Contrack International, Inc.
ASBCA No. 59917
| A.S.B.C.A. | Oct 19, 2016Background
- Contract awarded to Contrack International for design/construction at ANA facility in Zabul, Afghanistan; performance period 540 days and incorporation of FAR 52.236-3 (Site Investigation).
- Project site contained a visible "boneyard" of 200–300 ANA-owned inoperable vehicles and other obstructions that were apparent during a pre-award site visit.
- Contrack experienced a 52-day delay because the ANA vehicles occupied part of the work area; the contracting officer granted 52 days of time extension but no monetary relief.
- Contrack submitted a certified claim seeking $2,148,314.68 (primarily extended job-site overhead). It alleges the government failed to move or adequately facilitate moving the vehicles and breached duties (cooperate/not hinder) and impliedly warranted site access.
- Government admits responsibility to facilitate/coordinate movement but contends the ANA (a third party/foreign sovereign) controlled the site, had the final say, and caused the delay; government also disputes having authority, equipment, or manpower to remove vehicles and disputes that it failed to make appropriate facilitation efforts.
- Board denied Contrack's summary judgment motion, concluding genuine disputes of material fact exist about government facilitation and, as a matter of law, the government is not liable on an implied-warranty theory for third-party/foreign-government delays absent unmistakable contract language shifting that risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether gov't breached duty to cooperate/not hinder by failing to relocate ANA vehicles | Contrack: USACE had responsibility and failed to facilitate/move vehicles causing compensable delay | Gov't: ANA (third party/foreign sovereign) controlled vehicles; USACE lacked authority/manpower; any facilitation efforts were made; factual dispute exists | Denied summary judgment—material factual disputes about facilitation; to be resolved at hearing |
| Whether gov't impliedly warranted access (i.e., guaranteed removal of ANA vehicles) | Contrack: contract language and coordination clause imply gov't warranted site access and should bear risk/costs | Gov't: no express/unmistakable warranty; Site Investigation clause places duty on contractor to ascertain conditions; visible obstruction at site visit put Contrack on notice | Denied as matter of law—no unmistakable warranty; third-party delay risk remains with contractor absent explicit contract language |
| Whether gov't is liable for damages from third-party/foreign sovereign delay | Contrack: seeks monetary compensation (extended overhead, etc.) for delay caused by ANA | Gov't: delays caused by ANA (foreign sovereign) are not gov't responsibility; precedents bar recovery absent fault or express warranty | Denied summary judgment—applicable law disfavors contractor recovery for third-party/foreign sovereign delays without express contractual allocation of risk; facts to be litigated further |
Key Cases Cited
- Gilbane Bldg. Co. v. United States, 333 F.2d 867 (Ct. Cl. 1964) (government promise that site would be ready does not create warranty to guarantee third-party performance absent express language)
- D&L Constr. Co. v. United States, 402 F.2d 990 (Ct. Cl. 1968) (contract and CO letter warranted availability of existing streets—distinguished on facts)
- Kolar, Inc. v. United States, 650 F.2d 256 (Ct. Cl. 1981) (elements for establishing government assurance that relieves contractor of duty to investigate)
- Oman-Fischbach Int'l (JV) v. Pirie, 276 F.3d 1380 (Fed. Cir. 2002) (contractor bears responsibility to ascertain site conditions; no liability for third-party acts absent express or unqualified warranty)
- Blinderman Constr. Co. v. United States, 695 F.2d 552 (Fed. Cir. 1982) (government had implied obligation to provide access to its apartments after contractor complied with notice requirements; inapplicable to third-party delays)