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Published on April 5, 2023 • Law

Contractor Said Agency Breached by Accelerating Pace and Sequence of Delivery Orders. Why Didn’t ASBCA Bite?

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The contractor claimed the government constructively changed an IDIQ contract by accelerating performance through the issuance of delivery orders. The ASBCA denied the appeal. The contractor’s argument was based on a faulty premise. The contractor wrongly assumed a master schedule included with the contract prescribed a baseline schedule for delivery orders. But that schedule was merely a tool to track work, which the contractor was supposed to update during performance. The schedule did not set forth a definitive pace or sequence for delivery orders.

Appeal of Vigor Works, LLC, ASCBCA No. 62607

Background

Vigor Works had an IDIQ contract with U.S. Special Operations Command for design and development of a combat boat. The contract included an Integrated Program Master Schedule for planning and scheduling work. The contract obligated Vigor to update that master schedule during performance.

The government issued seven delivery orders under the contract. Vigor didn’t like the sequence of pace of delivery orders.. Vigor submitted a claim, alleging it had incurred costs due the changes in the sequence of delivery orders. The government denied the claim. Vigor appealed to the ASBCA

Analysis

Vigor contended the government had constructively changed the contract by accelerating the production and pace of performance through delivery orders. Vigor maintained the master schedule included with the contract represented the baseline schedule for delivery orders. But the government had deviated from this schedule, forcing Vigor to incur costs.

But the board found Vigor’s argument was premised on a fallacy—namely, that the master schedule set a baseline schedule. Alas, the master schedule was simply a tool used to reflect scheduling and planning. Vigor acknowledged in its proposal that it would have to update the master schedule. Indeed, the contract contemplated multiple versions of the schedule over time. The master schedule was not set in stone. Indeed, Vigor had updated the schedule several times during performance.

Vigor is represented by Mark G. Jackson and Stowell B. Holcomb of Jackson Holcomb LLP. The government is presented by Caryl A. Potter, III and Major Danelle McGinnis.

--Case summary by Craig LaChance, Senior Editor

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