The contract included FAR 52.233-3, which states an agency can stop performance if the award is protested. The agency directed the contractor to stop performance due to a protest. When the protest resolved, the contractor sought to recover cost impacts and delays caused by the stop-work order. The agency argued the contractor failed to state a claim, because the agency never issued a stop-work order under FAR 52.233-3; rather, it had merely suspended performance under a different clause. The board rejected this argument, finding the government was playing linguistic games and ignoring reality.
Appeals of Flatiron/Dragados/Sukut Joint Venture, ASBCA Nos. 63019, 63020
Background
The Army Corps of Engineers awarded a contract to Flatiron/Dragados/Sukut Joint Venture (FDS) for dam modification. The contract incorporated FAR 52.233-3. That provision provides upon receipt of a protest, the contracting officer can, by written order, direct the contractor to stop performance. The provision further provides, the “order shall be specifically identified as a stop-work order. . . . “ The FAR provision allows an adjustment for the contractor to recover cost-impacts caused by the pause in performance.
A disappointed bidder filed a protest challenging the award to FDS. The Corps directed FDS to stop performing. The order did not state it had been issued under FAR 52.233-3. A few months later, the protest resolved, and the Corps issued a notice to proceed.
FDS submitted claims alleging that under FAR 52.233-3, it was entitled to recover cost impacts and delays caused by the protest. The Corps denied the claims. FDS appealed to the ASBCA. The Corps moved to dismiss for failure to state a claim.
Analysis
The Corps argued FDS’s case was premised on FAR 52.233-3. That provision, however, only refers to stop-work orders. In this case, the Corps didn’t issue a formal stop-work order under FAR 52.233-3. Rather, the government argued, it had suspended work under the contract’s suspension of work clause. Because FDS’s claim relied solely on FAR 52.233-3, the company failed to state a cognizable claim.
The board found the Corps’ argument meritless. FDS had consistently asserted that FAR 52.233-3, the Protest After Award clause, provided authority for its claim. The Corps was correct that the clause requires any suspension be identified as a stop-work order. Here, the order may not have been designated as stop-work order under FAR 52.233-3. But the reality was that both FDS and the contracting officer treated the suspension as having been made under FAR 52.233-3. The board refused to choose form over substance.
FDS is represented by Michael A. Branca, Patrick J. Greene, Jr., and Nick R. Hoogstraten of Pecker & Abramson, P.C. The government is represented by Michael P. Goodman, Colby K. Stewart, Amanda R. Fuller, Alfred L. Faustino, Timothy A. Holiday, Schuyler Lystad, and Robert W. Schart of the Army Corps of Engineers.
–Case summary by Craig LaChance, Senior Editor
