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Contractor Entitled To 43 Days Extension Despite' Accord& Satisfaction' Release Language

Monday, September 03, 2012 05:53 am



Appeal of: Hedgecock Electric, Inc., 2012 ASBCA No. 56307 Lexis 49 (June 20, 2012)

The government can't postpone negotiations for extra time and money until the end of the contract--and then claim the contractor has nothing left to negotiate.

The U.S. Navy contracted with Hedgecock Electric, Inc. (HECI) to construct and repair an airfield taxiway and edgelights at the Naval Air Station in Jacksonville, Florida. HECI completed the project 77 days late and claimed that the full delay was government-caused. It sought extra time, $51,000 in field overhead, and a reversal of the liquidated damages (61 days; $100,000) assessed against it. The Navy granted HECI a four-day time extension but nothing more. Before the Armed Services Board of Contract Appeals, the Navy argued that accord and satisfaction barred HECI's claims.

To refute the liquidated damages, HECI needed to show that the government caused the delay, at least in part, and that the delay impacted the overall project completion. See KEMRON Environmental Services Corp., ASBCA No. 51536, 2000-1 BCA P 30,664 at 151,400 and States Roofing Corp., ASBCA No. 54860 et al., 2010-1 BCA P 34,356 at 169,661.

However, the Board could not accept HECI's work schedule as credible evidence. HECI hadn't updated it regularly through the project, and the schedule didn't identify the alleged delays. (The first time HECI submitted impact analysis was late in its contract performance.) Plus, HECI's own project superintendent testified that there wasn't necessarily a correlation between the actual work performed and the work shown on the schedules. As for the Navy, it too had erred in refusing to timely address time impacts to the schedule throughout the project. It continually postponed discussions of time to the end of the contract. Thus, the Board base [...]

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