Request for reconsideration of the amount of recovery in a successful appeal is granted, where the board concluded the appellant had demonstrated that certain invoice costs were segregated and supported in the original record.
TranLogistics LLC asked the Armed Services Board of Contract Appeals to reconsider its decision granting its appeal but awarding only a portion of the damages sought.
Previously, the board found that the government acted as though it were responsible for providing the contractor with certain customs documents, even though the contract language said otherwise. However, the board also concluded that some delays were excusable but not compensable, or were compensable but the appellant failed to itemize its costs.
The board did not award payment of invoice 1368 because the appellant had not segregated the time and cost of the claimed delay. Although TranLogistics argued the cost does not need to be segregated, it insisted the decision is incorrect because demurrage was separately identified in its subcontractor’s invoice.
On reconsideration, the board agreed that proof of the time and cost of demurrage was sufficiently established. In its invoice, the subcontractor calculated the period of delay for which it charged demurrage. In addition to the subcontractor’s invoice, TranLogistics explained that it informed the Marines that demurrage charges for Guatemala started at 9:40 AM on September 28, 2017, and for Belize at 9:40 AM on the following day. Support for that description can be found in the record.
TranLogistics claimed that the Marines were informed that invoice 1368 represents demurrage charges, TranLogistics’ related expenses, and 12 percent profit. The appellant claimed this calculation was in line with amounts the government had previously found to be reasonable. However, the board found the appellant had not explained its pricing methodology or provided evidence that the government had accepted a 12 percent profit.
However, the board the concluded that the base amount of the invoice could be recovered, as it requested reasonable payment for costs incurred from government delay, if not a precise calculation of TranLogistics’ profit and expenses. The board awarded the full amount of the invoice, plus interest, in addition to the original recovery.
TranLogistics LLC is represented by Hopewell H. Darneille III of Jackson Kelly PLLC. The government is represented by Craig D. Jensen, Navy Chief Trial Attorney, and Major John E. Buis, USMC, Associate Counsel.
