November 1, 2006
Appeal of
M.E.S., INC.
Under Contract No. 332495-98-B-0307
PSBCA No. 4462
APPEARANCE FOR APPELLANT:
Timothy A. Sullivan, Esq.
Payne Hackenbracht & Sullivan
APPEARANCE FOR RESPONDENT:
Barbara
H. Frazier, Esq.
Appellant, M.E.S., Inc., has filed a motion seeking reconsideration of the Board’s decision in this appeal, M.E.S., Inc., PSBCA No. 4462, 06-1 BCA ¶ 33,184.[1] Respondent opposes the motion. The facts are stated in that decision and familiarity with them is assumed.
Eight months into a 10-month project to
construct a postal facility, Appellant was behind schedule, and its anticipated
completion date was at least four months beyond the completion date required by
the contract. Respondent terminated the contract
for default for Appellant’s failure to make progress. In its appeal of the termination, Appellant
argued that Respondent delayed its progress in a number of ways and that if it
had been granted the time extension justified by Respondent’s delays, the
project would have been completed within the appropriately extended contract
performance period.
The Board rejected the evidence Appellant offered
to show delay caused by Respondent. Although
the evidence reflected delays to individual tasks, it did not show that the
overall project was delayed thereby. The
Board reviewed the record on its own, and found that Appellant was
delayed. However, extending the contract
performance period by the number of days of excusable delay found by the Board
would still have left the projected completion date well beyond the contract
completion date as extended. As a
result, the Board upheld the termination.
In its Motion for Reconsideration, Appellant
argues that the Board’s conclusions were in error in three specific areas. First, Appellant argues that the Board improperly
employed a jury verdict approach in developing its estimate of excusable delay
when evidence existed that demonstrated Appellant’s entitlement to an extension
longer than found by the Board. Appellant
argues that a report by Respondent’s construction manager (Appeal File Tab 465)
and Appellant’s May 17, 1999 schedule (Appeal File Tab 723) demonstrate it
experienced excusable delay of over 100 days for installation of the foundations,
a period substantially longer than found by the Board. It argues that this provides a basis for
calculating the delay that is more reliable than a jury verdict and that,
accordingly, it was error for the Board to reach its estimate of delay by means
of a jury verdict. Appellant relies on Dawco Constr., Inc. v.
United States, 930 F.2d 872, 880 (Fed. Cir. 1991), for a statement of the
prerequisites for use of a jury verdict.
However, the Board did not adopt a jury verdict
approach. Based on the record, the Board
found eight days of excusable delay related to approval of the foundation shop
drawings, but noted that even if it employed a jury verdict approach to estimate
Appellant’s delay related to installation of foundations, no more than an
additional 52 days of time extension could be justified based on errors in the
foundation drawings. The total maximum
possible extension of 60 days still left Appellant’s projected completion date
as of the termination well beyond any time extension to which it might be
entitled. Consequently, it was not
necessary for the Board to determine whether the prerequisites to application
of a jury verdict approach were present.
Furthermore, the documents Appellant now
relies on to support its claim for additional time were part of the record of
the appeal. In its motion, Appellant
asks the Board to revisit evidence and arguments available to Appellant in the
original appeal and to reach a different conclusion. This is not an appropriate basis for
reconsideration. See AFV Enterprises, Inc., PSBCA
Nos. 2691, 3316, 02‑1 BCA ¶ 31,764.
In any event, neither of the
documents demonstrates that delay in completion of the foundations was
excusable—each simply compared the actual period of foundation installation
with the amount of time Appellant had planned for such work in its original
schedule.
Appellant’s second challenge is to the Board’s determination that Appellant had not shown project delay associated with Respondent’s allegedly untimely issuance of the Notice to Proceed. Appellant repeats its arguments that Respondent’s failure to issue the Notice to Proceed until almost 30 days after award breached Respondent’s duty to issue such notice within a reasonable time and was contrary to advice given by Respondent’s representative at the pre-bid conference that Respondent intended to begin construction in September. Repeating the same arguments and evidence it relied on in the appeal is not a basis for reconsideration. See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02‑1 BCA ¶ 31,764. Furthermore, Appellant has not overcome its failures to show that the time taken by Respondent to issue the notice to proceed was unreasonable or to connect the alleged delay in issuing the notice to proceed to a particular number of days of overall delay. See Elter S.A., ASBCA No. 52451, 01-1 BCA ¶ 31,373 at 154,914.
Finally, Appellant argues that the Board erred in finding no excusable delay resulting from Respondent’s failure to include a necessary benchmark elevation in the original plans or to provide Appellant a copy of the site survey promptly when asked. Appellant argued in the appeal that the missing benchmark entitled it to a time extension under either of two theories: Respondent’s breach of its duty to cooperate or superior knowledge. In its motion, Appellant argues that the missing benchmark rendered the specifications defective and entitled it to a time extension on that basis. That argument could have been made in the initial proceeding and does not provide a basis for reconsideration. See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02‑1 BCA ¶ 31,764; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607. Furthermore, Appellant did not demonstrate that the alleged delay associated with the missing benchmark led to any particular number of days of delay to the overall project.
Appellant has not established a basis for the Board to increase its calculation of the extension to which Appellant was entitled, leaving Appellant’s projected completion date of the work well beyond the contract completion date as extended based on the Board’s findings. Accordingly, Appellant has not shown that the termination for its failure to make progress was improper. Appellant has not identified any factual or legal errors that would warrant changing our decision. See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02‑1 BCA ¶ 31,764; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.
The Motion for Reconsideration is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman