ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Molly Jessie Company ) ) Under ContractNo. W912WJ-19-P-0023 ) APPEARANCE FOR THE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 62140

Mr. Greg Ryan

Principal/Partner Michael P. Goodman, Esq.

Engineer ChiefTrial Attorney JennaN. Gustafson, Esq.

Engineer Trial Attorney U.S. Army EngineerDistrict, NewEngland Concord, MA OPINION BYADMINISTRATIVE JUDGE SHACKLEFORD This is an appeal from a termination for default ofa purchase order contract. Appellant has elected BoardRule 12.3, Accelerated Procedure, and each party has decided to proceedunderBoardRule 11, Record Submission. Eachparty filed an initial briefand a reply brief. In addition to the briefs, the record includes the government's Rule 4 file, as supplemented, tabs 1-45, appellant's supplementto that file, exs. Al-A4, which it filed as an attachmentto its "Replyto Respondent's Answer" on September 16, 2019. Only the termination for default is at issue here. FINDINGS OF FACT 1. OnJanuary 4, 2019, the U.S. Army Corps ofEngineers, New EnglandDistrict (government or Corps) issued Request for Quotations (RFQ) No. W912WJ19Q0033 to performthe work set forth in an attached schedule. ItemNo. 0001 ofthat Schedule described the work as follows: NHL Replace Sanitary SewerPipe FFP Contractor shall furnish all labor, materials, equipment, and transportation to remove andreplace approximately 320 feet ofexisting vitrified clay (VC) sanitary sewer piping from the Comfort Stationto the existing distributionbox at North Hartland Lake, Hartland, VT in accordance with the Statement ofWork. (R4, tab 2 at 1-2) 2. The Schedule further stated that "site visits are highly recommendedpriorto providing a quote." (Id. at 2) Paragraph 7 ofthe Quotation Instructions stated:

(Id. at 3) Contractors are not required to submit an Accident Prevention Plan (APP) with their quote. The successful offeror will be required to submitthis document at the direction ofthe Technical Point ofContact. The APP must be accepted by the Government designated Authority prior to the commencement ofwork.

3. Also included with the RFQ was a Statement ofWork (SOW), Section A of which gave a more detailed description ofthe work to be performed (R4, tab 2 at 4). Section D, paragraph 1, Accident Prevention Plan, ofthe SOWprovided in part as follows: The Contractor shall prepare an Accident Prevention Plan (APP) specific to the activities beingperformed. It shall include an Activity HazardAnalysis (AHA) as described in Paragraph "2. AHA" below. All work shall be conducted in accordance withthe APP, the U.S. Army Corps ofEngineers Safety and Health requirements Manual (EM 385-1-1, 2014 edition), and all applicable Federal, State, and local safety and health requirements. A copy ofEM 385-1-1 canbe accessed electronically using the following link: http://www.publications.usace.army.mil/Portals/76/Publica tions/EngineerManuals/EM _ 385-1-1.pdf The APP shall detail how safety andhealth will be managed during the project. The APP shall address the requirements ofapplicable Federal, State and local safety and health laws, rules, and regulations. The Contractor shall comply with Federal Acquisition Regulation Clause No. 52.236-13 for AccidentPrevention, which is added by reference. Special attention shall focus on the

2requirements ofEM 385-1-1, specifically Section O l .A.11 through 01.A.18, Figure 1-2 AHA, and AppendixA (Minimum Basic Outline for Accident Prevention Plan). The APP shall be developed by a qualifiedperson. The Contractor shall be responsible for documenting the qualified person's credentials. Work shall not proceed until the APP has been reviewed by the Government Designated Authority (GDA) and deemed acceptable for use on the project. (R4, tab 2 at 12) 4. Section D, paragraph 4 ofthe SOW, Site Safety and Health Officer (SSHO) required the contractorto designate one person as SSHO, whose qualifications were to include: A. A minimum offive years ofexperience in implementing safety and healthprograms at similar projects; B. Documented experience in personal protective equipment; C. Working knowledge ofconstruction safety procedures as well as Federal and state occupational safety and health regulations. D. Completion ofthe 30-hour OSHA Construction Safety class or as an equivalent, 30 hours offormal construction safety andhealth training covering the subjects ofthe 30- hour course. (R4, tab 2 at 13) 5. Section E ofthe SOW, General and Administrative Submittals Required, called for the successful contractorto submit for approval an initial Project Schedule within five days afterreceipt ofnotice to proceed (NTP), the AccidentPrevention Plan to include an AHA for each majorphase ofwork, documentation ofSSHO qualifications, and make several other submittals (R4, tab 2 at 13-14). 6. Performance ofthe contract was to be completedwithin 120 days after issuance ofthe NTP (R4, tab 2 at 35). 7. Molly Jessie Company (appellant or MJC) submitted a quotation on January 18, 2019, to performthe work setforth in the RFQ including the SOW. The amount ofthe quote was $34,000 firm-fixed price. (R4, tab 3 at 1-2) The government

3(by Jennifer Samela) advised MJC that it was the apparent low bidder on January 22, 2019 and asked ifit was going to perform the work itselforuse a subcontractor (R4, tab 4 at 2). Mr. Ryan, MJC's facility Manager, responded that it would do the work itself. In reply, on January 24, 2019, Ms. Samela asked "[a]re you familiar with the US Army Corps ofEngineers safety submittals?" Mr. Ryan replied on the same date:

(Id. at 1-2) I will review the Safety related submittals in general to report backto you ifI have concerns or not and any unfamiliarity that I may encounter after I breeze through the folder again for assurance/insurance purposes to respond backto your request.

8. OnJanuary 28, 2019, Mr. Ryan further replied:

(Id. at 1) I have reviewed ourplans again, and you refer to the requirements ofEM-385-1-1 in general on page 12 of section 1accident preventionplan. This U.S. Army Corps ofEngineers Safety and Health Manual is what we currently use and provide toe [sic] other agencies in the government contracting requirements and submissions currently and I see no deviation as referred to your statement ofwork body oflanguage provided.

9. OnFebruary 19, 2019, Ms. Samelatransmitted the Purchase Orderto Mr. Ryan, stating that ifhe agreed "totheterms and conditions, he should execute one copy." She further stated that since the "award is below the level for bonding, this email shall serve as yourNotice to Proceed." The terms and conditions included the same SOW as had accompanied the RFQ, includingthe sections discussed above (R4, tab 6 at 1-2). In addition the purchase order incorporated byreference FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) APR 1984 (R4, tab 5 at 43). Mr. Ryan signed the order onFebruary 26, 2019 (R4, tab 5 at 1). Ms. Samela confirmedto Mr. Ryan on February 27, 2019 that the "period ofperformance [was] until 19 June 2019" (R4, tab 8 at 1), which was 120 days after receipt ofthe NTP. 10. OnMay 2, 2019, the Contracting Officers Representative (COR), Mr. Wayne Chmielewski, sent a letter ofconcern to MJC regarding a lack ofprogress in submitting an acceptable site-specific Accident Prevention Plan (APP) and an Initial Project Schedule. Apparently anAPP was submitted on March 4, 2019 but it did not include the qualifications ofan SSHO who met contractrequirements. Further, the

4SSHO was required to have completedthe 30-hour OSHA Construction Safety Class and no evidence ofthat was included. Appellant was also advised that certificates were required for two employees to be first-aid and CPR qualified in accordance with EM-385-1-1. (R4, tab 27) 11. In a lengthy response on May 3, 2019, Mr. Ryan did not dispute that the information sought in the COR's letter ofconcern was required by the contract nor did he dispute that it had not been provided. His concern was the time and cost ofthe paperworkrequired that he thought was excessive for a contract ofthat size as suggested by the final sentence in his response: Atthis time here I have asked the office to notput further cost and expense, effort or anything related to the project as you have exhausted the funding that was initially planned for the entire project and we haven't even started yet, due to your demands that go unsupported for this type ofproject and size. (R4, tab 29 at 1-2) 12. OnMay 14, 2019, the contracting officer issued a cure notice advising appellant that its lack ofresponse to the Corp's request for required submittals was endangering performance and that ifit did not comply by curing the deficiencies within ten days ofreceipt ofthe cure notice, the contract mightresult in a termination for defaultpursuantto contract clause 52.249-10, Default (Fixed-Price Construction). (R4, tab 30 at 2) 13. MJC replied that same day suggesting that it met the requirements without providing the necessary paperworkto substantiate it. Italso continued to question the motives ofthe Corps, stating: We do not comprehend all ofthe major requirements for documentation over and above otherjobs ofthis magnitude. Itappears to be discrimination and we certainly hope it isn'trelated to our ethnic background. (R4, tab 31 at 3) 14. The Corps replied on May 29, 2019 disputing eachpoint made by appellant and advising that unless the deficiencies were cured within five extended days, the contract might be terminated for default (R4, tab 32 at 1-2).

515. A show cause notice was issued bythe Corps to appellant on June 11, 2019, stating that it was considering terminating the contract for default, butbefore doing so, it was giving MJC an opportunity to make a submission, in writing, with supporting documentation, detailing why the default was "due to causes beyond its control and without its fault ornegligence, andwhich MJC believed excused its failure to performthe contract." (R4, tab 33 at 1-2) 16. Appellant replied, again not disputing the particulars ofthe missedproper submissions but offering the excuse that the paperworkrequirements exceeded what should have been required for a contract ofthis size (R4, tab 34). The government found no merit in the arguments presented in MJC's response to the show cause notice and advised that it wasproceeding to terminate the purchase order for default (R4, tab 35 ~t 1), which it didby contracting officer's final decision on June 25, 2019, stating that no workhad beenperformed since award ofthe purchase order on February 19, 2019 and that appellant failed to cure the deficiencies outlined in the cure notice (R4, tab 39). 17. The final decision was timely appealed to the Armed Services Board of Contract Appeals and was docketed on July 26, 2019 as ASBCANo. 62140. DECISION The legal standards for a defaulttermination are well established. Under the default clause in this contract, FAR 52.249-10 DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984), the government may terminate the contract for default when the contractor, without excuse, fails to diligently prosecute the work or fails to complete the work within the time prescribed by the contract. The government bears the burden to prove that its termination wasjustified. Lisbon Contractors, Inc. v. UnitedStates, 828 F.2d 759, 764-65 (Fed. Cir. 1987). Ifthe government establishes a prima facie casejustifyingthe termination, the burden shifts to the contractorto prove the default was excusable. Truck/a Services, Inc., ASBCANo. 57564, 17-1 BCA 

## ,r 36,638 at 178,445 (citingADTConstr. Grp., Inc., ASBCANo. 55358, 13 BCA 

## ,r 35,307 at 173,312). The contracting officerterminated the contract for default on June 25, 2019, six days beyond the contract completion date and no onsite work had been accomplished and thus the government has carried its burden to establish aprima facie case (findings 10, 12, 14-15). The burden thus shifts to MJC to demonstrate that its default was excusable (findings 11, 13, 16). Appellanthas failed to meet its burden. It continues to assert in its briefand in its reply that the requirements insisted upon by the government were requirements that should have applied to larger contracts, yet it offers no evidence ofthat. The requirements the government insisted upon were in the SOW issued with the Request for Quotations and were similarly in the SOWwhich

6became part ofthis purchase order contract. It cannot now complain about their inclusion and seekto avoid the consequences offailing to follow them. The time to complain aboutthe paperworkrequirements was priorto submission ofits bid, not now afterthe governmenthas insisted upon strict compliance. Appellanthas failed to demonstrate that its default was excusable. 

### ADTConstr. Grp., 13 BCA

## ,r 35,307 at 173,312 (citing

### Empire EnergyMgmt. Servs., Inc., ASBCANo. 46741, 03-1 BCA 

## ,r 32,079 at 158,553). Thus, the default termination was appropriate.

The appeal is denied. Dated: February 12, 2020

I concur

J.~ Administrative Judge Vice Chairman Armed Services Board ofContractAppeals CONCLUSION

7 RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

### I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 62140, Appeal ofMolly Jessie Company, rendered in conformance with the Board's Charter. Dated:

8 

### PAULLA K. GATES-LEWIS Recorder, Armed Services Board ofContract Appeals