ACC Construction Co., Inc.

Material Facts

• The U.S. Army Engineer District, Louisville awarded ACC a construction contract for facilities at Fort A.P. Hill, Virginia.
• The contract included FAR 52.233-1, FAR 52.243-4, FAR 52.249-10, FAR 52.211-12, FAR 52.232-5, and FAR 52.232-27.
• The contract required liquidated damages of $1,670 for each calendar day of delay until the work was completed or accepted.
• ACC reported COVID-19 impacts to the project, and the government issued modifications addressing portions of the COVID-related delays.
• The October 8, 2020 bilateral modification extended the completion date by 20 days and released the government from liability attributable to the covered facts or circumstances.
• ACC did not agree to unilateral Modification No. A00013, which extended the period of performance by two days for a stated COVID-19 delay period.
• Payment estimates deducted incremental liquidated damages from multiple invoices, but the estimates were issued on the same standard form as routine payment estimates.
• Mr. Cory Pugh signed several payment estimates but was the COR and was explicitly barred from obligating government payment or taking action that may affect contract funds.
• ACO Michael Roach was delegated authority to perform administrative functions under FAR 42.302 and was authorized under 41 U.S.C. § 7103(a) to issue contracting officer decisions assessing liquidated damages.
• ACC declined to execute the requested final-payment documentation and release because of unresolved DEQ, COVID-delay, modification, and liquidated-damages issues.
• The government paid ACC the remaining $100 one week after declaring the work completed and accepted, without ACC requesting that payment or executing a release.
• ACC's certified claim alleged COVID impacts, government refusal to timely address resulting delays, changes or constructive changes, breach concerning substantial completion, and breach of the implied duty of good faith and fair dealing.

Parties

Appellant

ACC Construction Co., Inc.

Respondent Agency

U.S. Army Corps of Engineers

Contracting Agency

U.S. Army Engineer District, Louisville

Contract Number

W912QR-17-C-0021