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The contractor sought costs incurred from complying with changes in security access to the worksite. The government argued the changes were a Sovereign Act. The contractor argued the changes weren’t a Sovereign Act because they only impacted contractors. The board sided with the government. The changes may have only impacted contractors, but they were general, public acts unrelated to the contract.
Appeals of GEMS Environmental Management Services, ASBCA Nos. 61737 et al.
- Claims – The Army Corps of Engineers awarded the contractor a task order to design and build a maintenance shop. The contractor submitted various claims, alleging changes and delays. The agency denied. The contractor appealed to ASBCA. Both parties moved for summary judgment.
- Driveway – The contractor submitted a claim for the costs of designing and building a driveway. The contractor contended the contract didn’t require a driveway. The Corps said it did. The board sided with the Corps. The specifications stated a driveway “shall be provided.” The board, however, found issues of fact precluded it from determining whether the contractor was entitled to additional costs for design and construction of the driveway.
- Security Access – The contractor claimed it incurred $60,000 in costs due to changes in security access to the worksite. The contractor alleged that complying with the changes burdened its employees The agency claimed the security changes were a Sovereign Act, which is a defense against an alleged breach. The contractor argued that a Sovereign Act must be a public and general act. Here, the contractor contended, the access changes only impacted contractors. The board, however, reasoned that application of the Sovereign Acts doctrine does not turn on how many contractors were impacted. Rather, the question is whether the act aims to relieve the government of its contractual duties. In this case, the security changes were related to a government function and not to the Corps’ benefit as a contracting party.
- Proposal Costs – At some point during performance, the Corps asked the contractor to prepare an RFP for installing a weed geofabric. The contractor prepared the RFP, but the government decided the contract required the work, so an RFP was unnecessary. The contractor sought to recover costs incurred in preparing the RFP. The board noted the costs for preparing an unadopted proposal are not recoverable unless they are extensive and exceed the parties’ expectations. Here, the board found nothing about the requested RFP was particularly onerous. Indeed, the board intimated the contractor may have blown this out of proportion by requesting $164,000 for an $18,000 proposal.
Casey J. McKinnon of Cohen Seglias Pallas Greenhall & Furman PC represents the contractor. The government is represented by Michael P. Goodman, Alfred L. Faustino, Kevin A. Cullen, Colby K. Steward, Amanda R. Fuller, and Shuyler Lystad of the Army Corps of Engineers.
–Case summary by Craig LaChance, Editor in Chief
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