ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

MIC/CCS, Joint Venture 

Under Contract No. F42650-03-D-0010 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 58023 

Richard C. Johnson, Esq. 

John S. Pachter, Esq. 

Keeley A. McCarty, Esq. 

Richard H. Snyder, Esq. 

Smith Pachter Mc Whorter PLC 

Vienna, VA 

Patrick Hendrickson, Esq. 

Hendrickson Law Firm 

South Jordan, UT 

Col Robert J. Preston II, USAF 

Acting Air Force Chief Trial Attorney 

Jeffrey M. Lowry, Esq. 

Skye Mathieson, Esq. 

Anna F. Kurtz, Esq. 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE SCOTT 

ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT 

MIC/CCS, Joint Venture (MIC/CCS) has appealed under the Contract Disputes 

Act (CDA), 41 U.S.C. §§ 7101-7109, from the deemed denial of its 29 December 2011 

claim seeking payment of allegedly completed line items under Delivery Order (DO) 

No. 0383 under the subject contract. Appellant moves for summary judgment, alleging 

that it is entitled to payment for work performed prior to the DO's termination for default. 

The government opposes the motion. For the reasons stated below, we deny the motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 31 March 2003, the Air Force awarded the subject multiple-award Indefinite 

Delivery, Indefinite Quantity Section 8(a) set-aside contract for design and construction 

services at Hill Air Force Base, Utah, and other sites to MIC/CCS for a one-year base 

period with seven option years. The contract was awarded pursuant to a Simplified 

Acquisition of Base Engineering Requirements (SABER) solicitation. (R4, tab 1) 
2. The contract contained Federal Acquisition Regulation (FAR) 52.216-18, 

ORDERING (OCT 1995), which provides in part that: "(b) All [DOs] ... are subject to the 

terms and conditions of this contract. In the event of a conflict between a [DO] ... and this 

contract, the contract shall control" (R4, tab 1 at 16). The contract incorporated the 

following FAR clauses potentially relevant to MIC/CCS's entitlement to payment, the 

required quality of its work, and the prerequisites to reimbursement of its alleged 

stand-by costs: FAR 52.232-5, PAYMENTS UNDER FIXED-PRICE CONSTRUCTION 

CONTRACTS (SEP 2002) (R4, tab 1 at 15); FAR 52.236-5' MATERIAL AND w ORKMANSHIP 

(APR 1984) (id.); FAR 52.242-14, SUSPENSION OF WORK (APR 1984)(R4, tab 1at10); 

FAR 52.246-12, INSPECTION OF CONSTRUCTION (AUG 1996) (R4, tab 1 at 9); and 

FAR 52.246-21, w ARRANTY OF CONSTRUCTION (MAR 1994) (R4, tab 1 at 15). 

3. The contract also contained clause 5352.236-9005, ORDERING PROCEDURESSABER (AFMC) (JUL 1997) (R4, tab 1 at 32), which provides in part as follows: 

( c) Upon establishment of the scope of the individual 

requirement, the Contractor shall then prepare the proposal 

for accomplishment of the task. 

(1) Part 1, Section C, of the Unit Price Book shall serve as the 

basis for establishing the value of the work to be performed 

on a unit price basis. 

(2) Nonpriced work, if required, must be separately identified 

in the Contractor's proposal. 

( d) Upon receipt of the Contractor's proposal, the 

Government will review the proposal for completeness. The 

Government will negotiate with the Contractor all nonpriced 

items, quantities for the prepriced items and performance 

time. 

(e) [DOs] will then be issued by the [CO] .... Each [DO] will 

include the following information: 

(3) Item number and description, quantity and unit prices for 

prepriced and nonpriced items and total. 

(4) [DO] price, delivery or performance date. 

2 
The parties agree that the type of work required by the DO was "nonpriced work" and 

that the prices were derived from the proposal of the drilling subcontractor, Layne 

Christensen Company (Layne) (app. mot. at 3, ii 5; gov't opp'n at 1, ii 5). 

4. In August 2010, the Air Force issued a Statement of Work (SOW), as amended, 

for a "Re-Drill Well 7 and Repair/Reline Well 1" project (R4, tab 4 at 1-2, tab 6). 

Mr. Rodney Sanders was the Air Force's SABER project manager (R4, tab 2 at 2). 

MIC/CCS forwarded Layne's draft scope of work to Mr. Sanders on 17 September 2010. 

Under the draft Layne would be responsible for repairing Well # 1 and drilling the 

replacement for Well #7. (R4, tab 19) 

5. An internal email of 21 September 2010 noted that MIC/CCS would decline to 

submit a proposal because the drilling subcontractor proposals it had received did not 

comply with the SOW; the quotes were qualified with unit rates for work accomplished 

and unit pricing for delays, standby, etc.; none of the drillers were guaranteeing water 

quality; and all were providing daily rates for delays, unforeseen conditions, etc. (R4, 

tab 22 at 2). MIC/CCS stated as follows: 

In order for MIC/CCS to provide a proposal, the Government 

would need to agree to accept the conditions and 

qualifications in the subcontractor's proposal, plus markups 

to MIC/CCS for the various unit prices and daily rates in case 

of delays or differing site conditions. Basically this would 

change the project to a unit rate fixed price contract with a 

not-to-exceed amount with no guarantee of performance. 

(R4, tab 22 at 3) MIC/CCS forwarded the email to Mr. Sanders (R4, tab 25). MIC/CCS 

alleges that, because the Air Force received a copy of this email, and because it 

ultimately accepted MIC/CCS's proposal, the Air Force agreed that the DO was changed 

to a unit rate fixed-price contract. 

6. Later on 21 September 2010, MIC/CCS informed CO Douglas Young and 

Mr. Sanders that it was "willing to turn in a number on this project" if the Air Force 

would acknowledge the subcontractor's conditions and qualifications and use its proposal 

instead of the SOW (R4, tab 22 at 1-2). MIC/CCS attached a copy of Layne's pricing 

proposal, which broke down the work on each well into components, with a unit price, a 

quantity, and a total price for each. Layne's pricing included a Loss of Fluids clause, 

which would compensate it at $550 per hour plus costs and a 20% markup, for all drilling 

fluid materials and additives used during a loss of fluids period. The proposal assumed 

24/7 drilling and that well design was subject to change. (R4, tab 22 at 2 and at Layne 

proposal) In a subsequent email to the CO and Mr. Sanders, MIC/CCS stated that "[t]he 

total for the project would be $1,757,438.00[.] I just need the response and I can ... bring 

up the proposal" (R4, tab 21 at 1 ). 

3 
7. Mr. Sanders replied that, after discussing the project with Layne, and its 

drilling process, the Air Force felt comfortable with MIC/CCS's proposal, which he 

asked MIC/CCS to submit to the CO (R4, tab 22 at 1). MIC/CCS submitted a proposal 

dated 22 September 2010, which attached Layne's proposal (R4, tab 2 at 6-44). 

8. MIC/CCS's proposal, marked "Preliminary Estimate," stated that it would 

"perform this project for the total price of$ One Million Seven Hundred Fifty Seven 

Thousand Four Hundred Thirtv Eight Dollars and no Cents. ($1,757,438.00)" in 

300 days (R4, tab 2 at 6). It stated that its proposal was based upon Layne's proposal, not 

the government's SOW, including Layne's "unit rates for work accomplished and unit 

pricing for delays, etc. plus MIC/CCS markups" and that it incorporated all of Layne's 

"assumptions, exclusions, clauses, compensations, and hourly pricing to perform work" 

(R4, tab 2 at 13, 15). 

9. Layne's proposal included tables for Well #1 and Well #7 work items, which 

indicated a unit of "LS," "FT," or "HR" ("lump sum," "per foot," "per hour" (app. hr. 

at 6, ~ 15)); a unit price; a quantity; and a total price for each line item (R4, tab 2 at 7-8). 

The proposal stated that a "maximum adder" of $75,000 had been "added to the 

overall contract price" to cover loss of fluids situations; the hourly quantities were 

maximum billable quantities; and once Layne was operational, its hourly standby rate 

($450) would apply if the government delayed it (id. at 8-9). Layne stated that the 

"estimated total of all costs, including the (worst case) loss of fluids adder is 

$1,310,804.00" (id.). MIC/CCS claims, and the Air Force disputes, that Layne's drilling 

plan called for drilling 24 hours per day, 7 days a week, and that this was pertinent in 

determining any standby (app. mot. at 9, ~ 27; gov't opp'n at 5, if 27). 

10. With regard to Wells #1 and #7, MIC/CCS's proposal stated that it would 

provide all labor and materials outlined in Layne's proposal "at the quoted unit prices, 

per foot prices, and LS pricing, plus MIC/CCS markups," and any additional work or 

requirements would be subject to additional costs, time, and down time delays (R4, tab 2 

at 15). MIC/CCS's proposal also noted that it did not guarantee the production, rate, or 

quality of water from the wells (R4, tab 2 at 13, 18). 

11. On 22 September 2010, MIC/CCS advised the Air Force that, ifthe project 

were awarded to MIC/CCS JV, the DO was not to refer to the government's SOW in any 

way-only to MIC/CCS's scope of work and Layne's proposal. Otherwise, MIC/CCS 

would not accept it. The CO responded that he would either omit reference to the SOW 

or change it. (R4, tabs 28, 29 at 1) 

12. The Air Force awarded DO No. 0383 to MIC/CCS on 22 September 2010 

(R4, tab 2 at 1 ). Under Section B, Supplies or Services and Prices, the DO contained a 

single contract line item, in the lump sum of $1,757,438.00, which stated: 

4 
Redrill Well #7 & Repair/Reline Well # 1 

FFP [Firm-Fixed-Price] 

The purpose of this project is to redrill well #7 and repair and 

reline well #1 at Hill AFB. The work shall be done in 

accordance with the contractor's proposal dated 22 Sep 2010, 

and according to the terms and conditions of the basic 

contract. 

(R4, tab 2 at 2) 

13. The Air Force issued the Notice to Proceed on 5 October 2010; work was to 

begin by 14 October 2010 and to be complete by 11August2011 (R4, tab 32). 

14. On 10 December 2010, Layne informed MIC/CCS that it had finished 

installing the new well liner in Well # 1 and that the well was pumping virtually no sand. 

On 13 December 2010, Mr. Sanders inquired of Seth Dixon, MIC/CCS's project 

manager, why the well was pumping sand. Mr. Dixon replied that the cause was 

unknown and that Layne would pursue the issue. (R4, tab 54) 

15. MIC/CCS asserts that it had completed all Well #1 work (app. mot. at 9-10 

~ 28, aff. of Robert D. Newberry, chief executive officer of Cadence Contract Services, 

LLC, a joint venture partner of MIC/CCS, who had operational responsibilities for the 

subject contract, ilil 4, 5, 9). The Air Force disagrees (gov't opp'n at 5, ~ 28). 

16. By 25 April 2011, Well #1 had developed holes (R4, tab 99). On 26 April 

2011, Mr. Sanders informed Mr. Dixon that if investigation resulted in some unknown 

source, then the Air Force would not hold the contractor responsible for any more repairs, 

but ifthere were "holes/penetrations (i.e. bad weld, collapsed screen, etc[.]) then the 

contractor(s) need to meet their contractual obligation and provide the fix" (R4, tab 102). 

17. The government, MIC/CCS and Layne met on 25 May 2011 to discuss Well 

# 1. The CO recorded that Layne stated there was a problem with holes developing in the 

well and the contractor wanted $50,000 to perform its proposed solution, otherwise it 

would consider Well #1 work complete. (R4, tabs 114, 115 at 1, tab 119) 

18. On 26 May 2011, the CO advised MIC/CCS that it had not fulfilled its 

obligations under the DO (R4, tab 120). On 31 May 2011, MIC/CCS stated that it 

considered Well #1 complete (R4, tab 123 at 2). 

19. The CO responded as follows: 

[The government's] position in regards to Well #1 is that we 

awarded a [DO] to fix a well where we were getting no water. 

To have a well that produces water is the basic purpose of this 

5 
[DO] and is what you proposed on. We agree that Potable 

Water is not an issue but water production is. Because of this 

issue, we cannot accept [MIC/CCS' s] offer of 31 May 2011. 

(R4, tab 125 at 1) The CO stated that the 72-hour constant rate test had not been 

performed on Well # 1; DO performance had not been good; and it appeared that the 

contractor would not complete it by the 11 August 2011 due date (id. at 2). 

20. On 25 March 2011, Layne began to suffer fluid loss while drilling 

replacement Well #7 (R4, tab 3-24). On 31 March 2011, it informed MIC/CCS that it 

had reached the $75,000 limit under the Loss of Fluids clause. MIC/CCS advised the 

government that, thereafter, any loss of fluids would be at Layne's expense. (R4, tab 84) 

21. On 1 April 2011 MIC/CCS sought permission to submit "another billing" for 

Wells #1 and #7, at 40%, stating that about 50% of the drilling had been completed and 

Well #1 had been reworked. Mr. Sanders and another Air Force employee agreed to the 

40%. (R4, tab 88) 

22. On 15 June 2011, MIC/CCS notified the government that it considered "the 

migration of sand/gravel pack into Well # l" to be a differing site condition. MIC/CCS 

gave its plan for proceeding with the well work and stated that it could not yet ascertain 

the costs. (R4, tab 126 at 3) 

23. On 16 June 2011 MIC/CCS notified the CO that Layne had experienced 

"extreme losses of fluid circulation" at Well #7, which Layne believed was a changed 

condition (R4, tab 127 at 2). On 1 July 2011, MIC/CCS forwarded to the Air Force 

Layne's 28 June 2011 letter advising that, although it had not stopped work on Well #7, 

the loss of fluids had rendered the specified method of construction ineffective (R4, 

tab 130). The Air Force disputes that Layne had not stopped work on Well #7 and asserts 

that no work was performed after the 16 June 2011 notice (gov't opp'n at 6, if 35). 

24. On 13 July 2011, MIC/CCS sought to confirm the CO's alleged instructions 

that it should perform no more work on Well #7 pending government review of a 

forthcoming differing site conditions claim (R4, tab 134 at 1). The CO responded on 

13 July 2011 that he understood MIC/CCS to be claiming costs it had already allegedly 

incurred and costs that it planned to incur if a change were approved. He advised that he 

could not authorize MIC/CCS to incur costs above the contract amount and asked for its 

claim. (R4, tab 135) 

25. By letter to the CO of 28 July 2011, MIC/CCS submitted Layne's "Well #7 

Change of Conditions Claim," which sought $374,076 for its alleged extra costs in 

addressing loss of fluids and $715,040 to implement an alternative drilling method. 

Neither document contained the claim certification required by the CDA, 41 U.S.C. 

§ 7103(b). (App. supp. R4, tab A-231) 

6 
26. Bilateral Modification No. 01 extended the completion date to 26 September 

2011 to allow for a differing site conditions investigation (R4, tab 143). By letter to the 

CO of 21 October 2011, MIC/CCS noted that the completion date had passed and 

requested a meeting regarding the alleged differing site conditions claim and the 

government's direction. It appended a copy of a 20 October 2001 Layne invoice, which 

included an unpaid amount of$75,000 for loss of fluids and $756,000 in standby charges 

as of 10 August 2011. (R4, tab 146) 

27. On 18 November 2011, MIC/CCS asserted that the DO and both wells were 

complete to the extent practicable and that further performance would increase costs 

without achieving well performance. To the extent the DO was not complete, MIC/CCS 

alleged that the government's inaction regarding the DO and its failure to act on 

MIC/CCS's claim constituted a constructive termination for convenience. In either case 

MIC/CCS asserted that the government owed MIC/CCS payment. If the DO was 

complete, the government should pay for work performed and issue a CO's final decision 

on the pending claim. If the DO was deemed to be terminated for convenience, the Air 

Force should treat the claim as a termination settlement proposal. (R4, tab 154) 

28. On 14 December 2011, MIC/CCS informed the government that Layne 

demobilized from Well #7 (R4, tab 158). 

29. On 15 December 2011, the CO denied that the work was complete and that 

the government's actions constituted a constructive termination for convenience. He 

stated that an independent contractor, Bowen Collins, was investigating the alleged 

differing site conditions. (R4, tab 159) 

30. MIC/CCS submitted a "Pre-Final" invoice No. 8, dated 16 December 2011. 

The invoice noted the DO's $1,757,438 price and showed $2,223,660 due, which was 

$466,222 over that price. It reflected a government payment of $878,719, for a net 

amount said to be due of $1,344,941. Among other things, the invoice covered alleged 

100% completion of Well #1; 67.95% completion of Well #7; and Well #7 standby costs 

at $517 .50 per hour, for a total of $1,030,860. (R4, tab 160 at 3, 5-6) 

31. The CO replied on 21 December 2011 that, pending the outcome of the 

differing site conditions investigation, the contract's terms and conditions had not been 

met and the government would not sign the invoice (R4, tab 161 at 4). 

32. MIC/CCS submitted a certified claim to the CO by letter of 29 December 

2011, seeking payment of its $2,223,660 invoice (R4, tab 162). 

33. Bowen Collins submitted its report to the government on 8 February 2012. 

Regarding Well # 1, it concluded that faulty materials or construction, specifically liner 

material or installation, caused the filter pack to enter the well. Concerning Well #7, it 

7 
determined that there were no changed conditions and that the difficult drilling conditions 

should have been known to Layne when it bid. (R4, tab 163) 

34. MIC/CCS appealed the deemed denial of its claim on 6 March 2012 (R4, tab 167). 

35. The CO also issued a show cause notice to MIC/CCS on 6 March 2012, 

stating, inter alia, that the government was considering terminating the DO for default 

due to MIC/CCS's failure to perform within the time required (R4, tab 168). 

36. On 12 March 2012, MIC/CCS contended, among other things, that the 

government had not responded to its differing site conditions allegations and any failure 

to perform was the government's responsibility. It reiterated that the DO had been 

completed to the extent practicable and that the amount owed was the same whether the 

DO was deemed to be complete or terminated for convenience by the government. It 

stated that it was finished with its work under the DO. (R4, tab 169) 

37. CO David J. Clark issued a final decision dated 18 June 2012 terminating the 

DO for default, citing MIC/CCS's alleged failure to complete the contracted work and to 

proceed diligently with performance pending review of its differing site conditions claims 

(R4, tab 170). The CO stated that MIC/CCS not only failed to repair and reline Well #1 

but had also damaged it, and that it had failed to complete Well #7, leaving "an unusable 

hole in the ground" (id. at 2). The CO also stated that an independent study had found 

MIC/CCS's changed conditions allegations to be without merit. The decision did not 

assess liquidated damages. MIC/CCS appealed from the default termination on 18 July 

2012 and the Board docketed the appeal as ASBCA No. 58242. 

38. Appellant submitted Mr. Newberry's 22 January 2013 affidavit (see SOF iJ 15), 

alleging that MIC/CCS had completed all required work for Well #1, listing several work 

items. He also alleged, regarding Well #7, that MIC/CCS had stored materials on site 

valued at about $150,000 for which it expected to be paid but the Air Force had refused 

payment. (App. mot., Newberry aff. iii! 9, 14) Appellant also submitted the 21 March 2013 

affidavit of Joshua T. Nabb, Layne's account manager, which listed testing performed on 

Well #1, "[a]fter completion of the work" (id., Nabb aff. ii 13). 

39. The government submitted the 28 June 2013 declaration of Regina E. 

Chihuahua, supervising CO of the SABER contract, the DO, and replacement contract 

work. She alleged that replacement work, under solicitation as of 28 June 2013, to 

perform the work originally required under the DO, which was priced at $1,757,438, was 

estimated to cost the Air Force $1,699,468 (gov't opp'n, Chihuahua decl. iii! 1-3). The 

Air Force has not contended that liquidated damages have been assessed. 

8 
DISCUSSION 

The Parties' Contentions 

Appellant contends that it is entitled on summary judgment to payment for 

completed and partially completed line items net of any payments previously made. It 

alleges that the DO contained unit prices for individual work items and thus was not a 

lump sum or fixed-price contract. Rather, it was~ unit-priced contract under which the 

contractor was to be paid the DO's unit prices for work performed. Appellant describes 

its alleged entitlement as follows: 

No one would or could maintain that a price of so 

much per foot or so much per hour entitled MIC/CCS to be 

paid a firm fixed price, regardless of how many feet or how 

many hours of effort it performed. Its entitlement was 

measured by how much of each item of work it accomplished, 

and the obligation of the Air Force was similarly measured. 

MIC/CCS made this clear to the Air Force before the DO was 

issued and the Air Force agreed. [Emphasis added] [Citation 

omitted] 

(App. mot. at 22) Appellant concludes that the default termination did not affect its right 

to payment. 

The Air Force responds that summary judgment is not appropriate because 

MIC/CCS relies on disputed material facts: 

Primarily, MIC/CCS asserts that it is undisputed that its 

proposals "were accepted by the Government as setting forth 

the contract terms." However, the facts MIC/CCS cites to 

only support that the [SOW] and method of performance were 

dictated by its proposal. The Government understood that the 

[DO] was governed by the SABER contract, the terms of the 

[DO] and that the work was to be done "in accordance with 

the contractor's proposal...". [Citations omitted] 

(Gov't opp'n at 9) 

The Air Force adds that, even if there were no disputed material facts, MIC/CCS is 

not entitled to judgment as a matter of law. It asserts that, under its clear language, the 

DO was a firm-fixed-price order for construction services, entitling MIC/CCS to a lump 

sum payment for successful performance of work in accordance with the SOW. The Air 

Force alleges that it is also clear from MIC/CCS's proposal that the individually priced 

estimates of work elements necessary for completion of the Wells## 1 and 7 work were 

9 
not severable and were dependent upon one another. It contends that appellant's 

construction of the DO as an agreement that MIC/CCS would be paid for whatever work 

items were completed is absurd. The Air Force claims that, if MIC/CCS believed that its 

proposal clearly provided for a unit pricing payment structure, then the DO was patently 

ambiguous, and the contractor's failure to raise the ambiguity in a timely manner 

precludes it from doing so now. 

The Air Force also contends that the DO was terminated for default in part due to 

MIC/CCS's failure to complete performance, and that the work done was of little or no 

value to the government, which is entitled to recover the value of replacement work from 

MIC/CCS. Finally, the Air Force alleges that, regarding its claimed standby costs, 

MIC/CCS has not established that it was on standby and that it did not continue 

performance at the government's direction. 

Appellant replies that the DO is not clear but is ambiguous concerning pricing. 

However, the ambiguity can be resolved by reference to the surrounding documents and 

no testimony on the issue is necessary or should be allowed. Appellant contends that it 

has supplied uncontroverted affidavits concerning the work it completed and its standby 

charges are supported by the DO's terms. It also asserts that the government's right to 

reprocurement costs has lapsed due the passage of time and, as of briefing, it had not yet 

incurred the costs. 

Summary Judgment Standards 

The summary judgment standards are well-established. It is appropriate only 

when there are no genuine issues of material fact and the movant is entitled to judgment 

as a matter of law. The moving party bears the burden to show the absence of any 

genuine issue of material fact. We resolve any significant doubt over factual issues, and 

draw all reasonable inferences, in favor of the party opposing summary judgment. 

Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). 

There is a genuine issue of material fact that will bar summary judgment if a reasonable 

fact-finder could find in favor of the nonmovant based upon the evidence. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); AshBritt, Inc., ASBCA Nos. 56145, 

56250, 2009-2 BCA ,-i 34,300 at 169,434. 

Appellant has Not Shown that there are No Disputed Material Facts 

We first consider whether appellant has met its burden to show the absence of any 

genuine issue of material fact. Its claim is based upon its 16 December 2011 invoice, 

which seeks payment for work alleged to have been completed prior to the DO's 

termination for default on 18 June 2012 (SOF ,-i,-i 301, 37). When a contract is terminated 

for default, the contractor is entitled to payment for the value of work it properly 

performed in accordance with the contract prior to the termination. Red Sea Engineers & 

Constructors, Inc., ASBCA No. 57448 et al., 13 BCA ,-i 35,245 at 173,031, modified on 

10 
recon., 13 BCA ~ 35,298. However, ifthe amount remaining on the contract price is 

insufficient to cover the government's cost to complete, and any liquidated damages 

assessed, the contractor's payment is reduced by the excess amount. J.G. Enterprises, 

Inc., ASBCA No. 27150, 83-2 BCA ~ 16,808 at 83,543. 

Appellant asserts that the value of work it performed prior to termination is 

$2,223,660, which is $466,222 over the DO's price, as reflected in the 16 December 2011 

invoice. The Air Force has paid only $878,719 and therefore owes appellant the invoiced 

$1,344,941. (SOF ~ 30; app. mot. at 23) Although Messrs. Newberry and Nabb made 

blanket assertions in their affidavits about completion of required items of work on Well 

#1 and testing on that well, respectively (SOF ~ 38), this is not enough to conclude that 

no reasonable trier of fact could find other than for the moving party. See Philadelphia 

Biologics Center, ASBCA No. 44578, 95-2 BCA ~ 27,805 at 138,642 (invoice had no 

value in establishing entitlement and supporting affidavit was insufficient to do so). 

Appellant points to no persuasive evidence verifying that the invoice accurately reflects 

the amount of work actually performed, or that the claimed work conformed to the DO. 

See Red Sea Engineers & Constructors, ASBCA No. 57448, 11-2 BCA ~ 34,880 at 

171,550-51 (in connection with default termination, lack of such evidence raised genuine 

issues of material fact precluding summary judgment on contractor's claim for invoice 

payment under Payments clause), ajf'd on recon., 12-1BCA~34,945. 

The FAR Payments, Material and Workmanship, Inspection of Construction and 

Warranty of Construction clauses, to which the DO is subject under the Ordering clause, 

call for work that meets the contract's requirements and quality standards (SOF ~ 2). The 

Air Force disputes that MIC/CCS and its subcontractor had completed all required items 

of work on Well # 1 in a manner consistent with the contract requirements and that 

required Well #1 testing had been accomplished (SOF ~~ 15, 19, 29, 31, 35, 37; gov't 

opp'n at 5, ~ 28). Indeed, the Bowen Collins report opined that faulty material or faulty 

installation of the well liner caused the excessive sand production in Well #1 (SOF ~ 33). 

Thus, a genuine issue of material fact exists regarding whether the Well # 1 work 

conformed to the contract requirements. 

A large part of appellant's claim is that it is entitled to $1,030,860.00 in standby 

costs (SOF ~ 30). Appellant claims that it is entitled to such costs based upon the DO's 

incorporated standby rates (see SOF ~~ 5, 9; app. mot. at 9, ~ 27). The government 

asserts that the terms of the SABER contract control over those of the DO and that the 

contract's Suspension of Work clause governs standby entitlement (see SOF ~ 2; gov't 

opp'n at 5, ~ 27). Appellant replies that its standby terms do not conflict with the 

Suspension of Work clause but merely supplement it (app. reply at 4). 

Here, factual issues preclude summary judgment on the alleged standby costs 

aspect of appellant's claim. For instance, the parties dispute whether Layne stopped 

work on Well #7 after its 16 June 2011 changed conditions notice and whether the CO 

11 
directed MIC/CCS to stop work on that well (SOF iii! 23, 24; app. mot. at 11-12, ~ii 35, 

40; gov't opp'n at 6-7, iii! 35, 40). 

Even if appellant had established that it properly performed work in accordance 

with the DO prior to its termination, and had proved the value of that work, the 

government still claims that it is entitled to offset any amount due by its reprocurement 

costs (see SOF ~ 39; gov't opp'n at 13-14). App~llant disputes the factual and legal bases 

for this contention {app. reply at 6-7). 

Lastly on factual matters, the reasonableness of the government's actions is at 

issue. Summary judgment normally is not appropriate when this is in question. 

McKenzie Engineering Co., ASBCA No. 53374, 02-2 BCA iJ 31,972 at 157,925. 

Appellant has Not Shown that It is Entitled to Judgment as a Matter of Law 

Even ifthere were no disputed material facts, appellant has not established that it 

is entitled to judgment as a matter of law. In resolving a question of contract 

interpretation, we ascertain the parties' intent. Southbridge Associates, LLC, ASBCA 

No. 54628, 05-1BCA~32,855 at 162,799. The parties dispute whether the DO was a 

lump sum, firm-fixed-price contract or a unit priced contract. Citing the parties' 

pre-award emails (SOF iii! 5-7, 11), appellant asserts that the Air Force agreed to unit rate 

pricing terms by incorporating MIC/CCS's proposal into the DO. The government 

counters that the DO only incorporated appellant's SOW and that the CO did not indicate 

that he intended to alter the DO's pricing structure. The government further disputes the 

import of the email correspondence upon which appellant relies. (Gov't opp'n at 12) 

Legal questions of contract interpretation are generally amenable to summary 

judgment, unless there is an ambiguity that requires weighing extrinsic evidence, but 

extrinsic evidence will not be received unless there is such an ambiguity. Dixie Constr. 

Co., ASBCA No. 56880, 10-1BCAii34,422 at 169,918. Appellant contends that the DO 

was ambiguous concerning pricing, but that no resort to extrinsic evidence is necessary 

other than examining surrounding documents, which make it "crystal clear" that the 

parties intended to enter into a unit rate-type contract (app. reply at 2). As noted, the Air 

Force contends that any ambiguity was patent and appellant is untimely in raising it. See 

Dick Pacific!GHEMM, JV, ASBCA Nos. 54743, 55255, 09-2 BCA iJ 34,178 at 168,965 

(contractor's duty of inquiry about patent ambiguities). 

Here, the parties' intentions, the DO's interpretation, and appellant's entitlement to 

payment are disputed. We do not yet have enough information to resolve these disputes. 

Mixed questions of fact and law are present that pose triable issues precluding summary 

judgment. AshBritt, Inc., ASBCA Nos. 56145, 56250, 09-2 BCA ii 34,300 at 169,434. 

12 
DECISION 

We deny appellant's motion for summary judgment. 

Dated: 22 July 2014 

I concur 

~~ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

ministrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

Administrative Judge 

Acting Vice Chairman 

Armed Services Board 

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 No. 58023, Appeal ofMIC/CCS, 

Joint Venture, rendered in conformance with the Board's Charter. 

Dated: 

13 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals