Family Entertainment Services, Inc.
ASBCA No. 61157
| A.S.B.C.A. | Oct 24, 2017Background
- The Army awarded FES a firm-fixed-price grounds maintenance contract (3,897 acres) at Fort Campbell (Contract W91248-15-D-0008; Task Order No. 0001) with performance cycles described in the PWS and pricing tied to per-acre/mowing-cycle rates.
- The contract incorporated FAR 52.212-4 and FAR 2.101, which defines "day" as "calendar day" unless otherwise specified. The PWS referenced various time periods (some explicitly "calendar days," some just "days").
- Schedules for Level II/III/IV mowing cycles contemplated 14-day cycles in the task order; FES fell behind on cycles 1–3 and the government documented deficiencies via the contract inspection forms and DD Form 2772s.
- Government allowed multiple extensions (and in some instances additional days) but ultimately found large acreages uncompleted in Cycles 1–3, computed per-acre deductions, and withheld/deducted $81,692.34.
- FES submitted a claim challenging (1) that "day" should mean "work day" (not calendar day) and (2) that the government improperly inspected and over-deducted; FES later raised weather delay arguments to the Board but had not presented them to the CO.
- The CO denied the claim; FES appealed to the ASBCA. The Board denied the appeal in full (Oct. 24, 2017).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the term "day" in the contract means "work day" or "calendar day" | FES: "day" should be read as "work day" based on PWS context (work hours/"work day" definition) | Army: FAR 2.101 (incorporated) defines "day" as calendar day unless specified; contract uses plain "day" in many places | Held: "Day" means calendar day as incorporated by FAR; no ambiguity; government even granted extensions exceeding what "work days" would have provided, yet FES still failed to perform. |
| Whether inspections and deductions for unperformed work (per Technical Exhibit 1 and inspection worksheets) were improper/overstated | FES: inspections/exhibit errors and misapplication of the 95% AQL threshold led to excessive deductions | Army: Inspections were authorized by contract (FAR clause, Technical Exhibits, sample worksheet); government documented deficiencies, calculated acres not completed and applied per-acre prices from FES’s pricing | Held: Inspections and deductions were proper; exhibit paragraph-number errors were administrative and did not negate the clear inspection regime; government was reasonable and conservative in deductions. |
| Whether weather delays justified additional time/relief (claim exhaustion/jurisdiction) | FES (raised later): government failed to grant sufficient weather-related extensions, contributing to nonperformance | Army: Weather argument was not raised to the contracting officer in the claim | Held: Weather-delay theory not considered—FES failed to present it to the CO, so Board lacks jurisdiction on that issue. |
Key Cases Cited
- Mortenson v. Brownlee, 363 F.3d 1203 (Fed. Cir. 2004) (start with plain contract language in interpretation).
- LAI Servs., Inc. v. Gates, 573 F.3d 1306 (Fed. Cir. 2009) (ambiguity exists when language reasonably supports more than one reading).
- NVT Techs., Inc. v. United States, 370 F.3d 1153 (Fed. Cir. 2004) (contract interpretations must fall within a zone of reasonableness).
- Metric Constructors, Inc. v. NASA, 169 F.3d 747 (Fed. Cir. 1999) (parties’ differing interpretations alone do not create ambiguity).
- Hercules, Inc. v. United States, 292 F.3d 1378 (Fed. Cir. 2002) (construe contract to give reasonable meaning to all parts).
- Gould, Inc. v. United States, 935 F.2d 1271 (Fed. Cir. 1991) (use plain language analysis).
- Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586 (Fed. Cir. 1987) (claim to CO must give adequate notice of basis and amount; exhaustion requirement for board jurisdiction).