Environmental Safety Consultants, Inc., A.S.B.C.A. (2014)
Environmental Safety Consultants, Inc., A.S.B.C.A. (2014)
Environmental Safety Consultants, Inc., A.S.B.C.A. (2014)
)
)
)
)
)
All Rule 4 citations refer to the Rule 4 filed in ASBCA No. 51722.
Invoice No. 7 for a total progress payment of $138,506.50 was returned to ESCI
unpaid by the contracting officer in June 1997 on the ground that it contained
an "invalid" certification. ESCI did not thereafter submit a timely CDA claim
for payment of the invoice. See Environmental Safety Consultants, Inc.,
ASBCA No. 58847, 14-1BCAii35,510, and ASBCA No. 54615, 07-1 BCA
ii 33,483 at 165,984.
3
item for ''the entire work, complete in accordance with the drawings and
specifications, but excluding work described in Bid Items OOOlB, OOOlC, OOOlD,
OOOlE and OOOlF." As of the date the contract was terminated (12 June 1998), Bid
Item OOOlA had not been completed. The work items in Table 1 ofESCI's motion
were part of the Bid Item OOOlA work, but none of those items were separately priced
in the contract Schedule. (R4, tab 1 at 16, 29-30)
7. The progress payment estimates for the work items in Invoice No. 7 and in
Table 1 ofESCI's motion are not based on the actual incurred costs of performing the
work item. They are based on portions of the Bid Item price assigned to the work item
by the contractor after award of the contract pursuant to paragraph (b) of the
FAR 52.232-5, PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS
(APR 1989) clause of the contract. (R4, tab 1 at 68, 70) Paragraph (b) states in
pertinent part:
The Government shall make progress payments monthly as
the work proceeds, or at more frequent intervals as
determined by the Contracting Officer, on estimates of
work accomplished .... The Contractor shall furnish a
breakdown of the total contract price showing the amount
included therein for each principal category of the work,
which shall substantiate the payment amount requested in
order to provide a basis for determining progress
payments.
(R4, tab 1 at 70)
8. Progress payments under paragraph (b) are not final payments accepting the
work for which they are paid. The FAR 52.232-27, PROMPT PAYMENT FOR
CONSTRUCTION CONTRACTS (MAR 1994) clause of Contract 2399 makes a clear
distinction in this regard between progress payments and final payments as follows:
Notwithstanding any other payment terms in this
contract, the Government will make invoice payments and
contract financing payments under the terms and
conditions specified in this clause ....
(a) Invoice Payments. (1) For purposes of this
clause, there are several types of invoice payments which
may occur under this contract, as follows:
(i) Progress payments, if provided for elsewhere in
this contract, based on Contracting Officer approval of the
4
I
estimated amount and value of work or services performed,
including payments for reaching milestones in any project:
$199,301.00
$199, 192.00
We also find no basis in the Termination for Convenience clause for including
the agreed increased price of $199,301 in Modification No. P00006 for changes and
delays in the work, as an incurred cost of the terminated work. The agreed price in
bilateral Modification No. P00006 of $199,301 for government-responsible changes
and delays in the work was offset in the same modification by an agreed amount of
$199, 192 for price credits due the government for deleted items of work. The net
increase in price agreed by the parties in Modification No. P00006 was $109 (see SOF
ir 10). However, the increased price of $109 is no proof by itself of the amount of any
cost incurred by ESCI.
The motion for partial summary judgment is denied.
Dated: 13 August 2014
I concur
~#
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
Administrative Judge
Acting 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. 58343, Appeal of
Environmental Safety Consultants, Inc., rendered in conformance with the Board's
Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals