Schedule: The Offeror shall submit a
summary level schedule using the Critical Path Method of
calculation, not exceeding 100 activities. The schedule shall
demonstrate a reasonable and realistic sequence of activities
which represent all work through the entire contract
performance period.

The offeror must describe in detail how it will initiate the
project; include discussions on important early activities, such
as pre-work submittals, site organization, temporary facilities,
material deliveries etc. and other key construction activities to
ensure completion by the required dates.

The offeror must discuss its scheduling capabilities and
procedures to be used for this project, which must include
schedule updates, incorporating modifications into the
schedule, and other steps to be taken to meet the required
completion date. The offeror also must include a discussion
of the potential high-risk features (such as the alternative
work hours, vehicle traffic, coordination with and completion
of work by privatization contractors, acquiring all necessary
Permits, encountering contaminated soils and/or munitions
and explosives of concerns) of the work that may adversely

3
 impact the completion date and the offeror's plan to mitigate
those high-risk features.

(Id. at 105)

8. RFP Amendment No. 0007 included offeror's requests for information (RFI)
and the government's responses. RFI number 6 read, "[w]hat is your current anticipated
NTP?" (R4, tab 5 at 177). The government's answer read, "[w]e are scheduled to award
by 31March2011" (id.).

9. Specification section 01 32 01, "PROJECT SCHEDULE," included the
following:

PART 3 EXECUTION

3 .1 GENERAL REQUIREMENTS

Prepare for approval a Project Schedule, as specified
herein, pursuant to the Contract Clause, SCHEDULE FOR
CONSTRUCTION CONTRACTS. Show in the schedule
the sequence in which the Contractor proposes to perform
the work and dates on which the Contractor contemplates
starting and completing all schedule activities. The
scheduling of the entire project, including the design and
construction sequences, is required. The scheduling of
construction[]design and construction is the responsibility
of the Contractor. Contractor management personnel shall
actively participate in its development. Subcontractors
and suppliers[]Designers, Subcontractors and suppliers
working on the project shall also contribute in developing
and maintaining an accurate Project Schedule. The
schedule must be a forward planning as well as a project
monitoring tool.

(Supp. R4, tab 39 at 1)

10. The RFP incorporated FAR 52.236-15, SCHEDULES FOR CONSTRUCTION
CONTRACTS (APR 1984) (R4, tab 5 at 43), that reads in pertinent part:

(a) The Contractor shall, within five days after the work
commences on the contract or another period of time
determined by the Contracting Officer, prepare and submit to
the Contracting Officer for approval three copies of a

4
 practicable schedule showing the order in which the
Contractor proposes to perform the work, and the dates on
which the Contractor contemplates starting and completing
the several salient features of the work (including acquiring
materials, plant, and equipment). The schedule shall be in the
form of a progress chart of suitable scale to indicate
appropriately the percentage of work scheduled for
completion by any given date during the period. If the
Contractor fails to submit a schedule within the time
prescribed, the Contracting Officer may withhold approval of
progress payments until the Contractor submits the required
schedule.

11. The RFP incorporated FAR 52.215-1, INSTRUCTIONS TO OFFERORS -
COMPETITIVE ACQUISITION (JAN 2004) (R4, tab 5 at 25), that reads in pertinent part at
paragraph (c)( 6):

Offerors may submit modifications to their proposals at any
time before the solicitation closing date and time, and may
submit modifications in response to an amendment, or to
correct a mistake at any time before award.

12. On 8 March 2011 appellant submitted its proposal in response to RFP 0021 in
the total "TOTAL ESTIMATED BID AMOUNT" 1 of $13,368,055.67 (R4, tab 9).
Appellant's president, Ms. Cheryl Sady, signed the SF 1442 (id.). Appellant did not
insert a number in the blank in Block 17. In appellant's proposal, Project Management
Plan, it identified three stages of construction with the following pertinent comments:

Stage 1 Construction (Station 95+50 to 177+00)
With construction anticipated to start in the spring of 2011,
we will begin construction of the largest earth moving areas
first, to maximize the potential for less rain delays and dryer
soil conditions ....

Stage 2 Constructions (Station 21 +00 to 96+50)
This stage has a large quantity of cut to fill earthwork and an
import of fill form [sic] the disposal area. With stage
2 beginning in the fall, we can use the mild weather to assist
in achieving proper compaction and moisture content.. ..

1
The bid is an "estimate" because in CLINs 0002 and 0003, the government specified
the estimated quantity of bituminous concrete that bidders had to use in bidding.

5
 Stage 3 Constructions (Station 177+00 to 21 +00)
Starting stage 3 in the winter months will allow us to utilize
these months to excavate and haul the largest portion of the
spoils to the disposal area.

(Supp. R4, tab 38 at 55, 57-58) The Project Management Plan indicated NTP was 9 May
2011 in a ©Primavera Systems, Inc., Critical Path Method (CPM) schedule printout,
dated 5 March 2011 (supp. R4, tab 38 at 0063).

13. On 1 April 2011, the COE issued RFP Amendment No. 0008 that substituted
various drawings and extended the date for receipt of offers to 8 April 2011 (R4, tab 5 at
178). Appellant submitted a revised proposal on 8 April 2011 that lowered its total
estimated price to $12,846,969.00 (R4, tab 10).

14. By letter dated 31 May 2011, Contract No. W912DR-l l-C-0022 for the
ATEF Phase II project was awarded to CSSI (R4, tab 11 ). The award package included
performance and payment bond forms to be executed and returned "within ten (10)
calendar days" (id.). CSSI was also informed that it was required to submit satisfactory
evidence of insurance before commencement of work (id.). The SF 1442 signed by the
COE contracting officer awarding the contract included checked Block 29 that read:

29. AWARD (Contractor is not required to sign this
document.)

Your offer on this solicitation, is hereby accepted as to the
items listed. This award consummates the contract, which
consists of (a) the Government solicitation and your offer,
and (b) this contract award. No further contractual document
1s necessary.

REF: W912DR-l l-R-0021 thru Amd 0008

(R4, tab 4 at 2)

15. The NTP was issued and received by CSSI on 21June2011 (R4, tab 15).

16. On 8 June 2012, CSSI submitted its soil treatment claim to the COE. CSSI
claimed $510,795.45 for damages caused by the "late" NTP. (R4, tab 23)

17. CSSI filed a "deemed denial" appeal with the Board on 5 November 2012.

18. The Board docketed the soil treatment claim as ASBCA No. 58375 on
6 November 2012.

6
 19. COE CO Rifkin issued a final decision on 6 December 2012 denying the soil
treatment claim (R4, tab 2).

20. On 26 February 2013, CSSI appealed the final decision and on 27 February
2013 the soil treatment claim was docketed as ASBCA No. 58572. ASBCA Nos. 58375
and 58572 were consolidated on 1 March 2013.

DECISION

Contentions of the Parties

CSSI contends that the schedule included in its technical proposal (TP) indicating
a 9 May 2011 NTP was accepted by the COE when it awarded the contract to CSSI (app.
mot. at 8; SOF ~ 12). The NTP was not issued until 21June2011 causing delay in the
start of performance. The delay pushed certain excavation work into less favorable
weather conditions causing CSSI to use greater quantities of chemical treatment required
to attain specified moisture content requirements. (App. mot. at 2-3) CSSI claims that
the COE is liable for the additional costs because it failed to issue the NTP on 9 May
2011. In addition, CSSI argues that the COE "never invoked Clause 13.D" because it did
"not reject Classic's offer" and thereby "waived Block 13.D by accepting Classic's offer"
(app. opp'n at 2, 3).

The COE interprets CSSI's claim to demand delay damages before contract award.
The COE contends that the Board has no jurisdiction over such pre-award disputes (gov't
mot. at 22). The COE also argues that the SF 1442 required that CSSI allow the COE
120 days after the proposal due date to evaluate proposals and award a contract (gov't
mot. at 23-24). COE argues that it did not guarantee a date for the NTP and that it issued
the NTP within a reasonable time after award (gov't mot. at 25). COE argues that after
RFP Amendment No. 0008, CSSI had an opportunity to amend its proposal and increase
its price due to a later award date, but instead reduced its price (gov't mot. at 26).
Finally, the COE argues that there was nothing in CSSI's proposal that specifically made
its proposal contingent on a 9 May 2011 NTP (gov't mot. at 26, 29).

Discussion

Based on the decision discussed below, we need not address the COE's argument
regarding the nature of CS Si's alleged damages.

We have reviewed each of the cases relied upon by CSSI to support its contention
that the COE is bound by the schedule in its TP, and the COE's case-by-case rebuttal.
We agree with the COE that when each case is carefully considered, none of the cases
cited by CSSI support its contentions. In Pure Water and Ecology Products, Inc.,

7
ASBCA No. 21153, 77-2 BCA ~ 12,718, the Navy issued a brand name or equal RFP for
shower heads. The Board held that during negotiations the contractor submitted a letter
that informed the Navy it intended to provide a different "or equal" shower head. The
Board found that the Navy, as a matter oflaw, was bound by the letter. Id. at 61,798-800.
No similar circumstances exist in this appeal (app. mot. at 13-14; gov't opp'n at 16-17).

In F&F Laboratories, Inc., ASBCA No. 33007, 89-1BCA~21,207, the
contractor submitted "attachment 1" that made its offer contingent upon acceptance of its
jelly bars that were larger in size than specifications in the RFP. The Board held that
since the government failed to inform F &F that the size was unacceptable, it was bound
by the contingency. F&F, 89-1BCA~21,207 at 107,002-03. No similar circumstances
exist in this appeal (app. mot. at 14; gov't opp'n at 15).

In Maggie's Landscaping, Inc., ASBCA No. 52462, 04-2 BCA ~ 32,647, the
government awarded a requirements contract for lawn maintenance services at
Edgewood Arsenal. CSSI correctly pointed out that the contract incorporated Maggie's
Technical Proposal. However, the case does not stand for the proposition CSSI contends
because Maggie lost all of its claims except for changes in mowing height, planting of
438 new trees and 3,341 feet of new fencing that were not changes to the TP. Maggie's,
04-2 BCA ~ 32,647 at 161,569. No similar circumstances exist in this appeal (app. mot.
at 11-12; gov't opp'n at 13-15).

In Strand Hunt Construction, Inc., ASBCA No. 55905, 13 BCA ~ 35,287 at
173,177, the issue was the proper interpretation of language where Strand Hunt stated
that its "goal is to finish the project by July 1, 2005" but that goal was not enforced by the
Board. Strand Hunt, 13 BCA ~ 35,287 at 173, 186. No similar circumstances exist in this
appeal (app. mot. at 11; gov't opp'n at 12-13).

In F2M, Inc., ASBCA No. 49719, 97-2 BCA ~ 28,982, the Board considered
cross-motions for summary judgment relating to a non-appropriated fund instrumentality
contract for the construction of a guest house at Fort Lewis, Washington. The parties
stipulated that "a 'significant milestone date' was an Interim Notice to Proceed date of
11November1993." F2M, 97-2 BCA ~ 28,982 at 144,330. The award was protested
and the NTP was not issued until 29 April 1994. Id. The Board denied both motions.
The fact that the government stipulated that the interim NTP was a "significant milestone
date" distinguishes F2M from this case where the government disputes the applicability
of the schedule in the proposal.

Interpretation Analysis

The motions require the Board to interpret various provisions of the solicitation
and contract. We may not consider extrinsic evidence. A motion for summary judgment
based on contract interpretation may only be granted if there is no ambiguity requiring

8
reliance on extrinsic evidence. Dixie Construction Co., ASBCA No. 56880, 10-1 BCA
ii 34,422 at 169 ,918 ("Legal questions of contract interpretation are amenable to summary
resolution, unless there is an ambiguity that requires the weighing of extrinsic
evidence."). An ambiguity exists when there are two reasonable interpretations of the
language under consideration. Teg-Paradigm Environmental, Inc. v. United States,
465 F.3d 1329, 1338 (Fed. Cir. 2006) (When a provision in a contract is susceptible to
more than one reasonable interpretation, it is ambiguous, and we may then resort to
extrinsic evidence to resolve the ambiguity.). Additionally, summary judgment is
appropriate only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Any significant doubt over factual issues, and all
reasonable inferences, must be resolved in favor of the party opposing summary
judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir.
1987); Dixie, 10-1BCAiJ34,422 at 169,918.

We consider the relevant provisions of SF 1442 to be clear and unambiguous.
Offerors were required to allow the government a minimum of 120 days after proposals
were due to award a contract (SOF iii! 4, 5). The initial RFP due date was 8 March 2011
(SOF iJ 4). Therefore, the government had until 6 July 2011 to award the contract. We
consider this fact inconsistent with CSSI's argument that the government was obligated
by the schedule in its proposal to issue a NTP by 9 May 2011.

We consider the provisions of solicitation section 3.5.3 Scheduling, to be clear and
unambiguous. CSSI was obligated to submit a "summary level" pre-award project
schedule that demonstrates a realistic sequence of activities for all work that meets the
requirements of specification section 01 32 01.00 10 (SOF ii 7).

We consider the provisions of specification section 01 32 01 to be clear and
unambiguous. CSSI was to "[p]repare for approval" a project schedule in accordance
with the contract clause "SCHEDULE FOR CONSTRUCTION CONTRACTS" that
shows the "sequence in which the Contractor proposes to perform the work and dates on
which the Contractor contemplates starting and completing all schedule activities"
(SOF ii 9).

We consider the provisions of FAR 52.236-15, SCHEDULES FOR CONSTRUCTION
CONTRACTS (APR 1984) to be clear and unambiguous. CSSI must:

[W]ithin five days after the work commences on the contract
or another period of time determined by the Contracting
Officer, prepare and submit to the Contracting Officer for
approval three copies of a practicable schedule showing the
order in which the Contractor proposes to perform the work,
and the dates on which the Contractor contemplates starting

9
 and completing the several salient features of the work
(including acquiring materials, plant, and equipment).

(SOF ii 10) We interpret this to mean that CSSI must submit a schedule for approval
after award. We conclude that this requirement contradicts CSSI's assertion that the
COE is bound by the ©Primavera CPM schedule submitted with CSSI's offer before
award.

These four documents: the SF 1442; solicitation section 3.5.3 Scheduling;
specification section 013201; and FAR 52.236-15, SCHEDULES FOR CONSTRUCTION
CONTRACTS (APR 1984), "must be considered as a whole and interpreted so as to
harmonize and give reasonable meaning to all of [their] parts." NVT Technologies, Inc.
v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). These four documents, when
read and harmonized together, have only one reasonable interpretation. CSSI and the
other offerors were to submit a preliminary summary level pre-award project schedule for
the COE's use in evaluating the proposals to make an award determination. Then, after
award, CSSI was to submit a schedule, based on the actual date of award, to the COE for
approval. We disagree with CSSI's argument that the government is bound by its
"summary level pre-award project schedule," i.e., its 9 May 2011 ©Primavera CPM
schedule included in its proposal (SOF ii 12). 2

We also point out that when solicitation Amendment No. 0008 was issued on
1April2011 (almost a month after CSSI submitted its offer on 8 March 2011
(SOF ii 12)) several facts were obvious. The "scheduled" 31 March 2011 award date had
passed (SOF ii 8). The date for receipt of offers was extended to 8 April 2011
(SOF ii 13). The COE therefore had until 6 August 2011 to award a contract making it
highly unlikely that the NTP would be issued on 9 May 2011. Based on Amendment
No. 0008, CSSI had an opportunity to increase its price to account for a later NTP date
(SOF ii 6) but, not only did it fail to do so, it submitted a revised RFP reducing its price
(SOF ii 13). We also disagree with CSSI's contention that the COE had to "invoke"
Clause 13D and "waived" it when it failed to reject CSSI's offer (app. opp'n at 5).

2
We agree that CSSI could have explicitly made its offer contingent on a 9 May 2011
NTP but it did not; if it had, its proposal might have been rejected by the COE.

10
 CONCLUSION

For the reasons stated above, the government's motion is granted in part and
CSSI's motion is denied. The soil treatment claim, ASBCA Nos. 58375, 58572, is
denied.

Dated: 10 July 2014

I concur I concur

~~d¥:
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals

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. 58375, 58572, Appeals of
Classic Site Solutions, Inc., rendered in conformance with the Board's Charter.

Dated:

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

11