Appeal contesting government’s assessment of liquidated damages is denied. The government assessed liquidated damages because completion of the contract was delayed. The contractor alleged the delay was excusable because it was caused by the government’s rejection of the company’s painting plan and over-inspection of work. ASBCA found that the government had not caused the delay. The government rightly rejected the contractor’s painting plan because it contravened the statement of work. Also, the contractor could not prove that the alleged over-inspection affected the critical path and thus caused the delay in overall contract completion.
Ken Laster Company had a task order with the Army Corps of Engineers to repair service gates and conduits at Pine Creek Lake and Tenkillers Lake in Oklahoma. Ken Laster completed the contract 289 days late. The Corps assessed liquidated damages for the delay. Ken Laster appealed to the ASBCA, alleging that its delay was excusable.
To show an excusable delay, a contractor must demonstrate that the delay resulted from unforeseeable causes beyond the control and without the fault of the contractor. The board determined that Ken Laster could not satisfy this burden.
Ken Laster contended that part of the delay was caused by the Corps’ rejection of the company’s plan to remove gates from Tenkillers Lake and paint them offsite. Ken Laster intimated that this decision was capricious because the Corps had not rejected the company’s plan to paint the Pine Creek Lade gates offsite. The board, however, noted that the statement of work allowed the Pine Creek gates to be painted offsite. But the SOW required that the Tenkillers gates had to be painted on-site. Given this, it was foreseeable that the government would reject Ken Laster’s plan to paint the Tenkillers gates off-site. Ken Laster could not prove the rejection of its plan caused excusable delay.
Ken Laster also contended that the Corps caused delay by requiring Ken Laster to over-inspect roller chains. The problem, however, was not that the government required over-inspection of the chains but rather that Ken Laster had not obtained an inspection from a government certified testing facility as required by the task order. Even assuming that the government had required inspections not called for in the task order, Ken Laster had not shown that the over-inspection affected the critical path and delayed overall completion of the contract.
Ken Laster is represented by Maria A. Luckert and Cody A. Reese of Barber & Bartz. The government is represented by Michael P. Goodman and Jennifer A. Aranda of the Army Corps of Engineers.
ASBCA - Ken Laster Company