ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of--
MIC/CCS, Joint Venture
Under Contract No. F42650-03-D-0010
APPEARANCES FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 58023

Richard C. Johnson, Esq. John S. Pachter, Esq. Keeley A. McCarty, Esq. Richard H. Snyder, Esq.

Smith PachterMcWhorter PLC Vienna, VA
Patrick Hendrickson, Esq.

Hendrickson Law Firm South Jordan, UT
Col Robert J. Preston II, USAF

Acting AirForce ChiefTrial Attorney Jeffrey M. Lowry, Esq. Skye Mathieson, Esq. AnnaF. Kurtz, Esq.

Trial Attorneys
OPINION BYADMINISTRATIVE JUDGE SCOTT ON APPELLANT'S MOTION FOR SUMMARYJUDGMENT
MIC/CCS, Joint Venture (MIC/CCS) has appealed under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, from the deemed denial ofits 29 December 2011 claim seeking payment ofallegedly completed line items underDelivery Order (DO) No. 0383 underthe subject contract. Appellant moves for summaryjudgment, alleging that it is entitled to payment for workperformedpriorto the DO'stermination for default. The government opposes the motion. Forthe reasons statedbelow, we deny the motion.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION
1. On 31 March 2003, the AirForce 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-yearbase period with seven option years. The contract was awarded pursuant to a Simplified Acquisition ofBaseEngineering Requirements (SABER) solicitation. (R4, tab 1)2. The contract contained Federal Acquisition Regulation (FAR) 52.216-18, ORDERING (OCT 1995), whichprovides in partthat: "(b) All [DOs]

...are subjectto the terms and conditions ofthis contract. In the event ofa conflict between a [DO]

...and this contract, the contract shall control" (R4, tab 1 at 16). The contract incorporated the following FARclauses potentially relevant to MIC/CCS's entitlementto payment, the required quality ofits work, and the prerequisites to reimbursement ofits alleged stand-by costs: FAR52.232-5, PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS (SEP 2002) (R4, tab 1 at 15);FAR52.236-5' MATERIAL AND

# w ORKMANSHIP (APR 1984) (id.); FAR52.242-14, SUSPENSION OF WORK (APR 1984)(R4,tab 1at10); FAR52.246-12, INSPECTION OF CONSTRUCTION (AUG 1996) (R4, tab 1 at 9); and FAR52.246-21,

# w ARRANTY OF CONSTRUCTION (MAR 1994) (R4, tab 1 at 15).

3. The contract also contained clause 5352.236-9005, ORDERINGPROCEDURESSABER(AFMC) (JUL 1997) (R4, tab 1 at 32), whichprovides in part as follows:
(c) Upon establishment ofthe scope ofthe individual requirement, the Contractor shall then prepare the proposal for accomplishment ofthetask.
(1) Part 1, Section C, ofthe Unit Price Book shall serve as the basis for establishing the value ofthe workto be performed
on a unit price basis. (2) Nonpriced work, ifrequired, mustbe separately identified in the Contractor'sproposal.

(d) Upon receipt ofthe Contractor'sproposal, the Governmentwill review the proposal for completeness. The Governmentwill 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 unitprices for prepriced and nonpriced items and total. (4) [DO] price, delivery orperformance date.

2Theparties agree thatthe type ofwork required bythe DO was "nonpriced work" and that the prices were derived from the proposal ofthe 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 AirForce issued a Statement ofWork (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 SABERproject manager (R4, tab 2 at 2). MIC/CCS forwarded Layne's draft scope ofwork to Mr. Sanders on 17 September 2010. Underthe draft Layne would be responsible for repairing Well #1 and drilling the replacement for Well #7. (R4, tab 19)

5. An internal email of21 September 2010 noted that MIC/CCS would decline to submit a proposal because the drilling subcontractorproposals it had received did not comply withthe SOW; the quotes were qualified with unit rates for work accomplished and unitpricing for delays, standby, etc.; none ofthe drillers were guaranteeingwater 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 toprovide a proposal, the Government would need to agree to acceptthe conditions and qualifications in the subcontractor's proposal, plus markups to MIC/CCS for the various unit prices and daily rates in case ofdelays or differing site conditions. Basically this would change the project to a unitrate fixed price contract with a not-to-exceed amount with no guarantee ofperformance. (R4, tab 22 at 3) MIC/CCS forwarded the email to Mr. Sanders (R4, tab 25). MIC/CCS alleges that, becausethe AirForce received a copy ofthis email, and because it ultimately acceptedMIC/CCS's proposal, the AirForce agreed that the DOwas changed to a unit rate fixed-price contract.

6. Later on 21 September2010, MIC/CCS informed CO Douglas Young and Mr. Sanders that it was "willingto turn in a number on this project" ifthe AirForce would acknowledge the subcontractor's conditions and qualifications and use its proposal instead ofthe SOW (R4, tab 22 at 1-2). MIC/CCS attached a copy ofLayne'spricing 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 ofFluids clause, which would compensate it at $550 perhourplus costs and a 20% markup, for all drilling fluid materials and additives used during a loss offluids period. The proposal assumed 24/7 drilling and thatwell 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 statedthat "[t]he total for the project would be $1,757,438.00[.] Ijustneed the response and I can
...bring up the proposal" (R4, tab 21 at 1 ).

37. Mr. Sanders replied that, after discussing the projectwith Layne, and its drilling process, the AirForce felt comfortable withMIC/CCS's proposal, which he asked MIC/CCS to submittothe 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'sproposal, marked 

### "PreliminaryEstimate," stated that it would "performthis project for the total price 

### of$ OneMillion Seven HundredFifty Seven ThousandFourHundred Thirtv EightDollars andno Cents. ($1,757,438.00)" in 300 days (R4, tab 2 at 6). It statedthat its proposal was based upon Layne's proposal, not the government's SOW, including Layne's 

### "unitrates for workaccomplished and unit pricingfor delays, etc. plus MIC/CCS 

### markups" and that it incorporated all ofLayne's "assumptions, exclusions, clauses, compensations, and hourly pricing to perform work" (R4, tab 2 at 13, 15).

9. Layne'sproposal included tables for Well #1 and Well #7 work items, which indicated a unit of"LS," "FT," or "HR" ("lump sum," "perfoot," "perhour" (app. hr. at 6,**~** 15)); a unitprice; 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 hadbeen 

### "addedto the overall contractprice"to cover loss offluids situations; the hourly quantities were maximum billable quantities; and once Layne was operational, its hourly standby rate ($450) would apply ifthe government delayed it (id. at 8-9). Layne stated that the "estimatedtotal ofall costs, including the (worst case) loss offluids adder is $1,310,804.00" (id.). MIC/CCS claims, and the AirForce 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'sproposal "atthe quoted unit prices, per foot prices, and LS pricing, plus MIC/CCS markups," and any additional work or requirements would be subjectto additional costs, time, and down time delays (R4, tab 2 at 15). MIC/CCS'sproposal also noted that it did not guarantee the production, rate, or quality ofwater from the wells (R4, tab 2 at 13, 18).

11. On 22 September 2010, MIC/CCS advised the Air Force that, iftheproject
were awarded to MIC/CCS JV, the DO was not to refer to the government's SOW in any way-onlyto MIC/CCS's scope ofwork andLayne'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 AirForce awarded DO No. 0383 to MIC/CCS on 22 September 2010 (R4, tab 2 at 1 ). Under Section B, Supplies or Services andPrices, the DO contained a single contract line item, in the lump sum of$1,757,438.00, which stated:

4Redrill Well #7 & Repair/Reline Well # 1 FFP [Firm-Fixed-Price] The purpose ofthis 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 ofthe basic contract. (R4, tab 2 at 2)

13. The AirForce 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 December2010, 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 ofSethDixon, MIC/CCS'sproject manager, why the well was pumping sand. Mr. Dixon replied that the cause was unknown and that Layne wouldpursue the issue. (R4, tab 54)

15. MIC/CCS asserts that it had completed all Well #1 work (app. mot. at 9-10**~** 28, aff. ofRobert D. Newberry, chiefexecutive officer ofCadence Contract Services, LLC, ajointventurepartner ofMIC/CCS, who had operational responsibilities for the subject contract, 

### ilil 4, 5, 9). The AirForce 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 ifinvestigation resulted in some unknown source, then the AirForce 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 meettheir 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 thatLayne stated there was a problem with holes developing in the well andthe 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 ofthis
5[DO] and is what youproposed on. We agree that Potable Water is not an issue butwaterproduction is. Because ofthis issue, we cannot accept [MIC/CCS's] offer of31 May 2011. (R4, tab 125 at 1) The CO stated that the 72-hour constantrate test had not been performed on Well #1; DOperformance 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 ofFluids clause. MIC/CCS advised the government that, thereafter, any loss offluids would be at Layne's expense. (R4, tab 84)

21. On 1April 2011 MIC/CCS soughtpermission to submit "anotherbilling" for Wells #1 and#7, at 40%, stating that about 50% ofthe drilling had been completed and Well #1 hadbeen reworked. Mr. Sanders and anotherAir Force employee agreed to the 40%. (R4, tab 88)

22. On 15 June 2011, MIC/CCS notified the government that it considered "the migration ofsand/gravelpack into Well #l"tobe 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 offluid circulation" at Well #7, which Layne believed was a changed condition (R4, tab 127 at 2). On 1July 2011, MIC/CCS forwarded to the AirForce Layne's 28 June 2011 letter advising that, although it had not stopped work on Well #7, the loss offluids had rendered the specified method ofconstruction ineffective (R4, tab 130). The AirForce disputes that Layne had not stopped work on Well #7 and asserts that no workwas performed afterthe 16 June 2011 notice (gov't opp'n at 6, 

### if 35).

24. On 13 July 2011, MIC/CCS soughtto confirmthe CO's alleged instructions that it shouldperform no more work on Well #7 pending government review ofa 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 plannedto incur ifa 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 of28 July 2011, MIC/CCS submitted Layne's "Well #7 Change ofConditions Claim," which sought $374,076 for its alleged extra costs in addressing loss offluids and $715,040 to implement an alternative drilling method. Neither document containedthe claim certification required by the CDA, 41 U.S.C. §7103(b). (App. supp. R4, tab A-231)


### 626. 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 of21 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 ofa 20 October 2001 Layne invoice, which included an unpaid amount of$75,000 for loss offluids 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 completeto the extentpracticable and that further performance would increase costs without achieving well performance. To the extentthe DOwas 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. Ifthe DO was complete, the government shouldpay for workperformed and issue a CO's final decision
onthe pending claim. Ifthe DO was deemed to beterminated for convenience, the Air Force should treat the claim as a termination settlementproposal. (R4, tab 154)

28. On 14 December2011, MIC/CCS informedthe government that Layne demobilized from Well #7 (R4, tab 158).

29. On 15 December2011, 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 notedthe 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 saidto be due of$1,344,941. Among otherthings, the invoice covered alleged 100% completion ofWell #1; 67.95% completion ofWell #7; and Well #7 standby costs at $517.50 perhour, for a total of$1,030,860. (R4, tab 160 at 3, 5-6)

31. The COreplied on 21 December2011 that, pending the outcome ofthe differing site conditions investigation, the contract's terms and conditions had notbeen 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 of29 December 2011, seekingpayment ofits $2,223,660 invoice (R4, tab 162).

33. Bowen Collins submitted its report to the government on 8 February 2012. Regarding Well #1, it concludedthat faulty materials or construction, specifically liner material or installation, caused the filter packto enterthe well. Concerning Well #7, it
7determined 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 ofits 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, 

### interalia, thatthe 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 otherthings, that the governmenthad not responded to its differing site conditions allegations and any failure to perform was the government's responsibility. Itreiterated that the DO had been completedto the extent practicable and that the amount owed was the same whetherthe DO was deemed to be complete orterminated for convenience by the government. It stated that itwas 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 performancepending review ofits differing site conditions claims (R4, tab 170). The CO statedthat MIC/CCS not only failed to repair and reline Well #1 buthad also damaged it, and that it had failed to complete Well #7, leaving "anunusable hole in the ground" (id. at 2). The CO also statedthat 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 ASBCANo. 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 expectedto be paid butthe Air Force hadrefused payment. (App. mot., Newberry aff. 

### iii! 9, 14) Appellant also submittedthe 21 March 2013 affidavit ofJoshua T. Nabb, Layne's account manager, which listed testingperformed on Well #1, "[a]fter completion ofthe work" (id., Nabb aff. 

### ii 13).
39. The government submitted the 28 June 2013 declaration ofRegina E. Chihuahua, supervising CO ofthe SABER contract, the DO, and replacement contract work. She alleged that replacement work, under solicitation as of28 June 2013, to perform the work originally required under the DO, which was priced at $1,757,438, was estimated to cost the AirForce $1,699,468 (gov't opp'n, Chihuahua decl. 

### iii! 1-3). The AirForce has not contendedthat liquidated damages have been assessed.

8

### DISCUSSION
The Parties' Contentions Appellant contends that it is entitled on summaryjudgmentto payment for completed and partially completed line items net ofany 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 contractorwas to be paidthe DO's unit prices for workperformed. Appellant describes its alleged entitlement as follows:

No one would or could maintain that a price ofso much per foot or so much perhour entitled MIC/CCS to be paid a firm fixed price, regardless ofhow many feet or how many hours ofeffort it performed. Its entitlementwas measuredbyhow much of each item of work it accomplished, and the obligation ofthe AirForce was similarly measured. MIC/CCS made this clearto the AirForce 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 AirForce responds that summaryjudgment 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 contractterms." However, the facts MIC/CCS cites to only supportthat the [SOW] and method ofperformance were dictated by its proposal. The Government understood that the [DO] was governed by the SABER contract, the terms ofthe [DO] andthat the workwas to be done "in accordance with the contractor's proposal...". [Citations omitted] (Gov't opp'n at 9)
The Air Force adds that, even ifthere were no disputed material facts, MIC/CCS is not entitled tojudgment as a matter oflaw. 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 ofwork in accordance with the SOW. The Air Force alleges that it is also clear from MIC/CCS'sproposal that the individually priced estimates ofwork elements necessary for completion ofthe Wells## 1and 7work were
9not severable and were dependent upon one another. It contends that appellant's construction ofthe DO as an agreement that MIC/CCS would be paid for whatever work items were completed is absurd. The Air Force claims that, ifMIC/CCS believed that its proposal clearly provided for a unitpricing 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 completeperformance, and that the work done was oflittle or no value to the government, which is entitled to recoverthe value ofreplacement work from MIC/CCS. Finally, the AirForce alleges that, regarding its claimed standby costs, MIC/CCS has not established that it was on standby and that it did not continue performance atthe 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 oftime and, as ofbriefing, it had not yet incurred the costs. Summary Judgment Standards
The summaryjudgment standards are well-established. It is appropriate only when there are no genuine issues ofmaterial fact and the movant is entitled tojudgment
as a matter oflaw. The moving party bears the burden to show the absence ofany genuine issue ofmaterial fact. We resolve any significant doubt over factual issues, and draw all reasonable inferences, in favor ofthe party opposing summaryjudgment. Mingus Constructors, Inc. v. UnitedStates, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). There is a genuine issue ofmaterial fact that will bar summaryjudgment ifa reasonable fact-finder could find in favor ofthe nonmovant based upon the evidence. Anderson v. LibertyLobby, 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 Shownthat there are No DisputedMaterial Facts

We first considerwhether appellant has met its burden to show the absence ofany genuine issue ofmaterial fact. Its claim is based upon its 16 December 2011 invoice, which seeks payment for work alleged to have been completedprior 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 ofwork itproperly performed in accordance with the contract priorto the termination. RedSea Engineers & Constructors, Inc., ASBCANo. 57448 etal., 13 BCA 

### ,-i 35,245 at 173,031, modifiedon 10recon., 13 BCA**~** 35,298. However, ifthe amount remaining onthe contract price is insufficient to cover the government's costto 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 ofwork it performedpriorto termination is $2,223,660, which is $466,222 overthe DO'sprice, as reflected in the 16 December 2011 invoice. TheAirForce 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 ofrequired items ofwork on Well #1 and testing on that well, respectively (SOF**~** 38), this is not enough to conclude that
no reasonable trier offact 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). Appellantpoints to no persuasive evidence verifying that the invoice accurately reflects the amount ofwork actually performed, or that the claimed work conformed to the DO. See RedSeaEngineers & Constructors, ASBCA No. 57448, 11-2 BCA**~** 34,880 at 171,550-51 (in connection with default termination, lack ofsuch evidence raised genuine issues ofmaterial fact precluding summaryjudgment on contractor's claim for invoice payment under Payments clause), ajf'don recon.,**12-1BCA~34,945.** The FARPayments, Material and Workmanship, Inspection ofConstruction and Warranty ofConstruction clauses, to which the DO is subjectunder the Ordering clause, call for workthat meets the contract's requirements and quality standards (SOF**~** 2). The AirForce disputes that MIC/CCS and its subcontractorhad completed all required items ofwork on Well # 1in a manner consistent with the contractrequirements and that required Well #1 testing hadbeen 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 ofthe well liner caused the excessive sandproduction in Well #1 (SOF**~** 33). Thus, a genuine issue ofmaterial fact exists regarding whetherthe Well # 1work conformed to the contractrequirements.

A large part ofappellant'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 ofthe SABER contract control overthose ofthe DO and that the contract's Suspension ofWork clause governs standby entitlement (see SOF**~** 2; gov't opp'n at 5,**~** 27). Appellant replies that its standby terms do not conflictwith the Suspension ofWork clause but merely supplement it (app. reply at 4).
Here, factual issues preclude summaryjudgmenton the alleged standby costs aspect ofappellant's claim. For instance, the parties dispute whetherLayne stopped work on Well #7 after its 16 June 2011 changed conditions notice and whetherthe 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 ifappellant had established that itproperly performed work in accordance with the DOpriorto its termination, and had provedthe value ofthat 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 ofthe government's actions is at issue. Summaryjudgmentnormally 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 ofLaw

Even iftherewere no disputed material facts, appellant has not established that it is entitled tojudgment as a matter oflaw. In resolving a question ofcontract interpretation, we ascertain the parties' intent. SouthbridgeAssociates, 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 thatthe 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'spricing structure. The government further disputes the import ofthe email correspondence upon which appellant relies. (Gov'topp'n at 12) Legal questions ofcontract 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., 

### ASBCANo. 56880, 10-1BCAii34,422 at 169,918. Appellant contends that the DO
was ambiguous concerningpricing, butthat 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 DickPacific!GHEMM, JV, 

### ASBCA Nos. 54743, 55255, 09-2 BCA

## iJ 34,178 at 168,965 (contractor's duty ofinquiry 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 offact and law are presentthat pose triable issues precluding summary judgment. AshBritt, Inc., 

### ASBCA Nos. 56145, 56250, 09-2 BCAii 34,300 at 169,434.

12DECISION

We deny appellant's motion for summaryjudgment.

Dated: 22 July 2014

I concur

# ~~ Administrative Judge Acting Chairman Armed Services Board ofContract Appeals ministrative Judge Armed Services Board ofContractAppeals

I concur

Administrative Judge Acting Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals 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 ofContract Appeals