BCI Constr. USA, Inc., ASBCA Nos. 62657, et al. (Feb. 5, 2024) (cross motions for summary judgment; contractor not foreclosed by Blue & Gold Fleet from challenging reasonableness of liquidated damages rate in contract because there is no allegation that contractor was aware of the problem prior to bidding; regardless how the liquidated damages rate was derived, an amount equal to 0.01% of the contract price per day is reasonable; factual issues concerning the date of substantial completion preclude summary judgment on this issue; contractor failed to provide any evidence that contract's concrete specification was defective, establishing only that its supplier did not manufacture the type of concrete specified, was unwilling to make changes to its batch plant to provide the concrete required by the contract, and ultimately was unwilling to provide the type of concrete required by the contract specifications; contractor failed to establish that contract made any representations as to its excessive seepage claim as a Type I differing site condition; factual issue of whether and to what extent condition that eventually caused seepage was present at the time of award precludes summary judgment on Type II differing site condition claim; issues of lack of notice and superior knowledge also depend on unresolved factual issues; contractor not entitled to additional labor and material costs allegedly caused by COVID epidemic not anticipated when contract was formed)

Hamp's Constr. LLC, ASBCA No. 62257 (Feb. 2, 2024) (denies claim for Type I differing site condition because there were no representations in the contract documents concerning the admittedly unexpected conditions contractor encountered at one point in the site)

Central Environmental, Inc., ASBCA No. 62628 (Dec. 28, 2023) (Government breached contract by failing to comply with contract requirement that it notify contractor of times when access to site would be unavailable or delayed)

Supreme Foodservice GmbH, ASBCA Nos. 58958, et al. (Nov. 9, 2023) (contractor's fraud was not severable from the remainder of its work on contract (even if some of that work was not directly tainted by the fraud) and amounted to prior material breach that relieved Government of obligation to pay any of contractor's claims for work performed on the  contract during the original contract term; Government has not justified its withholding of payment on separate contract because  Government over withheld on current contract and has not established fraud on current contract tainted different contract; contractor not permitted to amend pleadings to allege quantum meruit recovery because it would, inter alia, decimate the prior material breach doctrine; Government's prior material breach defense did not waive or forfeit its claims that arose prior to its ability to assert that defense)

Flatland Realty LLC, ASBCA No. 63409 (Oct. 30, 2023) (Government's default termination breached lease to provide concession services (which did not contain T for C clause) because record did not support Government's assertion that lessee had failed to provide services for two years, and lessee was not required to provide new Use and Development Plan after original five-year plan; after Government's revocation of lease, building that lessee failed to remove became government property, so lessee is not entitled to recover cost of building), contractor's motion for reconsideration denied

Radmacher Bros. Excavating Co., Inc., ASBCA Nos. 63276, 63367 (Oct. 27, 2023) (denies Government's motion for summary judgment on Type 2 Differing Site Conditions claim because record not sufficient to decide whether stationary trains on the tracks for extended periods of time were an unknown or unexpected condition that should allow recovery)

Korte Constr. Co., ASBCA No. 63148 (Oct. 26, 2023) (Government is entitled to credit for deductive change for work ultimately not required of its subcontractor even though contractor establishes subcontractor did not include that work in its bid because because subcontractor knew of the ambiguity in the solicitation's requirements but did not raise the issue)

Amentum Services, Inc., f/k/a AECOM Management Services, Inc., ASBCA Nos. 62835-62840 (Oct. 25, 2023) (in firm-fixed-price contract for launch services, (i) in deciding whether contract's minimum yearly ordering requirement had been met task orders issued near the end of the year, but not performed until the next year, still counted, but the fact that a task order was de-scoped in that next year reduced its value in the year it was awarded, meaning the Government breached the contract by ordering approximately $50,000 less that the minimum guaranteed amount; (ii) contractor cannot disavow new task order items added to order by way of bilateral modifications, with no reservation of rights; (iii) because individual line items did not have minimum required values, Government's decision to stop purchasing jet fuel from contractor did not violate any contractual provision and did not amount to breach of implied duty of good faith and fair dealing; (iv) no recovery for contractor's continuing costs during shutdowns during hurricanes--clause relied on by contractor only noted Contracting Officer "may" consider such claims, which invoked an abuse of discretion standard that contractor had not met; (v) no ambiguity in task item for gaseous nitrogen support, and, even if there were, it was patent; (vi) contractor did not establish claim for bidding error because it did not prove Government was, or should have been, aware of it)

Alfajer, Ltd., ASBCA No. 62125 (Oct. 20, 2023) (grants Government's motion for summary judgment because the contractor failed to respond to several sections of the Government's motion for summary judgment (including its defense to the contractor's breach of contract claim, i.e., that a base closure and evacuation undertaken for security reasons was a sovereign act), abandoned several of its claims (e.g., a superior knowledge claim), failed to provide any evidence of any allegedly disputed issues of fact (or provided "evidence" that did not support its contentions) in the case of its claim of breach of the implied duty of good faith and fair dealing)

Delfasco LLC, ASBCA Nos. 63280, 63402 (Sep. 25, 2023) (contract's EPA clause only allows price adjustment for increased costs of steel, and grey iron out of which contract items (bombs) were made is not steel)

ECC Int'l Constructors/Metag (JV), ASBCA No. 62124 (Sep. 20, 2023) (where contractor's initial work did not comply with contract requirements, the agency's suspension of work and requirement that the contractor remedy the problem did not constitute a constructive change; none of the specs, documents, or course of dealing cited by the contractor changed those basic facts), Government's motion for partial reconsideration denied

Derian, Inc., ASBCA No. 62957 (Aug. 25, 2023) (Government's partial termination for convenience eliminated original substantial completion date, and the Government failed to establish a new date, so the assessment of liquidated damages based upon the original date was improper; contractor not entitled to recover its own labor costs claimed for changed work because its records lacked any  explanation of the work performed and showed only the amounts paid to various individuals by check number and amount; QAR did not direct contractor to perform changed work and did not have authority to do so in any event; ACO's silence when asked about QAR's authority could not reasonably be interpreted by contractor as statement of that authority; Government's decision to withhold contractor's clearance to begin work until it had held a required preparatory meeting was reasonable and not a basis for compensable delay)

L.S. Black-Loeffel Civil Constructors JV, ASBCA No. 62402 (Aug. 21, 2023) (grants Government's motion for summary judgment on all of contractor's claims because: contract's specifications regarding thermal break were performance rather than design specs and, therefore, were not amenable to a defective specifications claim; Government responded to each of contractor's multiple submissions of thermal control plan within the time required by the contract with a facially reasonable basis for rejecting them and, thus, did not compensably delay the work; delays associated with installation of armor plate were concurrent with delays in providing acceptable thermal control plan; rejects Differing Site Conditions claims because documents on which it relied were not meant to represent conditions contractor should be expected to encounter and weather is not a differing site condition; no basis for contractor's repackaging other claims as one of breach of implied duty of good faith and fair dealing; because specs were performance specs, they cannot give rise to a claim of failure to disclose superior knowledge)

Superior Maritime Services, Inc., ASBCA No. 63407 (Aug. 17, 2023) (Government is responsible for contractor's costs incurred as a result of Government's actions delaying delivery of fuel pod to point for loading cargo and reading contract as a whole does not preclude contractor's recovery; claimed delays were not caused by contractor's business decision to follow instructions from an unauthorized shipper that was not a party to the contract)

CB Portable Toilet Rental and Services, ASBCA No. 63449 (Aug. 16, 2023) (dismisses contractor's breach of warranty argument because not previously presented to Contracting Officer for decision; termination for convenience, specifically allowed by contract, did not breach implied duty of good faith and fair dealing; because Government changed the contract to add work, the contractor's termination for convenience claim amount is not limited to the items of work stated in the original contract)

Sheffield Korte Joint Venture, ASBCA Nos. 62972, 62073 (Aug. 11, 2023) (under "Permits and Responsibilities" clause, contractor not entitled to extra compensation for costs of fulfilling permitting requirements imposed by third party state and local governments where the contract contained only performance specs, so there was no warranty of specs; Government did not misrepresent permitting requirements; unilateral mods that contractor had refused to accept did not operate as an accord and satisfaction preventing Government from recouping amounts erroneously paid to contractor under those mods)

StructSure Projects, Inc. ASBCA No. 62927 (Aug. 7, 2023) (although Government's closing of base to construction contractor due to COVID was a sovereign act, Government still had to reimburse contractor for temporary facilities that, pursuant to separate CLIN in contract, contractor had installed prior to the closing and which the Government continued to use during the shutdown)

Allard Nazarian Group, Inc., dba Granite State Manufacturing, ASBCA Nos. 62413, 62414 (July 27, 2023)  (pursuant to FAR 16.307(g), Government's deductions from fixed hourly rate labor charges under IDIQ contract due to contractor's failure to submit auditable final indirect cost rate proposals for certain fiscal years as required by FAR 52.216-7 (which allegedly left the Government unable to verify amounts invoiced by the contractor for those periods of time) were impermissible because FAR 16.307(a), authorizes such deductions only from material costs), Government's motion for partial reconsideration denied

American Technical Services, Inc., ASBCA No. 63534, 63535 (June 22, 2023) (dismisses appeal of government claim because it had been withdrawn by Contracting Officer; denies contractor's claim for fixed-fee because it had already been paid more than the fee allowed by the contract; although contractor's claim for overhead and G&A was adequately presented to the Contracting Officer, survives Contracting Officer's rescission of government claim, and is not barred by the six-year limitations period, and  it fails for a complete lack of proof)

RLB Contracting, Inc., ASBCA No. 62779 (June 15, 2023) (in contract for dredging work, Board upholds assessment of liquidated damages because contract permitted them and contractor conceded (a) it failed to meet contract completion date and (b) period for which damages were assessed was accurate, while contractor failed to establish any excusable delay due to defective specifications, differing site conditions, or breach of the implied duty of good faith and fair dealing)

Chugach Federal Solutions, Inc., ASBCA No. 61320 (June 9, 2023) (in fixed-rice IDIQ contract requiring unlimited building maintenance service calls, where parties had engaged in extensive discussions concerning offerors' proposed staffing levels in relation to IGE and other offerors' proposed levels, contractor could not recover (under theories of superior knowledge, negligent negotiations, mutual mistake, constructive change, etc.) its increased staffing costs after its proposed staffing turned out to be insufficient to timely meet contract requirement, but contract permitted Government to deduct for unperformed work (or work that could not be remedied), not for late work)

Amatea/Grimberg JV, ASBCA Nos. 60426 et al. (May 30, 2023) (numerous construction contract claims; subsurface soil  conditions encountered by contractor were not a differing site condition because boring logs in solicitation did not constitute a guarantee that all the soil at the site would be the same as that encountered in the bore holes and contractor's own consultant warned of wet soil conditions contractor subsequently complained of; Government did not breach implied duty of good faith and fair dealing by failing to permit the contractor as much after hours and weekend work as it requested because the contract gave the Contracting Officer discretion whether to permit such work and contractor presented evidence that there was a rational basis for the Contracting Officer's determinations on this issue; the flow rate encountered at the site was a differing site condition because it differed from the rate identified in the solicitation; various delay and acceleration claims hampered by fact that contractor did not present testimony from scheduling  expert (while Government did) and did not present significant other evidence concerning impact of alleged delays on critical path)

U. S. Bank National Ass'n, ASBCA Nos. 62986, 63022) (Apr. 27, 2023) (grants contractor's motion for summary judgment that Government breached contract by failing to reimburse contractor for certain payments it had made; contractor's proposed findings of fact on crucial factual issue were properly supported with evidence while the Government failed to support its responses  with evidence)

IMC Constr. Group, ASBCA No. 62422 (Mar. 29, 2023) (contract interpretation; most natural reading of task order specs is that Government would acquire disputed item from different provider and that contractor is forbidden from supplying it; Government's contrary interpretation is less plausible; conclusion is not changed even if Board considers extrinsic evidence offered by Government; even if contract were ambiguous on the point, it is only latently so, and, therefore, contra proferentem doctrine would construe ambiguity against Government as drafter of language), Government's motion for reconsideration denied except Board permits Government to challenge quantum award since prior appeal was only supposed to cover entitlement

Triple Canopy,. Inc., ASBCA Nos. 61415, et al. (Mar. 23, 2023) (on remand from CAFC, fees imposed by Afghan Government on private security companies with more than 500 employees as a penalty are after imposed taxes within the meaning of FAR 52.229-6 for which contractor is entitled to be reimbursed)

Frazier Investments Inc. d/b/a Optimum Construction, ASBCA No. 63001 (Mar. 13, 2023) (fixed-price bilateral modification for added work, which had subcontractor warned contractor would not cover all costs, operated as an accord and satisfaction of claim for increased costs because contractor did not enter into it under duress (no evidence of verbal threat alleged by contractor) and it was not unconscionable (no evidence of overreach or bad faith by the Government)

Vigor Works, LLC, ASBCA No. 62607 (Feb. 22, 2023) (contract interpretation; contractual document labeled Integrated Program Master Schedule was intended to be maintained, and updated, by contractor to reflect contractor's schedule planning and no particular update was intended as an enforceable schedule used as a basis for a constructive change claim against the Government and contractor's interpretation to the contrary falls outside the zone of reasonableness)

ServFed, Inc., ASBCA No. 63290 (Feb. 2, 2023) (denies Government motion to dismiss an appeal for lack of jurisdiction based on contractor's alleged request for specific performance to correct an inaccurate CPAR; contractor is allowed to amend Complaint to cure alleged jurisdictional defect because that is fair to both parties, does not prejudice Government, and is based on same operative facts as original Complaint)

Derian, Inc., ASBCA No. 63283 (Feb. 1, 2023) (grants Government's motion to dismiss appeal based on Contracting Officer's alleged failure to issue timely decision because no evidence of claim submitted to Contracting Officer)

Dynamic Systems Technology, Inc., ASBCA No. 63037 (Jan. 26, 2023) (under Service Contract Act, contractor is responsible for increased costs after it knowingly failed to utilize and price proper labor category in its offer anticipating that it would submit a claim for an equitable adjustment after award and that it would be granted)

Betance Enterprises, Inc., ASBCA Nos. 63076, et al. (Jan. 25, 2023) (under "Permits and Responsibilities" clause, contractor responsible for the cost of repairing roofs damaged by hailstorms after the contractor began working on the roofs but prior to project completion and issuance of the requisite roof warranties, and prior to government acceptance of the work)

CJW Contractors, Inc., ASBCA No. 63228 (Jan. 23, 2023) (sustains appeal; contractor's interpretation of contract requirements (that pipe hanger support would be installed from the existing steel W and S roof beams) was  reasonable and any ambiguities in those requirements were latent), Government's motion for reconsideration denied

Heart & Core LLC, ASBCA No. 63403 (Jan. 11, 2023) (fixed-price contract placed risk of increased costs on contractor, the pandemic being no excuse), contractor's motion for reconsideration denied

KiewitPhelps, ASBCA No. 61184 (Dec. 30, 2022) (agency's master specification was a design specification; the specification was defective because following it resulted in mold growth; the defective specification was not patent; nothing in the contractor's conduct caused the mold; the Government constructively changed the contract by mandating a change in a product; agency did not breach duty of good faith and fair dealing in responding to mold issue)

Jemison & Partners, Inc., ASBCA No. 62928 (Dec. 5, 2022) (contract unambiguously provided contractor would be paid only for actual quantities of topsoil placed, not a set lump sum)

FlightSafety International, Inc., ASBCA No. 62659 (Nov. 29, 2022) (despite some arguably contradictory language in paragraph (b) of "Validation of Restrictive Markings on Technical Data" clause (DFARS 252.227-7037), the fact that commercial item was developed at private expense does not end inquiry as to whether contractor's restrictive proprietary markings on commercial technical data are valid)

David Boland, Inc., ASBCA Nos. 63007, 63008, (Nov. 14, 2022) (no constructive change in requiring contractor to provide telecommunications systems to temporary swing space trailers because TOs unambiguously required it), contractor's motion for reconsideration partially granted as to two counts Board should not have dismissed

WSP USA Solutions, Inc., ASBCA No. 62674 (Oct. 13, 2022) (contract interpretation; denies appeal because contract clearly required orders to be paid for at the rates in effect at the time the orders were issued even if the work was performed in a later contract period)

Phylway Construction, LLC, ASBCA No. 62961 (Oct. 11, 2022) (since fixed-price contract expressly allocated risk of high river levels to contractor, it cannot recover under theories of commercial impracticability or constructive suspension of work; contractor released claim in bilateral mods that extended time of performance)

Trade West Constr., Inc., ASBCA No. 61068 (Oct. 6, 2022) (contract interpretation; stone proposed by contractor was not "angular" in shape as that term was generally used in the industry and was not of "varying sizes and shapes" and did not meet contract's mass and interlock requirements; contractor's use of the stone in other districts on other contracts did not establish it was appropriate in this case)

Nassar Group International N.G.I. S.A.L. (OffShore) R.C., doing business as NGI Afghanistan for Contracting, ASBCA Nos. 58451 (Sep. 29, 2022)  (denies contractor's constructive suspension claim because (a) issuance of Customs Clearance Requests (CCRs)for tax exempt status was a sovereign act and (b) contractor failed to prove its delays were attributable to time to obtain CCRs; no jurisdiction over contractor's claim claim that the Government delayed the project by mandating site-access for the government personnel because that claim not previously presented to Contracting Officer and, in any event, claim waived by contractor's failure to present any evidence in support of it; Government failed (for lack of evidence) to establish its claim that contractor purportedly failed to install insulated grounding conductors separate from the electrical system neutral conductor in all feeder and branch circuit raceways)  

Dawson Technical, LLC, ASBCA No. 62389 (Sep. 1, 2022) (refuses to find accord and satisfaction based upon email exchange that nowhere includes a signed bilateral contract modification)

ACC Constr. Co., ASBCA No. 62265, 62937 (Sep. 1, 2022) (denies all of contractor's numerous theories of recovery in its claim for costs of complying with Virginia's stormwater permitting requirements because "Permits and Responsibilities" clause and other contract clauses placed responsibility on contractor for obtaining and complying with those permits)

Pacific Dredge & Constr., LLC, ASBCA No. 63234 (Aug. 16, 2022) (FAR 52.222-30 unambiguously notified offerors that Contracting Officer would make no adjustment (i.e., the “NONE” method) in the contract price to cover any increases or decreases in wages and benefits due to a DOL wage determination applicable at the exercise of an option that extended the term of the contract so offerors were to propose increases for option periods based on estimates)

Fluor Federal Solutions, Inc., ADBCA No. 62343 (Aug. 8, 2022) (Government did not have right to extend performance pursuant to FAR 52.217-8 ("Option to Extend Services") after contractor had performed final option year under protest, successfully arguing that that option had not been properly exercised)

Lockheed Martin Aeronautics Co., ASBCA No. 62209 (Aug. 3, 2022) (decisions on multiple motions for summary judgment on various preliminary matters that do not involve ultimate merits of claim; measured mile approach to calculating damages is not disfavored and does not require showing of inability to provide direct proof; denies various Government motions challenging jurisdiction and allegedly defective elements of claims; grants contractor's motions for summary judgment that, properly interpreted, no contract modifications released its claim)

Aspen Consulting, LLC, ASBCA No. 61122 (June 7, 2022) (after earlier Board decision (denying appeal that Government had misdirected two payments owed to contractor) was reversed by CAFC, current decision holds that Government has established affirmative defense of payment by showing misdirected funds paid to the benefit of the contractor)

CiyaSoft Corp., ASBCA No. 59913-QUAN (June 1, 2022) (contractor has no duty to foresee a breach and to take action to mitigate any damages that may result before performance of a contract has even begun)

Siemens Government Technologies, Inc., ASBCA Nos. 62601, 62601 (May 24, 2022) (Board lacks CDA jurisdiction over claim that Government breached implied covenant of good faith and fair dealing by failing to fairly consider the implied-in-fact contract created when appellant submitted its proposal because that implied-in-fact contract is not covered by the CDA; preaward breach of good faith and fair dealing cannot jurisdiction for claim involving subsequent task orders; documents are clear that the Government would not be liable to compensate appellant for costs incurred on projects that did not result in a task order)

ASCT Group, Inc., ASBCA No. 61955 (Apr. 26, 2022) (no implied-in-fact contract between subcontractor and Government to purchase subcontractor's materials following termination of prime because invitation to sub to submit expression of interest in selling materials did not amount to a binding offer to purchase them and nothing in conditional statements in subsequent correspondence between parties constituted an agreement to purchase the materials)

D&J Machinery, Inc., ASBCA No. 62019 (Apr. 19, 2022) (denies motion for summary judgment because contract is ambiguous as to whether specifications at issue were design specs or performance specs)

Aegis Defense Services, LLC, d/b/a GardaWorld Federal Services, ASBCA Nos. 62442, et al. (Mar. 30, 2022) (contract interpretation; read as a whole task orders plainly required minimum number of security guards; thus count in contractor's Complaint alleging a latent ambiguity must be dismissed; questions as to whether contractor provided the minimum required levels involve disputed questions of fact which cannot be resolved on Government's motion for summary judgment)

Metro Machine dba General Dynamics NASSCO-Norfolk, ASBCA No. 62221 (Mar. 29, 2022) (rejects Government's accord and satisfaction defense because the Government was the only party that signed the mod in question; completion date established by the same mod was nevertheless reasonable and contractor failed to timely object to terms of mod; contractor responsible for subcontractor's delays and contract did not shift responsibility for certain delays to the Government)

JAAAT Technical Services, LLC, ASBCA No. 62373 (Mar. 8, 2022) (requiring contractor to obtain second permit after first one was revoked was not a constructive change because contract unambiguously required contractor to obtain and maintain required permits; Government did not breach implied duty of good faith and fair dealing by not writing to the permitting authority to challenge the permit revocation, especially where the contractor did not ask the Government to do so and even participated in the decision not to do so; delays in permitting process were the fault of the contractor's subcontractor which failed to have a design professional with the required certification; contractor not entitled to costs of preparing what it labeled as an REA because the letter was actually a claim)

ECC Int'l, LLC, ASBCA Nos. 58993, et al. (Feb. 24, 2022) (denies Type I differing site conditions claim because solicitation included clear indication that the condition might be present; denies Type II differing site conditions claim because soil actually encountered did not differ from types of soil generally encountered in the area; Government's acceptance of proposal that contained contractor's clear interpretation of solicitation ambiguity created by the Government in part by its responses to bidders' questions bound Government to contractor's interpretation that soil mitigation would not be required, such that subsequently requiring it was a compensable change)

Cooper/Ports America LLC, ASBCA No. 61349 (Feb. 10, 2022) (denies claim for reformation based upon alleged government misrepresentation because: (i) the Government's statement that it would "work with" the contractor on prices was not a promise to revise them; (ii) there was no misstatement of fact because the Government never stated that it could revise underbid prices on a fixed-price contract; (iii) contractor failed to show that the parties' intention was to agree to revise the prices)

BES Constr., LLC, ASBCA No. 62175 (Nov. 9, 2021) (denies claim for change to stucco color because contractor requested it; denies claim for delayed notice to proceed because it resulted from a bid protest after which parties entered into a "no cost" modification extending the start date; denies delay claim based on unusually severe weather because the weather was specifically cited in a "no cost" modification extending the contract dates; denies another delay claim because it was not mentioned in report of contractor's delay expert and was supported only by affidavits of two individuals who professed no expertise in delay issues)

Harry Pepper and Assocs., Inc., ASBCA Nos. 62038, et al. (Nov. 3, 2021) (denies contractor's claims for extra work and delays related to defective welding because the contract's requirements were unambiguous, the contractor failed to present evidence that the Contracting Officer had ordered or authorized any change to those requirements, and the contract placed on the contractor the responsibility for inspecting its own work, so that it was obligated to provide conforming work regardless whether the Government inspected it)

H2L1-CSC, JV, ASBCA No. 62086 (Oct. 28, 2021) (contact interpretation; TO's Specifications unambiguously required removal and replacement of gutters and downspouts on two roofs that were required to be replaced even though Scope of Work was silent on subject; none of the evidence offered by the contractor establishes that the contract was ambiguous on this point or that the Government agreed with the contractor's interpretation)

Lavender Co., ASBCA No. 62163 (Oct. 27, 2021) (denies appeal for extra costs in contract for laundry rental services of red shop rags, which required the contractor to supply clean rags to various government buildings and to pick up dirty rags, launder them, and resupply them, because contractor's performance was continuously subpar in both cleaning the rags and delivering them on time and in the required quantities and the record lacked evidence necessary to quantify the alleged damages)

Sauer, Inc., ASBCA No. 61847 (Sep. 29, 2021) (where contract stated only Contracting Officer had authority to make changes, Government's mechanical engineer for project did not have authority to approve variations from task order requirements; no evidence that Contracting Officer waived contract requirements and observations by other government personnel on site could not establish waiver; contractor's use of PVC rather than cast iron pipe did not substantially comply with specifications and, therefore, Government's direction to contractor to replace PVC with cast iron pipe was not economically wasteful; contractor is not entitled to extended overhead for time it chose to wait hoping the Government would change its position on requirement to used soldered rather than press fittings)

Skanska USA Building, Inc., ASBCA No. (Sep. 23, 2021) (grants Government's motion for summary judgment denying constructive acceleration claim because contractor did not timely or sufficiently request time extension and Government did not improperly deny any such request)

Munck Asfalt, A/S, ASBCA No. 61407 (Sep. 21, 2021) (contract interpretation; denies constructive change claim for encasing conduit in concrete because contract uses terms "duct" and "conduit" interchangeably)

Gulf Pacific Contracting, LLC, ASBCA No. 61434 (Sep. 16, 2021) (FAR 52.222-30 ("Construction Wage Rate Requirements--Price Adjustment (None or Separately Specified Method)"), which was incorporated by reference, is unambiguous and enforceable and precludes the contractor from obtaining wage rate adjustments for increased wage determinations made after contract award)

Mission1st Group, Inc., ASBCA Nos. 62461, 62646 (Aug. 16, 2021) (option to extend services pursuant to FAR 52.217-8 is not limited to use only after other options have been exercised but may be exercised at the conclusion of the base period; requirement that Government exercise option to extend services "within 90 days before expiration of the contract" did not mean “prior to or on the 90th day before the contract expired” as contractor contended, so that exercise 4 days before the contract expired was a valid exercise; even if the option exercise had been improper, contractor waived its right to object by signing subsequent bilateral modifications)

Odyssey International, Inc., ASBCA Nos. 62062, 62279 (July 29, 2021) (grants summary judgment because contractor released claims in bilateral modification and contractor's employee's characterization of the mod as a "trick, trap, or typo" after Government had denied contractor's REA did not create a material factual dispute)

AICI-Archirodon JV, ASBCA No. 62201 (July 19, 2021) (holds for Government on entitlement because contractor failed to comply with the contract by using a foreign-flag vessel without authorization, but record not sufficiently developed yet to determine quantum)

Standbuy Distributors, Inc., ASBCA No. 62721 (July 12, 2021) (Government waited too long before revoking acceptance of contractor's laser range finders)

Intellicheck, Inc., ASBCA No. 61709 (June 24, 2021) (subcontractor failed to establish its own implied-in-fact contract with Government from actions by Government under task order with prime (which was teaming with sub))

John Shaw LLC d/b/a Shaw Building Maintenance, ASBCA Nos. 61379, 61585 (Apr. 15, 2021) (contractor failed to establish Government's payment practices breached implied duty of good faith and fair dealing or how its various claimed items of damages resulted from the breach)

ECC International LLC, ASBCA Nos. 61176, 62029 (Mar. 22, 2021) (contract interpretation; Government's failure to provide certain personnel required of it by contract was not a compensable change because the responsibilities the contract assigned to those personnel did not affect contractor's work or its costs of performance, contractor failed to inquire concerning its interpretation of contract provision, which would have involved a patent ambiguity regarding government personnel; Government's interpretation was reasonable; contractor did not prove it relied on its interpretation in preparing its proposal)

David Boland, Inc. ASBCA Nos. 61923, 61924, 61925 (Mar. 19, 2021) (denies Type I differing site condition claim because contractor failed to establish that contract indicated claimed condition existed; denies Type II differing site condition claim because contractor failed to show that the actual physical conditions encountered at the site differed from the known and usual conditions at the site; denies constructive change claim because contractor failed to show that the Government directed changed performance)

Carothers Construction, Inc., ASBCA No. 62204 (Feb. 11, 2021) (Government improperly refused to consider contractor's persuasive evidence submitted pursuant to FAR 52.236-5 (Material and Workmanship) that the 2" deck material it proposed was equivalent to the proprietary 2 1/2" decking specified in the contract)

Brantley Construction Services, LLC, ASBCA No. 61118 (Jan. 28, 2021) (contractor cannot recover extra costs associated with allegedly defective design specification because it did not rely on that specification in preparing its bid; contractor also failed to prove reliance on other issues in preparing its bid that it later claimed gave rise to constructive changes)

General Dynamics--National Steel and Shipbuilding Co., ASBCA No. (Jan. 25, 2021) (contrary to Government's contention, neither contract nor contractor's bid contained any indication that contractor was responsible for performing work that it now claims was extra work)

Central Diversified Contracting, LLC, ASBCA No. 62585 (Jan. 5, 2021) (although contractor failed to present sufficient evidence to prove its alleged delay damages or emergency administrative hours, Contracting Officer's interpretation of modification on appeal as "all-inclusive" was overly broad and inconsistent with the language of the modification and conflicted with his own prior actions concerning claim) , contractor's motion for reconsideration denied

Harry Pepper and Assocs., Inc., ASBCA Nos. 62038, et al. (Dec. 10, 2020) (language in modification limiting release to a particular change did not operate as accord and satisfaction of other claims)

KF&S Corp, ASBCA Nos. 62223, 62292 (Dec. 10, 2020) (denies claim seeking to recover for increase in South Korea's minimum wage occurring during performance of contract for security guard services in that country because contract did not contain any provisions authorizing price adjustments due to labor changes and no such clauses were mandatory for inclusion in the contract)

MPG West, LLC, ASBCA Nos. 61100, et al. (Nov. 9, 2020) (contractor failed to prove that Government's quantity estimates in requirements contract were negligently prepared; IG reports, while admissible as evidence, did not establish that Government breached the contract; terms of this particular contract permitted Government to order from sources other than the contractor so long as contractor remained the "primary" source; in this context, Government's weekly pricing review of contractor's catalog and its approval of vast majority of catalog items coupled with its stated reasons (which had a rational basis) for questioning a few of the item prices as unreasonable did not breach the contract, the primary source of the contractor's problems being its failure to implement a local sourcing plan and its underestimation of the difficulty of the contract work), contractor's motion for reconsideration denied

Alistiqama Co., ASBCA Nos. 62501, 62502 (Oct. 27, 2020) (although Government failed to return leased equipment in timely manner, contractor's claim is denied because it signed a general release)

Aspen Consulting, LLC, ASBCA No. 61122 (Oct. 14, 2020) (Government did not breach contract by directing payments to bank account identified by company representative who had apparent authority to do so)

Trade West Construction, Inc., ASBCA No. 61068 (Oct. 8, 2020) (Government waived objection to contractor's alleged failure to provide 20-day notice of change by not raising the objection in Contracting Officer's decision or as an affirmative defense after the appeal)  

ECC International, LLC, ASBCA No. 58875 (Aug. 25, 2020) (method of construction adopted by contractor's sub, which differed from contract standards, was not communicated to the Government, as was required by the task order)

Philips Lighting North American Corp., ASBCA Nos. 61769, 61873, 62391 (July 30, 2020) (Government breached contract by failed to pay contractor's invoices for installment payments; dismisses Government claim for liquidated damages because it was not first presented in Contracting Officer's decision). Government's request for reconsideration denied

RBC Constr. Corp, ASBCA Nos. 59404, et al. (July 9, 2020) (multiple claims involving alleged changes and delays in construction contract, including issues involving liquidated damages, concurrent delays and critical path analyses)

Professional Management Consulting Services, LLC, CBCA 61861, 62173 (June 25, 2020) (Board had jurisdiction over appeal involving purchase order under GSA Schedule contract that had been submitted to ordering agency's Contracting Officer rather than GSA Schedule Contracting Officer because the purchase order, not the Schedule, formed the basis of the agreement between the parties; using contract interpretation principles giving specific provision precedence over conflicting general provision, purchase order was fixed-price order that did not give Government right to unilaterally reduce price for nonconforming item it accepted)  

Exceed Resources, Inc., ASBCA No. 61652 (June 11, 2020) (bilateral modification in which contractor agreed it would receive no money except phase-in costs subsequent termination bars contractor's claim for breach damages), contractor's motion for reconsideration denied, contractor's second motion for reconsideration denied 

GSC Constr., Inc, ASBCA 61380 (June 4, 2020) (for various reasons, including accord and satisfaction, grants most parts of Government's request for summary judgment as to various changes and delay claims by design and construction contractor)

Supreme Foodservice, GmbH, ASBCA Nos. 57884, et al. (May 27, 2020) (contractor has burden of producing evidence to the Board in support of costs claimed by contractor in REA, even though the appeal involves a Contracting Officer's decision demanding repayment of alleged overpayments; Government cannot assert government claims and affirmative defenses as to the same issues because that would amount to a "heads we win, tails you lose" situation; as to contractor's claim for CDA interest, Government did not waive first material breach defense by continuing with contract work for years after first learning of contractor's fraud because contractor was on notice that Government had not waived the defense and proceeding with the contract work was the only commercially practicable choice for the Government; Board declines to declare contract void ab initio because, inter alia, there is no precedent for the remedy the Government is seeking and, if the contract were void, the Board would not have jurisdiction over the appeals), contractor's motion for reconsideration denied

Alderman Building Co., ASBCA No. 58082 (May 21, 2020) (Severin doctrine did not bar sponsored claim of subcontractor because there was no "iron bound" release of claims by sub against prime; unabsorbed overhead claim that was less than $50,000 when submitted to Contracting Officer need not be certified even if, during litigation, amount was added for expert's reports prepared in support of litigation; contractor kept its workers on standby during delay period due to (a) threat of liquidated damages in the absence of a time extension by the Government and (b) lack of availability of qualified workers to rehire when the delay period ended; contractor was unable to obtain sufficient replacement work during period of delays to overcome disruptive effects of those delays; no basis in law to award contractor "direct costs of standby" in addition to Eichleay recovery)

East Coast Repair & Fabrication, LLC, ASBCA Nos. 60036, 60988 (Apr. 15, 2020) (contract interpretation; contract did not specify inadequate amount of steel to be purchased by contractor and Government was not responsible for steel shortage)

CKY, Inc., ASBCA No. 60451 (Apr. 13, 2020) (inconsistencies between contract note on which contractor's interpretation relied and other provisions of contract created patent ambiguity concerning order's period of performance about which contractor should have inquired before contracting and bars its theories of a Differing Site Condition and mutual mistake; however, excessive discharge of water by two previously undisclosed culverts after heavy rains was a Type I Differing Site Condition)

AISG, Inc., ASBCA Nos. 58696, 59191 (Mar. 30, 2020) (denies contractor's claim for costs it incurred before beginning construction work because (i) Government did not prevent contractor from access to site and contractor's speculation that locals might have objected violently to its presence was not supported by evidence of any impediment or that contractor even tried to enter site; (ii) contractor failed to establish elements required to prove a differing site condition; and (iii) the Government was not obligated to make a change requested by the contractor and did not prevent the contractor from performing during an alleged period of delay)

Aero Tech Service Assocs., ASBCA No. 61682 (Mar. 30, 2020) (contract interpretation; contract unambiguously established that "vendors" were encompassed by term "subcontractor"; and contractor's contrary interpretation was not within zone of reasonableness and therefore did not establish an ambiguity or allow the board to consider extrinsic evidence)

Watts Constructors, LLC, ASBCA No. 61493 (Mar. 19, 2020) (section of construction contract specifications clearly requiring all electrical wiring to be run through rigid conduit for project wiring precluded use of metal clad (MC) cable, which, along with other types of cable not to be used in the contract, was mentioned only in superfluous boilerplate contract language; failure of Government's inspectors early in the contract to object to subcontractor's installation of MC cable does not alter meaning of unambiguous contract requirement and inspectors' erroneous belief that cabling was acceptable does not constitute a knowing waiver of a contract requirement, especially where the Contracting Officer never waived it